Volume 3 — Louisiana Reports

The plaintiff claims four hundred dollars for building a sugar house, constructing cisterns, coolers, &c. for defendant; and also one hundred and fourteen dollars for work and labor done for the defendant.

This suit is brought to obtain the partition of a tract of land, held in common by the plaintiff and defendants. The plaintiff claims one-sixth of the whole tract of a league square, situated on the Vermilion River, in the parish of Lafayette. The defendant, Reeves, set up title to the whole tract, and resists the plaintiff’s claim to any portion of it.

APPEAL FRO-M THE COURT OF THE FIFTH DISTRICT', TIIE’TíjDGE OF THE SEVENTH PRESIDING. ■ The police jury of the parish of St. Martin, on the 15th of August, 1827, passed, an inspection law, requiring a tax of six cents, to be paid to the inspector, on each head of cattle,” &c. “intended to be taken out of the parish of St.' Maritn, to be sold on the Mississippi,” &c. An inspector of droves of cattle, &c. to be appointed annually. . ' > y Under this authority the plaintiff was…

Joseph A. Lacy sued out an attachment against David Kenley, on an affidavit that the latter had permanently left the state, never to return. The attachment issued February 2d, 1830, for the sum of eight hundred and sixty-two dollars, which was executed the same day, by attaching nine hogsheads of sugar. The petition was not filed in court, until the 15 th of April, following. On the twelfth of April, the court appointed an attorney to represent the absent defendant.

This su^ *3 brought by the heirs of a donor of property, to recover it back from the heir of the donee, on the ground of defect in the inheritance. On the sixth day of January, 1826, Magdelaine Prejean made a donation inter vivos of all her property to her six children. One of them, Adelaide, then a minor, afterwards married Ursin Le Blanc, the defendant.

Alexandré Dugat and Joseph E. Dugat, were sued on their joint obligation, and judgment obtained, which, with interest and costs, amounted to six hundred and thirty-six dollars and seventy-eight cents. Execution issued, and was levied on some houses and lots, the joint property of both, but in the possession of Joseph E. Dugat, the principal debtor.

On the 23d of December, 1829, Antoine Petit presented his petition and schedule, and prayed for the benefit of the insolvent laws. Fouillade and Estorge were placed on the Ulan as special mortgage creditors, for four hundred and twenty-eight dollars, and Nathaniel Ofiutt, as a judgment creditor, for five hundred and forty-two dollars and sixty-five cents, with a general mortgage from 21st of December, 1829.

This suit is instituted to have a mortgage, which had been retained on a tract of land and improvements sold to the plaintiff, cancelled, on the ground of complete payment of the price having been made.

The plaintiff alleges she is the daughter and heir at law of one Frances Smith, formerly widow of John B. Taylor, and late wife of the defendant. That at the death of her father, about fifty-three years ago, her mother married Gilbert Swett, in the state of South Carolina. The parties removed to Louisiana about twenty-five years ago, and settled in the parish of St. Landry. The mother of the plaintiff died in 1829.

On the third of November, 1830, Pierre Cyprian Arcena ux, presented his petition and schedule, and prayed for a respite of one, two and three years from his creditors.

The plaintiffs instituted a possessory action in April, 1829, to recover possession of a tract of land, or island of woods called “ Grose Isle,” in the parish of St. Martin, which they allege is in the illegal possession of the defendants. This island, also called “ Isle Labbé,” contains sixty arpents.

This is an action of trespass for cutting timber in a cypress swamp near Nueva Iberia, which the plaintiffs allege includes lands belonging to them; but to which the defendants also set up title. The plaintiffs claim the cypress swamp, or double depth of forty arpents 242 acres, in virtue of an act of Congress, dated May 11th, 1820, ceding the back concessions or double depth to the front proprietors.

This action is brought by the purchaser of a certain security debt, sold at sheriff’s sale, to enforce payment of the defendant, the sole surety of one Stephen Brown.

In this case the appeal was granted by the clerk of the District Court for the parish of Avoyelles. filed exceptions to the insufficiency of the order granting the appeal, and on the trial moved to have it dismissed. opposed the motion.

The administrator of Marmaduke Reeves’s estate, on the sixth of April, 1829, filed his tableau of distribution in the Court of Probates of the Parish of Rapides, and prayed its homologation. J. M. Solibellas claimed to be creditor for the amount Of a note in his favor for six hundred and five dollars, drawn and signed by Reeves in his life time. The administrator refused to pay the note or place it on the tableau, on the ground that it had been paid.

moved to dismiss this case on the ground that the attachment bond was insufficient. The bond executed by the attaching creditor is for five hundred dollars, the sum claimed in the petition. It should exceed it by one-half of the sum claimed. 2.

This suit is brought by the plaintiff to be quietéd in his title to a fraction of a section of land, which he alleges is daimed by the defendant, who has cut and destroyed much of his timber. He prays for damages. The plaintiff daims his title to the land by purchase from the United States, as evidenced by the register’s certificate. He alleges that he has been in possession for ten and fifteen years.

The plaintiff claims two negroes in virtue of an act of sale from Frederick Kimball, dated 15th December, 1823. M. W. Kimball sold to F. Kimball by deed, dated November 11th, 1819, who sold a life estate in the two negroes to Madame Deshautel, on the 10th of December following. The negroes were sequestered in the parish of Avoyelles at the suits of several creditors of Middleton W. Kimball, the original vendor of the plaintiff.

<p>A slave which is paraphernal property belonging to the wife, cannot be sold for the stale and parish taxes assessed against the husband, although the slave in question be included in the assessment.</p> <p>The circumstance of a separation of property between the husband and wife, in which the latter obtained a judgment against her husband for a specific sum in money, does not alter the situation of the paraphernal or extra dotal property of the wife which remained to her in kind.</p> <p>The verdict of the jury will be considered as responding to the issues made by the pleadings, when there is any doubt as to its application, unless it clearly expresses the -contrary.</p>

The plaintiffs allege they shipped with captain Waters, on board the steamboat Dolphin, thirteen bales of cotton, worth six hundred and eleven dollars and sixty cents, and consigned to Lee & Williams in New-Orleans, which the captain has failed to deliver, but has appropriated to his own use. They pray a judgment against the defendant for six hundred and eleven dollars and sixty cents and interest and damages.

Celeste Dranguet with the authorisation of her husband, instituted her suit in July, 1829, to set aside the sale of a tract of land to her by the defendant, on the ground that she had no authority to contract; and to recover a negro woman and certain sums of money given and. received in payment. In the absence of her husband, the defendant seized a tract of land belonging to him and sold it for seven hundred dollars.

submitted the following points on a re-hearing. 1. The court have entirely overlooked the first-- legal position assumed' by the defendant’s counsel, viz. “ That under the Spanish laws there were negatives which were to be proved by the party alleging them ; and this case, was one of them.” 2.

<p>APPEAL FROM THE COURT OF THE SEVENTH DISTRICT, THE JUDGE OF THE DISTRICT PRESIDING.</p> <p>In 1822 Jacob Hart of New-Orleans, sold to Z. Taliaferro a negro woman named Rosanna, for six hundred dollars, who gave a draft on W. & D. Flower, with whom he had a lumber account, in payment. The draft was accepted, and when due paid by the plaintiffs. In 1827, W. & D. Flower got Hart to pass an act of sale to them for the ne'gro woman, which he did; but acknowledged in the act that he made the title to the plaintiffs in consideration of their having paid Z. Taliaferro’s draft; and he delivered the negro woman to them as the agents of Taliaferro. Taliaferro had a running account with the plaintiffs for plank and lumber sold them, and in that account he is charged with the amount of the draft, but no credit given for the negro woman. The defendant showed by parole testimony that he had been in possession of the woman five years.</p> <p>The plaintiffs now sue for her recovery. The defendant had judgment of non-suit against the plaintiffs. The latter appealed.</p> <p>contended the judgment should be reversed.</p>

The plaintiff purchased a tract of land from the defendant, lying in the parish of Rapides, which is stated in the act of sale, dated 28th May, 1829, to contain three hundred and twenty superficial arpens, for five thousand dollars. He now alleges that the tract is short of the quantity sold, forty-five arpens, which is a diminution of more than one-twentieth part of the tract conveyed.

The questions involved in this case are: 1. What authority the public have over the public ferries of the county, and whether, under the act of 25th March, 1813, the police jury have the right to establish and. let them out to the highest bidder. See case of Renthrop et als. vs. Bourg, 4 Marlin and the act of 1813, which are in point and full on this subject.

The plaintiff, as assignee of one Stephen Tippett,, sued the defendant on a note, dated 5th October, 1827, for fifteen bales of cotton, each weighing four hundred pounds, given for one of the instalments of the purchase of a tract of land, on which the vendor’s privilege was retained.

<p>In suing for damages on an injunction bond, it is sufficient to allege damages by the wrongful suing out the injunction, with the bond annexed; and to show that the injunction was either dissolved or abandoned in order to recover the amount of damages the party may prove he has sustained.</p> <p>Tha gist of the action is the wrongful suing out the injunction; and not the court from whence the writ enjoined came, which is merely incidental to it. For no matter from what court, the injury was the same.</p> <p>"When there is no reasonable ground for an appeal, it will be considered as frivolous, and the judgment below affirmed with ten per centum damageu and costs.</p>

On. the 21st of April, 1827, David F. Sacket, of the state' of Indiana, commenced this action for the recovery of four hundred arpens of land, being half of eight hundred arpens, situated on the right bank of Bayou Robert, in the parish ol Rapides, at a place called the Pascagoula or Indian Old Fields. The plaintiff claims under title emanating from the Spanish government., the defendant claims under the same .% ° title.

This is an injunction suit to stay proceedings of the defendant, by order of seizure and sale. Ón the day of May, 1829, Major Thomas sold to the defendant a tract of land in the parish of Rapides, for seventeen hundred and fifty dollars, with ten per centum interest from the first of March, 1828, until paid.

The question involved in this case, relates to the final judgment rendered. The defendant and appellant insists that three judicial days did not intervene between the judgment by default and the final judgment.

<p>ArrEAL FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.</p>

This suit is brought for the recovery of three negroes, which the plaintiff alleges he purchased at sheriff’s sale, but were taken into possession and detained by the defendant, who refuses to deliver them up. He prays for the delivery of the slaves and fifty dollars for then hire. At October term, 1829, the death of the defendant was suggested and the suit revived against C. Mulholland, his executor.

This suit is brought by Apphia Bronaugh, assisted by her! husband, against Mathew J. Bowles, to compel him tol account and pay over as agent and attorney in fact of six! heirs to an estate (her and him both being heirs) the portion! coming to her, which she alleges he refuses to do.

This suit commenced by attachment. The plaintiffs claim a balance of one thousand six hundred dollars, due on the purchase of a tract of land in the parish of Rapides, which was purchased by the defendant at the sale of the succession of William Waters, in 1825. The plaintiff, since the sale, purchased the debt at sheriff’s sale, under two executions against the widow and heirs of Waters’s estate.

The plaintiff, L. B. Compton, instituted his petitory action in the District Court for parish of Rapides, in 1820, to recover from the defendant a part of a tract of land containing one thousand five hundred arpens, lying on Bayou Boeuf at the Biloxi Indian Village, which he alleges is in possession of and claimed by the defendant.

James L, and Richard L. Phillips claim two negroes,'in the possession of the defendant, which they allege belonged to. their father’s succession, and are now their property. The defendant pleads a general denial.

The plaintiff sues for the recovery of six slaves, in the possession of the defendants, which he alleges he purchased and had transferred to him, by Peter B. Martin, by his deed pf assignment and conveyance, dated 11th December, 1826; he states that the defendants have wrongfully taken possession of an¿ prayg judgment to have them delivered up, and fcst sequestered to prevent removal, &c. The defendants plead the general issue; and aver that the conveyance of the slaves in…

<p>An act of partition acknowledged before a notary in another state, and offered as evidence in this, as an exemplification of office books, or as an authentic record, must have the notarial seal affixed, with a certificate of the governor and great seal of state, that the notary is duly commissioned as such, before it is admissible in evidence.</p>

<p>Creditors who have made advances to a planter on the faith of a letter, pledging his crop then growing, cannot claim a privilege on the proceeds of the crop sold by the syndic of the planter and debtor.</p> <p>If the advance made by the creditor has been employed to take up a note of the debtor in bank and secured by a mortgage, he might have insisted on being subrogated to the rights of the bank against the debtor, and in doing so, would have had a mortgage on the debtor’s plantation, but no privilege on the crop growing.</p> <p>There was no antichresis or pledge in this case, but only a promise of payment out of the proceeds of the crop, which the creditor was not authorised to enter upon the land and reap the fruits until he was paid.</p> <p>Property in expectancy may. be the object of a contract of sale, but not of pledge, as the latter requires delivery.</p> <p>The state has no privilege for taxes due it by any of its delinquent debtors.</p> <p>The widow’s claim for sustenance, habitation and mourning dresses on the estate of her deceased husband, is only allowed in cases where the wife brought a dowry, and when she relinquishes the interest arising on it the first year.</p>

In September, 1828, JohnB. Madry instituted' his suit in the District Court for the recovery of a negro man named. Jack, from the defendant. It appears from the evidence that the defendant once owned the negro, but exchanged him in the state of Mississippi with one Robert Dawson, for a slave named Aaron. Dawson being unable to make a complete title to Aaron, Young refused to make an absolute title to Jack.

The plaintiffs sue for the recovery of one thousand five hundred arpents of land on Bayou Bosuf, on which the defendants reside, and which was purchased from the plaintiffs’ ancestor, Levi Wells, as appears by written agreement dated 20th January, 1808, but not recorded until 1815. The agreement was conditional that no title was to be made to the land by the vendor, until complete payment. The price stipulated, was three thousand dollars, payable in three instalments.

On the sixth of July, 1810, Joseph Dupré made his nuncupative will by private signature, appointing Ambroise Lecomte his testamentary executor. In it he bequeathed six thousand four hundred dollars to Jean B. S. Cloutier, his half brother and heir ; and the remainder, consisting of lands, slaves, &c. after paying his debts, he willed to a mulatto woman named Adelaide, and his natural children by her, who are the present plaintiffs.

<p>Where ail appeal is granted, and an order requiring the appellant to give bond, exceeding the judgment by one-half, if to stay execution; or for one hundred dollars, if only to cover costs; and it is taken in the form of a suspensive appeal, but for a sum a little short of that required by the order, the appeal will be retained as a merely devolutory one.</p> <p>An intervening party, has no right to take advantage of the insufficiency of , the pleadings or proceedings in attachment against a defendant. The nullities are relative only, and the defendant alone can urge them.</p> <p>A provisional seizure of property in an attachment suit, subjects it to the payment and satisfaction of whatever judgment the attaching creditor may obtain, in preference to other creditors or claimants.</p> <p>A contract of sale is perfect between the parties by their agreement; but it is necessary there should be a tradition, or delivery of the property, to vest it in the purchaser.</p> <p>The law considers the tradition, or delivery of immoveables as always accompanying the public act, which transfers the property : But if this property is attached by a creditor, it forms a legal obstacle to the delivery: The law does not consider that as done, which cannot be done.</p>

APPEAL PROM TflE COURT OF THE SIXTH DISTRICT, THE JUDGE OF THE FIFTH PRESIDING. In the year 1808, John Cortes, of Natchitoches, ancl Benjamin Morgan, of New-Orleans, commenced business in partnership, which was conducted' in the name of the former, in the town of Natchitoches. In 1819, they dissolved the partnership!

In August, 1828, Isaac Thomas, syndic of the insolvent estate of R. H. McWaters, deceased, filed his tableau of distribution and classification of the debts due by and owing to the estate, and prayed for'its homologation.

The plaintiffs sued the defendant for the recovery of a negro woman, named Sophia, and her increase, which they allege are in the illegal possession of Lamothe. The defendant alleges he has been in long and peaceable possession of the negresse Sophia, for more than twenty years.

The heirs of Duncan and of Williams, who were creditors of the estate of Clark, opposed the plea of prescription to the claim of Durnford, who was also a creditor of the estate. On the trial in the court below the following agreement filed: “ Durnf or d’s Curator vs. Clark’s Estate.

This was an action for slander, in which it was charged, that the defendants had asserted the plaintiff to be a man of color. The defendants answered, that the words were spoken without malice, and in a confidential manner, in reply to certain inquiries which were made of them, respecting the condition of the plaintiff. There was a verdict and judgment for the plaintiff, and the defendants appealed. made two points in the cause. 1.

The vendor of the plaintiff, erected a partition wall, between himself and the defendants’ testator, and this suit was brought to recover half its value. The defendants pleaded the general issue, and set up a claim in reconvention for the value of an old wall which had been demolished. The evidence showed that the old wall (which was wholly on the testator’s lot) was decomposed by fire, and insufficient to form the foundation of a building.

The plaintiffs leased to the defendants for a term of years, the right of constructing a road on the Bayou St. John, with the condition, that if the same was not kept in good repair, the plaintiffs should be authorised to take it back. The petition charged, that the defendants had failed to keep the road in good condition and repair, and prayed they might be condemned to deliver it up.

<p>APPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>The plaintiffs caused two slaves to be seized and sold to satisfy a judgment which they had obtained against their natural tutrix for the balance of the account of her administration. It appeared that a conventional mortgage existed on these slaves in favor of the defendant, but of a posterior date to the tacit mortgage of the plaintiffs. The purchaser refused to pay the price of the slaves because the sheriff declined to raise the conventional mortgage; whereupon the plaintiffs took a rule upon the defendant and the sheriff, to show cause, why the latter should not be ordered to raise the mortgage, and make a clear title to the purchaser upon receiving the price of the slaves. The rule was made absolute, and the defendant appealed.</p> <p>cited Code of Practice, art. 708.</p>

The petition set forth that one Bijotat had executed to the plaintiff á promissory note for one thousand two hundred dollars, which the defendant assumed to pay. That six hundred dollars had been received on account, leaving a like sum unpaid, and to recover which, the present action was brought.

The plaintiff and the defendants were commission merchants, and had stored at the same ware-house, a quantity of cotton, which had been consigned to them for sale. When the defendants demanded theirs, part was found to be missing, and twenty-one bales of the plaintiff’s delivered to them, in lieu of so many missing bales.

<p>The charge of fraud against an insolvent debtor cannot be made unless within ten days after the appointment of syndics.</p> <p>Whether an action of nullity could in any shape be maintained to avoid the effects of a judgment of homologation when, subsequent thereto, proof could be adduced to show fraud in the insolvent. Q,uere?</p>

On the 11th of April, 1813, the plaintiff executed to the defendant his promissory note, for two hundred and twenty-five dollars, payable in March, 1814, the payment of which was subsequently secured by an act of mortgage on a tract of land, bearing date July 1st, 1824. On the 28th September, 1831, the defendant obtained an order of seizure and sale, which was enjoined by the plaintiff, on the ground that the note was prescribed and the mortgage extinguished.

<p>Where there is no property of an estate on which the Court of Probates can act, a suit to set aside a conveyance made to the ancestor by one of the heirs, must be instituted in the courts of ordinary jurisdiction.</p>

LEANS» This was an action to recover the value of a package of goods, shipped at New-York, on board a vessel, of which the defendant was captain, and consigned to the plaintiffs. It appeared from the evidence, that the package was landed on the Levee, but never came into the possession of the plaintiffs.

<p>Where paraphernal property of the wife is given in exchange, that received in place of it, partakes of the same character, and cannot be alienated by the husband, without her consent.</p> <p>Matter occurring after the suit is commenced, may be given in evidence, but a recognitive act cannot affect the rights of third parties, acquired previous to the recognition.</p> <p>The purchaser of the wife’s paraphernal property, cannot call in question her title to that which was given in exchange for it.</p>

<p>APPEAL FROM THE COURT OF THE EIGHTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING.</p>

<p>APPEAL FROM THE COURT OF THE SECOND DISTRICT, THE JUDCE OF THE FOURTH PRESIDING.</p>

This was an action b_y the endorsee against the maker and endorser of a promissory note, in the following form: “New-Orleans, 2d April, 1828. — Two years after date, I promise to pay Lewis Foucher, Esquire, or order, twenty-one hundred and twenty-five dollars, for value received.

The plaintiff a minor above the age of puberty, commenced suit by attachment in the Court oi Probates against his tutor (an absentee) and obtained a judgment for two thousand seven hundred and eleven dollars; • to enforce which the present action was brought against the third possessor of a lot of ground upon which the plaintiff alleged, he had a general and tacit mortgage, resulting from the maladministration of his tutor.

That private carriages and water carts (in the now incorporated fauxbourgs) were at the time considered as embraced by the ordinance imposing the tax. But that the City Court, and afterwards the Parish Court had decided that neither was embraced. Wherefore the present suit was brought to recover the amount of loss and damage sustained. The answer contained the following admissions : 1.

<p>A clerical error in the return of a sheriff, will not vitiate it.</p> <p>The record of appeal must be filed on the return day, or within three days after, although by the rules of court, the cause cannot be tried for some time after.</p>

This suit was brought to set aside the sale of a tract of land made to the defendant by the plaintiffs’ ancestor, on the ground of fraud and lesion. The general issue was pleaded, and on the trial of the cause the plaintiffs (for the purpose of showing the value of the land and establishing the lesion complained of) offered in evidence a copy of a sale, made by the defendant of the land in dispute. The court rejected the •testimony, and the plaintiffs excepted.

<p>An allegation that work was defectively -executed,necessarily carries with it, ,» the allegation that damages have been sustained.</p> <p>If work is to be paid for by instalments before it is finished, pleading payment does not admit the work was executed according to contract.</p> <p>A general allegation that the work was defective, authorises evidence,-to show particular parts of it defective.</p>

<p>The pendency of a rule in the court from whence the appeal is taken, does ' . . not authorise the clerk to discontinue preparing the transcript of the record.</p> <p>If the appellant fail to give proper security on a suspensive appeal, the appellee cannot take out execution until after ten days notice.</p>

a suit by the endorsee against the maker of a promissory note, to which the latter pleaded that the note was given in part payment for land purchased of the plaintiff, to which he represented he had a good title, when in fact he had no title at all, by which false representation the respondent had been deceived, defrauded and damaged to a greater extent than the amount of the note. He further alleged, that the note had never been assigned.

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

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

<p>Where the case turns entirely on matters of fact, the verdict of a jury will not be disturbed, unless manifestly wrong.</p>

moved to dismiss the appeal, for want of jurisdiction in the court, it not appearing that the amount in dispute exceeded the sum of three hundred dollars: Whereupon, such being the fact,

The petition set forth that the defendant, Soward, had fraudulently possessed herself of a promissory note belonging to the succession of Franklin, and converted it to her own use. Hodgson and Jones, were charged with having combined with her in the fraud, and judgment prayed in solido against the three. Soward pleaded the general issue, and further alleged that she became legally possessed of the note for a good and valuable consideration.

<p>'jfibe curator of a vacant succession is theproper representative of the heirs? and a judgment in his capacity of curator is as valid, and efficacious against the succession, as if rendered against the heirs.</p> <p>Courts of Probate have exclusive jurisdiction in' all cases of passive debts of a succession administered by a curator, executor, &c.</p> <p>The curator of the succession of a deceased partner is to cause an inventory and appraisement to be made of the portion of the deceased in the partnership.</p> <p>When made a party to a suit pending before the partner’s death, against the partners, the curator cannot require the transfer of the suit to the Court of Probates.</p> <p>When goods on'whieh a party has a privilege are sequestered and sold by consent, he has a privilege on the proceeds.</p> <p>The act of'1830 repealing that of 1829 relative to juries in the parishes of Orleans and Jefferson, revives those in force before the repealed act.</p> <p>The act of 1827, which requires the sheriff to summon not less than thirty-six jurors, does notinhibit him from summoning seventy-two.</p> <p>Co-defendants are not entitled to separate trials. The Code of Practice, articles 181-2, does not give them a right thereto ; and the articles of the Civil Code, 2080-1, relate only to joint, and not to joint and several obligors.</p> <p>The article 3484.of the Civil Code should, by analogy, be extended to cases in which the plaintiff erred in the manner of bringing his suit.</p> <p>A contract fraudulent ab initio on the part of the buyer, is not translative ■of property, and the owner may claim it as if it had never been sold.</p> <p>Where a suit is against persons bound in solido, according to the provisions ■of law which define the obligations of commercial partners, the judgment •carries with it solidarity, even although it be not expressed.</p> <p>The record of a suit brought by either party against a third, is admissible evidence to establish rem ipsam, i. e. that such a suit was brought and prosecuted to judgment.</p>

<p>APPEAL FROM THE COURT OP THE FIRST DISTRICT, THE JUDGE OF THE SECOND PRESIDING.</p> <p>This was an action to recover damages for an assault and battery. The evidence was somewhat contradictory, but the jury found a verdict for the plaintiff, for nine hundred dollars.</p> <p>The defendant appealed.</p>

The injunction was obtained to arrest a fi. fa. on a judgment which the plaintiffs had obtained against one Timmons. After it was dissolved, a fi. fa. was immediately issued, but neither the person or property of Timmons could be found. The defendantswere then placed indelay byawritten demand, and failing to comply with the conditions of the bond, this suit was instituted.

•The plaintiff sued for a settlement of the accounts of a vessel, owned in partnership with the defendant, and the latter appealed from a judgment rendered against him. The grounds upon which a motion was made to dismiss the appeal, as well as the facts necessary to a full understanding of the case, are stated at large in the opinion of the court.

<p>APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE SECOND PRESIDING.</p>

The plaintiff attached a quantity of cotton which had been consigned to Breedlove, who intervened in the suit, and claimed it as being.in advance to the consignors to nearly the whole amount of the property received. The .evidence showed that the letter of advice and bill of lading reached the hands of Breedlove prior to the service of the attachment; but there was no proof that any advances or disbursements had been made by him upon the cotton.

On the 30th March, 1825, the defendant executed his promissory note payable to the plaintiff or order, at the Louisiana State Bank. The note was endorsed by the plaintiff, and at maturity protested for non-payment. Millaudon, the endorsee, brought suit and obtained judgment against both drawer and drawee, the parties to the present suit, on execution of which, the plaintiff paid one half, and to recover which, the present suit was brought.

On the 21st June, 1824, judgment was rendered in favor of the plaintiff for a rescission of a sale of a plantation and slaves, which he had made to the insolvent. On the 13th November, 1830, an appeal was allowed from this judgment, on the application of a minor child of the insolvent, setting forth that she was a minor at the rendition of the judgment, yet a minor, and mortgage creditor of the insolvent.

The defendant executed his promissory note in favor of one Maillan, who wrote thereon as follows: “ I pray Mr. Griffe, to pay to Messrs. Questi and Greaud, or order, the sum of three hundred and forty-eight dollars, the amount of his obligation. (Signed) J. Maillan.” The present suit was brought to recover the amount.

<p>APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF EAST FELICIANA.</p> <p>This was an action brought against the administration of the estate of John Rhodes, deceased, on a conditional obligation given by the deceased to the plaintiff, wherein he binds himself to make a title to the plaintiff of certain lands on the happening of a certain condition; or in case he does not do so, to pay to the plaintiff the sum of two thousand dollars. The petition contained a prayer that the defendant be decreed to make a title to the land, or pay the sum of two thousand dollars, and concluded with a prayer for general relief. The defendant excepted to the jurisdiction of the court, which being sustained, the plaintiff appealed.</p> <p>urged, that the Court of Probates ought to have entertained jurisdiction:</p> <p>1. Because the bond and the whole transaction is set forth in the petition, and there is a prayer for general relief. On examining the bond it will be found to be merely an obligation to pay two thousand dollars, in which the obligor has reserved to himself the right of discharging, by the transfer to the obligee of a certain tract of land. But the tranfer of the land was left to the option of the obligor. The payment of the two thousand dollars being the only obligation that the plaintiff could enforce, he went before the court, having exclusive jurisdiction of such a demand when brought against an estate administered by an administrator. 6 Toullier, 840, no. 804. C. C. art. 2116-7. 6 Martin, N. S. 623. C. P. art. 924. no. 13, 983, 41-2.</p> <p>2.Because the prayer was in the alternative, for the transfer of the land, or the two thousand dollars; and the court had jurisdiction at least for the demand of the money. Oger vs. Daunois, 7 Mar. N. S. 655.</p> <p>1. The appellant relies upon the prayer for general relief. The court cannot give a relief different and contrary to the one sought. It cannot authorise a court to entertain jurisdiction where none is given by the law. It cannot authorise a court to give damages where the defendant has not been put in mora.</p> <p>2. The obligation is not a simple one. It is an obligation with a penal clause. C. C. art. 2015, 2113-4.</p> <p>3. The action was brought to enforce the primary obligation, or put the defendant in mora, and to enforce the penalty.</p> <p>4. Courts must enforce contracts according to the intention of the parties. C. C. 1940 — 2.</p> <p>5. If it was a contract in the alternative, the defendant would have his choice, and a court of limited jurisdiction could not give it him. €. C. 2062-3.</p>

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

<p>APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE DISTRICT PRESIDING.</p>

The plaintiffs were two-thirds owners of the. schooner Non Plus, and ‘the intervening party owner of the other third. On a voyage to Attakapas the schooner was stranded, and a regular protest made by the master. She was sold for the benefit of whom it might concern, and purchased b^ the defendant. She was afterwards lost on a voyage from Charleston to Matanzas, the defendant having previously effected insurance-on her in the sum of two thousand five hundred dollars.

<p>If there be an agreement for the construction of a sugar mill, the period of prescription of the redhibitory action does not run from its date.</p> <p>If an insufficient mill be constructed, damages will be decreed, though the party be not put inr mora — neither can he avail himself of his want of ■ skill.</p> <p>The article 2509 of the code, does not apply to a workman who undertakes the construction of a mill.</p>

This suit was brought in the name of Morgan, syndic, and McGill, a creditor of the insolvent Dalton, to compel the latter to deliver up, to satisfy his creditors, and particularly to pay McGill’s claim, new property, which he had acquired since his failure, and which the petition alleged to be more than sufficient for the maintenance of his family.

Opposition was made by the heirs to the homologation of the executor’s account, because he had retained in his hands a sum sufficient 'to reimburse the corporation for the expense of paving, &c. in front of certain lots which formed part of the testator’s estate, and were sold by his executor, and because he had retained another sum to cover the tax of ten per cent, which was imposed on successions accruing to foreigners» The law creating this tax was repealed in eighteen…

This suit was brought to recover the value of a quantity of pickled pork. The petition was filed on the 29th December, 1829, and set forth, that in the year 1826, the firm of Foster & Hutton, of which the defendant was surviving partner,illegally obtained possession of a quantity of pork without the consent or knowledge of the plaintiffs, who were the owners thereof.

<p>APPEAL FROM THE COURT OF THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>The opposing creditor was the endorser of a promissory note, given by the insolvent to Hunter & Fagan for slating a house, surrendered by the insolvent to his creditors, and having paid the amount in pursuance of a judgment obtained against him, he claimed to be placed on the tableau, as substituted to the privilege, of Hunter & Fagan on the proceeds of the sale of the house.</p>

This was a motion to dissolve an injunction, by which the process of execution, issued by the Criminal Court upon a recognizance, had been enjoyed by the court of the first district. The ground upon which the injunction was granted, and upon which the plaintiff relied, was, that the recognizance being an obligation for the payment of money, the Criminal Court could not entertain jurisdiction. The court a quo dissolved the injunction, and the plaintiff appealed.

This was an action to recover the value of plaintiff’s services as engineer on board the steamboat Patriot, which the petition averred to be worth one hundred dollars per month. The defendants pleaded the general issue and the want of an amicable demand. Upon this issue a commission was taken out by the defendants, but previous to its return, they filed a supplemental answer, setting forth a special contract between the parties.

This was an action to recover for work done, and materials furnished in the construction of a house, to which the defendant pleaded the general issue, payment and prescription. On the trial, the defendant offered to prove, by parole testimony; the existence of a contract between the parties to build the house for a specific sum; its introduction was opposed by the plaintiff on the ground that the existence of such a contract was not put in issue by the pleadings.

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p> <p>The defendant was sued as the endorser of a promissory note drawn by three individuals, in solido, and set up in avoidance the fact that the holder of the note, the plaintiff in this suit, had accepted from two of the drawers a certain sum, and released them from all responsibility. There was judgment for the defendant, and the plaintiff appealed.</p> <p>Slidell, for appellee, made the following point:</p> <p>, The giving of time and a- fortiori the discharge of the drawer, of a note, without the assent of the endorser, discharges the latter. Chitty on Bills, 290. Bayly on Bills, 223.</p>

This was an action oii a policy of insurance, and resisted by the defendants on the ground, that at the time application was made for insurance, there was on the part of the plaintiffs, a concealment and misrepresentation of a certain fact known to the plaintiffs, and material for the underwriters to be acquainted with.

This suit was brought to recover a debt due from the defendant to the late firm of Edward M‘Dermott & Co., of which the plaintiff was surviving partner, and in which capacity he sued. The petition set forth, that at the time the debt was contracted, all the parties were citizens of the State of Pennsylvania, and that JVFDermott had since died, leaving the plaintiff, as surviving partner, charged with the settlement of the affairs.

<p>Where the case comes up without any statement of facts, if it be shown that the judge promised to make one, but died without doing so, the case will be remanded for a new trial.</p> <p>The article 573 of the Code of Practice, does not require that error, to the prejudice of the appellant, be stated in the petition of appeal.</p>

<p>In an action by an undertaker of work, the testimony of persons of the same class should be received cum grano deductions.</p> <p>Where the' parties entered into a written contract to build for a certain sum, and afterwards made a verbal agreement, by which the original plan was changed, in an action by the undertaker on a quantum meruit the defendant may give in evidence the original contract to show the value of work under the verbal agreement.</p> <p>If on a question of fact the appellate court differ with the judge below, his judgment will be reversed.</p>

AITEAL FROM THE COURT OF rROBATES FOR THE FARISH AND CITY OF NEW-ORLEANS. By a judgment of the Court of Probates, the executors of. Withers were directed to pay over to one of the heirs (a minor emancipated by marriage) her proportion in the testator’s estate, consisting of money and notes. From this judgment the executors appealed.

This was a claim for loss under an insurance from fire. The policy stated, “ that T. Nicolet & Co., had paid the defendants the sum of one hundred dollars, for insurance from loss or damage by fire, according to the tenor of the conditions hereunto annexed, not exceeding in each case the sum or sums hereinafter recited, upon the property herein described, in the place or places herein set forth and not elsewhere, (unless allowed by endorsement previously made, as set forth…

<p>Contradictory evidence does not authorise the reversal of a judgment on a question of fact.</p> <p>Whether in ease there be heirs entitled to inherit jointly with an absentee, who is not known to have ceased to exist, they have or have not the right to the exclusive possession of the estate ? — Quere.</p> <p>When there are none such, the heirs of the absentee may be put in possession.</p>

<p>The surtsty of^the vendor of a slave who warrants only the title, is not . liable,for expenses to which the vendee is put in consequence of the slave being affected with the redhibitory vice of running away.</p> <p>Bütrthe vendor and surety are equally responsible on their warranty of title, for the damages incurred in ease of eviction.</p>

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

<p>All matters of defence set up in the answer, are open to every objection of law and fact, as if these objections were specially pleaded.</p> <p>A contract by which ten per cent, per annum, is to be paid for the loan of money, and two and a half per cent, for advancing it, is usurious.</p> <p>And nothing but the principal can be recovered.</p> <p>An original agreement to pay six per cent., may be enlarged to ten.</p> <p>The vendee who has enjoyed the fruits, cannot when evicted, claim interest on the money advanced by him, and when he has not paid the purchase money, he owes interest.</p> <p>An agreement to consign crops to the vendor for sale, is not cancelled by a suit for the premises, its obligations continue so long as the vendee remains in possession and makes crops.</p> <p>If the thing sold be impaired in value through the neglect of the buyer, the seller is bound to the restitution of the full price — aliter, where the purchaser has derived profit from the waste committed by him.</p> <p>The buyer has a right to rescind the sale, when the part of which he is evicted, is of such consequence, in relation to the whole, that is not to be presumed he would have bought the one, without the other.</p> <p>If before eviction, part of the slaves sold, die, the loss must be borne by the purchaser.</p> <p>Ordinary repairs, necessary to the enjoyment of the object sold, cannot be classed as improvements.</p> <p>After a cause has been twice remanded from the Supreme Court, it cannot be sent back again to enable one of the parties to give further evidence.</p> <p>An original agreement to pay interest at six per cent., is not avoided by the parties subsequently entering into an usurious contract, in relation to further forbearance after the debt becomes due.</p> <p>Interest does not run on’the price, after suit has been instituted against the vendee for the premises.</p> <p>'One joint proprietor may sell his share to another co-proprietor, and incur the responsibility of a vendor.</p>

<p>A private act acquires no authenticity from the fact of its being acknowledged before and recorded by the parish judge.</p> <p>Under a special allegation of one kind of title, another cannot be proved.</p> <p>Under a forced alienation of property, the purchaser will acquire no title unless the formalities of the law be strictly complied with.</p> <p>The return of the officer, that the property was sold after legal advertisements, is not conclusive.</p> <p>The person whose property is sold under an execution, cannot be considered as a party to the act of sale.</p> <p>The act of the legislature, which requires that property seized for taxes, be sold after three months advertisement, means the three months immediately preceding the sale. •</p>

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

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

<p>A negotiable paper endorsed in blank, transfers the right to it, in full property, to the holder, and he can maintain an action on it, without filling up the blank.</p> <p>The judgment cannot cumulate the interest, which had accrued at the time stipulated for payment, with the principal sum due, and decree interest on the aggregate amount thus formed.</p>

<p>By tlie old Civil Code, the vendee could not resist payment of the price, unless he was disturbed by a suit.</p> <p>If a suit by which the vendeg is disturbed, be dismissed, he cannot resist the vendors claim for payment of the price.</p> <p>A suit which is terminated is, as if it had never been instituted.</p>

<p>APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE SECOND PRESIDING.</p> <p>The plaintiff enjoined an order of seizure and sale, obtained by the defendant, a mortgagee creditor, on the ground, that he had no right to divide the mortgaged property, and to cause á part only to be seized and sold. The court a quo dissolved the injunction, and the plaintiff appealed.</p>

<p>APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF JEFFERSON.</p>

This was an action on a promissory note, to which the prescription of five years was opposed. The note was executed in 1819,'made payable in March, 1820, and the defendant cited 14th July, 1831. There was a verdict and judgment for the plaintiff, and the defendants appealed.

<p>When the obligation is joint, all the obligors must be made parties to the suit.</p> <p>A bill payable to several, or a joint note, produces a joint, not a several obligation.</p> <p>On a joint note, the parties are only responsible for their virile share.</p>

<p>APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE SECOND PRESIDING.</p> <p>This suit was brought by the assignee of Nerault, to recover from the defendant, the sum of three hundred and seventy dollars. It appearing that the latter had made a payment of fifty dollars, the plaintiff had judgment for the balance, and the defendant appealed.</p>

<p>If there be sufficient time, the appellee must .be cited before the Court of Appeals at its next term, or the appeal will be dismissed.</p> <p>Where the law is absolute in its provisions, it cannot be changed by a rule of court.</p>

In this case, the appeal was taken by the attorney, after the death of the party: Whereupon, on motion to dismiss the appeal,

<p>Appeals may be taken from all final judgments, so they may from interlocutory decrees, when the latter have a direct tendency to produce an irreparable injury to the appellant.</p> <p>A delay in bringing the cause to a final decision, ought not to be viewed in any other light than an ordinary incident in the case, and cannot change the situation of the parties from their original position.</p>

<p>APPEAL PROM THE COURT OE THE THIRD DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.</p>

<p>The certificate of the clerk, that the record contains a true, full and complete transcript, will not authorise the Supreme Court to examine a case on its merits.</p> <p>The appeal will be dismissed, unless it appears that the sum in dispute is of the value of three hundred dollars.</p>

<p>íf the appeal be frivolous, ten per centum damages will be allowed.</p>

In this case the citation was served on the 19th April, 1831, and an answer put in on the sixth May. On the twenty-fourth, the defendant prayed fora continuance and made affidavit, that witnesses residing in New-Orleans, were material to his defence. The continuance was refused on the ground, that due diligence had not been used. The defendant then made another affidavit, which was not deemed sufficient, and from a judgment in favor of the plaintiffs, the defendant appealed.

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT*</p> <p>This suit commenced by sequestration of the steamboat Saratoga, on a bottomry bond, given to secure the sum of two thousand dollars, advanced on her by the plaintiff. At the time of the service of the sequestration, the defendant had transferred all his right, title and interest in the boat, to two individuals residing in Alexandria, in this state, neither of whom was cited or made- parties to the suit. The court a qua was of opinion, and so decided, that this was a proceeding in rem; that the seizure of the boat gave jurisdiction, and that service of citation on the captain, was sufficient notice to the absent owners. From a judgment in favor of the plaintiff, directing the boat to be sold, the defendant appealed.</p> <p>1. That no summons or citation issued to the defendant to appear and answer, and consequently no judgment could be rendered against him. _ Code of Practice, articles 206, 291 — 4.</p> <p>2. The order and notices, by the above cited articles, were not given, and consequently the judgment is erroneous on the face of it. Code of Practice, art. 606, § 2, 4, 609.</p> <p>3. As the owners of the boat were known residents in the state, the plaintiff was bound to proceed against them in the parish of Rapides, where they were domiciliated. Civil Code, art. 3361. Code of Practice, art. 64.</p> <p>The proceedings in this case, were against the thing, and plaintiff was not bound to cite the owners.</p>

ArPEAL FROM THE COURT OF THE FIRST DISTRICT. Damages were claimed from the defendant, on the ground of having concealed and employed a runaway slave belonging to the plaintiff.

<p>The certificate of the clerk, that he has given a complete transcript of the record, does not enable the Supreme Court to examine the case on its merits.</p> <p>Where it is clear, all the evidence has not been put on record, the case should not be remanded for the judge’s certificate. But where it is doubtful, it should be to see if the judge can give the certificate.</p>

In 1829, John McDonough brought many suits in the parish of St. Helena, to interrupt prescription, and among the defendants, prayed to be cited, were Robt. Hart and others, heirs of Robert Hart, deceased. The citation was served on the widow of the late Robert Hart, deceased.

<p>APPEAL FROM TIIE COURT OP THE FIRST DISTRICT.</p> <p>This was a suit to compel the defendant to pass the sale of two lots of ground, purchased by the plaintiff at public auction. The defendant pleaded the general issue, and under it showed that the auctioneer in making the sale, had deviated from his instructions, which were given in writing by the defendant. The court a qua was of opinion that any duration in the instructions was a matter between the auctioneer and defendant, with which the plaintiff had nothing to do.. From a judgment in favor of the plaintiff) the defendant appealed-.</p>

<p>Al’ÍEAL FROM THE COURT OF THE THIRD DISTRICT, THE JUDGE OF THE FOURTH PRESIDING.</p>

This was an action by the widow and tutrix of her minor children, to compel the executor of her deceased husband, to render his account and surrender the estate. The executor filed his account, and charged the estate (in addition to the two and a half per cent., allowed by law) ten per cent, upon the revenue. This item was opposed by the plaintiff, who in making the objection, claimed damages from the executor, for waste and injury to the succession.

In this case, the wife, who had renounced the community, and who brought no dowry into the marriage, claimed from her husband’s estate, a sum sufficient to defray the expense of habitation, sustenance, and mourning dresses for one year. The court a qua made the allowance, and the defendant -, ¶ appealed. That there was no law, authorising the Court to make such an allowance to the wife, who brought no dowry into the marriage. cited Civil Code, articles 2353, 2391.

<p>APPEAL FROM THE COURT OF THE THIRD DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.</p> <p>In this case, the appellee moved to dismiss the appeal on the ground, that it was made returnable to the next term of the court, after the judgment was rendered.</p>

<p>The appeal must befmade returnable to the next term of the Supreme Court, immediately succeeding the term of the court when judgment was pronounced.</p>

<p>Where the Supreme Court differ with the jury, on a question of fact, the cause will be remanded.</p>

<p>A surviving partner is excluded from the ouratorship of hia deceased partner.</p> <p>The law, requiring opposition to be made within ten days to the appointment of curators, is limited to cases, wherein regular notice has been given of the application.</p> <p>Persons living out of the parish where the succession is opened, but having a domicil in the state, are competent to be appointed curators.</p>

<p>APPEAL FROM THE COURT OI? THE PARISH AND CITY OR NEW-ORLEANS.</p> <p>There is no law which requires, or would authorise, the sheriff to wait three days for the bidder to find security.</p> <p>The 642d and 746th articles of the Code of Practice, are not in opposition to each other, but afford a double remedy; that is, the plaintiff may either proceed by the executory process, or cause the fi.fa. to be directed to the parish, where the property of the defendant is situated.</p> <p>The objection, that the proceedings were not in the French and English languages, will not avail, unless there be evidence on the record to show, that French was the mother tongue of the party.</p> <p>A return by the sheriff, is prima facie evidence between the parties to a suit.</p>

<p>APPEAL FROM THE COURT OF THE EIGHTH DISTRICT, THE JUDGE OF THE SECOND PRESIDING.</p>

<p>APPEAL FROM THE COURT OF THE EIGHTH DISTRICT, THE JUDGE THEREOF PRESIDING.</p>

This was an attachment sued out against the minors and their natural tutor, who had departed from the state, taking with him the said minors and most of the property belonging to the succession of their mother. The suit was founded upon a note given by the mother to the plaintiff, previous to her marriage with the defendant.

<p>An answer cannot be amended, after the rendition of judgment.</p> <p>The court can only confirm or reject the award entirely, unless an appeal be taken from the decision of the arbitrators.</p> <p>Trying a cause, on a day different from that set for trial, is not per se, such , an irregularity as calls for a reversal of the judgment. It is only where it furnishes grounds to believe, that the parties were not heard, that such a consequence follows.</p> <p>The court cannot decree interest, unless it be given by the award.</p>

In 1814, the defendants, sold to the plaintiff with full warranty, a tract of land, containing two thousand one hundred and fifty superficial arpents, which was held by the vendors under a Spanish grant. In 1826, the claim was submitted to the land commissioners, who confirmed the plaintiff’s title to only six hundred and forty acres, which they caused to be surveyed.

This suit was brought by a minor, emancipated by marriage, to compel the defendants to transfer certain shares of bank stock, standing in the name of the plaintiff, and which the latter had alienated to one Grigsby. The bank refused to make the transfer, on the ground that a minor could not alienate her moveable property. There was judgment for the plaintiffs in the court below, and the defendants appealed.

<p>The right of third parties to oppose an execution, is limited to eases, where, the person making the opposition is the owner of the thing, or has a privilege on it.</p> <p>A commercial partnership is confined to personal property, and if real estate be acquired by the firm, it will be joint and not partnership property.</p> <p>Partnership qffects are first responsible for partnership debts.</p>

This was an action against the surety on a bond given by one Wilson, who was arrested, upon an affidavit made upon the authority of the amendment to the Code of Practice, article 237, which gives to the creditor the right, upon an affidavit merely, to hold his debtor to bail, provided the petition and citation be served on him the subsequent day. In this case, before the petition and citation could be served on the following day, Wilson left the state.

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

<p>APPEAL PROM THE COURT OF PROBATES FOR THE PARISH OF EAST FELICIANA.</p>

<p>APPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND GITP OF NEW-ORLEANS.</p> <p>The plaintiff (a minor emancipated by marriage,) prayed , nj/ j , that her curatrix ad bona, be compelled to render an account; decree accordingly, from which the defendant appealed.</p>

William Dunbar, the husband of the plaintiff, died intestate, leaving three minor children, his only legitimate forced heirs, and certain property, in the parish of West Feliciana. The plaintiff^ as widow in community, and as natural tutrix to her minor children, by the advice of a family meeting legally convoked, accepted the succession with benefit of inventory.

AFPEAL FROM THE COURT OF THE PARISH AND CITV OF^NEW-ORLEANb. This was an action upon a promissory note, to which the defendant pleaded the following exception : “ That previous to the institution of the suit, he had obtained a stay of proceedings which was still in force.” It appeared, that the plaintiff, who was placed on the bilan, resided within the state, but out of the parish where the proceedings took place.

This cause was remanded from the Supreme Court, and when called up for trial, the death of the defendant was suggested by his counsel, who moved for a continuance, until proper parties could be made, or the cause transferred to the Probate Court of the parish, where the defendant’s succession was opened. The continuance was refused, a bill of exceptions taken, and the case ordered for trial.

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

<p>Where fraud is charged, the verdict of the jury will be affirmed, although the evidence upon which it was rendered, be not free from suspicion.</p>

<p>Where the case depends upon the credit due to witnesses, the verdict of the jury will not be disturbed.</p>

Marmiche transferred the debt and mortgage to the plaintiff, who obtained an order of seizure and sale, which was enjoined by the defendant, on the ground, that before the plaintiff had obtained his order of seizure, he, the defendant, had sued for a partition of the property, which suit was then pending. The court a qua, upon hearing, dissolved injunction, and the defendant appealed.

<p>The responsibility of the syndic, for debts due the insolvent, which have come into his hands, depends upon the exercise of duo diligence.</p> <p>Syndics are not bound in solidum for the acts of each other.</p> <p>The syndic, when called on, is bound to show the date when moneys were received.</p> <p>The estate of the insolvent is not responsible for a charge, arising from the negligence of the syndic.</p> <p>The syndic has no right to interest on his debt, after funds come into his hands sufficient to discharge it.</p> <p>A creditor is entitled to the amount for which he is placed on the hilan, 'unless it be shown he is placed there through error.</p>

<p>, APPEAL FROM THE COURT OF THE THIRD DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.</p>

<p>■It is not the augmentation made to the worth, at any portion of time the land was in possession of the person evicted, but the additional value at the time of the judgment of eviction, above that at the time of the loss of possession, which the owner must pay for.</p> <p>The claim of the party evicted, against his vendor, is the value of the property at the time of eviction, and the sums he has been compelled to pay for fruits and costs.</p> <p>If the sum paid for the land by the party evicted, has extinguished a debt of the owner of the land, the latter must allow it, but without interest, as the party was compensated in this respect by the fruits.</p>

This was an action upon a contract of insurance, in which the petition set forth : That the policy varied from the terms of the contract, and that such variance, proceeded either from the error or fraud of the defendants or their agents.

<p>APPEAL FROM THE COURT OF THE PARISH AND CITY OF NEW-ORLEANS.</p>

This suit was brought to recover the price of a still, which the plaintiff had caused to be constructed for, and at the request of the defendant. The facts are these : On the 31st October, 1829, the defendant gave an order to the plaintiff, for one still, head and worm, to be completed as early as possible and shipped to New-Iberia, (Attakapas,) consigned to Jonas Marsh. On the 14th November, the plaintiff wrote : “Your favor of the 31st October, was duly received.

Opposition was made by some of the creditors to the claims of Blache & Reynes, as placed on the tableau of distribution-From the evidence, the court a qua was of opinion, and so decreed, that both claims should be reduced. From this judgment the present appeal was taken.

<p>ArPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS.</p>

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p> <p>The plaintiffs attached, as the property of the defendants, a qUantjty 0f cotton, consigned to Palmer Smith & Co., who intervened, and claimed to be paid in preference, on account of advances. ^</p> <p>The intervenors having failed to show the receipt of the bill of lading, prior to the service of the attachment, there was judgment for the plaintiffs, and the intervenors appealed.</p>

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

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