Volume 4 — Louisiana Reports

This was an action to rescind a contract of sale of real estate; and the grounds, as stated in the petition, were: That the sale was made solely for the purpose of securing to the defendant, the payment of certain moneys, which he had advanced to the plaintiff; and that it was understood between ^le Par^es’the time of the sale, that upon repayment of the advances, the property was to be reconveyed to the plaintiff.

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

<p>A certificate which states a want of recollection in the judge, in relation to matters given in evidence, or that he does not recollect any thing having been adduced except what the record contains, is too negative in its terms to induce a positive belief that such record contains all the evidence adduced by the parties.</p> <p>Without such a certificate as is required by law, the Supreme Court cannot investigate the merits of a case.</p> <p>A certificate which states a want of recollection in the judge in relation to matters given in evidence, or that he does not recollect any thing having been adduced except what the record contains, is too negative in its terms to induce a positive belief thatsuch record contains all the evidence addutiesbythe pal'</p> <p>Withoutsuch a certificate as is required by law, Supreme Court cannot investigate the merits of a case.</p>

This suit was brought to recover from the defendant a lot of ground, situated in the parish of Jefferson, of which the plaintiff, a resident of the parish of Orleans, alleged himself to be the legal owner.

- In this case, an amended petition was filed by consent of parties to which no answer was put in, on default taken. In this state of the pleadings, the court a qua proceeded to trial and judgement.

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

<p>APPEAL PROM THE COURT OP THE FIRST DISTRICT.</p> <p>This case presented simply a question of fact, on which the judgement of the court a quo was affirmed.</p>

APPEAL PROM THE PARISH COURT OP NEW-ORLEANS This was an action for damages on a breach of contract, in which a verdict and judgement were rendered for the plaintiff, and from which the defendant appealed. On the trial of the cause, the counsel for the appellant submitted to the court two motions for instructions to the jury which the judge refused to give.

<p>A parole sale of a slave is not void; the party sued thereon may waive his right to exclude parole proof of it.</p> <p>The fact of the vendor of a slave having concealed from the purchaser the fact of his being the real owner, does not make him responsible in warranty.</p> <p>A parole sale of a slave is not void; the party sued thereon may waive his right to exclude parole proof of it.</p> <p>The fact of the vendor of a slave having concealed from the purchaser the fact of hisheingthe real owner, does not make him responsible in warran-' tv.</p>

In August, one thousand eighteen hundred and twenty-nine, the corporation of New-Orleans passed an ordinance, by which they prohibited the sale of oysters, except in certain places therein designated. In virtue of this ordinance, the privilege of vending oysters, at the designated stands, was adjudicated to the plaintiff, as the highest bidder, for the price of six thousand dollars.

. This suit was brought to recover the amount of a promissory note, which the plaintiff alleged he placed in the hands of the defendant (his attorney in fact), for collection, and for tbe proceeds of which the latter refused to account.

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

<p>After the dissolution of a partnership, no one of the partners is at liberty to use the social name so as to bind the others.</p> <p>After the dispartnershiffno one of the parttyrtóS use1 the asCto bindtíie others.</p>

<p>Whatever may have been the right of the heir to claim from the testamentary-executor the balance in his hands, if it was susceptible of compromise, and an agreement was entered into, which received the sanction of the Court of Probates, it could not afterwards be receded from.</p> <p>Whatever may have been the right of the heir to claim from the testamentary executor the balance in his hands, if it was susceptible of compromise, and an agreetered WaSinioj which received the sanction of the Court of coubfnot afterwardsberecededfrom.</p>

<p>APPEAL FROM THE PARISH COURT OF NEW-0RLEAN5.</p>

The plaintiff, who, in theatrical language, was a star, entered into a contract with the defendant to play a certain number of nights in the theatre of the latter. During her engagement, she was cast for a character which she considered out of her established line, and which she refused to play. The defendant, thereupon, dissolved the contract; and the present suit was brought for damages.

This action was brought to recover from the defendant, a number of slaves which the plaintiff alleged he purchased from one Campbell, at Tallahassee, in the territory of East Florida. By the terms of this sale, Campbell reserved to himself the right of redeeming the slaves upon repayment of the purchase money, within a certain time; but before its arrival, he brought the slaves to New-Orleans, and sold them to the defendant.

<p>APPEAL PROM THE COURT OP PROBATES OP THE PARISH OP LAFOURCHE INTERIOR.</p>

This action was brought to recover from the defendant a debt which he contracted to the plaintiff at San Louis Potosi, in Mexico, prior to the year 1816. It appeared, in defence, that a meeting of the defendant’s creditors was legally convoked at San Louis Potosi, in the year 1820 ; that the plaintiff was placed on the hilan as a creditor, received a dividend from the estate, and was represented at the meeting by his acknowledged attorney in fact.

<p>The appellant must take care to bring up the case in such a manner, as to enable the Supreme Court to review the judgement complained of.</p> <p>The jury are the proper judges of the amount of damages, but when it appears from the evidence, that a party is really aggrieved, he will be afforded the opportunity of a second trial.</p> <p>The appellant must take care to bring up the case in such a manner as to enable the Supreme Court to review the judgement complained of.</p> <p>The jury are the proper judges of the amount of damages, but when it appears from the evidence that a party is really aggrieved, he will be afforded the opportunity of a second trial.</p>

On tbe 29th November, 1828, the plaintiff and defendant entered into a written agreement, by which the latter agreed to employ the former as captain of the steamboat Huntsville, and to pay him one thousand five hundred dollafs per year for his services.

<p>In interpreting a statute the preamble must be looked to as making a part of the law or legislative will; but if it contain any expressions contradictory and irreconcilable with the enacting parts of the statute, the latter will prevail.</p> <p>Although the act of 1808, for the relief of insolvent debtors, specifies the particular acts of the debtor which shall exclude him from the benefit accorded by the law, this specification of frauds does not preclude the allegation and proof of others which would fix upon him the character of a fraudulent debtor.</p> <p>An insolvent debtor who became indebted to the opposing creditor by fraud and theft, will be excluded from the benefit of that law which purports to be made only for honest and unfortunate debtors.</p> <p>On an allegation of fraud, made against an insolvent debtor, such allegation may be supported by evidence showing fraudulent conduct in the manner in which he contracted the debt.</p> <p>On an allegation of fraud against an insolvent debtor, the record of a suit between the same parties, where damages were recovered for a theft committed by the insolvent, and where the same theft is alleged against him to deprive him of the benefit of the act, is proper evidence to go to the jury who try the allegation of fraud.</p> <p>¡n*n “statute* the preamble must be lookcd to as makJ£f ^ gislatiye will; out if it contain any ex-tradictoryTnd irreconcilable ing parts of the te^wiu^prevad-</p> <p>act of 1808 for the relief of insolvent debtors, specifies acts P of^he debt01' which him from the benefit accorded by the law, this specificadoes 'not* preelude the alieproof of others fix upon him of a fraudulent debtor.</p> <p>An insolvent cameindebted to the opposmg creditor by fraudandtheft, ded from* the law6*14 °wh!ch purports to be hmmst'andunfortunate debt-</p> <p>On an alleIjícíT Against insolvent allegation may-i,e supposed by evidence uient^conduet !“the manner contracted the debt'</p> <p>On an alle-f^k^anTn^ solv?nt debt- or, the record of a suit be-same" parties ^were™" covered for a theft commit ted by the inwhercf’ ule alleged against him to deprive efit of the act, dence tcTgo to the jury who try the allegation of fraud,</p>

<p>APPEAL FROM THE COURT OP THE PIRST DISTRICT.</p>

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

This was art action for the recovery of a slave, to which the plaintiff set up title under a deed of trust, executed in his favor in the state of Alabama, by one Malone. It appeared that after the execution of the trust, the slave remained in the possession of Malone, who subsequently brought her to New-Orleans, and constituted one M‘Clure, his agent, who, in his own name, sold her to the person under whom the defendant claimed.

This suit was brought to recover the amount of a promissory note, executed by the defendant in favor of one James Bowie. The note (which was not negotiable) was e; dor?ed in blank by the payee and two other persons. The plaintiff sued as assignee; and, on the trial of the cause, moved the court for permission to write over the endorsement of the payee an assignment in his favor; which was refused, and a bill of exceptions taken.

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

<p>If the plaintiff give evidence inconsistent with or contrary to the right of action set out by him in the petition, he cannot recover. But if the defendant, not satisfied with this proof, will introduce evidence which, instead of corroborating, raises doubts of the verity of that which his adversary has offered, the case must be examined on all the proof.</p> <p>If the plaintiff give evidence inconsistent with or contraryto the right of action set out by him in the petition, he cannot recover. But if the defendant, not satisfied with this proof, will introduce evidence which, instead of corroborating, raises doubts of the verity of that which his adversary has offered, the case must be examined on all the proof.</p>

This was an action for damages, in which the defendants were charged with having combined together to defraud the plaintiff of a flock of sheep.

The petition stated, that the plaintiff entered Into a contract with the defendant to superintend his warehouse, for which the former Was to receive one-third part of the nett profits arising from the storage of produce. That this contract was reduced to writing, signed by the plaintiff, and handed to the defendant, who agreed that it was correctly written out, and promised that he would sign it, and deliver it to a third person, to be kept lor the contracting parties.

<p>The United States courts have no' right to séize property already transferred by state laws from the debtor in execution, although the syndics may not have taken possession of the property at the time of the seizure.</p> <p>With respect to repairs and necessaries in the port or state to which the ship belongs,- the case is governed altogether by the municipal laws of that state. e</p> <p>When the proceedings áre in mm, every one who could have asserted a right to, of in the property libelled, was a party to the suit; the judgement is a complete bar to all right which could have been exercised there, and' forms ms judicitta against all the world who had á claim on the property.</p> <p>The United States Courts have no right to seize property already transferred by state laws from the debtor in execution, although the syndics may not have taken posssesion of the property at the time of the seizure.</p> <p>With respect to repairs and necessaries in tlie port or state to which the ship belongs, the case is governed altogetherbythe ■municipal laws of that state.</p> <p>When the proceedings are in rein, every one who could have asserted a right to or in the property libel-led, was a party to the suit; the judgement is a complete bar to all right which could have been exercised there, and forms res judicata against all tire world who had a claim on the property.</p>

<p>The regular mode for the defendant in execution to procure an injunction is by an opposition filed in court. .</p> <p>If he resorts to a petition, and assumes the character of plaintiff, the trial and other proceedings must be governed by the rules which would have regulated them had the opposition been regularly filed.</p> <p>Where trial is gone into on the merits without asking for a decision on an exception, the exception is considered as waived.</p> <p>The rights of the buyer to resist payment of interest, depend on the law in force at the time of the contract.</p> <p>The third possessor of property specially affected by mortgage is disquieted by a suit against the debtor, and may withhold payment.</p> <p>A tender of money to the creditor, or, in case of his refusal, a consignment of it, ivas not necessary to enable the debtor to resist the payment of interest under the provisions of the old code.</p> <p>The regular mode for the defendant in execution to procure an injunction, is by an opposition filed in court.</p> <p>If he resorts to a petition, and assumes the character of plaintiff, the trial and other proceedings must be governed by the rules which wouldhave regulated them had the opposition been regularly filed.</p> <p>When trial is gone into on tile merits, without asking for a decision on an exception,the exception is considered as waived.</p> <p>The rights of the buyer to resist payment of interest depend on the law in force at the time of the contract.</p> <p>The third possessor of property specially affected by mortgage, is disquieted by a suit againstthe debt- or, and may withhold payment.</p> <p>A tender of money to the creditor, or in fusal/a^con" signment of it, sary to enable resist the°pay° ment of inter-provisions of the old code.</p>

<p>-The ordinance of the Corporation of New-Orleans, which authorizes a sale, under the orders of the Mayor, of property which is suffered to remain on the levée for a longer time than the police regulations of the city permit, is not within the powers vested in the corporation, nor could such power be constitutionally conferred.</p> <p>The corporation have a right to remove 'encumbrances on the levée at the expense of the proprietor.</p> <p>Tlie 01'd!-nance of the Corporation of whidPaufoor^s^sale’(jUn‘ of the Mayor, whfohP\sP su? levée for a longer time than the police regulations of is6not ^within vested m^the corporation; power he con-conferred^</p> <p>The corporight*1 move encumbrances at the expense of the proprietor.</p>

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

<p>Where the judgement of the court admits of two constructions, that will he adopted which the court should have rendered on the facts and law of the case.</p> <p>Where the the^court* admits of two constructions, that will he adopted wncH rendered ^on the facts and</p>

<p>appeal prom the court of the first district.</p>

<p>Courts of Probates are rations matc-iia without jurisdiction in cases of claims of an estate, except those against another estate, or a person expressly suable in such courts.</p> <p>Probates'tSare rations materia without jurisdiction in cases of claims of an estate,except those against another estate, or a person expressly suable in such courts.</p>

APPEAL PROM THE PARISH COURT OP HEW-ORLEA1ÍS. In this case the defendant put in an answer to the merits, and subsequently thereto pleaded the want of an amicable demand. On the merits there was a verdict and judgement for the plaintiff, and the defendant appealed-

<p>In an action against a fipm, when it is pleaded as an exception that all the members are not made parties, the party making the exception must set out all the members who compose it.</p> <p>The obligations of a joint owner of a vessel are more real than personal, and depend on the amount of interest he has in the vessel, not on an obligation, in solido, as joint owner, whether he is bound for the whole amount of the debt contracted by the master</p> <p>The bare circumstance of persons being joint owners of a boat does not make- ■ them responsible, in solido-, but if they are associated together, for the purpose of carrying personal goods for freight or hire, they are responsible jointly and severally.</p> <p>Tarties trading together are bound by the character in which their acts present them to the world.</p> <p>an ac„tl0n whenitispieaception that all no^made parties, the the^x^ptíon ^the^mem^ers wh° coroP°Se 1</p> <p>The obligations of ajoint owner of a vessel are more real than personal, and depend on the amount of interest he has in the vessel, not on an obligation in solido as joint owner, whether he is bound for the whole amount of the debt contracted by the master.</p> <p>The bare circumstance of persons being jointownersof aboat doesnot make them responsible in so-lido. But if they are associated together for thepurpose of carrying personal goods for freight or hire, they are responsible jointly and s&verally.</p> <p>Parties traare^ound^by inwMclT their acts present worl<t.</p>

<p>Cases submitted to the discretion of a judge or court, are submitted to his legal discretion, and from his exercise thereof an appeal may be taken.</p> <p>Cases sub. mitted to the discretion of a judge or court,, are submitted to his legal discretion, and from his exercise thereof an appeal may be taken.</p>

<p>The prescription of one year to the action of workmen, laborers and servants, for their wages, is not applicable to the owners of cotton presses.</p> <p>The prescription of one year to the action of workmen, laborers and servants, for their wages is not applicable to the owners of cotton presses.</p>

<p>The term “notoriously insane;” means that the insanity was generally known to the persons who saw and conversed with the party. When this proof is given, it then behooves the person claiming benefit from the contract, to show that it was made during a lucid interval.</p> <p>The term “notoriously insane,’’means that the insanity was generally known to the persons who saw, and conversed with the party: When this proof is given, it then behooves the person claiming benefit from the contract, to show that it was made during a lucid interval.</p>

The petition set forth that the plaintiff undertook to sell for the defendant a number of slaves, for which the latter agreed to pay him a commission of two per centum on the aggregate amount of sales. That a large number was placed in his hands, a part of which was sold, and the remainder returned.

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

<p>APPEAL PROM THE COURT OF THE FIRST DISTRICT.</p> <p>This was an action to recover the value of work and labor done, the amount of which was set forth in a detailed account annexed to the petition. The defendant, in his answer, admitted that he had employed the plaintiff to do certain work for a specified sum, and in conformity to a written contract signed by both parties. That some extra work was also agreed upon and endorsed on the back of the contract, but'averred, that for the extra work, as well as that contemplated by the contract, the plaintiff had been fully paid.</p> <p>It appeared that previous to the institution of the suit the parties had entered into a written consent to refer the matter in dispute to the decision of arbitrators, who differed in their • estimate as to the value of the work, and on the trial of the . cause the defendant' offered in evidence this consent, which was opposed by the plaintiff, on the ground of irrelevancy, it not having been pleaded by the defendant, nor in any manner notified to the plaintiff. The objection was overruled, the document read in evidence, and the plaintiff took a bill of exceptions. The defendant also offered in evidence the contract between the parties, which was objected to by the plaintiff on the grounds: I. That it was not signed by the plaintiff, except with his initials. 2. That it was not made double, and had been all the time in the hands of the defendant. 3. That reference was made in said paper to a design presented by the plaintiff to the defendant, and which was not exhibited in court. 4. That additions had been made to said contract in the handwriting of the defendant and endorsed on the same. These objections were overruled, the contract read in evidence, and a bill of exceptions taken. On the merits the court a qua gave judgement for the defendant, and the plaintiff appealed.</p>

<p>APPEAL PROM THE COURT OP THE SECOND DISTRICT, THE JUDGE THEREOF PRESIDING.</p>

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

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

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p> <p>The petition set forth, that the plaintiff, as master of the brig Sabat, had a lien or privilege upon a quantity of ice shipped by one Lang, at Boston, as the cargq of said vessel, and consigned to the defendant in New-Orleans, the latter paying freight for the same. That upon the arrival of the vessel the consignee was duly notified; but refused to receive the ice or pay the freight. It concluded with a prayer that an attorney might he appointed to represent Lang; that the defendant be cited to answer, and that the ice should be seized and sold to satisfy the freight. An attorney was accordingly appointed to represent Lang, but declined to act; and the suit proceeded against the defendant alone, who, in his answer, averred, that the plaintiff refused to deliver the ice mentioned in the petition, and by his careless conduct in the transportation of the same, had damaged the respondent to a large amount, which was clailned in reconvention.</p> <p>On the merits there was judgement for the plaintiff, and the defendant appealed.</p> <p>1. The cause having been tried without any issue as to Lang, of whose defence Bartlett had an undoubted right to avail himself, judgement must be reversed and the cause remanded.</p> <p>2. The judgement is erroneous, in as much as the petitioner prays for payment of freight out of the proceeds of the sale of the ice, and it is personal against Bartlett.</p> <p>3.Judgement is erroneous, because appellant was consignee only, and as such, not liable for the freight, unless he had received the cargo. Abbot on Shipping, p. 285.</p> <p>1. It is not material to Bartlett whether an issue was made between the plaintiff and Lang, as he is not affected thereby.</p> <p>All that the plaintiff could do was to make him a party, and have counsel assigned him as an absent defendant; and this, if objectionable, should have been excepted to.</p> <p>2. The answer in reconvention of Bartlett, in which he alleges himself to be the owner of the ice, the prayer of the plaintiff for general relief, &c., entitle him to the judgement.</p> <p>• 3. The judgement is not against Bartlett as consignee of the ice, but as owner.</p>

<p>Where the estate has been settled up, and the curator and attorney for the heirs regularly discharged without opposition, they no longer represent the succession or heirs.</p> <p>Where the estatehasbeen settled up, and the curator and attorney for the heirs regularly discharged without opnosition, they no longer represent the succession or heirs-</p>

<p>APPEAL FEOSI THE COURT OF PROBATES OF RETV-0RLEAIfS.</p>

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

<p>The creditors of the vendor cannot make use of the right of redemption.</p> <p>Where a sale is attacked as simulated and entered into with a view of de-. frauding creditors, the plaintiff must show that he was a creditor at the time the conveyance was made.</p> <p>The syndics of an insolvent may bring all actions which relate to the property ceded, hut they do not represent him for matters which are exclusively personal.</p> <p>The creditorsofthevendor cannot make use of demption?fre</p> <p>Where a sale is Eittfickcd as simulated and with 6a view of defrauding creditors, the plaintiff must waTa creditor atthe time the conveyance was made.</p> <p>The syndics of an insolvent may brincad relate^toT the property ^cedo not repremattem'which rPer“nafe-</p>

The parties in this case were applicants in the court below for the curatorship óf a vacant succession. The first application was made by the appellee, who, it appeared, was largely indebted to the estate, but upon his depositing the money the court a qua decided in his favour. From this judgement the present appeal was taken.

<p>APPEAR PROM THE COURT OP THE FIRST DISTRICT.</p>

The plaintiff claimed a lot of ground in the city of New-Orleans, to which the defendant set up title under a sale made by the city marshal, to satisfy a judgement of the City Court, by which the lot in question was decreed to be sold for taxes due the city. In case of eviction, the defendant claimed the value of his improvements; and further, he pleaded the want of an amicable demand.

<p>APPEAL PROM THE COURT OP THE FIRST DISTRICT.</p> <p>This was an action against the endorser of a promissory note, to which was opposed the plea of prescription. From the evidence, it appeared that more than five years had elapsed from the execution of the note, to the institution of the present action; but that, within that period, a suit had been prosecuted against one of the endorsers who proved to be insolvent. The court a qua gave judgement for the p|a|n^ an(j defendant appealed.</p>

The defendant was arrested on the 16th February, at the suit of the plaintiff, who sued as surviving partner of á commercial firm. On the day of arrest a citation was served, on the defendant in person; but on the day following, and before service of the petition, he departed from the state for his residence in the Republic of Mexico.

<p>It is no bar to an action that another suit is pending between the same parties, and for the same cause of action in a sister or foreign state.</p> <p>Testimony taken in a cause may be used by either party.</p> <p>The answers of a party to interrogatories put to him by his opponent cannot be divided, and the latter has no right to read either of them if he object to the others being read.</p> <p>It is no bar to an action that another suit is pending between the same parties and for the same cause of action, in a sister or foreign ■state.</p> <p>takeneStlS°Ua by either party,</p> <p>The answers Interrogatories P?1-to ilim by cannot he dilatter’ has no either of them* if he object to tli© others he* ing read.</p>

This was an action to annul the lease of a house on the ground, of its being wholly untenantable. The evidence, on the part of the plaintiff, fully established the facts charged in the petition, but the jury found a verdict for the defendant, and judgement being rendered thereon, the plaintiff appealed.

<p>APPEAL PROM THE COURT OP THE FIRST DISTRICT.</p> <p>The plaintiff, who was held as a slave by the defendant, Palfrey, brought this suit for the recovery of his freedom.</p> <p>Palfrey called in warranty his vendor, Florance, and the latter put in an answer citing in warranty Beckman, who took a rule on the plaintiff to show cause why he should not be allowed a reasonable delay to file an answer. This rule issued upon an affidavit made by Beckman, in which he set forth, “ that if reasonable time were allowed him he expected to obtain such information as would enable him to defend the suit.” Pending this application (upon which no order was taken) and without an answer or judgement by default against Beckman, the cause was tried by a jury who found for the plaintiff, and assessed his damages. In pursuance of the verdict, judgement was rendered in favor of Palfrey against Florance, and in favor of the latter against Beckman. On motion for a new trial it was granted, in so far as regarded Palfrey and his vendor, Florance, and Beckman, the vendor of the latter. A judgement by default was then taken by Florance against Beckman, which was afterwards set aside, and an answer put in to the merits, on which a judgement was rendered in favor of Palfrey, and from which both warrantors appealed.</p> <p>That there was error in rendering judgement, as between Reed and Palfrey, until all the parties called in warranty had appeared. That if they failed to appear, a judgement by default should have been taken. He cited C. P. mis. 380 — 7.</p> <p>That as Palfrey was evicted of the slave, and damages decreed against him for his detention, he had a right to recover these damages from Florance, his vendor, called in warranty to guaranty his title. C. C. art. 2482.</p>

<p>If the husband, by any act of his¡ give a tacit mortgage on his property to the heirs of his wife, it cannot attach on property previously disposed of by him.</p> <p>barfd * by any act of his, give gage on his Eeirs^of ° liis wife, it cannot perty previous-by Mm°Sed °f</p>

This was an action to obtain from the defendant the . n 3 transfer of certain lots of ground which the petition alleged were purchased by him for the deceased husband of the plaintiff, who left an only child, under whom the plaintiff claimed as heir. The petition further charged that the defendant had caused the title to said lots to be executed in his' own name, and fraudulently pretended to be the real owner.

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

<p>APPEAL PROM THE PARISH COURT OP NEW-ORLEANS.</p> <p>The defendant enjoined a writ of possession which issued in virtue of a judgement rescinding the lease of a house, and restoring its possession to the lessor. To the injunction an answer was put in by the plaintiff in execution, but not by the sheriff, who was made a party thereto. On trial the injunction was dissolved, and the plaintiff therein appealed.</p> <p>1. The judgement of the court a qua, is void, and ought to be reversed, because no law is referred to by the judge, nor any reasons assigned for its being rendered.</p> <p>2. The judge a quo erred in dissolving the injunction when only one of the defendants had filed an answer.</p>

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

Francis Bernoudy,by his last will, among other dispositions, gave to the plaintiff, f. w. c., and her four children, the sum of one thousand dollars each. One of the children having died, this suit was brought by the mother and her three surviving children, to recover from the defendants (heirs of the testator), the legacies given to them by the will; and also, to recover the legacy given to the deceased child.

The plaintifis attached a quantity of bale rope, as the property of one Buckles, which had been consigned to the defendant Gale. In that suit, Gale intervened, and obtained the release of the rope, upon his executing a bond with Millaudon, as surety in the sum of one thousand two hundred and ninety-eight dollars, conditioned to pay that amount in part satisfaction of such judgement as might be rendered in favor of the plaintiffs against Buckles.

<p>The repeal of the Spanish law regulating the community of acquests, is not supplied hy as statutory provision of this state.</p> <p>Property found in a succession, is regulated by the law, in force at the time it is opened, no matter how different or contrary thereto, the rule may have been, when the estate was acquired,</p> <p>The same rule does not apply, in regard to property which enters into the community of acquests and gains.</p> <p>If hy the laws of the country where the marriage takes place, a community of acquests and gains be created by the marriage, a subsequent law declaring there should be no further community between the persons who had entered into this engagement, would be retrospective, and a violation of rights vested under the contract.</p> <p>It is not the law in force at the lime the community is dissolved, but that in vigor at the period it was formed, which regulates the rights of husband and wife to the property acquired during coverture.</p> <p>The wife can acquire a right to property made, during marriage before that marriage is dissolved, and these rights exist to the same extent, and are as susceptible of being enforced when the community ceases by a repeal of the law, as they are when it terminates hy a separation from bed and board.</p> <p>The repeal of the law does not destroy the right of the wife to the property acquired under it.</p> <p>The repeal lavfregulating the commumty of acquests, is not supplied by any statutory provision of this state.</p> <p>Property found in a succession is regulated by the the tíme* it is °Pe”ed' , n0 matter how different or to thMuiemay t]iebe|" tat?e™as ac'</p> <p>T[ie same mle do?s n°i gard to proper-t^' into the community of acquGsts &nu gains.</p> <p>Jawg country where tikes ^lace Sa acqu^f^anl be cr’earia^ia^ubsi2^nglaVthere should be no munlty C°bed'e Pel'r entered into ment, 6'would lation of rights-vested under the contract,</p> <p>It is not the the Time0 the community is that in vigor at was ^forned which reguoHiusbandand pérty acquired during cover-</p> <p>The ean acquire a right madeduring foré^hat’ merriageisdissolved; and these rights exist to the same extent, and are as susceptible of being enforced when the community ceases by a repeal of the law,as they are when it terminates by a separation from bed and board.</p> <p>The repeal of the law does not destroy the the right of the wife to the property acquired under it.</p>

This was an action by the lessor, to recover from the defendant the possession of a house, which the latter held as sub-lessee under Hudson. From the evidence it appeared, that the plaintiff had leased the house to Hudson, for one year from the first of January, 1827, with an agreement that, if Hudson required it, he should have the privilege of remaining seven years longer at the same rent.

<p>Until the vendee offer to return the slave he cannot have an action for the price which is the consequence of the rescission of the sale.</p> <p>Until the venfurn°the slave hecannothave an action for thepricewhich quence oTthe recision of the</p>

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

This was an action brought against the tutor of minors claiming from them a debt due by the estate of the ancestor. The defendants excepted to the jurisdiction of the court, which exception was sustained, and the cause transferred to the Court of Probates. From this judgement the plaintiffs appealed.

The plaintiff failed to show an amicable demand of the debt, which was put at issue by the pleadings, and judgement being rendered in his favor, with costs, the defendant appealed.

<p>After a cause is sent to the Supreme Court, by regular appeal from any of the inferior tribunals of the state, the court of the first instance can no longer legally take any steps therein, except such as may be necessary to transmit the record to the court above.</p> <p>. After a cause the Supreme larappealfrom ?ny of j’1.® m" als of the state, first instance pfgaiiy l°tíkl any . steps .mcífás maybe traiTsmit^ the-record to the court above.</p>

<p>The decision of the juiy will not be disturbed unless manifestly contrary to the evidence.</p> <p>The decision of the jury will not be disturbed unless manifestly contrary to the evidence.</p>

<p>Where property is sold for taxes, it behooves the purchaser to show a strict fulfilment on the part of the officers of government of all the formalities required by law.</p> <p>[01! taxes> ,;t behooves the purchaser to foifihnent^on th® Part°f the officers of government, of ¡ties required by law></p>

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

<p>The payment of a specific sum does not liquidate an unsettled account, and cannot be pleaded in compensation.</p> <p>The payment of a specific sum does not liquidate an unsettled account, and cannot be pleaded in compensation.</p>

<p>Owners of vessels are responsible for goods stowed on deck, unless such stowage is authorized by the consent of the shipper or by custom.</p> <p>Owners of vessels are responsible for goods stowed on deck,unless such stowage is authorized by the consent of the shipper, or by custom.</p>

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

<p>APPEAL FROM THE COURT OP PROBATES OF NEW-ORLEANS.</p>

This was a suit on a bill of exchange, drawn by Thorn on Erwin & Co., merchants, at Savannah, in Georgia, of which the defendant was a partner, and by them accepted. The bill was dated sixth February, 1818, and made payable to the plaintiffs, or order, sixty days after date.

<p>A deposition taken before a parish judge cannot be read in evidence, if the private seal of the judge be wanting; and in such a case proof of the signature of the judge is inadmissible.</p> <p>A deposition taken before a parish judge cannot be read in evidence if the private seal be wanting; and in such a case, proof of the signature of the judge is inadmissible.</p>

This was an action to. recover from the owners of the brig William Henry, the value of certain goods damaged on a voyage from Philadelphia to New-Orleans. The respondents in their answer admitted the shipment, but averred that the damage was not occasioned through their fault, fraud or want of diligence, but from the leaking of the vessel caused by the dangers of the sea, and for which they were not responsible.

This was an action by the endorsee against the drawers of a bill of exchange, and commenced by attachment. The answer averred that the plaintiff had no interest in the bill, and further, that it was the property of the payees, Webb & Co., against whom the respondents had an equitable defence. From the evidence, it appeared that Webb & Co. were indebted to the plaintiff, and remitted to him the bill, which, 'when collected, was to be placed to their credit.

The plaintiffs opposed the tableau of distribution filed by the curator of the estate of Bernabeu, whereon Goodale was placed as a privileged creditor on a sum of money received by the curator from an insurance company, on the loss of a cargo furnished to the deceased on Goodale’s credit, and for which the latter had not been paid. The court a qua sustained the opposition, and the defendant appealed.

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

<p>APPEAL PROM THE COURT OP THE PIRST DISTRICT</p>

<p>A party who takes out a commission is not bound to have it executed, nor is a defendant who has annexed thereto cross interrogatories entitled to a continuance, on the ground of their being unanswered.</p> <p>A party who takes out a commission is not bound to have it execuled nor .g a defendant nexed thereto atories^ntmld t0 a continuanee on the ground of their Jeered. U"an'</p>

<p>An agent is a competent witness, and a demand made by him in the presence of another witness, is one made in the presence of two witnesses.</p> <p>Where a purchaser is unable to comply with the terms of sale, and agrees that the property shall be sold at his risk, it is not necessary that the sale should be by auction.</p> <p>An agent iswitness, and a by him, in the o^e^wltnels" is one made in two witnesses, An agent is competent</p> <p>Where a unable to com-term ^of sale6 and agrees that the property shall be sold at his risk, it is not necessary that the sale should be by auction.</p>

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

<p>Where the agent buys in his own name, but for the benefit of the principal, the principal, when discovered, is bound, as well as the agent, unless it appear that the vendor with a knowledge of the circumstances, elected to make the agent his debtor; or, after the sale, the principal was induced to settle with the agent, in consequence of a receipt, or other documents, furnished by the seller.</p> <p>Where the agent buys in his own name, but for the benefit of the principal, the principal when discovered is bound, as well as the agent, unless it appear that the vendor, with a knowledge of the circumstances, elected to make the agent his debt- or; or after the sale the principal was induced to settle with the agent in consequence of a receipt or other documents furnished by the seller.</p>

<p>APPEAL FHOM THE COURT OF THE SECOND DISTRICT.</p>

<p>A mortgage creditor may proceed either in the place where the defendant has his domicile, or in that where the mortgaged property is situated. Where the former mode of pursuit is adopted, proceedings must necessarily be in the via ordinaria; and, in such a case, the oath of the creditor is not required as a preliminary foundation to his action.</p> <p>No order of court is necessary to give effect to the recording of a judicial mortgage.</p> <p>The judgement of the court must be in conformity with the prayer of the petition.</p> <p>When partial payments are made of a debt bearing interest, the amount paid is to be deducted from the aggregate of principal and interest; and if the balance left does not exceed the principal it carries interest.</p> <p>A mortgage proceed either where6th^de5fendanthashis that where the pertyTsituathe former mode of pursuit is adopted, proceedings must necessarily be in the via ordinaria-, and, in such a case, the oath of the creditor is not required as a preliminary foundation to his action.</p> <p>er of courtis necesfeci to The re-Judicial mor£ gage.</p> <p>The judge-court must be wiUi°the°pTayer of the petition</p> <p>When partial payments are made of a debt bearing interest, the amount paid is to be. deducted from the aggregate of principal and interest, and if the balance left does not exceed the principal, it carries interest</p>

The plaintiff paid for a cabin passage on board the defendants’ schooner, bound from New-Orleans to Tampico, and having been compelled to remain on deck during the voyage, brought the present action to recover damages. There was judgement for the plaintiff in the court below, and the defendant appealed.

<p>APPEAL FROM THE COURT OF PROBATES OF NEW-ORLEANS.</p>

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

<p>A curator ad hoc may be appointed to represent a defendant who is absent from the state at the institution of the suit; and such appointment supplies the place of citation.</p> <p>It is not necessary to obtain the judge’s order, previous to the commencement of a suit against a married woman, for a cause of action relative to her separate interest.</p> <p>In an action by the creditors of the vendor, to annul a sale, on the ground of fraud, the vendee is a competent witness, although he may have transferred the property.</p> <p>Creditors who were not such at the time of the alienation, cannot claim the rescission of the sale on the ground of simulation alone, without consequent fraud.</p> <p>It is a general rule, that acts by which a debtor alienates his property, can only be considered as fraudulent against creditors, who are such at the time of the alienation. Yet subsequent creditors may be considered as being injured by such alienations, and have a right to cause them to be annulled, if they were made with the intention to provide the means of defrauding such creditors.</p> <p>Donations from the husband to the wife, when opposed to the interest of creditors, may be viewed in all instances as well calculated to conceal fraud, and if there be evidence that they were made to defraud creditors, either those who were such at the time of the donation, or subsequently became so, have a right to cause them to be rescinded.</p> <p>A curator ad' Tioc may be appointed to represent a defendant Who is absent from the state at the institution of the suit, and such appointment supplies the place of citation.</p> <p>It is not ne-' cessavy to obtain thejudge’s order previous to the commencement of a suit against a married woman, for a cause of action, relative to her separate interest.</p> <p>In an action by the creditors of the vendor to annul a sale on the ground of fraud, the vendee is a competent witness, although he may have transferred the property.</p> <p>Creditors who were not such at the time of the alienation, cannot claim the rescission of the sale on the ground of simulation alone, without consequent fraud.</p> <p>It is a general rule, that acts by which a debtor alienates his pro» perty, can only be considered as fraudulent against creditors who are such at the time of the alienation ; yet subsequentcreditors may be considered as being injured by such alienations, and have a right to cause them to be annulled if they were made with the intention to provide the means of defrauding such creditors.</p> <p>Donations from the husband to the wife, when opposed to the interest of creditors, maybe viewed, in all instances, as well calculated to conceal fraud, and if there be evidence thatthey were made to defraud credithose who fte'tlmTof the donation, or subsequently became so, cauTe^hem^to be recinded.</p>

<p>APPEAL PROM THE COURT OP THE FIRST DISTRICT.</p>

<p>Under the laws of Spain, natural fathers who have no legitimate issue, may dispose of all or any part of their estate in favor of their natural children.</p> <p>The sale of minor’s property by private contract, is absolutely void.</p> <p>An alteration in abaptismal registry, by erasingthe word “natural,” and writing over it the word “legitimate,” has no effect in preventing the registry from being used to establish the period of birth, although the alteration be not .accounted for. It would be otherwise if the document were offered to establish the legitimacy of the parties.</p> <p>An objection to a will which refers to a mere relative nullity can alone be taken advantage of by the legal heirs»</p> <p>Where the object is to establish that certain property made part of the estate, , . . ., , , , , an extract from the inventory is proper evidence, and the whole need not be produced.</p> <p>Where oyer of a document is prayed, the party may decline to answer until it is produced, or he may amend his answer if the oyer was prayed after it was filed.</p> <p>Ancient titles are proper evidence when not opposed to a grant from the United States.</p> <p>A private act has no effect against third parties, except from the date of its registry.</p> <p>The possessor, in good faith, is entitled to the value of his improvements</p> <p>Under the Natural fathers "° sue, may dis-any6 pfartU of their estate in fayor of their natural chil-</p> <p>The sale of minors’ pro-by pri. yate contract is absolutely void.</p> <p>An alteration registry by era-“natural”Wand writing over it gitimate,” has preventing the registry from being used to establish the periodof birth, although the noraccounted bTóthCTwTse'if the document to establish the the'parties. °f</p> <p>An objection to a will which refers to a mere relative nullity can alone be taken advantage of by the legal heirs.</p> <p>Where the object is to establish that certain property made part of the estate, an extractfrom the inventory is proper evidence, and the whole need not he produced.</p> <p>Where oyer of a document is prayed, the party may decline to answer until it is produced, or he may amend his answer if the oyer was prayed after it was filed.</p> <p>Ancient titles are proper evidence when not opposedto a grant from the United States.</p> <p>A private act has no effect against third parties, except from the date of its registry,</p> <p>The posses.faith,is entitled the value of his. improvements.</p> <p>The purchaser of minors' property by private contract will be considered a possessor in bad faith.</p> <p>Reference to a title deposited in the office of another notary is not equal in law to a communication of that title to the vendee, nor is the means afforded by the reference equivalent to actual knowledge which will alone destroy good faith.</p> <p>Good faith sumedaVSuntil b^showlfand that presúmpst°oyedn0t by fh'evemieehad the means of knowledge of Ids titiefeCt m</p> <p>Reference to in^nothei^notarial office, repels the presumption that to the^thTng deliveredW°to the parties.</p>

<p>The appellee must be cited to appear before the court of appeal at its next term, if there be sufficient time.</p> <p>The appellee must be cited to appear before the eourt of appeal at its next term if there be sufficient time.</p>

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p> <p>The principle laid down in the case of Armor vs. his Creditors, 2d Lou. Reports, 376, affirmed in this case.</p>

<p>For the purpose of deciding on a motion to dissolve an injunction, the facts alleged in the petition on which it is obtained, are taken as true, but may be controverted in an answer on the merits, if such motion does not prevail.</p> <p>For thejmrdfng on a moan^njunctíon6 th^.faa^s aUe&" tioiTon which ^rJs tme, but may ed in an answer on the merits, if such nofprevaih068</p>

<p>If land be alienated for a perpetual rent, on the failure of payment, by which the alienee is to lose all his rights to the premises, and may be expelled on the simple order of a judge obtained on the oath of the alienor, and the latter on the failure of the former (the premises being vacant and unoccupied) enter with his knowledge and without his opposition on certain conditions with which the alienor afterwards complies, the title of the alienee is thereby divested.</p> <p>If land be alienated for a perpetual rent, on the failure of payment by which the alieneeistolose all his rights to the premises and may be expelled on the simple order of a judge obtained on the oath of the alienor, and the latter on the failure of the former, (the premises being vacant and unoccupied,) enter with his knowledge and with,out his opposition on certain conditions with which the alienor after-wards complies, the title of the alienee is thereby divested.</p>

<p>A policy of insurance against fire, where the contract states the company have insured eight thousand five hundred dollars on one brick house and two wooden ones, is not a valued policy.</p> <p>The rules which govern the interpretation of other contracts, regulate those of insurance; and it is a cardinal rule of construction to give, if possible, every part of the agreement effect.</p> <p>The written parts of a policy control those which are printed; but this rule is only applicable where they are irreconcilable.</p> <p>The words “valued at,” are invariably used where the intention of the parties is to make the estimate conclusive</p> <p>The underwriters have no right to rebuild, unless the right is expressly conferred.</p> <p>A policy of insurance gainst fijii where the contract states the company have insured eight thousand five hundred dollars on one brick house and two wooden ones, is not a valued policy-</p> <p>The rules the'intefpreta^ tio“ of.othe1' contracts regulate those of j"¡s *acardinal ™le ,.of cof" give if possi0f6 the'agree-““^written</p> <p>Parts of a policy control those which tMs^-uíells’on*y applicable where they are irreconcileable.</p> <p>The words “valuedat”are invariably used where the the parties isto ^nclus>ve,</p> <p>„„ The underwriters have builT^ unless the right is expressly confer-^ red.</p>

<p>A motion to dissolve, assumes the facts stated as true, and if these facts present a just ground for the injunction, it ought to he sustained.</p> <p>Notwithstanding the implied admission of the truth of the allegations contained in the demand for an injunction, the plaintiff in execution may put the defendant on proof of them.</p> <p>A motion to dissolve, assumes the facts stated as true, and if these facts present a just ground for the injunction, it ought tobe sustained.</p> <p>temed m the, injunction, the elution 1 may Putt,le defendant on proof of them. Notwithstanding the implied admission of the truth of the allegations con-</p>

<p>APPEAL PROM THE COURT OP THE THIRD DISTRICT.</p>

<p>Where the record is imperfect, the appeal will be remanded at the cost of the appellant.</p> <p>Where the record is imperfect, the ap peal will be remanded at the cost of the appellant.</p>

<p>APPEAL FROM THE COURT OF PROBATES FOR EAST BATON ROUGE.</p>

<p>Whether amendments after issue joined, shall be permitted, depends on the exercise of the sound and legal discretion of the court, but from the exercise of that discretion an appeal may be taken.</p> <p>It is a general principle, which may be safely resorted to, that amendments should be permitted when they tend to the furtherance of justice.</p> <p>Whether aterissuejoined milted^6 *depends on the exercise of the sound and leof1 the °cour” hut from the discretion an talrenímaybe</p> <p>T . It IS a general principle, safely resorted ^4hatamend-he permitted tend1 to /he justiceanCe °f</p>

<p>Objections to accounts of Executors must be made in writing within three days after the account is filed.</p> <p>An objection which should have been made in the court below, cannot be noticed in the appellate court.</p> <p>Objections to accounts of executors must be made in writing within three days after the account is filed.</p> <p>An objection which should have been made in the court below, cannot be noticed by the appellate court.</p>

<p>Where the sheriff returns “ nothing made nor no property of the defendant found, and this writ expiring the same is returned,” it offers no evidence of the fact on which the surety is responsible.</p> <p>The law requires that the sheriff shall return the execution into courl, after endorsing on it a report, in which he shall declare that he has found no property to seize, notwithstanding the demand made of the parties; and in the absence of these formalities the surety cannot be called on to pay.</p> <p>vvnere me sheriff returns “nothingmade nor no property of defendant found, and this writ expiring the same is returned,” it offers no evidence of the fact on which the surety is responsible.</p> <p>The law requires that the sheriff shall return the execution into court, after endorsing on it a report, in which he shall declare that he has found no property to seize, notwithstanding the demand made of the parties; and in the absence of these formalities the surety cannot be called on to pay.</p>

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

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

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

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

<p>The purchaser is not bound to pay until his vendor removes the encumbrance which exists, in virtue of the mortgage in favor of the creditor at whose suit the land is sold.</p> <p>The purchaser isnotbound to pay until his vendor removes the encumbrance which exists in virtue of the mortgage in favor of the creditor at whose suit the land is sold.</p>

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

<p>In apetitory action, if the plaintiff alleges that he derives his title by virtue of certain acts of Congress, and as assignee of another to whom a certificate had been given, the plaintiff may offer in evidence a certificate to him, in virtue of a purchase of his assignor.</p> <p>In a petitory action, if the plaintiff alleges that he derives his title by virtue of certain acts of congress, and as assignee of another to whom a certificate had been given, the plaintiff may offer in evidence a certificate to him in virtue of a purchase of his assignor.</p>

<p>A decree of a competent tribunal assigning separate property to the wife, cannotbe collaterally attacked for fraud and simulation.</p> <p>A decree of tribunal assign-properly to' the coliaterall^attacked for ulation.</p>

<p>APPEAL PROM THE COURT OP THE THIRD DISTRICT.</p>

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

<p>APPEAL PROM THE COURT OP THE THIRD DISTRICT.</p>

<p>In an hypothecary action, the denial of an amicable demand, is equivalent to a denial of the ten days notice.</p> <p>To support the hypothecary action, the law requires a demand of payment from the debtor thirty days previous to notice to the third possessor; and no proceedings against the latter or the mortgaged property, can be commenced until after the expiration of the ten days notice required by law.</p> <p>jn an hypoth^derria?0"! “ amiable demand, is equivalent to a ten ¿ays no_ tlce-</p> <p>To support the hypothecary action, the law requires a demand of payment from the debtor,thirty days previous to notice to the third possessor; and no proceedings against the latter or the mortgaged property, can be commenced until after the ixpiralion of the ten days notice required by law.</p>

<p>In a suit between A and B, wherein C intervenes, if the plea of intervention be dismissed by the court a qua, and its judgment affirmed on appeal, C is no longer a party to the suit; nor can any order be taken against C, although it issue before the judgement of the Appellate Court, is recorded in the court below.</p> <p>In a suit between A and the plea of intervention be dismissed by ^ it“ judgement afiirmed on appeal, c is no to^fmsuit-^or be” táScen^a* gainst c, albefore1 ^ ^tlle the§ Appellate Court is re-court below,</p>

<p>Where the payment of a note is secured by mortgage, if the note become prescribed, the mortgage is without effect.</p> <p>, , payment of a by mortgage, if the note become prescnbed, the morteffect.SW1 °U</p>

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

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

<p>An injunction requiring the sheriff to stay proceedings on an order for provisional seizure, but which issues after actual seizure has been made, has no effect unless the sheriff be ordered to restore the property seized.</p> <p>An injunction requiring the sheriff to stay proceedings on an order for provisional seizure, but which issues after actual seizure hasbeenmade, has no effect unless the sheriff be ordered to restore the property seized.</p>

<p>If the reconvenor urges the trial of his suit simultaneously with the original action, both ought to be tried together.</p> <p>Where evidence is admitted in the court below, which could have had no relation to any matter except the plea in reconvention, and which is not noticed, the reconvener is on that ground entitled to a new trial.</p> <p>If the reconvenor urges the trial of his suit simultaneously with the original action, both ought to betried together.</p> <p>Where evidence is admitted in the court below, which could have had no relation to any matter except the plea in reconvention,andwhich is not noticed, the reconvenor is on that ground entitled to a new trial.</p>

<p>All matters which may be specially pleaded in defence, are open to the admission of evidence of every fact which might be legally opposed to them in pleading.</p> <p>A defendant is not entitled to a continuance on the score of surprise, when by the proceedings on a former trial of the same cause, he is apprized of the grounds assumed by the plaintiff, and the nature of the proof in support of them.</p> <p>One of the heirs has no right to demand a debt due to all the heirs; nor will the naked possession of the evidence of the debt, increase the right.</p> <p>An agent with a naked power to collect, cannot transfer to a third person with notice, a power coupled with an interest, which which will vest such right and title in the instrument, as enables the agent to use it not for collection, but for the payment of his own debts.</p> <p>An attorney or mandatory, cannot take his own paper in payment of a debt due to his principal.</p> <p>All matters whichmay be specially pleaanfoperfto&e admission of evidence of every fact, ^legallyopFnSpieadingem</p> <p>A defendant to a score of sm> prise, when by ingsonaformsame cause lie is apprized of the ■ grounds assumed by the plaintiff, and the nature of the proof in support of them.</p> <p>One of the heirs has no right to demand a debt due to all the heirs-, nor will the naked possession of the evidence of the debt, increase the right.</p> <p>An agent with a naked power to collect, cannot transfer to a third person with notice, a power coupled with an interest, which will vest such right and title in the instrument, as enables the agent to use it not for collection,butfor the payment of his own debts.</p> <p>An attorney or mandatory cannot take his own paper in payment of a debt due to his principal.</p>

<p>APPEAL PROM THE COURT OP THE EIGHTH DISTRICT.</p>

<p>A sheriff is responsible to a plaintiff in execution, if he know of .property belonging to the debtor and neglect to seize it.</p> <p>Where the justice of the peace names in the writ the person who is to execute it, the latter is in that instance an officer defacto, and may properly be presumed to have been such de jure.</p> <p>A constable’s deed is proper evidence without having been recorded, and the recording of it adds nothing to its force and effect.</p> <p>A sheriff is responsible to a plaintiff in execution, if he know of property belonging to the debtor and neglect to seize it.</p> <p>Where the peace6 names6 jmmoiTwho^is to execute it, the latter is, in that instance, facto°,¶:nd may properly be presumed to hayebeensuch</p> <p>constaprop erd 66 devidence without recorded, and of6lt raddsdno^ forcf and ef fect.</p>

This suit is brought to recover of the defendant one thousand five hundred dollars, the price of three arpens of land by forty deep, on the bayou Teche, sold by the plaintiff to Martin Sudrique. The sale is evidenced by public act, dated October 18, 1824, and retains a special mortgage until complete payment of the price.

<p>ArPEAE PROM THE COURT OP THE PIPTH DISTRICT, THE JUDGE OP THE DISTRICT? PRESIDING</p> <p>The plaintiff alleges he is the curator of Louis De l’Homme (who is absent or dead), and as such, claims of the defendant two tracts of land, a negro woman and her two children, and eighty head of horses and horned cattle; and also, three thousand dollars due by a note, and payable to Louis De l’Homme, signed by the defendant and dated June 8,1827. The defendant alleged he purchased all the property claimed by the plaintiff from Louis De l’Homme, who conveyed it to him by an act sous seing privé executed in duplicate the eighth June, 1827, and proved by two witnesses before the parish judge; that this note for three thousand dollars had been paid, the debt remitted to him, and the note torn to pieces by the consent of D l’Homme and thrown away, but had been picked up and pasted together by some person unknown to him, and now sued on. He also stated that Louis De l’Homme had no legitimate or legal heirs and owed no debts; and denied the plaintiff’s right to represent him as curator of an absentee, he being dead before the appointment.</p> <p>' The plaintiff, in amended petition, denied the validity of the act of sale set up by the defendant, and that it was obtained by fraud, no consideration having been given on the part of the defendant. The latter denied the plaintiff’s right to dispute the validity of the act of sale; not being forced heirs, creditors, or for the use of either of them, proof of the alleged fraud cannot be offered.</p> <p>A set of persons styling themselves heirs of Louis De l’Homme now intervened. They alleged that the act of sale made by Louis De l’Homme to the defendant, was for the benefit of Madame De Kerlegand his mother, as an indirect and disguised donation, he being a person interposed; that the mother of defendant lived in a state of concubinage and adultery with Louis De l’Homme, and is incapable in law to receive a donation, &c., which made directly to the concubine, or indirectly through an interposed person, is void in law and of no effect against the donor. They prayed to join the plaintiff, interplead, and be put in possession of the property; that the defendant be prohibited from setting up any title to it under the said act or otherwise.</p> <p>The defendant’s counsel objected to filing the petition of intervention, on the ground that the persons styling themselves as heirs and plaintiffs in intervention, had no interest in the event of the suit, their rights could not be compromitted, and that it would change the issues joined between the.original parties, áse. The objection was overruled.</p> <p>The defendant offered the act under private signature from Louis De l’Homme to the defendant, as evidence to prove the sale, and witnesses to prove the execution of the instrument, all of which was objected to on the ground that the act was not signed, De l’Homme having made his mark, which is not a signature; and that calling witnesses to prove the making of the mark, would be receiving parole evidence of a contract required to be in writing. That the marque ordinaire is not a signature in contemplation of law; and an act sous seingprivé, signed by making the marque ordinaire cannot, be received as a commencement of proof in writing. The objection was overruled, and excepted to by plaintiff’s counsel.</p> <p>The plaintiffs offered parole evidence to prove the fraud and simulation of the sale to the defendant for the purpose of disguising a donation to his mother who was incapable of receiving, áte. The defendant’s counsel objected to its admission, on the ground that the mother was no party on record; that the vendor himself could not attack the act of sale, and that the evidence goes to contradict a written title, and is inconsistent with the plaintiff’s own demand set up for the amount of the note sued on. The objections were sustained and excepted to. The defendant’s counsel also objected to questions being asked by the plaintiffs of witnesses under cross examination, concerning the title to the property claimed, or what De l’Homme should have said about the disposition of it. The objection was sustained by the court, and the opinion excepted to.</p> <p>Parole evidence was received, proving the note sued on to have been given for the price of the property claimed in the same suit; also, establishing the heirship of the intervenors, and the execution of the act of sale to defendant. It was likewise proved that defendant had paid one hundred and twenty-five dollars on the note, and that Louis He l’Homme when about quitting the country surrendered the note to defendant, when it was torn to pieces and thrown on the ground. It was not shown by whom it was picked up and preserved.</p> <p>There was a verdict for the defendant that he be quieted in possession of the property and discharged from the payment of the note, but accorded twenty cents damages to the plaintiff. The plaintiffs appealed.</p> <p>1. The act under private signature offered by the defendant as the basis of his title to the property held by him, is invalid in law and inadmissible as proof. An act under private signature must be signed by the parties thereto. Lou. Code, 2238, 2240. Code of Practice, arts. 324-5.</p> <p>2. An act which is informal as a notarial act, will be good as a private writing if it be signed by the parties. But if it be not signed, but only subscribed by the party making his marque ordinaire, it will not serve even as a beginning of proof in writing. Lou. Code, 2232. Pothier on Ob.vol. 2, no. 774.</p> <p>3. The Code provides that when a man does not know how to sign, the notary causes him to affix his mark to the instrument. For how can a man formally avow or disavow his signature, if he has only made his mark, which any other man may make? Lou. Code, 2231,2240. Code of Prac. 324,325.</p> <p>4. An act to which a party who is unable to write, has affixed his marque ordinaire instead of his signature, cannot be considered an instrument of writing. Sirey, Recusal des lois el des arrets, vol. 7, part 2, p. 249, 670. Ib. vol. 8, part 2, p. 284. lb. vol. 10, part 2,p. 268. Ib. vol. 12,part 2, p. 289. lb. vol. 24. part 1, p. 245.</p> <p>5. The proof of an instrument to which a party has affixed his marque, depends on the memory of witnesses; and, therefore, it is proving the act itself by witnesses; and this cannot be permitted when the instrument is an act of alienation of real property; it must be by written act. Lou. Code, 2255.</p> <p>6. A concubine is incapable of receiving by donation, cither inter vivos or mortis causa. The act of sale in this case is attacked as being a disguised donation to the concubine, through her son, who is by law presumed to be a person interposed. We offer evidence of these facts, which has been rejected, but which should have been admitted. Lou. Code, 1478. Map. Code, 911. Pand. Francaise, vol. 8, p. 290-1.</p> <p>1. The mark of De l’Homme is a signature within the meaning of our code. Although the article may have been adopted from the French code, it must be interpreted in reference to our customs and manners. Our code is enacted in English as well as in French, and it cannot be said to have been the intention of those who adopted it in English to give to the expressions used, the strict and artificial meaning contended for. He cited Bailey's Dictionary, definition of the word “to sign.” Webster's Dictionary, definitions of “sign,” “signature,” &c. 6 Martin, N. S. 400.</p> <p>2. The plaintiffs have instituted this suit for the purpose of recovering the property claimed by them, from the son and not from the mother. The transfer to him is not a donation, but a sale. It is true he may be considered as a person interposed; but then the suit should have been brought against the mother. The son is not incapable of purchasing. It is only when the purchase is a disguise to cover a donation to the mother, that it becomes void. If such was the intention, here the mother should have been sued so as to have given an opportunity to defend her rights.</p>

This suit was commenced for the recovery of three thousand and eighty-five dollars, due by Jean Duhamel and J. Latislais, his surety, as the last instalment of the price of five arpens of land, by 40 on the Teche, purchased at the sale of Melamjon’s estate. The defendant, Duhamel, alleged that he was disturbed in the possession by Pierre Broussard, who had commenced a suit against him for the same land, and # _ refused payment.

This suit was first instituted for the recovery of three and one-half arpens of land with the depth of forty, on the bayou Teche. The defendant Duhamel cited the heirs of Melan9on, his vendors in warranty; they appeared, the cause was tried and went up to the Supreme Court, and at September term, 1824, a final judgement was rendered in favor of the plaintiff for the land, and remanded for the assessment of damages against the warrantors. See 3 Martin, JV. S. 7.

This is an hypothecary action against mortgaged property in the hands of the defendant as third possessor. The plaintiff had a judgement against one Balthazar Delahoussaye in the probate court for the parish of St. Martin, for two thousand five hundred and sixty-four dollars, with interest; which recognised a general mortgage on all the estate of debtor which he possessed since the 14th of October, 1814.

<p>APPEAL PROM THE COURT OP THE FIFTH DISTRICT, THE JUDGE OP THE SIXTH PRESIDING.</p> <p>This is an hypothecary action against mortgaged property in the hands of the defendant, as third possessor. The plaintiff obtained a judgement against one Balthazar Delahoussaye, in the Probate Court of St. Martin, for two thousand five hundred and sixty-four dollars and interest; and which recognised a general mortgage on all the property of the debtor from October, 1814, until it was discharged. The defendant is in possession of a mulatto boy named Louis, sold as the property of B. Delahoussaye in March, 1823, and which is the object of the present suit. The plaintiff claims the boy Louis, as being-subject to his mortgage.</p> <p>The defendant cited A. D. Bienvenu in warranty, from whom he says he bought the slave in March, 1823. A. D. Bienvenu answers, that he bid off the slave at a sale under execution against B. Delahoussaye, at the request of Terence Delahoussaye, a brother, and who sold him to the defendant. He pleads discussion, and avers there is a tract of land, formerly belonging to B. Delahoussaye, and now in the possession of A. Dumartrail, subject to tlje plaintiff’s mortgage, and which was last sold.</p> <p>The court ordered the discussion to proceed accordingly, and all proceedings in this case, to be suspended in the meantime.</p> <p>The plea of discussion having failed against Dumartrail, by the plaintiff’s claim being barred by prescription, the warrantor in this case (A. D. Bienvenu) contends that the prescription was acquired by the negligence of the plaintiff to bring his action within four years after coming of age, to set aside the alienation of the land to Dumartrail, made by his curator.</p> <p>There was judgement for the plaintiff, ordering the negro boy to be seized and sold to satisfy plaintiff’s claim. Defendant appealed.</p> <p>1. We contend (supposing the judgement against Dumartrait to be affirmed) that the plaintiff having, by his own act, through his fault and by his negligence, put himself in such a situation, as to be unable to comply with the order of the court ordering the discussion, the loss ought to fall on him alone; and that as the defendant cannot now be subrogated to his rights, privileges, and mortgages on the property in pos_ session of Dumartrait, the value of said property must be deducted from the amount of the claim for whom this suit is brought. This is the effect of the -exception cedendarum actionem.</p> <p>2. The third possessor is entitled to be subrogated to the plaintiff’s rights. Pothier Hypotheques, vol. I,p. 38-9, § 6.</p> <p>3. When the third possessor, who has paid the creditor, and the possessors of the other property subject to the same mortgage, have acquired them from the same vendor, there is a distinction to be made, if the third who is sued, has acquired his property since the sale to the other possessors, he cannot be subrogated, &c. But if the third possessor who is sued, has his sale anterior to the others, he is then entitled to his hypothecary action against them, &c.</p> <p>■ 4. If the creditor from whatever cause, has put himself in a situation to render it impossible to cede his rights to the third possessor, the exception cedendarum actiorem takes place, and the creditor'must suffer the loss of the value of the property, to which he cannot cede his rights. Pothier Hyp. vol. 1, p. 39-40. Ibid, vol. 2, p. 23. no. 43. Jurisprudence Hyp. par Guichard,vol. I, p. 392, no. 1. Ibid, vol. 2,p. 300, no. 3.</p> <p>5. The loss the plaintiff should suffer is the value of the tract of land in the possession of Dumartrait. We admit, that if it does not amount to the plaintiff’s claim, the property in the possession of the defendant, is liable for the balance. Sirey, vol. 15, part 1, p. 258. See Sirey’s Dig.,p, 28. Word Hypothecaire, no. 2.</p>

He alleges the defendants contracted with him for a lot, store and warehouse, in the Dutch Prairie in the parish of St. Mary, for the sum of one thousand eight hundred dollars, payable in three instalments; that he delivered, and the defendants took possession of the premises about the 12th of March, 1831.

This suit is instituted by the heirs and representatives of the late Stephen Minor, formerly of Natchez, against Winthrop S. Harding, as the only heir of Lyman Harding, deceased, for the recovery of one thousand and seventy-eight dollars and eighty cents, the balance alleged to be due on an account for , \ 6 money loaned to L. Harding by S. Minor, about the year 1820. They both resided in Natchez, in the state of Mississippi.

The plaintiffs, as the legal heirs of Pierre Etie, deceased, sue Robert Cade and James T. White, for the recovery of a tract of land, twelve and a half arpens by forty, on each side… Held: of the heirs and legal representatives of the deceased, at which it was determined, and accordingly ordered, that the whole of the succession should be sold at public auction, on certain terms and credits specified. The land now claimed was ordered to be sold, on the petition of E. Simon,.

<p>APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SIXTH PRESIDING.</p> <p>The plaintiff in this case, had become the purchaser of a tract of land in July, 1830, sold at sheriff’s sale, for which he executed a twelve months bond, with security. In 1831, an execution issued on this bond, was levied on this tract of land, which was advertised to be sold for cash at the court house door in Vermillionville, the 25th of August, 1831, between the hours of ten and three o’clock in the afternoon. The plaintiff, with the defendant and several other persons, bid against each other, when about fifteen minutes past three o’clock, it was adjudged to the plaintiff as the last and highest bidder, for five hundred and ninety-five dollars. The sheriff immediately demanded of the plaintiff the price of his bid, who informed him he would be ready to pay the money next morning, and receive a title. The sheriff refused to wait; the plaintiff then offered to give security to furnish the money in the morning; but the sheriff immediately put up the land at public sale, against the will of plaintiff, after the hour stated in the advertisement had elapsed, when the defendant and the other bidders combined together, and agreed that one should bid for all of them.- The land was adjudged the second time to the defendant Voorhies, and his associates, for the sum of one hundred and ten dollars. The plaintiff alleges the land became his by his bid, and that he had a right to twenty-four hours in which to make payment; and that he was ready to comply, and never refused to comply with his bid and the terms of sale; and that the adjudication to the defendants is null and void: 1. Because the sheriff omitted to re-advertise the land. 2. Because he refused a reasonable time to the plaintiff to make payment and rejected his bid illegally. 3. Because the hours mentioned in the advertisement, limiting the time of sale, had expired before it was again offered. 4. Because of an illegal and fraudulent conspiracy between Voorhies and his associates, by combining together to prevent the land from bringing its real value, and also to prevent competition among bidders, &c.</p> <p>The plaintiff prays that the sale to defendants be annulled, and declared of no effect.</p> <p>There were separate answers by some of the persons charged as defendants, denying they had any interest in the purchase. C. Voorhies, J. J. Neveu, J. Casteneau, and André Martin, pleaded a general denial, and that they were guilty of no fraud or collusion, but that the sheriff’s sale to them was legal and valid; and they prayed that it be confirmed, &c.</p> <p>There was judgement for the defendants, quieting them in their title to the property purchased.</p> <p>The plaintiff appealed.</p> <p>It was proved that the property was put up immediately and resold, after the hour in the advertisement had expired; that the defendants were engaged in the purchase, but had arranged it, so that only one of them was to hid. It was also , shown by the plaintiff, that he could have raised the money to pay for his bid the next day, and have given good security jn the meantime, until the money was paid. The land sold and purchased by defendants, was estimated by witnesses to be worth from two thousand to two thousand five hundred dollars.</p> <p>1. That the second adjudication is null, because the first adjudication to the plaintiff vested a title in him, which cannot be divested but by certain legal formalities. C. P. 690-95, La. Code, 2586.</p> <p>2. Because the plaintiff was entitled to retain the price, until the sheriff made a deed; who had no right to offer the land anew, until he had made a tender of the deed, for which three days, or twenty-four hours at least, are allowed. La. Code, 2588, C. P. 691.</p> <p>3. Because the sheriff failed to re-advertise the property on the second sale, and refused to wait any time for the first purchaser to pay the money, though he was informed he had it. La. Code, 2589.</p> <p>4. Because the sheriff offered the land for sale the second time, after the hour had elapsed within which it was advertised to be sold, and it was not advertised at all on the church .door, as required by law. C. P. 667-8,677.</p> <p>5. Because of an illegal conspiracy among the defendants, to defraud the plaintiff, and purchase his property at a great sacrifice. 3 M. JV. S. 70, 46. I Comper, 395. 6 JDurn. and East. 299,6 Johns. 194,8 do. 444.</p>

This suit commenced bjnthjunction. Dugat, the present defendant, instituted suit, and in May, 1831, recovered judgement against Eastin for three hundred and fifty dollars and costs.

This suit commenced by injunction, obtained by the plaintiffs therein, to enjoin two executions issued by the state treasurer in September, 1828, against B. S. Haw, late sheriff of the parish of St. Landry, and the plaintiffs who are his sureties, for the state taxes due by said parish, for the years 1826-7. The first execution issued against Haw alone, for the taxes due in 1826, for which year he gave no surety bond.

The plaintiff claims four hundred arpens of land, on the island of Cote Blanch, in the parish of St. Mary, now in the possession of the defendants. He derives his title by regular mesne conveyances from the heirs of Abraham Roberts, deceased, who held the land in virtue of an order of survey granted by the Baron de Carondelet, the 18th of April, 1792. This title was accompanied by a plat of the survey made by Fr. Gonsoulin, dated April 18th, 1802.

<p>A judgement obtained by the wife against her husband on his confession, although conclusive between themselves, is liable to be impeached on the ground of fraud and collusion by third persons, against whom it may operate. ,</p> <p>So in a suit by the wife (founded on a previous judgement against her husband), to recover property alleged to be subject to her legal mortgage, and claimed by a third person or creditor of the husband, on an allegation of fraud and collusion, the burthen of proof will be thrown on the plaintiff, to show the truth and genuineness of the claim on which she obtained the judgement against her husband.</p> <p>A judgement obtainedbythe wife against on* his^confession, although conclusive between them-to^be impeach-ground*1 Fraud and coljmr°onsagainst operate*4 may</p> <p>So, in a suit (Founded on ^a previous judgment against her husband), perty0*aUeged to be subject to her legal mortgage, and third*person or husband onan allegation ^oi lusion, the bur-will*be^thrown to 4*show*nthe truthandgenuclaim on which she obtained agaiMt^her husband,</p>

The plaintiff claims the succession of one Magdelaine Masse, deceased, on the ground that he was the adopted son of her and her late husband, Etienne Sem Fusilier, both f. p. c. He shows that he was purchased, as a slave, from A. Solieau, by the said Magdelaine and Etienne Sem, and emancipated by them in a public act, passed in 1797, before Martin Duralde, commandant of Attakapas and Opelousas, in which he was acknowledged as the natural son of Etienne Sém; and by a…

The plaintiff sues for the recovery of four hundred and sixteen dollars and fifty-eight cents, the balance of a judgement on a note of the defendants, obtained in the parish of Rapides, about the first of April, 1827.

The plaintiff having been appointed, in November last, attorney for an absent heir to the estate of R. Taylor, deceased, filed his petition last May term of the court, against the administrator, demanding three hundred and one dollars, as a compensation for his services; alleging that the law deprived him of the power to represent claims and appear against the heirs of the succession, in consequence of said appointment.

<p>In an action of partition and settlement between tbe heirs and surviving partner of a community, and payment is a principal ground of defence, although the evidence is not conclusive, in consequence of the lapse of time since the transaction, which was among relations whose confidence tends to dispense with the formalities usually attending transactions between strangers, and the judgement is in favor of the defendant, it will not be reversed.</p> <p>. In an action of partition and settlement betweentheheirs partner^of "I community, and payment is a ^rincigal fence,although not conclusive inconsequence time'sirme^the wMch°*was' awhoferel confiS dence tends to fhe^formalHies usually attend-mg transactions between the judgement the’defendanf it will not be reversed.</p>

The petitioner sues for the separation and recovery of certain property in the possession of her husband, which she claims as paraphernal. She had a judgement rendered in her favor in 1827, for the articles of property brought by her into marriage, and her claim for six hundred and seventy-two dollars in money was cumulated with the actions of the creditors of her husband, and she separated in property from him.

The plaintiffs claim one thousand six hundred superficial arpens of land on the bayou Teche, which is in possession and also claimed by the defendant. From the testimony, there is no dispute about the locus in quo; the superiority of title alone forms the issue between the parties.

This suit is brought to recover the balance of the price of a slave, sold at the sale of the estate of John Davis, deceased, of which G. H. Bell is the administrator. In December, 1819, the succession of ¥m. Thompson, deceased, was sold by order of the judge of probates, and among the items, there was a negro man named Randall, i & sold to Wm. Haslett for one thousand five hundred and ten dollars, who gave Wm.

<p>The plea of payment is a question of fact, which is made out from documentary and other evidence; and when it appears from all the circumstances and presumptions arising out of the evidence, to be proved, the judgement of the inferior court in favor of the defendant, will not be disturbed.</p> <p>The plea of payment, is a question of fact, which is made out from documentary and other evidence; and when it appears from all the circumstances and presumptions arising out of the evidence, to be proved, the judgement of the inferior court in favor of the defendant,will not be disturbed.</p>

The plaintiff claims a negro woman, named Venus, and her children, as heir to Bernard Stewart, her paternal grandfather, and which are in the possession of the defendant. In 1809, Bernard Stewart died in Attakapas, leaving Catharine Stewart, his grandaughter, as the only heir in the descending line. The negro woman Venus, with one child, belonged to his succession at his death.

The petitioner and three descendants, instituted suit, in November, 1830, to recover from the defendant the succession of Eleanor O’Donogan, a deceased daughter, and the late wife of William G. Knox. Eleanor had bequeathed her estate to her husband.

This case arose on a commutative contract, in which the plaintiff engaged and sold to the defendant, a certain quantity of plant cane, with the privilege of cultivating it with some stubble cane, on a piece of land; also, the hire of ten slaves, two work horses, and two yoke of oxen, &c. The defendant engaged on his part, to pay eleven thousand pounds of sugar, and molasses in proportion, to be delivered to the plaintiff in the month of February, 1830, following the date of…

APPEAR FROHÍ THE COURT OF THE FIFTH DISTRICT, THE JUDGE OF THE DISTRICT PRESIDING. The plaintiff sues for the recovery of a moiety of a note for five hundred dollars, which he had endorsed with James Dixon in his lifetime, for Wm. Simons, to the Bank of Louisiana. Simons having failed to pay it, the Bank brought suit against the plaintiff, as the first endorser, and compelled him to pay the whole amount.

The appeal, in this case, was taken to the August term, 1831, of this court, and continued over until August term, 1832. The suit is brought for the recovery of certain slaves. The plaintiff had judgement, and the defendant, who is in possession of the slaves, appealed. Splane, of counsel for the defendant and appellant, suggested to the court, that the record was incomplete; several papers introduced in evidence, not appearing in it.

The plaintiffs claim, as heirs of Joseph Prevost, deceased, two thousand six hundred and sixteen dollars and twenty-eight cents, which, they allege, came into the hands of George Simeon, as curator ad bona. J. Prevost, the ancestor of the plaintiffs, died in 1804, leaving considerable property in lands, slaves and stock.

This is a hypothecary action instituted against Francis S. Gerault, for the recovery of eight thousand five hundred dollars, the price of the late James Kempe’s half of a plantation, called and known as the Rifle Point Plantation, and nineteen slaves, held by him and Gerault in partnership, and now sold at the probate sale of Kempe’s succession, and purchased by Gerault; and also against Thomas Hunt, as the third possessor of this property, which is subject to the vendor’s…

<p>In a suit by an heir to recover of tbe executor a debt alleged to be due to him by his ancestor’s estate, the executor may introduce evidence to show that the heir has lost all right of recovery by attempting to embezzle or clandes tijiely carry away property of the succession.</p> <p>So if an heir clandestinely carries property of his ancestor’s succession out of the state, or attempts to do so, he becomes responsible for all the debts of the succession, and any rights which he previously had as a creditor are extinguished by confusion.</p> <p>In a suit by an heir to recover of the ex-alleged to^be due to him by his ancestors estate, the ex-troducema5evidence to show that the heir has lost all eiybyattemptzle or cl an destinely carry aoTthePsucces^ si°n.</p> <p>clandestinely^ tyofhiPancestor’s successionoutofthe state, or attempts to do so, he becomes alfthe debfaof the succession, wMch he'prea'creditor'are extinguished by con usion.</p>

This is an action by the heirs of the late Levi Wells against the heirs of the late Richmond E. Cuney, who was the principal acting and joint executor of Wells’s estate, and tutor to the minor heirs, to compel a settlement of the administration of their ancestor’s estate. There were two other persons appointed executors with Cuny. But the latter administered the estate, and also attended to the interests of the minor heirs.

At the October term, 1832, of the Supreme Court, sitting at Alexandria, Joseph Friend, a citizen of the parish of Ouachita, presented his petition to the judges at chambers. preferring charges and accusations against John H. Kellum, Esq., clerk of the district court tor said parish. .

<p>APPEAL FROM THE COURT OF THE SIXTH DISTRICT, THE JUDGE OF THE FIFTH PRESIDING.</p> <p>This is a petitory action for two lots of ground in the town of Alexandria, in the possession and claimed by the defendant as curator of the vacant estate of one James O’Daniel. The plaintiff claims title regularly derived from Alexander Fulton and wife, who laid off the town and sold the lots.</p> <p>The defendant derives title from a judgement confessed by the curator of D. Davis’s estate, in favor of one Charity Walthers. Curtis’s appointment as curator was made at the foot of the judgement he confessed, against the estate he was appointed to represent and administer. Davis had purchased the lots from Fulton, and his heir, Thomas Davis, conveyed them to J. Taylor, who sold and conveyed them to the plaintiff.</p> <p>The defendant averred he had been long in peaceable possession of the property, under a bona fide title, translative of property; he therefore pleads the prescription of ten and twenty years.</p> <p>The confession of judgement was made May 26,1817, and suit commenced in 1828.</p> <p>1. That this suit should be dismissed. The citation had not been served within the year allowed for the appeal, and no correction in the service of the appeal could be made after the expiration of that time.</p> <p>2. The judgement under which the defendant claims title to the lots was rendered by consent of Davis’s curator, who had no right to give it, and the whole proceeding in obtaining the judgement and selling the property was illegal, null and void.</p> <p>1. Service of the citation was made on the attorney of the appellee, who is his agent, and in his absence the only agent known to the law, &c.</p> <p>2. The sheriff’s deed to C. Walthers ought to have been' read on the trial. It was evidence at least of its contents, being an official act of a public officer.</p> <p>3. Proof by witnesses ought to have been admitted to show the loss of the execution under which the sheriff made the sale to C. Walthers. The case ought to be remanded to let in this testimony.</p>

This suit commenced by injunction to stay an execution issued on a judgement obtained by Stewart & Ortley against D. & K. McCrummen, in 1821, for one thousand nine hundred and one dollars with interest. The plaintiff alleges that this judgementhas long since been paid, and the amount received by the then attorney of Messrs. Stewart & Ortley.

This is an action instituted by the plaintiff, to set aside and annul a donation of one-half of the plantation and slaves on which he resides, made to Jean Tarbe and Marie Anne B'ouis, niece of the plaititiff.in consideration oftheir intended marriage. The act of donation is The plaintiff now seeks to anuul this donation, on the ground that the act contains a clause of substitution, being made to the wife, and if she die without heirs, then it is to go to the husband.

This suit is brought on a promissory note, executed by Doralise Lacour, late widow of J. P. Lemoine, deceased, as principal, and Martin Rabelais as security, for one thousand eight hundred and ninety-seven dollars and seventy-one cents, with interest, payable to the plaintiff, and dated 27th March, 1830. The husband of Madame Lacour states, at the bottom of the note, that he authorizes her to sign it. The defendants aver they executed the note in error.

<p>In a suit to recover compensation for improvements put on property sold under a mortgaged claim of another person, proof of the increased value of the property by such improvement must be given, to authorize a recoveiy. This proof may be procured by calling in the purchaser of the premises at the sheriff’s sale.</p> <p>The act of 1831, page 102, annexing a penalty in damages on the dissolution of an injunction, does not apply to injunctions obtained before its passage. A statute cannot inflict a penalty for an act committed anterior to its promulgation.</p> <p>la a suit to recover compensation for improvements put on property sold under a mortgaged claim of another person, proof of the increased value of the property by such ímprovement, to^'authofile'a prooFmay'be procured by calling in the purchaser of the premises at the sheriff’s sale.</p> <p>The act of 1831, page 102, annexing a penalty in damages on the dissolution of an injunction, does not apply to injunctions obtained before its passage. A statute cannot inflict a penalty for an act committed anterior to its promulgation.</p>

The plaintiffs appealed from a decision of the Probate Court placing them on the tableau of Curtis’s estate for dollars, when they claim to be allowed a larger sum. , Charles Curtis,'in his lifetime, became the surety of one R. H. McWaters^- who made the following purchase at the probate sale of A. Fulton’s estate: “A tract of land containing 145 arpens at $43 per arpent, amounting to.........................................................$6,090.

This is an action of boundary, in which the plaintiff cites the defendants, J. and J. Hudson, who occupy the next plantation below him, and also A. Dupre, whose plantation adjoins the defendants, to appear in court in order to fix and establish the boundary lines between their respective plantations, according to law. The starting point or settled boundary, is at the lower side of A. Dupre’s plantation, on Red river.

This is an injunction suit to restrain the defendant Plunkett from proceeding on an order of seizure and sale obtained against the plaintiffs for part of the price of the tract of land on which they reside, and which they purchased from Plunkett. Soon after this purchase, Wm.

<p>APPEAR FROM ÍHE COURT OF THE SIXTH DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.</p> <p>The plaintiffs sue the defendant as security of the late R. r J H. McWaters, for the price of a slave, amounting to one thousand five hundred and five dollars and interest, which the latter purchased at the probate sale of A. Fulton’s estate. mi . . ... JLhey allege that the price of the slave remains unpaid; that McWaters is dead, his estate insolvent, and that the defendant is now liable as his surety.</p> <p>The defendant avers that Eliza McWaters, one of the plaintiffs, and heir of Fulton, was the wife of R. H. McWaters at the time of the sale, and directed her husband to purchase this slave on her account, as a portion of her share as one of the heirs of Fulton’s estate, &c. He further states that the representatives of Fulton deceased, claimed the price of the slave, and were put on the tableau of R. H. McWaters’s estate as creditors to that amount. That the defendant, having an interest as surety, intervened, had the claim reduced to five hundred and fourteen dollars and thirty-one cents, with interest, &c., for which a final judgement was rendered in favor of Fulton’s heirs against McWaters’s succession, which is unappealed from, and is now pleaded as res judicata. That to satisfy this claim, the proceeds of this slave, sold as part of McWaters’s succession was to be first applied, and for any remainder they were placed as chirography creditors against his estate. He pleads discussion of the effects of McWaters’s estate, before coming on him, &c.</p> <p>There was judgement against the defendant for six hundred and thirty-seven dollars and forty-three cents and reserving the rights of the minor heirs, &c., of Fulton to resist the judgement of the Probate Court, rendered on the intervention of Sollibellos against McWaters’s succession. The defendant appealed.</p> <p>I. The nature of the claim out of which this contest arises. He urged the right of the plaintiffs to impute the payment made by McWaters, in the five thousand’ dollars received as his wife’s portion of Fulton’s estate to both the purchases he made at the sale of the succession. Having jone ^is, the plaintiffs are entitled to a large balance from his security in the purchase of the land.</p> <p>^ >j>he surety has no right to plead discussion of McWaters’s property before coming on him. He is bound in solido, to Fulton’s estate, as surety of McWaters.</p> <p>1. This case turns on a single point. When McWaters’s estate was before the Probate Court the defendant appeared before the homologation of the tableau, and had this debt reduced by the imputation of part of the amount received from Fulton’s estate to its payment. The judgement of homologation is now res judicata.</p> <p>2. The defendant has the right to discuss the property and proceeds of McWaters’s estate before he can be required to pay the remainder of this debt.</p> <p>3. The judgement of the inferior court was erroneous and informal, in reserving the right of the minor heirs of Fulton to appeal.</p>

APPEAL PROM THE COÜRT OF THE SIXTH DISTRICT, THE JUDGE OF THE DISTRICT PRESIDING. This is an action on a promissory note by the bank, to the Use of P. S. Newton & Co., to recover from Joseph Roberts, the payee and endorser; the plaintiffs are the endorsees or holders of the note, which is as follows: “Bayou Sally, St. Mary, March 1, 1832. $1,421.

The plaintiffs sue for the recovery of three, thousand dollars and interest, as the price of a plantation adjudicated to the defendant T. J. Wells, at a probate sale of the estate of T. & E. Grafton.

This suit is brought against the defendant on his security bond, as former administrator of the vacant estate of James O’Daniel, deceased, of which the plaintiff is now the curator, to compel the former to account to him in damages, for the value of property lost to the estate of O’Daniel, by his negligence whilst administering it, and for the hire of a negro woman and child, which he kept for some time in his possession, &c. The plaintiff prays that he be condemnéd in his…

<p>APPEAL FROM THE COURT OF THE SIXTH DISTRICT, THE JUDGE OF THE DISTRICT PRESIDING.</p> <p>The plaintiffs sue for the recovery of one thousand and ninety-one dollars and seventy-five cents, the balancé due on the price of two slaves purchased at the probate sale of Chas. Curtis’s estate, by Mary Drake, with John G. Young as one of her sureties. Both her and the other surety are dead and the plaintiffs seek to make the money out of the defendant, and subject the slaves so purchased, in his hands, to the vendor’s mortgage.</p> <p>Young pleads payment, and sets up a balance in reconvention for usurious and illegal interest, paid to the plaintiffs through error.</p> <p>The plaintiffs had judgement for one thousand and eleven dollars and eighty-four cents, with interest and costs, and that the slaves mortgaged be seized and sold to satisfy the judgement. The defendant appealed.</p> <p>The widow Drake (formerly Mrs. Curtis,) was put on the tableau of her former husband’s estate as a creditor for the full amount of her claim and judgement. It was but a usufruct only, and she is now dead, so that any claim she ever had is totally extinguished and gone.</p> <p>That as suit was instituted on the proces verbal of the sale of Curtis’s estate for the price of slaves purchased by the widow, that her judgement against the estate decreeing to her her marital portion, should be imputed to the payment of what she purchased.</p> <p>That the judgement of Mrs. Curtis (late Mrs. Drake) against the estate of Curtis, was not in usufruct, but for money which can never be had unless it is allowed in compensation or set off.</p>

This suit is brought on an account current between the plaintiff and defendant in which the former claims a balance of eight thousand nine hundred and eighty-one dollars and forty-three cents, and the enforcement of a mortgage on a plantation and twenty-nine slaves in the parish of Concordia, against the latter, to secure payment.

This is a petitory action, to recover a tract of one hundred and twenty-four and a balf acres of land in the possession, and claimed by the defendant. The plaintiffs set up title to the premises in virtue of a settlement right under the law of April 12,1814, as evidenced by the register’s certificate, dated October 13,1830.

This suit is instituted on a joint and several note for three hundred dollars, signed by Wm. Richardson, John McCormick, and Levi Guice, and payable to the plaintiff in good merchantable cotton, in January, 1832.

<p>A donation propter nuptias, made by the husband in the marriage contract, on the eve of the celebration of the nuptials, does not have the effect of a mortgage on the husband's property against third persons, unless the state of the husband's affairs at the time of the donation, authorized it.</p> <p>A donation propter nvptias made by the husband in the marriage contract on the eve of the celebration of the nuptials, does not have the effect of a mortgage on the husband’s property against third persons, unless the state of the husband’s affairs at the time of the donation authorized it.</p>

<p>Where mortgaged property is sold and transferred by the third possessor on the day of the sei'vice of the citation, at the suit of the mortgagee for the enforcement of the mortgage, such transfer and disposition will not affect the mortgagee’s rights against the third possessor.</p> <p>g^edproper? tyis sold and transferred by the third posday°of the ser? vice of the citation at the suit of the mortgagee for the enforcement of the mortgage, such transfer and disposition will not affect the mortgagee’s rights against the third possessor.</p>

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

APPEAL PROM THE COÜRT OF PROBATES FOR THE PARISH OF NATCHITOCHES. This suit was originally commenced by the hypothecary action in the District Court, against L. S. Hazleton, the third possessor of mortgaged property. During the pendency of the suit, Hazleton died, and it was transferred to the Court of Probates and continued against Ambrose Sompeyrac, syndic of Hazleton’s creditors.

<p>Where the defendant has been cited about four months before court, is absent when the suit is called for trial, and has taken no preparatory steps for his defence, but has only spoken to his counsel to attend to any business of his which might arise in court; although his counsel makes affidavit that he has a good defence and believes his rights will be much injured if the cause is tried without an opportunity of consulting him, but is not aware of anyproof in his favor, it will not be good ground for a continuance of the cause.</p> <p>Where the aerendant has been cited a-months before court, is absent when the suit is called for trial, and has taken no preparatory steps for his defence, but has only spoken to his counsel to attend to any business of his which- might arise in court; although his counsel makes affidavit that lie has a good believes his much injured tried without an opportunity him,Cbut ?s not proof in°Msf£ vor, it will not fojfa° contlimanee of the cause.</p>

Morehouse, deceased), the administration of his succession, which she alleges has been accepted by all the heirs, with the benefit of inventory. The defendant is the wife of C. F. Morehouse, and is in possession of the estate, and was so left at the death of her husband. She has accepted the community of acquests and gains with the benefit of inventory.

The plaintiff applied to the Court of Probates to be appointed administratrix of her deceased husband’s estate, alleging there is a large crop of cotton and other products growing on the hereditary lands belonging to herself and her late husband’s succession, and that she has accepted the succession with benefit of inventory, and that it is not practicable to partition out the community of acquests and gains at present.

The plaintiff, in behalf of herself and the other heirs and legal representatives of the late C. F. Morehouse, claims the administration of his estate. She alleges, it is now administered as a vacant succession, by his widow, as curatrix. The plaintiff asks to accept the succession, with benefit of an inventory, and have the administration of it; and that the defendant be required to render an account of her administration, as curatrix.