Volume 6 — Louisiana Reports

This was a petitory action. The plaintiff claimed title to two tracts of land, by purchase from the heirs and legal representatives of the late William Brocus, by act under private signature, bearing date May 17th, 1825. The two tracts are described in the petition, as fronting on each side of the bayou Sallé, and as having been purchased about twenty years before, from John O’Reily and William Addison, one of them measuring twenty arpenls, formerly owned by John .

The syndics of the insolvent filed a tableau of distribution, to which he and his wife made a joint and several opposition. They complained that the wife had not been placed on the tableau as a privileged creditor for the amount of her dotal property; that the sales of ceded property of the insolvent should have taken place on the same terms and with the same formalities as provided for sales of property seized in execution.

<p>When two parties are applicants for the purchase of a tract of land from the United States, and the Register permits one of them to purchase, bis title under such a permission will not be disturbed, although the evidence does not satisfactorily prove the decision between them to have been made by a comparison of the proof of their respective pretensions.</p> <p>When two parties are applicants for the purcha>e of a tract of laud from the United St ites, and the Register pirmits o.ie of tiem to purchase, his title under such a.permission will not be disturbed, although the evidence do"8 not satisfactorily prove the decision between them to have been made by a compxn.'on of the prool of their respective pretensions.</p>

<p>A promise by the drawer to pay a bill of exchange, after he was verbally notified of the drawee’s refusal to pay it, is a waiver of his right to protest and notice in the usual form.</p> <p>Where a suit was brought on a bill of exchange, and the defendant and drawer was not charged in the petition, upon his promise 1o pay after presentment of the bill to and refusal of payment by the drawee; and where eighteen months before the trial the defendant was apprised that he would be charged on that ground, by a deposit'on which was taken: held that evidence of such promise was admissible, although objected to on the trial.</p> <p>a promise by abm’oTexcíiauge Lily notified^of the drawee’s refusaito pay it, is a waiver of Ins right to protest usual form.</p> <p>witeíírough't o5u a and °theXdtfeifdl was not* charged in the petition, upon his promise to pay after pr> seiitmeut or tha bill to aud refusal theSmroe. and months before the anfwM apprised charged'Im*'tiut ground,byadepositionwinch was taken: held that evidence of such pronrse was ad-objected to on“ue tri“L</p>

In October, 1823, Margaret C. Stille and Fernando Gayoso, promised to pay Theodore Mudd, or order, the sum of |>4,000in ten years, with ten per centum interest, from the 1st of April until final payment; the interest to be paid annually. On the 18th of January, 1828, the note was endorsed over to the plaintiff. In May, 1829, Madam Stille died, and James Stille was appointed the administrator of her estate.

This action was instituted against the defendant as. endorser of the following promissory note: “La Fayette,9th January, 1831. In all the month of March, 1832,1 promise to pay to order of Pierre Montel, the sum of one thousand dollars, if not paid when due, to bear ten per cent, per annum interest from that time until paid. Value received. “Witness.

In this action the wife sued her husband to obtain a separation of property and for the recovery of her dotal and paraphernal effects. She claimed of the defendant the sum of fourteen thousand one hundred and eighty-three dollars and eighty-four cents, as the amount of effects which she brought in marriage, in various articles of property inherited by her and received by the defendant as the administrator of her estate.

<p>APPEAL FROM THE COURT OF PROBATES, FOP. THE PARISH OF LA FAYETTE.</p> <p>The plaintiff brought this action in his own behalf as heir and as the attorney in fact of the other heirs of the late Jean Denaule, against the curator of his succession, praying that the said heirs be recognised by the court and put in possession of their said ancestor’s succession ; and that the defendant render a strict account of his administration.</p> <p>The curator denied the alleged heirship, and averred his willingness to account and pay whatever might be due to the persons entitled to it.</p> <p>The heirship of the plaintiff and his co-heirs was established and the curator rendered his account. In it was included a debt of $657 88, alleged to be due to the defendant for this sum collected on his account of one Dimitry, by the deceased. The only evidence produced in support of this item, was the receipt of the deceased to Dimitry, acknowledging that he received this sum for the account of Joseph Nunez. This receipt is dated at New-Oiieans 18th July, 1820. The account also contained damages against the estate of $202 for magistrate’s fees, in upwards of forty little suits, all upon accounts, found among the papers of the deceased in favor of the succession, instituted upon the advice of the attorney for the absent heirs, and all decided against the succession.</p> <p>The plaintiff opposed the homologation of the account and moved to amend it by striking out these items. The opposition to the first item only was sustained, and the account was with that amendment homologated.</p> <p>The defendant appealed. In his answer, the plaintiff prays to have the charge for magistrate’s fees stricken out.</p> <p>1. The sum of $657 88, claimed by the defendant as due him, ought to have been allowed. Compensation takes place for the sums due curators by the estate they administer, and such sums are to be deducted from the account they are required to render. La. Code, 2203, 4.</p> <p>2. This claim is not prescribed as it does not come within the provision of the five years prescription, and being an account, can only be prescribed by ten years if the creditor is present or twenty if absent. La. Code, 3505. 3508.</p> <p>3. The item for magistrate’s fees ought to be allowed as these costs were incurred in suits, because the accounts were found drawn off among the papers of the deceased.</p>

On the 25th of May, 1832, the plaintiff shipped at New-Orleans a quantity of merchandise for St. Martinsville, by the steam boat Shepherdess. On landing the freight a box of Irish linens invoiced at $300 31 belonging to the plaintiff was missing. The plaintiff charges, that through error or fraud, this box was carried to the house of the defendants either by them or by some person unknown to the plaintiff.

The plaintiff had obtained two judgments against the defendant in the city of Philadelphia, in 1823; each for about the sum of thirteen hundred dollars. Actions were instituted on each of those judgments. The defendant pleaded the general denial, an assignment of all his property, and a discharge under the insolvent laws of Pennsylvania, from all debts due by him prior to 1824.

The plaintiff sues for a tract of land on bayou Bceuf, containing ton arpents front by forty, being part of the Indian purchase, and set apart in the division to Samuel L. Wells, and by him divised to his son Willis, who sold it and conveyed it to the plaintiff’s late .husband. She prays to be restored to possession and quieted in her title. The defendant sets up title and pleads the prescription of ten years in pursuance of uninterrupted possession under a good title.

The plaintiff claims to be the owner of section 27, in a certain township of land, which he purchased at the probate gale of the estate of one Thomas Broderick, by the parish judge of Avoyelle, in 1827. He alleges the defendant has taken wrongful possession of it, and sets up adverse title thereto..

<p>APPEAL FROM THE COURT OF PROBATF.S, FOR THE PARISH OF RAPJDES.</p>

This-is a possessory action. The plaintiff is the widow of R. D. Richardson, deceased, and claims the possession of the plantation and slaves, on which her husband died, and of which she alleges she had the possession, until forcibly ejected by the defendants. The defendants filed separate answers; both denying possession to be in the plaintiff. Scott pleaded actual possession of the disputed premises; and Hook pleaded that he was in possession of them as Scott’s agent.

This was an hypothecary action brought to subject certain slaves in the hands of the defendant, as third possessor, to the plaintiff’s mortgage. The latter derives bis mortgage from a recorded judgment obtained by one James Miller against G. C. Russell, at the May term of the Rapides District Court in 1829.

The petitioner, as syndic of the insolvent succession of Samuel C. Cuny, deceased, sues to set aside two conveyances by authentic act, of sundry slaves and other property, by Samuel C. Cuny, in March, 1826, to Stephen E. Cuny, and by the latter in May following, to R. R. Cuny, each conveyance expressing as the consideration, the sum of eight thousand dollars.

This suit is brought against the drawers and endorser of the following note. “$¡400 Alexandria, April 2,1832. “On the first day of March, 1833, we jointly and severally promise to pay to the order of John Taylor, four . , J hundred dollars with ten per cent, per annum interest thereon, from the first of March lust, until paid, for value received, payable and negotiable at the Bank of Louisiana, at Alexandria.” “Jeffries and Whittier.” Endorsed “John Taylor.” The petition…

The plaintiff sues on an account for ‡707 18, alleged to be due by the late C. F. Morehouse, whose estate is administered by the defendant. She denies that she refused to allow the account, and avers that she noted the items in the one presented to her, which she was willing to allow, those that required proof and those that were absolutely inadmissible. She avers that the account sued on, although containing the same items, is not the one she noted.

The plaintiff sues Guice as the administrator of the estate of Jeremiah Griffin, deceased, who died in January, 1832, claim'ng from said estate, the sum of one thousand fifty-four dollars and twenty-nine cents, with interest. The demand is made up of several notes and accounts alleged to be due and owing by the succession of Griffin, at the time it was opened.

<p>APPEAL PROM THE COURT OP THE SEVENTH DISTRICT, THE JUDGE OP THE DISTRICT PRESIDING.</p> <p>The plaintiff sues William Richardson, Levi Guice, and John M’Cormick, on a joint and several obligation to pay three hundred dollars in all the month of January next-ensuing the date, payable in merchantable cotton at the market price, to be delivered in the town of Monroe. He alleges an amicable demand of the obligors, and refusal to comply with their obligation; wherefore he prays judgment for the sum of three hundred dollars with interest and costs.</p> <p>The defendants pleaded a general denial. On the trial Richardson and M’Cormick separated. There was a verdict and judgment against the first for the amount of the obligations and in favor of M’Cormick.</p> <p>The plaintiff moved for a new trial, which was overruled. Richardson appealed.</p> <p>The obligation was made by Richardson as principal, and signed by Guice and M’Cormick as sureties, and staked on a horse race and won by the plaintiff.</p> <p>The evidence showed that it was agreed among the parties, that another person was to have signed as surety, but who declined after Guice and M’Cormick signed.</p> <p>There was no evidence that the cotton was ever demanded, but it was in proof that M’Cormick, when pressed for payment, observed that he knew he was bound for the whole of the note, and expressed his willingness to pay his portion of it. On the trial the defendants introduced Guice, who had been released by a former verdict, to prove the want of consideration, and that the note was incomplete for wan-of all the signatures that were agreed on. The plaintiff excepted to the opinion of the court admitting this witness.</p>

<p>A cause will be remanded, if on the trial in the inferior court, the evidence adduced was so confused that the Supreme Court cannot reconcile it writh the verdict.</p> <p>If advantage of the want of an allegation in the plaintiff’s petition of putting the defendant in delay be not taken by way of exception, proof of the putting in delay is admissible on the trial, and it is too late for the defendant to oppose its introduction.</p> <p>The wife, although separated in bed and board from her husband, cannot, without his consent, give a power of attorney to alienate her real estate; though, without his consent, she may give such power in regard to her personal property.</p> <p>a canso win is ¡h”Tdaid’ ¡n tho evidence adduced that the supreme Court cannot re-“¡.“ÍJ.tit"'ithtlM></p> <p>,If advantage 0f the want of an supSurspetition wayTfYxceptio^ ting^deiayY admissible on the trial, arid it is too late for the defendantto oppose its introduction.</p> <p>though separated froSorhusblndl cannot, without his consent, give a power of attorney to alienate her real estate, though, without hi* consent, she powerfn°regard property?61 E°nal</p>

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

The plaintiff states that a certain judgment was obtained by P. and R. Peebles, against one Martha Welch, and that execution issued and was levied on a tract of land, formerly belonging to H. P. Welch, but which was sold and conveyed to him (plaintiff) during the pendency of these proceedings.

<p>APPEAL PROM THE COURT OP THE SEVENTH DISTRICT, THE JUDGE OP THE DISTRICT PRESIDING.</p> <p>The plaintiff sues on an attachment bond, executed by the defendant in a former suit against the present plaintiff. He claims two hundred dollars as the penalty, on the ground that the attachment had been wrongfully sued out; and twenty-five dollars paid his counsel; twenty-five dollars travelling expenses; and fifty dollars for his trouble, &c. in attending the suit.</p> <p>The defendant admitted the execution of the bond, and that the attachment was set aside, but not on the ground that there was no cause for it. He pleaded a general denial, and that the plaintiff had sustained no injury.</p> <p>The district judge on hearing the testimony gave judgment in favor of the plaintiff for thirty dollars.</p> <p>1. The present defendant obtained judgment in the attachment suit against the present plaintiff, for his debt, but the attachment was dismissed by reason of the insufficiency of the oath or affidavit.</p> <p>2. The appellant now contends that a judgment of dismissal or non-suit is not sufficient on which to base the plea in bar of res judicata.</p> <p>3. That although the attachment may have been dissolved, the present defendant may show in this action that he had good reasons to apply for an attachment, and if he does he cannot be mulcted in damages. 6 Mar. JV. S. 238. 8 Ibid 484.</p> <p>4. No damages are shown to have resulted from the ° attachment.</p>

APPEAL PROM THE COURT OP THE SIXTH DISTRICT, THE JUDGE OF THE ^ SEVENTH PRESIDING. The plaintiff alleges the defendant took a mortgage from G. C. Russell, on a tract of land and several slaves, to secure a nominal sum of $>7890, when in fact, and which was shortly afterwards ascertained, Russell only owed him about the sum of $3542.

This suit commenced by injunction. The petition was filed on the 8th of February, 1831.

The petition alleged that the defendant had lived in concubinage with the testator; that she had in her possession ahd claimed to own, certain notes belonging to the succession, amounting to one hundred and twenty-three thousand four hundred and fifty-one dollars and fifty cents; that the said notes were deposited in bank to the joint order of the two Parties, to await the decision of a competent court on the right of ownership.

This case commenced by injunction. Thomas Barron, on the 31st January, 1832, by public act leased to the late Mary Carroll, for the term of seven years, to be computed from the 1st of November, 1831, a house situated on the north side of Canal street, in the city of New-Orleans, designated as No. 48, in consideration of rents specified in said act.

Narcisse Landry, as testamentary executor of the late Paulin Melancon, rendered his account to the Court of Probates for the parish of Ascension, praying that all parties interested might be cited,… Held: that the wife claiming the marital portion, was bound to include therein whatever had been received from . n the predeceased husband by legacy, or otherwise, oee J\o. 2. Verbo. Quarte de Conjoint Pauvre, Merlin.

Mrs. Faure, formerly the wife of the late Toussaint Letourneau, and their only child and heir, Emilie Letourneau, brought this action to be quieted in their title to a tract of land, measuring sixteen arpents on lake Pontchartrain, at the mouth of bayou Castin, by forty arpents in. depth.

This case presents a question of fact, only. The petition alleged that the Louisiana Insurance Company, in consideration of a premium of one hundred and seventy-four dollars, insured the plaintiff against damage by fire, with the usual exceptions, relating to foreign invasions, &c., to the amount of eleven thousand and six hundred dollars, on furniture and other property, more particularly described in the policy, dated 11th of June, 1832.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This suit was brought by Louis Joseph Pecquet, the second endorser of the following note, against the first endorser and the drawer in solido.</p> <p>“ Nlle.-Orleans, le 13e. Decembre, 1832.</p> <p>A quatre vingt-dix jours de cette date, je paierai a l’ordre de Monsieur A. Dimitry, mille cinq cents piastres, valeur retjue. (Signed) P. Pandelly. (Endorsed) A. Dimitry; Ls. J. Picquet; F. P. Ducongé.”</p> <p>At maturity the note was duly protested for non-payment, and notice thereof given to the endorsers.</p> <p>Pandelly pleaded that a respite of one, two and three years, had been granted to him. He added the general denial.</p> <p>Dimitry pleaded the general denial.</p> <p>The plaintiff proved the signatures of the drawer and endorser, the protest of the note at maturity, and notice to the endorser.</p> <p>The drawer offered in evidence the proceedings in the cause of himself vs. his creditors, by which it appeared, that on the 23d February, 1833, the judgment of the court was pronounced, homologating the proceedings before the notary, and giving him a respite for the payment of all his debts, of one, two and three years.</p> <p>Pandelly’s plea of respite was sustained, and judgment was rendered against Dimitry for the amount of the note, with legal interest.</p>

This action was brought against the defendant as acceptor of the following bill of exchange: “ Louisville, Nov. 20, 1832. Thirty days after date, pay Mr. W. P. Thomasson, or order, four hundred dollars, and place the same to your obt. servant. “ Signed, Dudr. Heinsake. “ Dr. Wm. Baum, present.” It was endorsed, “ accepted, payable as soon as convenient, Nov. 20, 1832. Dr. Wm.

The petition alleges that Joseph Franqois Gaiennie, sold a certain tract of land near the bayou Plaquemine, to William Janes, for seven hundred dollars, for which the vendee’s 1 7 promissory notes were given, with privilege on the land for its payment. The plaintiff sues, as the assignee of the vendor. The transfer of the notes, with the privilege, was made by public act.

On the second of January, 1830, Jean Ursin Jarreau,sold to Jean Mani Choppin, and Antonio Bonaventura Michel, a steam saw mill with all its appurtenances, and the lot of ground on which it stands, situated in the parish of Point Coupée. The purchase money was nine thousand dollars, secured upon the premises by act importing confession of judgment, and to be paid at specified periods.

This cause was brought by the owner of a slave named Joe, drowned while in the defendant’s employ, to recover of him the value of the slave. This cause is now before this court on second appeal. It was remanded for a new trial on the previous appeal, because the Supreme Court were unable to agree with the three juries who had found verdicts for the plaintiff. For a statement of the facts and the opinion of this court on the first appeal. See 5 La. Rep. 53.

This was an action to recover damages for slanderous words spoken of the plaintiff by the defendant. The general denial was pleaded. The cause was submitted to two juries in the inferior court, and both returned verdicts for the plaintiff. The defendant appealed.

This action was brought against the defendant as drawee of the following note, which was annexed to the petition, “and referred to for more certainty.” “Dans le courant de Mars prochain, je payerai a l’ordre de Jacob Anselm, la somme de deux cents soixante quinze piastres, avec intéréts a raison de dix pour cent par an de cette date, jusqu’a parfait payement, pour valeur reque. Iberville, ce 16 Mai, 1831. “Témoin,” (Signed) Breux.” (Signed) J. Labauve.

, 5th May, 1831. In all the month of March next, we, or either of us, promise to pay to the order of Elias S. Bowman, the sum of six hundred and fifty-five dollars for value received, with the privilege of delaying the payment hereof for one year longer, by paying ten per cent, interest from the time this becomes due until paid.

By the tableau of distribution filed by the syndic of the J J J creditors of Thomas Gilbert, it appeared that there were assets in his hands to the amount of five thousand one hundred dollars. The privileged claims for costs, commissions, &c. amounted to one thousand one hundred and ninety-nine dollars ninety-five cents.

Mary, at the corner 0f Gravier and Baronne streets, in the city of New-Orleans, measuring sixty-nine feet on Baronne street, one hundred and one feet and seven inches on Gravier street, and one hundred twelve feet and ten inches on the line adjoining Mr. Mioton. The defendant became the purchaser for eleven thousand and eight hundred dollars, payable in six» twelve and eighteen months to be secured by endorsed paper and mortgage on the premises.

The defendant, Gibson, presented his petition, denying that the formalities of the law had been pursued in obtaining the order of seizure, and demanding the rescission of the sale, on the ground of error, induced by the vendor; and obtained an injunction, staying proceedings on the order of seizure and sale. To this demand, and the other allegations of the defendant, the original plaintiff, Moore, pleaded a general denial.

The petition alleged that Franqois Bernard Pacquetet, died in New-Orleans in 1832, having made his olographic testament, instituting certain persons his universal heirs and legatees, all of which, with the exception of one who was dead, lived in France; that the plaintiffs were appointed the attorneys in fact of the said legatees and heirs, to take possession of the estate. The testamentary executor and attorney for absent heirs, were made defendants.

<p>APPEAL PROM THE COURT OP THE FIRST DISTRICT.</p> <p>The plaintiff averred that he was the lessee and occupant of two warehouses, situated on the batture, in front of suburb Delor, of the city of New-Orleans, and that the defendant in the years 1831 and 1832, had at divers times committed various trespasses on the property; that he had thrown various obstacles in the way of the peaceable enjoyment of the plaintiff, particularly as to the landing in front of the premises, by placing there rafts and other obstructions, by which the plaintiff had sustained damages amounting to five hundred dollars.</p> <p>The defendant pleaded the general denial, and that he had not been legally put in default.</p> <p>- The cause was submitted to a jury, by whom a verdict was returned for the plaintiff. Judgment having been rendered, the defendant appealed.</p>

The plaintiff alleges he is the son of Pierre Commagere and Franqoise Frilonx, both deceased: that his mother died intestate, in 1800; that she had brought in marriage the sum of one thousand four hundred and eleven dollars; that during the marriage, a certain lot of ground was purchased by his parents, which after his mother’s death, was sold to Madam Mercier, for eleven thousand two hundred and fifty dollars.

This action was brought by one of two joint vendors of certain real estate in the parish of Lafourche, to recover his portion of certain instalments of the purchase money. The defendant excepted that the debt claimed was indivisible, and that the heirs of the co-vendor should have been made co-plaintiffs. The exception was overruled, and the defendant filed his answer to the merits, pleading the general denial and several special pleas.

This case now comes before this court on the second appeal. For a statement of the facts on which the first appeal was taken and the decision of the court see 5 Louisiana Reports, 223. After the cause was remanded the plaintiff proved the possession of the premises as alleged, from the 1st April 1831 to the 10th June, 1832, and that the rent was worth thirty-two dollars per month. The plaintiff had judgment for four hundred and fifty-five dollars.

<p>Where three executors were appointed with joint and several powers in relation to the settlement and liquidation, and when that should be effected, they were to account to and place the funds of the estate in the possession of one of their number; held that to carry into effect the intentions of the testator thus expressed, a sale of the property was indispensable.</p> <p>When three ex-pointed with joint and several powers, m relation to the settlement and liquidation, ed°utheyewereCto p°acenthet0funds the possession Óf ber;°heideithat'to carry into effect the intentions of the testator thus expressed, a sale of the property was indispensable</p>

This action was brought against William A. Bradley and Edwin Porter, both residents of the District of Columbia, and William D. Stone, residing in Mobile, carriers of the United States mail under the firm of Porter, Stone & Co. The claim was for iron work and machinery furnished by the plaintiff for four steam boats, the Long Branch, John Morris, William T. Barry, and Star of the West, which boats were at that time in the employ of the defendants.

This was an action brought by plaintiff, a painter and glazier in the town of Louisville, Kentucky, against defendants for breach of an alleged contract to' furnish plaintiff with a large quantity of spirits of turpentine, whiting and paint. The defendants allege that they made only a conditional contract, viz: to furnish the articles if they could procure ,, them.

The plaintiffs aver in their petition, “that on or about the 25th February, 1831, they contracted with the Merchants’ Insurance Company of New-Orleans, for the assurance of merchandise by any good American or French vessels, to be shipped from Havre and any port of France south of it to New-Orleans, during six months from and after the first day of August, 1831, and to be consigned to them, in consideration whereof, they paid the said company the sum of six hundred dollars,…

<p>Where a partnership, as to a single transaction, exists between two commercial firms, in an action by one firm for a settlement as to that transaction, it is not necessary to make all the members of the other firm defendants; especially where some of them do not reside within the juristiction of the court.</p> <p>In such a copartnership the actual amount only which one of the firms may have paid on the merchandise owned in partnership, for duties in a foreign port, will be allowed to the firm paying it; and the court will not inquire whether that amount was expended in bribing the custom house officers of the port where the duties were paid.</p> <p>Where the consignee paid the duties in depreciated government paper, on the consignment on joint account, solely at his own risk, and not at the instance and request of the consignor; held that the consignor was entitled to an equal shave of the gain, by that mode of payment.</p> <p>The signing of an account by one of the parties acknowledging its correctness, is not conclusive against a a correction of gross errors in fact or mistakes, as to the legal rights ot the parties.</p> <p>Where a partnership as to a «ingle transaction exists between two commercial ' firms; in an action by one firm for a settlement as to that transaction, it is not necessary to make all the members of the otlior firm defendants, especially where some of them do not reside within the jurisdiction of the •ourt.</p> <p>1Mrt„orship, the have páíd olía» merchandise ow« »ed in partner-^f^eSfowed to aidl™ court Ini Whether 5* a! ponded iiTbiib'househofficers°of the port whera duties wore</p> <p>Where on. cob, sigi,ee paid th« f“|egoVemmeíít if^nJg’nmeM ‘oñ Sfy athisC°oln uShice^and ISgáor” hlid orwasentitled to an equal share of tlle,saijl *>y ttat mode of payment'</p> <p>The signing of one ofCthe parties correctness, is not conclusiveagainst a correction of m to^thflegai r.ghte of the par.</p>

This suit was brought to obtain the seizure and sale of certain property, by virtue of a claim of mortgage for the payment of the sum of five thousand dollars.

The plaintiff is the grandmother and tutrix of three minor children of Felicité Tagiasco, who died in 1833. On her petition a family meeting was convened, which determined ■that it was for the interest of the minors, that a house belonging to them, situated in St. Peter street, in the city of New-Orleans, should be sold on certain conditions.

APPEAL PROM THE COtJRT OP THE FIRST JUDICIAL DISTRICT. The plaintiff sold to the defendant for five hundred and sixty dollars, a female slave with a child, by public auction, on the 11th of May, 1832. The terms of payment were the purchaser’s note payable in six months, with a satisfactory endorser. The slaves were delivered to the defendant, who refused to comply with the conditions of the sale. Judgment was prayed for the amount of the purchase money.

Henrietta Roche, widow of the late Arnaud Magnon, died on the 5th of February, 1833, and by her will, executed on the 25th of January, 1821, she appointed as her executors her said husband and Jean Baptiste Cajus. Arnaud Magnon died on the 4th of December, 1821, having by his will appointed his wife as his executrix, who declined the trust, and Jean Baptiste Cajus, who accepted it, and received letters testamentary accordingly.

The defendants sold to the plaintiff, and warranted against the vices and maladies prescribed by law, eleven slaves at public auction for the sum of seven thousand four hundred and thirty dollars. The plaintiff now alleges that one of them was, previous to the purchase, addicted to the vice of running away, and on that ground he prayed to rescind the sale. The Canal and Banking Company pleaded the general denial and prescription.

This action was brought by the endorsee against the endorser of a promissory note. Protest and notice to the defendant were proved in the court below, and judgment was there rendered for the plaintiff for the amount of the note, costs of protests and legal interest from protest. The defendant appealed.

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p> <p>The plaintiff avers that in 1829, her brother William Carr Withers died, leaving his last will by which he bequeathed all his estate, real and personal, in equal portions to her, to Sarah Ann Withers, her sister, and to Margaret Delia Withers, his wife. That the testator owned a lot of ground situated in the suburb Delor of the city of New-Orleans, containing one hundred and eighty feet in front on the Mississippi river extending backward and forming the like front on New Levee-street, bounded on the upper side by a street which is the prolongation of Suzette-street, and on the lower side by the property then, or previously, belonging to the 'succession of Urbain Gaiennié, in front by the river and in the rear by the said New Levee-street.</p> <p>She further averred that after the death of her said brother, the said Sarah Ann' Withers took possession of the whole of said lot of ground, and claimed to be sole owner thereof in virtue of an act, purporting to be one of donation inter vivos, executed to her by their said brother, before G. R. Strigner, notary public, on the 14th day of June, 1828.</p> <p>That the said act was null and void, and conveyed no title to sa;d Sarah in and to said lot of ground because:</p> <p>1. Said donation has not been duly accepted. That said Sarah was, at the time the said act was passed, a minor above the age of puberty, and should have accepted the same, by the assistance and authorisation of a curator which she did not.</p> <p>2. Because the, said act contains a substitution. That since the death of her said brother, said Sarah Ann Withers has executed an act of donation of one half of said lot to the ■ said Margaret Delia, the widow of your petitioner’s said brother, who is now in possession, and claims to be the owner of said half m virtue of said act.</p> <p>She prayed that said Sarah Ann Withers, now wife of Joseph M. Kennedy, and said Kennedy her husband, and Margaret Delia, married to Sosthene Allain, and said Allain her husband be cited, that said pretended acts of donation be declared null and void, that said lot of ground be decreed to belong to the estate of said William C. Withers, and one third thereof to her, as one of his heirs.</p> <p>Mrs. Allain and her husband, excepted that their domicil was in the parish of Point Coupee, and that they could be sued only in that parish. This exception was overruled.</p> <p>Mrs. Kennedy pleaded the general denial. In an amended answer she alleged, that she had been at great expense for several improvements she had made on the said tract of ground, which she had possessed and then possesses in good faith; she contends that in no case can she be disposessed of the said premises, without thoes expenses being first reimbursed to her, maintaining however, that the plaintiff has no right nor title to the said tract of ground, nor to any part thereof.</p> <p>The will of W. C. Withers, was in the following words: “New-Orleans, July the 16th, 1823. I, W. C. Withers, cf the city of New-Orleans, do make this my olographic will as follows, to wit:</p> <p>1. I do bequeath to my wife, Margaret Delia Withers, one third part of my whole estate.</p> <p>2. I also bequeath to my sister Sarah Ann Withers, one third part.</p> <p>3. I also bequeath to my sister, Margaret Withers, one third part of my whole estate, and finally, I do by these presents, appoint my wife, Margaret Delia Withers, and Martin Gordon, and Thomas S. Kennedy, my executors, and they are hereby empowered and authorised to make an inventory, and take full po-session of all my estate, without the intervention of any court of judication in this or any other state in the union.”</p> <p>It was admitted, that this will had been admitted to probate, and its execution ordered.</p> <p>The act of W. C. Withers, was passed on the 14th of June, 1823, and by it he gave, granted and conveyed, “unto jjjg 8£1^ sjsier Sarah Ann Withers, present and accepting, and to her heirs, ail that lot of ground on the batlurc of the suburb Delor, &c.” The description corresponded to’ that of the lot described in the petition. “To have and to hold the said lot of ground and premises, with the appurtenances' unto the said Sarah Ann Withers, her heirs and assigns, by title of donation inter vivos, upon this condition: that if the said Sarah Ann Withers shall die without leaving children, living at the time of her decease, that then in that case, the said lot of ground and premises shall revert to, and become the property of the said William Carr Withers, and his heirs, as if the donation had never been made; but it is hereby declared and understood, that the said lot of ground and premises, and all improvements that may be hereinafter made thereon, or any part thereof may be sold and disposed of by the said donee, Sarah Ann Withers, during her life time, with the consent and concurrence of the said William Carr Withers, the donor, and that any person or persons purchasing the same or any part or parts thereof, shall and may have and enjoy the same under perfect title, free from the condition aforesaid, on the concurrence of the said donor, William Carr Withers, being expressed or given by joining in any act or acts of sale of the same premises, or any part or parts thereof.”</p> <p>On the 7th of November, 1829, Mrs. Kennedy conveyed by donation, one half of the said tract of land to her sister in law, Mrs. Margaret Delia, widow of W. C. Withers.</p> <p>■ The judge a quo, considering the evidence doubtful, as to the minority of Mrs. Kennedy, at the time the act of donation was passed to her by her brother, decided that if it were admitted she was not then of the age of twenty-one years, it was in his opinion unnecessary that the acceptance should be made by her curator.</p> <p>The act- of donation is null. 1, As containing a substituiion reprobated by law. 2, As having been made to a minor, unassisted by her tutor. 3, Because there is no express acceptance of the donati >n.</p> <p>If the acts contain substitution, or if all the formalities of law have not been observed, it is a nullity. The forma”1 tics required for the validity of donation inter vivos are stridissime juris, as much so as in testamentary dispositions, property can neither be acquired or disposed of gratuitously in either way, but in the forms established by the Code. See art. 1453. On comparison of this article with the corresponding one of the Code Napoleon, 892, it will be observed that the prohibitions of our law are much more rigid and comprehensive.</p> <p>Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed. Code, art. 12.</p> <p>The Code as regards gratuilious dispositions, makes no distinction between donation inter vivos or mortis causa-, by reference to the heading of the ls< chapter of title 2, it will be seen that all the general provisions «apply to donations of every kind. This court, in conformity with the jurisprudence of France and Spain, and indeed of all countries where the civil law prevails, has repeatedly decided, that in matters of testament, the minutest and formalities must be observed. Batlemy vs. Oscar, 12 Martin, G44. Pizentot vs. Mullenshein, 3 Martin, 144. Knight vs. Smith, 3 Mart. 163.</p> <p>Substitutions and fidei commissa are prohibited. Art. 1507.</p> <p>The right of return can be stipulated for the donor alone. Art. 152L</p> <p>'The policy of the prohibition and the motives of the legislator, have been correctly stated by the court in the case of Arnaud vs. Tarhe, 4 La. Rep. 505, and this case presents all the evils which the law was intended to remedy. Confusion and difficulty of title, derangement of the order of succession, incapacity of alienation. To whatever period the life of the donee may be prolonged, no sale of the property can be made, for until then it cannot be ascertained whether the condition on which the property is to revert to the heirs of Withers, exist or not. See Dalloz, 24 vol. pages 389, 394, 417,423, 429, 430, 432. Toullier, lib. 5, JVo. 13, 32, 35, 36, 37, 48, 50, 51. No. 287. Grenier, Traite, des Donations, ml. 1, page 119, 122. See, also, Farra vs. M’Cutcheon, 4 JV. S. 50.</p> <p>The nullity affects the entire donation, the institution as well as the substitution. Toullier, 5th vol. No. 13. 24 Dalloz, Us. Ernst vs. Vander Heyden,p. 415. 24 Dalloz, lis. page 472. 24 Dalloz, lis. Dufen vs. Collera, p. 435, Cour de Paris. 24 Dalloz, lis. Dickenn vs. Montigu, p. 433, Cour de Paris.</p> <p>The clause of return in favor of the heirs of the donor, contains a substitution prohibited by law. 24Dalloz, lis.p. 456,7. 24 Dalloz, Us. Bourgenjuan vs. Hassel, p. 484. Guiraud vs* Bogiers, Sirey 1827, Upar. p. 68, 71.</p> <p>The donation is null, having been made to a minor, and not having been accepted 'by a tutor or curator. Code, 1533. Tutor may accept donation, art. 349. See Dolloz vol. 10,p. 139,140,141-. Grenier, lib. 1 ,p. 176,184, M. 60, 63. Dalloz, lib. 10, p. 155. Buclcier vs. Buclcier, Court of Cassation, 1816. Sirey, 1830, par. 2, Mirch vs. Mirch, p. 465, 300. Sirey, 1830, par. 1, Linchetvs. Chissig,p. 8.</p> <p>Minors are not entitled to relief for want of acceptance, only have recourse against their curators. Code, art. 1545. Delvincourl, 2 lib. p. 258.</p> <p>Donation is void, because not accepted in precise terms. Civil Code- 1527. It may be accepted by posterior act, during life time of donor, but then he must be notified of it. Art. 1527- The mere formal phrase contained in every notarial act, “present and accepting,” is not such an acceptance as the law requires. See Dalloz, lib. 10, p. 131, 134. Delvincourt, 2 lib. p. 255. Grenier, lib. 1 ,p. 175, JYo. 5.</p> <p>It is void because not registered according to law. Code, art. 1541, 3, 4,</p> <p>The provisions of the French law on the subject of gratuitous dispositions, are much less rigorous than those of our Code, and give much greater latitude for the disposition of property. See cap. 6, 2, tit. 3, L. Napoli on Code. “ Des dipositions enfaveur despetits enfans du donateur oulestaleur ont des enfans de ses fréres et sceursf and others, which, in conformity with the spirit of our legislation, have not been adopted by the framers of our Code.</p> <p>The court a qua, erred in rejecting the dispositions of the sisters of the parties. Phillips, on Evidence, vol. 1 ,p. 37, 38, 222, 232, 233. Starkie, on Evidence,, vol. 2,p. 746, 781, 782, Interested Witnesses. Martin's Reports, 4 JV- S. 338,539, 5 JV. S. 131.</p> <p>The minority of the defendant, at the time of the execution of the act of donation, is fully made out, and the act is null for want of a proper acceptance. La. Code, art. 349, 1527, 1529, 1531, 1533, 2537, 1545. Aicard, Traité des Donations, vol. 1, p. Domat, vol. 1, tit. 10, sec. 1, p. 302. Le Nouveau Purgóle, vol. 2,p. 611. Merlin, Repertoire Verbis Mineur, p. 7, et Donation, p. 4, sec. 4. Grenier, Traité des Donations, vol. 1, JVb. 61,,p. 215 & 227. Sirey. vol. 12, 1 p. 400, vol. 17, 1. 114. Favard de Langlade, vol. 2, p. 193-Biret, Traité des JVullités, vol. 1 ,p~ 246.</p> <p>The article 1785, is not applicable to donations. Grenier, vol. 1, JVb. 61, jj. 221. Toullier, vol. 5,p. 5 ef 6. Delvincourt, vol. 2,p. 72 el 258, and compare art. 1784 of our Code with art. 1739 and 1456, also 1506 with 2026.</p> <p>The act contains a substitution. La. Code, art. 1506, 1521. Ricard, Traité des Donations, 2 p. 223.</p> <p>The person substituted, need not be named in the act, nor indeed be known or in existence at that time. Ricard, vol. 2, ch. 8, sec. 2, p. 1 et 335. Pothier, Traité des Substitutions, sect. Ill,p. 575. Toullier, 5, JVo. 36, and the prohibition, applies to conditional substitutions. See a decision of the court of Rouen, quoted in Domat, annoté,*2 p."7Q5.</p> <p>Cases similar to the one in the present act, have been decided in France, to include a donation. Grenier, Traité des Donations, vol. 2. Toullier, 5, JVo. 48. Grenier, Traité des Donations, vol. 28, p. 176 & 189. Delvincourt, Cours d.u Code Civil 2 o. 77, 278. Merlin, Rep. Verb. Subst. Fidecom, sec. 1, par. 14, p. 1056. Questions de Droit, eodem verbo sec. 4. Sirey, vol. 23, p. 1, 310 & 312. Dalloz cited by Sirey. 4 La. Rep. p. 502. Arnaud vs. Tarbe et al.</p> <p>The donation is null for want of registering. Article 1541, 1541, 1543.</p> <p>J. and D. Segh"rs, on the same side, relied on the following points and authorities.</p> <p>1. A donation may be accepted by a minor, without the assistance of his tutor or curator. Xon debzt adversus pnpillos obszrvnri quod pro ipsis excogitnium cst. 5 Toullier, l.sí ed. p. 233, 233, J\bs. 195, 196. 8 Duranton, p. 474, JVn. 437.</p> <p>2. The plaintiffs allegation of the donee’s minority, is unsupported by the evidence.</p> <p>3. A donation cannot be said to contain a substitution, when it does not necessarily comprehend a charge io keep for and transmit to a third person. Farrar vs. McCulcheon, 4 Martin's R p. X. S. 47. 5 Toullier, p. 75, Xus. 50, 51. 8 Duranton, p, 68, Xu. 70.</p> <p>4. In the following sentence: “shall become the property of Withers and his heirs;” these words “and his heirs,” are mere surplusage ; (sont de style.) Pothier, vol. 5, p. 498. 4e. edition, Trail é des Substitutions.</p> <p>5. In order to contain a substitution, according to Toullier, the sentence ought to have read thus: “In case said Withers should die before his sister, then the right of reversion is hereby stipulated in favor of his, saiii Withers’ heirs:” which has not been done. On the contrary, the following clause speaks of the consent to be given by Withers alone, to destroy, in favor of third persons, the effect of this right of reversion. Merlin’’ s Ryerloi.re, vol. 12,4 th ed.p. 64, ar. 2, in fine.</p> <p>6. The principle concerning substitution, cannot be applied to a right of reversion. Sirey, vol. 23, 1st part., p. 309, Les freres St. Arroman.</p> <p>7. The principle that a minor can always better bis condition, is admitted both in French legislation and in our own; and the persons who have treated with him, cannot plead the nullity of the agreement; especially if the minor, when of age, has ratified the donation by disposing of a part of the properly. Old Code, p. 265, art. 25. Xew Code, art. 1785. 8 Pandectes Franpais, p. 404, 405. Xouveau Pothier, Donations, vol. 2,p. 228.</p> <p>8. According to the French Code, the tutor must accept with the advice of a family meeting, the donation made to his minor, even should bis ward be above, the age of puberty.</p> <p>By the Louisiana Code, arts. 349, 361 and 1533, the consent of the family meeting is not required, but the tutor or curator, as the case may be, is bound to accept, if in Ms opinion, the donation be advantageous to his ward. The reason why, in both codes, the intervention of the tutor or curator is deemed useful, though not absolutely necessary, can be very easily accounted for. It is in order, 1, To make the donation binding on the minor as if he were of age; and 2, To make the guardian answerable for the want of acceptance, should the minor, though above the age of puberty, omit to accept the donation. “Rcmarqucz que la loi dit que la donation doit étre ccceptée par le tuteur. C’est unc obligation qu’elle lui impose. 11 suit de la, que, si la donation faite a un mineur pubére, mais non émancipé, devient caduque, faute d’acceptation, il a contre son tuteur, une action pour étre índemnisé de tout le prejudice qu’il éprouve.”</p> <p>“Le mineur émancipé n’a pas la méme action contre son curateur, pour le défaut d’acceptation, parccque la loi ne l’en charge pas.” 1 Commailk, Traite des Donations, JYo. 20,p. 33.</p> <p>“Pour que la donation faite au mineur eüt a son égard le méme effet qu’eile aurait á l’égard du majeur, article 463, la loi a jugé utile de prescrire au tuteur de ne Paccepter que d’aprés une délibération du conseil de famille, pour juger si a raison des charges sous lesquellcs elle serait faite, elle est ou non avantageuse au mineur. C’est pour cela que Particle 935 dit que la donation faite au mineur non émancipé devra étre acceptée par son tuteur, conformémcnt a Particle 463; ce qui veut dire que le tuteur ne pourra Paccepter qu’autant qu’il y serait autorisé par une délibération du conseil de famille, ainsi que le porte formellement cet article ainsi conqu: “La donation faite au mineur ne pourra étre acceptée par le tutear, qu’avec l’autorisaíion du conseil de famille. Elle aura a l’égard du mineur, le méme effet qu‘á l’égard du majeur.”</p> <p>“Mais ces précauiions sont prescritos dans Pintérét du mineur ,et non dans celui du donateur, &c., &c.” 8 Duran-ion, p. 475.</p> <p>9. Even supposing, for argument’s sake, that the donor, case^ ^tended to make a substitution, jet it is not such a substitution as is prohibited by the code. The donor’s consent was required for no other purpose than to secure third persons against the right of reversion. La. Code, art. 1521, 1522. Le Clcrcq, Droit Romain, vol. 3, p. 434, 435.</p> <p>10. The donee was at liberty to alienate the property given toher. “Je donne mes biens á Paul, pour en disposer entoutepropriété et comme bon lui semblera, mais a la charge, s’ii n’en a point disposé avant sa mort, de rendre a mes héritiers ce qui pourrá encore exister de mes biens. Cette disposition est valide, parcequ’elle ne contient point l’un des caracteres essentiels des substitutions prohibées, ¿a charge de conserver; elle ne tombe pas sous la prohibition de Particle 896.” Toullier, vol. 5, JVo. 38, p. 62 et 53, l&re. éd. voyez aussi Toullier, vol. 5, p. 25, JVos. 21, 22.</p> <p>“Et pourquoi cela ? pourquoi le code exige-t-il pour la frapper de nullité, qu’une disposition contienne la double condition de conserver et de rendre ? par des motifs d’une profonde sagesse.</p> <p>“Les substitutions graduelles, Ies substitutions avec charge de conserver ont été proscritcs par un grand motif d’intérét public. Mais dégagées de la charge de conserver, les substitutions n’ont plus aujourd'hui aucun de ces inconvéniens. Elies ne retirent point les biens donnés du commerce; le fiduciaire peut les vendre ou les donner; liles n’exposent point ses créanciers á perdre; car, a sa mort, ces biens, qu’il pouvait aliéner, deviennent le gage de ses créanciers. S’il pouvait les vendre, il pouvait a plus forte raison, les hypo, théquer. Ainsi les substitutions dégagées de la charge de la charge de conserver, n’ont aucun des inconvéniens jtstement reprochés aux substitutions graduelles, et qui les ont fait proscrire.” Toullier, supplement h la lére. edition, additions au JVo. 38 du tome cinquiéme.</p> <p>It results manifestly from the words: “as if this donation had never “been made” that the right of return was intended to be limited to the donor alone. 1 Martin's Rep. JV. S. 539, South-worth vs. Bowie. Sirey, vol. 2 23. 1 Part. p. 309, Les Freres St. Aroman.</p>

This action was brought to compel the Union Bank of Louisiana, to receive the plaintiff’s subscription and mortgage for six hundred shares of their stock.

This action was brought by Mrs. Badon, to recover of the brother of her deceased husband, the value of certain buildings and of their rents, and other effects of her deceased husband, of which his brother had taken and retained possession.

The petition sets forth that on or about the 16th day of November, 1833, the plaintiffs imported into this district in the brig Vigilant, two hundred and seventy-five bundles of bolt iron, hammered or forged, weighing thirty-four thousand eight hundred and twenty-three pounds, which they duly entered at the custom house, securing the duties by á bond, of which the amount was as usual left blank.

<p>The discontinuance of a suit is not conclusive evidence of a want of a cause of action, and that a sequestration was wrongfully sued out, particularly as relates to the surety in the bond. In a suit on the bond after a discontinuance, evidence may be given, that some cause of action existed at least in mitigation of damages.</p> <p>Grounds of suspicion, merely, and those extremely slight, do not authorise a resort to so severe a mode of proceeding as a sequestration, nor ought they to have much influence in varying the standard by which damages should be awarded.</p> <p>A party against whose property a writ of sequestration is wrongfully sued out, ought to be placed as nearly as possible, in the situation in which he would have been had the writ not issued. If the party suing out the writ, fail to show not merely a real cause of action, but a ground of suspicion, which would justify a man in the sober pursuit of his rights, uninfluenced by momentary pique, to resort to a remedy intended only for extreme cases, he will subject himself to pay damages according to a liberal standard though not vindictive.</p> <p>A verdict not followed by a judgment has no force for any purpose.</p> <p>The discontinSTnot «nciuswe eviflenceofawant of a cause of tion, and that a wmigfuny°Vued afreiates* to^the i1raysuithoab°the continuance? cvienthatsomccause at least in mitiga!</p> <p>Gro„ndsofsuB jji"°D ought theyto have much influence in ofvaryingthestandard by which da™f“j(3jhoali ba</p> <p>a party against writ of sequestration is wrongfully sued out ought to be placed as near-the ^situation6 ¡n wbeenh^the iftiiepuny1suing show not'mwéíy no real cause of action, but no ground of suspicion which would justify a man m ofew°brígi¡tsrunmenteryephfu“tó dy Ynteníed oSiy foreuremec^ mágSeFaccord?ng to a liberal standard though not vindictive.</p> <p>fonoweddiby “°a fe^un^ur-</p>

This was a redhibitory action to recover the value of a slave who had. died soon after the sale.

William Jojme, in February, 1823, purchased at the people sa]e 0f the succession of Jeanne Delaterre, ordered by the parish judge of the parish of West Baton-Rouge, a negro man slave named Cudjo or Codio, for five hundred and twenty dollars.

The petition avers, that the plaintiff, in the summer of 1831, and for some time previous thereto, she kept a boarding house; that in said house she had a great quantity of furniture, belonging to her, such as was' necessary for such an establishment, amounting in all to about five thousand five hundred dollars.

<p>The act approved in March, 1827, absolutely prohibits any resort to the property of the sureties of the sheriff, until all that of their principal in the parish has been exhausted.</p> <p>Insolvency is not presumed.</p> <p>The act approvedmMarch, 1827, absolutely prohiJ»‘s p^i^the prS ^ been exhaust-</p> <p>not Resumed. 18</p>

The district attorney for the second judicial district of this state, filed on the 4th April, 1833, a motion wherein he informed the court that certain property of the defendants, seized by the coroner on a writ of fieri facias, issued in this case, is the only property known, belonging to them.

This was a petitory action, brought in 1832, to recover twelve town lots, situated in the town of M‘Donough, in the parish of Jefferson, and one thousand dollars as damages for the detention of possession. The plaintiff’s title was denied, and the general issue pleaded. Title was set up under a deed of the state treasurer, purporting to convey to the plaintiff “ all the right, title, interest and claim which Moses Duffy had” at or subsequent to the 1st of December, 1825.

The plaintiffs claimed of the defendant one thousand five hundred dollars, the amount of one instalment of the purchase money of the sale by the plaintiffs to the defendant, of a tract of land in the parish oí Lafourche. The defendant pleaded the general issue, to which he added several special pleas.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>The petition avers that the plaintiffs, having completed a contract for work, made between them and John Allison, received on a settlement with him, an order or draft, dated 1st August, 1833, drawn by said Allison, on J. D. Baldwin, in favor of the plaintiffs, for the sum of four hundred and eighty-five dollars and fifty-five cents, payable at. sight; that the said draft was presented to the drawer, who refused payment of the same, and that the draft was thereupon protested for non-payment.</p> <p>To these allegations the defendant answers, that he acknowledges his signature to the draft sued on, but denied that he is liable to pay the same, for want of due diligence on the part of the plaintiffs and drawees, in the presentation for acceptance and payment, and in the protest of the draft, and also for want of due notice of its dishonor; which notice, as well as all other allegations of the petition, he denies.</p> <p>In case the court should decree, that the payees of said draft Have been guiltly of no laches in the promises, then he pleads in payment a sum of one hundred dollars, paid by him to them on account of work done upon the upper market.</p> <p>The. draft in question was written in the following words:</p> <p>“Mr. J. I). Baldwin, please pay to Messrs. Benson and Elleby, four hundred and eighty-five dollars and fifty-five cents, and charge the same to my account.</p> <p>signed, “John Allison.</p> <p>“New Orleans, 1st August, 1833.”</p> <p>The protest was dated on the 30th of September, 1833, and the notary public certified that not knowing where to find the drawer, he had notified him of the protest, by a letter addressed to him, and deposited on the same day in the post office of New-Orleans.</p> <p>J. D. Baldwin, testified for the plaintiffs, that he had refused to pay the draft, because he was not bound by his contract with the defendant, to do so. The witness had funds in his hands belonging to defendant, at the time of presentment.</p> <p>Headington testified that at the request of the plaintiffs he measured the work performed by the plaintiffs, on the market, in faubourg St. Mary. After the measurement defendant appeared satisfied with it.</p> <p>The plaintiffs had judgment for three hundred and thirty-two dollars and thirty-three cents, and the defendant having failed in his attempt to obtain a new trial, appealed.</p> <p>1. Improper evidence was admitted on the part of the plaintiffs, in the court below.</p> <p>2. The plaintiffs were guilty of laches in the presentation of the draft sued upon for acceptance and payment, which has released the drawer.</p> <p>3. The .notice of protest was illegal and insufficient.</p> <p>4. There is error apparent in the judgment.</p>

An action was instituted in the Parish Court against Theophilus Bosque and Agenor Bosque, as owners of the steam boat Atlas. The plaintiff claimed a privilege on the steam boat for upwards of fifteen hundred dollars, which he alleged was due him for his wages on that boat, in the capacity of engineer. The boat was provisionally seized for this claim.

The plaintiffs claim of the defendant the sum of two thousand four hundred and eighty-nine dollars, and fifty cents, being the amount of monies advanced, on account of the defendant, by the plaintiffs, in the year 1826, to John Flack, of New-York, for the defendant’s one-third of losses on one hundred and seventy-five bales cotton, owned by Flack, the plaintiffs and the defendant, and shipped on their joint account, from New-Orleans to New-York, and thence to Liverpool, in…

APPEAL PROM THE COURT OF THE FIRST DISTRICT.' This case was formerly brought before this court on an exception taken to the right of the plaintiff to recover against; the defendants, on the facts stated in the petition, which exception was sustained by the inferior court. This court overruled the exception, reversed the decision, and remanded the cause. See 5 La. Reports, 431.

<p>APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT OF THE PARISH OF IBERVILLE.</p> <p>The plaintiff claims of the heirs and legal representatives or the late Joseph Erwin, according to their virile shares, the sum of five thousand dollars, as a compensation on a quantum meruit for his professional services as attorney at liiii J law, rendered to the estate of the deceased.</p> <p>Two of the defendants did not appear. The others pleaded the general denial.</p> <p>On the trial, Clement, one of Erwin’s executors, testified that the plaintiff was. retained by the executors, as the sole counsel in all the legal business of the estate, and in that capacity he appeared in all the suits mentioned in his account on file, in this suit. No fees were fixed, the plaintiff said they should be reasonable, and it was understood, though not expressed at the time, between plaintiff and the executors, that they would give him one half of their commission for his legal advice, and in consideration of this, he was to charge at a low rate for his services to the estate.</p> <p>Five members of the bar testified that it was impossible to specify precisely the value of the plaintiff’s services in the suits, because the particulars were not fully disclosed, but they concurred in estimating the whole amount of the services, at a sum greater than that allowed by the verdict of the jury.</p> <p>The plaintiff excepted to the refusal of the judge a quo, to permit a witness to be asked if it were not within his knowledge, that the plaintiff had been applied to by several debtors of the estate to a large sum, to act as their counsel.</p> <p>The defendants excepted to the judge’s refusal to admit a document, to prove that in a certain case the full amount of the judgment in favor of the estate had not been received on the sheriff’s sale under execution.</p> <p>The cause was submitted to a jury, who returned a verdict for the plaintiff for one thousand four hundred and thirty dollars, being the one half of the whole amount due by the succession, to be paid by the defendants according to their virile shares. Judgment was rendered accordingly, but without prejudice to the plaintiff’s right against the defendants, who had not appeared. The largest virile share of any defendant, was two hundred and thirty-eight dollars and , , ’ , , , . b thirty-three and a half cents.</p> <p>A motion by defendants for a new trial, on the usual grounds, that the verdict was contrary to law and evidence, was overruled.</p> <p>The defendants, who had appeared, filed their petition of appeal. Their names were all stated in the appeal bond, but five of them omitted to sign it. There was but one surety on the bond. The penalty of it was two thousand five hundred dollars, the sum ordered by the. judge.</p> <p>1. Judgment is against each of the defendants for his virile share, and the virile share of no one defendant exceeds three hundred dollars.</p> <p>2. The reversal of the judgment as to one, would not operate a reversal as to any other.</p> <p>3. Some have not appealed: such cannot be benefited or injured by the results of this appeal.</p> <p>4. The bond is insufficient: no one^heir is responsible upon the bond, unless as security, except to satisfy the judgment against himself. He should give security, therefore, for one half more than his own judgment.</p> <p>5. If the heirs are responsible as securities for each other, the bond is bad, because all the parties to it have not signed, and the others are consequently not held.</p> <p>6. The securiiy, Joseph Thompson, is not held, because all the parties named in the bond have not signed; he signed upon the faith of all, not of a part.</p> <p>7. If the bond is insufficient as to one, and it must be for the party who has not signed. The whole bond is bad, if the appeal is one and integral, and the appeal must be dismissed.</p> <p>8. If the appeal is not one and integral, the court is without jurisdiction, because the amount of one judgment cannot be added to the amount of another to give this court jurisdiction, when the defendants are neither jointly, nor jointly , J J J and severally, liable tor the amounts of the dilferent judgments. Joseph Thompson, signs as a - security for all the defendants in one bond. This is bad, because all the defendants have several, not joint liabilities, and one surety cannot be received in the same bond, to different and several obligations.</p> <p>9. The parties, defendants, are joined in the court below, in the application for a new trial. If any one had not joined, he would have been concluded by the verdict and judgment. Therefore, the appeal is not joint, but several. Code of Practice, articles 570, 575. As to that ‘part of the article which relates to a judgment for a specific sum, art. 579, art. 874. Prevost and wife vs. Greig et al. 5 JV. S. 87.</p> <p>10. The security in this case could not call upon any of the debtors, for the whole amount of the bond.</p>

Roman Mon, died on the 2d November, 1832, leaving a testament, in which he appointed John Garnier and Antonio Rivas, his executors, and left to the latter a legacy. The testamentary executors, administered on the estate, and filed their final account, praying to be discharged. In this account no commission was claimed by or allowed to Antonio Rivas, he having received a legacy.

On the 19th day of December, 1826, the plaintiffs sold by public act, to Henry S. Thibodeaux, in consideration of two hundred dollars paid by him, all their right 'and title to a lot confirmed under the act of Congress, situated on bayou Terre Bonne, containing six hundred and forty acres, and marked number four hundred and nineteen, and to Alexis Le Jeune nineteen arpents in front, on said bayou, in Le Jeune’s possession, the title to which has also been confirmed, and…

This action was brought to settle a co-partnership. The plaintiff avers that by an act passed before Felix de Armas, notary public, on the 21st day of December, 1330, the plaintiff and Augustine Jenfreau formed a co-partnership for the purpose of refining sugar, and making the same into loaves.

<p>APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT.</p> <p>This is a suit brought by plaintiffs against defendant, by attachment, the parties residing respectively in England and Ireland. The plaintiffs allege themselves to be accommodation acceptors for defendant, the drawer of a bill of Exchange for six hundred pounds sterling, drawn at Liverpool on the 28th January, 1831, at three months from date, and which fell due 1st of May. There was proof of the signatures, and that the bill was in circulation. The evidence that it was accepted for the accommodation of the defendant rests on three letters written by him; the first addressed to George A. Brown, who is proved to be a member of the plaintiffs’ firm; the other two were addressed to the partnership.</p> <p>The following extract is taken from the third letter, dated at Liverpool, 20th April, 1831, and addressed to Clegg, Brown & Co., at Manchester.</p> <p>“ Gentlemen: — I am in receipt of your esteemed favor of 16th instant, and hasten to give you an extract from Brown, Blandin & Co’s, last advice, dated Tampico, January I} 1831. lWe remitted a short time ago to William and James Brown & Co., Liverpool, for your account, six hundred and sixty pounds. After covering themselves for the advances made by them for your account, on your shipments to us, the balance will be at your disposition, of which please take notice.’ Of this remittance on my account to William and James Brown & Co., I have in no way availed myself, calculating it would go to cover the cash advance, say three hundred and eighty-five pounds, and to meet the further sum of six hundred pounds, due 1st May; so that of course placing you in funds for six hundred pounds, came not into my calculations, for this or the succeeding month, particularly as the goods were shipped to Tampico, on the understanding with your Mr. G. Brown, that the one half of the amount of the invoice should be remitted for, on arrival of the goods; however, could I at this short notice do any thing in the way of remitting you funds, would be most happy; but my hitherto small means have been cramped by recent losses, of which I made you aware when in Manchester. Were this not the case, and had I funds at my command, would instantly meet your views.”</p> <p>“According to agreement, I cannot draw for three hundred pounds, but I have already received one hundred and eighty-five pounds, more than I could demand.”</p> <p>The second letter corroborates the statements of the third relating to the bill in question.</p> <p>The judge a quo considered the testimony insufficient to sustain the allegation that the bill was accepeted for the accommodation of the defendant, and a judgment of non-suit was entered. The plaintiff appealed.</p> <p>That the judge a quo, erred in giving judgment as in case of non-suit against the plaintiffs, because it was proved on the trial that the plaintiffs were entitled to a judgment for the sum demanded by them, they having accepted the bill of exchange referred to in their petition, for the accommodation of the defendant, who is bound to indemnify them, it being in evidence, that they, as accommodation acceptors, paid the bill when it fell due.</p>

This action was brought by the syndic of the creditors of James Ureenleaf, to recover of the defendants the sum of one thousand three hundred and forty-seven dollars and fifty-J J nine cents. The petition showed that on the tenth day of June, 1829, James Greenleaf applied for the benefit of the insolvent 11 laws of this state, being then in insolvent circumstances, and that he had been in such circumstances and had actually failed many months previously.

This action was instituted to recover several lots of ground near the town of Donaldsonville, which the plaintiff alleges are her special and individual property, as will appear by an act of partition between her and the heirs of William and Elizabeth Conway, of whom she was one. By a judgment of separation of property rendered by the court, between her and her late husband, Robert Lawes, the property now sued for, among other things, was decreed to belong to her.

The plaintiffs aver that they are the legal heirs of Antoine Patire and Mageux André, deceased. That the defendant administered upon the estate of Mageux André, and took into his possession all the property belonging to her succession, amounting to the sum of forty-five thousand and ninety-six dollars and thirty-seven and a half cents.

<p>APPEAL PROM THE COURT OP PROBATES, POR THE PARISH AND CITY OP NEW-ORLEANS.</p> <p>The plaintiff claimed of the defendant, as testamentary executor of William McDonough, the sum of two thousand seven hundred and nineteen dollars and seventy-five cents, for the' hire of two negro men slaves, from February, 1828, to November, 1832, at twenty dollars per month for each, and for several other items, specified in the account annexed to her petition. She alleged, that at the request of the deceased, she had suffered the sum due her to accumulate in his hands, on the faith of his repeated promises to invest the amount when it.should be sufficient, in a house and lot for her.</p> <p>The defendant pleaded the general denial and prescription.</p> <p>Tourné, for plaintiff, testified that the said slaves had been employed by the deceased from 1826 until the time of his death. Their services were worth from twenty to twenty-five dollars per month, for each.</p> <p>budding, testified that the slaves had worked for the deceased from 1827, until his death. Deceased frequently advised plaintiff not to draw from his hands the wages of the negroes monthly, and he promised to invest the-amount-for her when it should be sufficiently large.</p> <p>Hempkin, testified, that McDonough, in the summer preeeding his death, admitted to witness that he owed plaintiff three or four thousand dollars, including the items claimed in this suit.</p> <p>Rsed^ for the defendant, testified that the deceased had generally paid the plaintiff’s son every week, for the hire of the slaves, since June, 1832. -This testimony was corroborated by that of Forsyth.</p> <p>McLaughlin, testified, that in 1829, the hire of the negroes was usually paid weekly, to a mulatress, in the name of the plaintiff, her mistress. It was afterwards paid to a lad, said to be plaintiff’s son. He thinks a week never elapsed without the payment of the hire being made. Witness lived with the deceased from December, 1829, to May, 1830.</p> <p>Short, testified, that during five or six months of the year 1831, the deceased paid the hire of the negroes to a lad called the plaintiff’s son-</p> <p>The defendant’s witnesses concurred in proving the habit of the deceased, to take no receipts for these payments.</p> <p>The weight of evidence is in favor of the plaintiff, and as the question is one simply of fact, the judge a quo, was the proper person to appreciate it. The judgment ought, consequently, to be affirmed.</p>

Withers, being' the creditor of plaintiff, made the following assumpsit: “ Assumed the payment of sixteen hundred and sixty-eight • dollars and ten and a half cents, which will be paid as soon as the account is examined, which Mr. J. Andrews endorsed to T. Cavilier, and the mortgage raised, which is in favor of J. Andrews, agains.t me, for four thousand dollars • “Signed,” “ W. C. Withers.” This paper is without date, but the account, which is proved ■ by Cavilier to be the'…

Joseph Abat, as the endorsee of a promissory note, filed his petition in the Parish Court, praying a judgment for seven hundred and twenty dollars with interest, and for the-sale of a certain tract of land mortgaged to secure the payment thereof.

This action is brought to recover from the original defendant, a negro woman with her two children, and the hire of the said slaves. To the petition, the original defendant filed on the 18th of July, 1832, an exception, viz. that it did not contain the residence of the plaintiff, and prayed that on this ground the petition might be dismissed.

The plaintiff alleges that she is the mother and forced heir of Edward Lowery, deceased. That he died, leaving lots, slaves and personal property, worth six thousand five hundred dollars. That defendant pretending to be universal legatee, under his will, has taken possession of all said property. That the legacy is null. 1. Because she lived in open concubinage with the deceased. 2. Because Lowery could not dispose of his whole property, having a forced heir.

The plaintiff claimed of Maunsel White, as the surety of the late John A'. Foote, in a curator’s bond, the sum of three thousand one hundred and twenty-four dollars. The plaintiff alleges that on the 15th October, 1811, Christopher Elliot, now deceased, purchased from the corporation of the city of New-Orleans, and under a ground rent, a lot situated in the city, at the corner of Bienville and Rampart streets.

This action was brought by the payee against the drawers of an accepted bill of exchange. The plaintiffs aver that the ffrm of Taylor and Klein, established at St. Marks, in the territory of Florida, and composed of Taylor, Klein and Ellis H. Buell, drew their bill of exchange, dated New-Orleans, 4th January, 1831, wherein said firm requested E. H. Buell, six months after date, to pay to the order of the petitioners, four hundred and eighty-six dollars and twenty-seven cents.

On the 23d of March, 1833, J. W. Zacharie & Co. instituted a suit by attachment against the defendants. Among the property seized under the writ was the defendant’s interest in the steam boat Watchman. It appears that O’Beirn, Shannon and Baldwin were in partnership, that they owned one third of the Watchman, and that on the 25th of September, 1832, Baldwin sold out to O’Beirne & Shannon, the'new firm.

<p>Where it is proved that certain persons, who claim an estate, are the legal heirs of its deceased proprietor, they will be considered his only heirs, Unless it is shown that others exist.</p> <p>Where a register of baptism proves thet a child was christened by the name of “Francisco Antonio,” and a register oí burials attests the interment of a person named “Francisco,” and no question as to the identity was raised in the inferior court Itwasheld that the person whose death was attempted to be proved, must be considered the one whose death, according to the pleadings, it was important to establish.</p> <p>. tain^jjersons whó ale Se leg “hS proprietoir°they his only heirs, unless it is known that others exist,</p> <p>Where a proves^ that*'8 a ened bythename Antonio,” and a ais attests the interment of a person named “Francisco,” and fte^dmaS'*™ ferior co“urt!e peTsonWthwi.ose tenpted^To be cónsfddereTsttho one whose death, according to tuo pleadings, it was important to eslabhsh.</p>

The plaintiff claimed of the defendant the sum of three thousand eight hundred and nine dollars and eighty-fivé cents, the amount of loss on a shipment of cotton.

This was an action for a partition. The plaintiff alleges that on the 13th day of April, 1821, Samuel M‘Cutcheon and Moses Hooke bought three lots of ground situated in the parish of New-Orleans, being lots marked numbers seventeen, twenty and twenty-one; that on the same day, they made a partition of the same, whereby Hooke became possessed as sole owner of lot number twenty, and that part of lot number seventeen, which is in the rear of lots number twenty, and the half…

This suit was commenced by attachment. The plaintiffs claimed the sum o£ seven hundred and seventy-six dollars, They alleged that Porter, Stone & Co., being owners of ® the steam boats named the Long Branch, Watchman, William T. Barry, and the Star of the West, engaged in transporting freight and passengers from and to sundry ports in the gulf of Mexico and lakes Borgne and Pontchartrain, purchased for the necessities of said boats certain groceries and other merchandise…

<p>APPLICATION FOR A MANDAMUS.</p> <p>In the case of Hyde & Goodrich vs. Jenkins, pending in the District Court of the first district, the plaintiffs moved the Suprem Court for a rule upon the judge a quo, to show cause why a mandmus should not issue, commanding bim to grant the plaintiffs an order of appeal.</p> <p>The counsel of the plaintiffs made affidavit, that a motion was made in this cause by the Deputy Attorney General, on whose suggestion it was ordered that plaintiffs show cause, why certain goods belonging to defendant, sequestered by the plaintiffs, and deposited with the clerk of the court, should not be delivered up to the proper agents on the part of the state of New York, who had been authorised to receive the defendant, a fugitive from justice from that state. That on the return of said motion, after argument, the judge of said district court directed the clerk to deliver up the goods to said agents; that the defendant was a fugitive from justice, and that it was considered also necessary to have the goods sent to the state of New York, in order to procure conviction of said Jenkins, charged in that state for a criminal offence. From this decision the plaintiffs prayed to be permitted to appeal to the Supreme Court. The judge declined granting an order of appeal, on the ground that it was a judgment from which an appeal could not be taken.</p> <p>It appears that Jenkins was under arrest on civil process, at the suit of Hyde & Goodrich, for certain property by them alleged to be stolen from them by him in the city of New York. A sequestration was obtained for a watch alleged to belong to them in the possession of the Mayor of the city of New Orleans, and an attachment was also obtained by which certain property, more particularly certain gold coins found on the person, or in possession of said Jenkins, were ordered to be attached. When the process of attachment in this suit was served on the Mayor he declined giving up the property, and a rule being taken on him to show cause why an attachment should not issue against him for not doing so, and the above facts being made to appear to the satisfaction of the court, the rule was discharged with instructions to the Major not surrender said property to Jenkins, in case of his discharge; but in such case to hold them subject to the order of the District Court. to</p> <p>On the 19th of March, 1834, on motion of the deputy Attorney General, and on suggesting to the court that a requisition had been made by the Governor of the’ state of New York, for the person of the defendant, as a criminal who had fled from justice, the court ordered the plaintiffs to show cause on Monday the 24th, why the defendant, who was then in the custdoy of the sheriff, should not be delivered up in pursuance of the said requisition, and the order of the Governor of this state thereon.</p> <p>This rule came on for hearing before the court on the return day.</p> <p>After hearing counsel the court ordered the rule to be made absolute. On motion of the deputy Attorney General, it was further ordered, that a writ of habeas corpus issue, directed to the sheriff of the parish of Orleans, requiring him to deliver up the peiscn of the defendant, to the commissioners appointed by the Governor of the state of New York, to receive him, in pursuance to the order of the Governor of this state.</p> <p>On the same day, on motion of the deputy Attorney General, and on suggesting to the court, that the property deposited with the clerk in this case, by the Mayor, was required for the conviction of the defendant, a fugitive from justice; it was ordered that the plaintiffs show cause on the following day why said property should not be delivered up for the purpose mentioned.</p> <p>On the ' return of this rule, the court ordered it to be made absolute, and that the property, to wit: a gold watch be delivered up by the clerk.</p> <p>On the 25th of March, on motion of the deputy Attorney General, it was* ordered that the watches, foreign coin, and all the'' property (with the exception of bank notes, and current coin,) found in the possession of the defendant, and attached in the hands of the Mayor, at the suit of plain-J x tiffs, be delivered up by the Mayor to the commissioners said watches, coins, &c. being necessary for his conviction, ^nc[ jf- was fur(;her ordered, that the Mayor continue to hold the bank notes and current coin, attached, subject to the further order of court.</p> <p>This rule was also made absolute, the court being satisfied of the truth of the matters suggested.</p> <p>The Judge a quo assigned the following reasons for his refusal, to grant the appeal prayed for:</p> <p>1. Had an application of a similar kind been made by any competent court of the state, for the person of said Jenkins, to try him on a criminal charge, this court would have ordered him, together with property found on him alleged to be stolen, to'be delivered up, notwithstanding his being under arrest on civil process, with instruction to retain him in case of his discharge; the right of the state, and the necessity of enforcing criminal justice being paramount to the right of any private individual to arrest said Jenkins on civil process, or to the property stolen.</p> <p>2. The right of the Governor of New York, to demand and receive him, and also the stolen property necessary to his conviction is also manifest under the constitution of the United States. Where there is presumption of theft every thing of value found on the thief is presumed to be stolen.</p> <p>3. The orders of the court in this matter have been executed. Jenkins and the property have been delivered up, and taken to New York, and plaintiffs can take nothing by their intended appeal; the court never considered the property as property within its control. The Mayor left the watch with the clerk to get rid of it.</p> <p>4. These several orders were made on the motion of the Attorney General, on behalf of the state, contradictorily with attorney of plaintiffs. This was ordered not as a matter of legal necessity, but expediency; that plaintiffs might take steps to follow the person and property, or perhaps to ask of our executive to have prisoner remanded in case of his acquittal, but there is no party contradictorily with whom an appeal can be taken, as the state is not considered a party to the suit.</p> <p>5. There is no irreparable injury; the plaintiffs can follow the person and property to New York, at which place plaintiffs’ own petition alleges it to have been stolen from them.</p> <p>6. When these several proceeedings were had, no copy of the warrant of the Governor of Louisiana for the arrest, nor authority of Governor of New York to receive his person, nor copy of process verbal of property found on Jenkins, or his person, was taken or embodied in the proceedings; the plaintiffs’ attorney did not require the warrant of the Governor of Louisiana, nor the authority to receive him, which were produced to be copied, and the court did not think it necessary to order it ex officio, and therefore no complete record of the matters before the court, when the orders were made, can be made up.</p> <p>1. The decision of the court below worked an irreparable injury, and hence the plaintiffs were entitled to an appeal. It is no legal answer to be told by the judge below, that inasmuch as we could follow the property which had been sequestered, into the state of New York, that no ' irreparable injury was done us. An irreparable injury was done, when the act of the judge of the First District Court, placed sequestered property beyond the jurisdiction of the courts of this state, as in this state is the residence of the plaintiffs; and they cannot be compelled to resort to the tribunals of the state of New York, for a recovery of those rights, which may be had before the courts of their own state.</p> <p>2. The reason assigned by the ludge below, that a b , J ° mandamus should not issue to him, “ because the property had actually been delivered up, and hence we could obtain nothing by an appeal,” is based upon most extraordinary grounds. It would seem then, that if the judge who dissolves orders by sequestrations, attachment, &c., can obtain the obedience of the individual or officers having possession of property thus situated, and have it removed out of the state, these steps afford a good ground to refuse an appeal. This is in direct opposition to the decision of this tribunal, which renders officers responsible for illegal acts. If the order granted in this cause, on an investigation of the merits should be found improper and contrary to law, the individual or officer who has directed it, will be responsible to the plaintiffs, for the loss and damage which such act may cause them.</p> <p>3. If courts can evade granting appeals from orders dissolving sequestration, on the grounds, urged by the judge of the first district, these writs of sequestration, attachment and provisional seizure will cease to afford to creditors those privileges and rights, which the Code of Practice evidently intends. If a judge can refuse to grant an appeal from his decision, setting aside these orders, on the ground “that the property can be followed into another state, by the party applying for the appeal, and thence no ‘irreparable injury’ is done to him;” then a definition is given to the term “ irreparable injury,” as original in its character as it will be important and fatal in its consequences. Such a definition must greatly decrease the appellate duties of this tribunal, and leave that property upon which the law so plainly gives a creditor a provisional lien, at the mercy of dishonest debtors and capricious judges.</p> <p>4. The judge below contends that we have no right to interfere in the order to deliver up the property; at every stage of the proceedings in reference to a disposition of this property, the plaintiffs appeared and made opposition to it; and on the rule for a delivery of this property to commissioners, on behalf of the state of New York, we were duly notified of the motion, and an agreement took place. No objection was then made by the judge of the inferior court, to the contestation then made by the plaintiffs, and plaintiffs believe that this pretence of the court below cannot avail.</p>

On motion of testamentary executor of Robert Lewis, it J was ordered that J. B. D. Casenave, show cause why a distringas should not' issue to compel him to comply with the conditions of the sale, made of the slaves of said estate, on the 15th of November last, at public auction, by William Flower, at which sale said Cazenave bought a negro man named Archer, for the sum of eight hundred dollars, as appeared by the process verbal of Flower, on file in court.

John H. Holland, on the 6th July, 1833, filed his petition, in which he averred, that Henry Johnson departed this life day 0f Julyj instant, within the jurisdiction of this court; an(j leaving property therein; that as prochein ami and creditor of said deceased, he was desirous of administering on his estate, according to law.

-appeal from the court op probates for the parish and city of NEW-ORLEANS.

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p> <p>The plaintiffs obtained an order of seizure against the defendant, on a mortgage. The parties agreed that the property should be sold at six and twelve months credit, and the notes discounted at a rate not exceeding twelve per cent. There were seveaal mortgages posterior to that of plaintiffs. The property was sold, and the sheriff has made a return on the execution, by which it appears that the property did not bring more than sufficient, to satisfy the first mortgage. The sheriff is called upon by rule, to release the subsequent mortgages in favor of the purchaser. The sheriff submits himself and prays the direction of the court. Among the mortgagees is that of defendant’s wife, who has obtained a judgment of separation of property.</p> <p>1. The sheriff was bound to release the subsequent mortgages. Code of Practice, art. 708.</p> <p>2. The subsequent mortgagee creditors can have no interest in contesting the plaintiffs’ right, as it appears that his debt bears interest, at the rate of ten per cent., and it is in evidence, that it absorbs the whole amount for which the property was sold.</p>

The petition alleges that Charles Faurie is indebted to John Gleises in the sum of five hundred and sixty-one dollars and seventy-three cents, for the rent of the premises lately occupied by Marignau & Faurie, as Blacksmiths and founders, in suburb Marigny, for fifteen months, which expired on the 30th June, 1831, at the rate of thirty-six dollars and sixty-six cents per month, and elven dollars and seventy-three cents interest thereon; that by an act passed before Louis T.…

APPEAL PROM THE COURT OP THE PIRST DISTRICT, Jacques Tourné on the 14th May, 1833, averring his insolvency had been occasioned by discords in his family, ceded his property to his creditors. His bilan showed his wife to be a creditor by her dotal rights for three hundred and twenty dollars. It attributed the insolvent’s loss of two thousand dollars to his wife’s prodigality.

This action was brought to recover one thousand dollars damages for an alleged breach of a contract of passage , The plaintiff avered that on the 15th day of November, 1832, Eliza Holmes, his wife, being then in Liverpool, engaged passage to New-Orleans on board the ship Princess, commanded by George W. Holmes, for herself and child.

AppEAL FR0I,i THE PARISH COURT POR THE PARISH AND CITY OF NEW-ORLEANS. This case came on to be heard on the second appeal. For a statement of the facts of the case and the judgment of the Supreme Court, reversing that of the Court of Pro-hates, on a plea to its jurisdiction, remanding the cause for further proceedings, see ante, 420.

This case commenced by the hypothecary action against the defendant Thompson, as the third possessor of two lots of ground in New-Orleans.

The Rail Road Company sue the defendant to compel a compliance with the adjudication of certain lots by them to him, and to recover the first instalment due thereon, being one-fifth of one thousand six hundred and eighty dollars. In the month of June 1832, the plaintiffs caused a tract of land called the Dascantel Plantation to be sold in,lots at public auction.

In 1830 the Orleans Navigation Company filed their petition, in which they alleged, “ That by the 13th section of the act entitled an act for improving the inland navigation of the territory of Orleans, the President and Directors of the said Company were authorized to lay out and construct toll-roads on each side of the bayou St. John, such road or roads to be constructed of shells, sand, or other hard mate, rials, and to be at least of the breadth of twenty feet, and fit…

<p>The articles 1034 to 1040 seem to require the appointment of an administrator in every case where a succession is accepted with benefit of inventory.</p> <p>Where heirs are of full age, under every circumstance, without regard to the manner in which the inheritance is thrown on them, an administrator should be appointed.</p> <p>But a tutor duly appointed, or one on whom the office devolves by operation of law, represents the minors under his charge in all civil suits or acts, and has the administration of their estates.</p> <p>The tutor can, under the authority of the general administration to collect and sue for debts, institute suit in behalf of the minors, for the recovery of a debt due the^succession.</p> <p>Where a succession is accepted with the benefit of inventory, and some of the heii’s are. of full age and others are minors, it should be left to the administration of the tutor of the minors until partition.</p> <p>But a tutor duly appointed, or one in whom the office devolves by operation of law, represents the minors under his charge in all civil suits or acts and has the administration of their estates.</p> <p>The tutor can, under authority ministfafloa*13^ fo°rledebts“ainsS“ of the mmor, for the recovery of a debt due the sue-</p>

This case is composed of two suits instituted by the corporation of New-Orleans against Charles L. Blache, late treasurer, and his sureties, the first on a promissory note for three thousand one hundred and twenty-seven dollars and twenty-six cents, held by the corporation and signed by C. L. Blache, and endorsed by Joseph Le Carpentier and Martin Blache, secon¿ against C. L. Blache and his sureties on their bonds, for the sum of fourty-four thousand four hundred and…

The plaintiff, as curator of the vacant estate of James Duffy, deceased, caused a certain slave belonging to said estate, to be sold at probate sale, at which the defendant became the purchaser, and gave his check on the Meehan, icks’ and Traders’ Bank for four hundred and eighty dollars, in part payment of the price. Afterwards, and before the check was presented, he went to the bank and countermanded payment.

This was a suit brought by John Hagan against Madame Ferris, for a balance due for rent of a house on Canal street. The rent claimed, is contained in an account which is annexed to the petition, and amounts to nine hundred thirty-eight dollars and forty-two cents. He prayed for judgment and an order for a provisional seizure of the furniture of the defendant.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>The plaintiff instituted his suit to recover the sum of five hundred and sixty eight dollars and sixty-four cents, for t ° J work and labor done and materials furnished for the use and benefit of the defendant, and at his request. It consisted of copper and zinc materials furnished and put on a certain building of the defendant, all of which is detailed in an account annexed to the petition.</p> <p>The defendant plead a general denial, and admitted that the plaintiff undertook the work which was to cover a house, .but did it so badly and in such an unworkmanlike manner, that the materials furnished by defendant were almost destroyed, by which he sustained a loss of four hundred and seventy-seven dollars and sixty-two cents of their value, and that he has suffered damages in consequence of the unfaithful manner the work was done to the amount of five hundred dollars, which sums he annexed to his answer, and pleads them in compensation and reconvention against the plaintiff’s demand.</p> <p>There were a number of witnesses examined on both sides, touching the manner in which the zinc was put on as a covering or roof of the defendant’s house. It was admitted that the plaintiff was a good workman in copper, and that the workmanship of this roof is of excellent quality independently of the mode of fastening on the zinc. That if the material had been copper or tin, the mode followed by the plaintiff is the right one. The district judge considered it a kind of experiment which was to be made at the risk and expense of the defendant, and that the plaintiff was entitled to the amount of his account which was proved to be reasonable for the work done and materials furnished. Judgment was given accordingly, and the defendant appealed.</p>

This suit is brought by the syndic of the creditors of Francis McManus, an absconding debtor, to annul two acts of sale made by McManus to the defendant, of three lots of ground in New-Orleans, when on the eve of brankruptcy.

On the first of May, 1833, the Canal Bank, L. Millaudon, Samuel Kohn and John Slidell, caused to be sold at public auction a lot or portion of land, being part of McCarty's plantation, adjoining Carrollton, situated at the upper end of the parish of Orleans, and containing seven hundred and seventy-seven acres, which, as alleged in the petition, was adjudicated to Robert Copeland, as the last and highest bidder, for the sum of twenty-six thousand dollars, payable by…

The plaintiff alleges he is owner and possessor of a tract of land in the parish of Ascension with a front of árpente and depth of forty arpents; and the forty arpents in depth on his back line he claims by right of pre-emption and occupancy for twenty years and that it has been surveyed for his use: that he has been and was in the quiet and peaceable possession of said lands, and the drains necessary to the use of the front land on the river have always emptied into and…

The plaintiffs, Eleanor, Mary Ann and Valerién Lange, f. p. c. allege that they are the only collateral heirs of one Franqaise Gabrielle Lorio, f. w. c. who died intestate on the 13th June, 1830, in the parish of St. Charles, possessed of movable and immovable property, and leaving no heirs in the ascending or descending line; that they are the legimate descendants of Marie Jeanne Lange, f. w. c. the only sister of the deceased; that in June, 1830, an inventory of the…

APPEAL PROM THE COURT OE THE FIRST JUDICIAL DISTRICT, The plaintiff’s claim from the defendants J. W. Breed-love and W. L. Robeson, a debt of six thousand and three dollars with interest, as due the succession of the late Joseph Thomas.

The plaintiff residing at Shippingport, in Kentucky, was joint owner with the defandants and one T. *W. Bakewell, of Cincinnati of the Steamboat Hercules.

A tableau of distribution of 1076 shares of stock belonging to all the stockholders of the late Planter’s Bank, as well plaintiffs as defendants in the suit of Percy et ais. vs. Millaudon et als. 3 La.

The plaintiff residing at Kingston in Jamaica, instituted this suit against the defendant residing in New Orleans on the following bill of exchange: “Kingston, Jamaica, May-11, 1831. « Exchange for one thousand eight hundred dollars. “ Ninety days after sight this my first of exchange, pay to the order of Louis Perrotin, Esq. the sum of one thousand eight hundred dollars, value received, and place the same with or without further advice to the account of yours, &c. “ A.…

The plaintiff alleges that he was employed by the defendant to put up a steam engine for the Louisiana Sugar Refinery, for which the latter agreed to pay him three hundred and fifty dollars, and furnish all the parts and materials without delay. That said agreement took place in June, j§32; and the plaintiff immediately commenced putting up the work which he completed the beginning of November, 1832.

The petitioner alleges that be was duly appointed by the mayor and city council of New-Orleans, syndic and commissary of police for the upper banlieu in said city, in May 1833, and in conformity to the ordinance of the 13th June 1813; that he gave bond for the faithful performance of his duties with John H. Holland his surety; and that he has faithfully performed the duties of his office ever since.

The plaintiff who resides in New-York, alleges he consigned a quantity of lime to P. B. Penny, of New-Orleans, in the month of June 1832, which was sold on his account by the latter. Among the purchasers was a Mr. Bosque, who gave his note payable to Penny at five months for one thousand four hundred and twelve dollars and forty-four cents.

<p>APPEAL PROM THE COURT OP THE SECOND JUDICIAL DISTRICT.</p> <p>The plaintiffs allege that they are the heirs and legal representatives of Charles M. Huset who died in the parish of Lafourche Interior, in 1812, leaving a widow Marie Haché and the aforesaid heirs, his legitimate children, most of them minors; that he owned and possessed at his death a piantation on bayou Lafourche, a negro woman, slave and her two children, all of which were sold at public sale by order of the Court of Probates of said parish, in September 1812; that the sale is illegal because the widow never took the oath as natural tutrix of the minors; no under tutor was appointed, and no family meeting was held to deliberate and decide if it was for the interest of the minors to sell said property; that the terms and conditions of the sale were not advertised according to law; that the widow and natural tutrix became a purchaser of the property sold, by reason of all of which defects the sale is null and void: that the defendants Pierre Lefebvre, J. B. Guidry and F. Ayon are in possession of said property: wherefore they pray that said defendants be declared to be wrongfully in the possession thereof and that it be decreed to belong to them, and that the defendants deliver it up accordingly, &c.</p> <p>The defendant Lefebvre, in his answer pleads a general denial and expressly denies the heirship of the plaintiffs, and alleges that he is the true owner of the plantation by a just title, having purchased it at the probate sale of Charles Baird’s estate, the 10th of January 1829, who had acquired title to it by authentic act from Jacques Yerret, passed the 2d March 1819, who had purchased it at the probate sale of the estate of the ancestor of the plaintiffs in September 1812. This is the sale now complained of. The defendant Lefebvre, further alleges that he and those under whom he claims have possessed said property in good faith and under a just title ever since the 21st September 1812; and he calls his vendors in warranty, &c.</p> <p>The defendant Guidry, pleaded the general issue, denied the heirship of the plaintiffs, and alleged that he derived title to the portion of the property claimed from him by purchase from one Martin, who acquired his title by purchase, at the probate sale of the estate of Marie Haché, widow of said C. M. Huset, made in December 1819, and has possessed in good faith, &c.</p> <p>Ayon pleaded a general denial, and alleges that he is owner of the slaves claimed, and acquired title to them by authentic act and purchase from Marie Haché in 1816, &c.</p> <p>Guidry and Ayon in ámended answers call their vendors in warranty; the latter alleges, that as he purchased from plaintiff’s mother, and who was also their natural tutrix, and part owner of the property, that they are bound to him in warranty, &c.</p> <p>Much evidence was produced on the trial of this cause, which was submitted to a jury, who found a verdict for the defendants. From the judgment of the court rendered thereon, the plaintiffs appealed.</p> <p>1. The plaintiffs are the legal heirs and representatives of the persons under whom they claim.</p> <p>2. All the heirs of Charles M. Huset were minors on the 21st of September 1812, and the probate sale of the land belonging to his succession, was absolutely null and void for the reasons set forth in plaintiffs petition. 3 Moreau’s Dig. p. 132. 19. 21. Civil Code, p. 68, art. 57, 58. and 51, 53. 3 Martin, JY. S. 324. JYap. Code, art. 457. Pailleitt’s note, p. 157, art. 8 and 9.</p> <p>3. It devolved on the defendants to show that the proceedings relative to the probate sale were regular. We produced the best evidence the nature of the case admitted of, to show that the legal formalities had not been observed, by presenting a copy of every thing on file in the parish judge’s office relative thereto. 3 La. Rep. 78. 1 Phillips on Ev. (ed. 1820) 149.</p> <p>4. A defective title does not form the basis for prescription. Civil Code,p. 488, art. 70. 4 Martin JY. S. 212.</p> <p>5. The title from Yerret to Baird, dated 2d March 1819, is the first produced by Lefebvre, which is perfect in form, and the first produced by the defendant Guidry, is that from Michel Martin to himself, dated 28th of February 1820.</p> <p>6. No prescription rims against minors. Civil Code, p. 486, art. 56; and of course the prescription of ten years is no^ comP^e as t° the shares of the younger children of C. M. Huset, jun.</p> <p>^ The plaintiffs, heirs of Charles M. Huset, sen., had a common and undivided right to the land sued for; and as ° the prescription of ten years could not run against those who were minors, it likewise can have no effect against the majors. Domat, vol. 1, book 3, title 7, sec. 5, V.</p> <p>8. The exception of plaintiffs to the introduction of the quittance given by the widow of Huset, the father, to Jacques Verret by public act, passed before the judge of the parish of Lafourche Interior 8th of September 1815, was well taken, because she was not qualified as tutrix until the 1st of November 1816.</p> <p>9. And if the exception should be decided to be well taken, the case ought not to be remanded for a new trial, as all the evidence offered whether received or rejected is in the record.</p>

This suit was instituted in January 1832, by James G. King residing in the city of New-York, and appointed by the court of chancery in that city, receiver in a suit in chancery on behalf of the creditors of E. H. Nicoll, an insolvent debtor, to enforce the payment of a certain bond of indemnity executed by G. W. Murray of New-York, and the late Thomas L. Harman of New-Orleans to one Henry Payson of Baltimore, in the penalty of thirty thousand dollars, as an indemnity of said…

APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT, This is a petitory action instituted by the plaintiffs to recover three lots of ground in the city of New-Orleans, in the possession of the defendant. Both parties set up title to the property in question, and both derive title from the same source. The defendant pleads a general denial to the action; and alleges that he holds under a good title and is a possessor in good faith.

The plaintiff alleges that an amicable request has been made, but that the husband refuses to authorise such renunciation, by reason of which he has sustained damages to the amount of five thousand dollars; he therefore prays that the court decide whether Madame Foucher has any right, claim, privilege, &c. to said property; and if not, to compel her and her husband to make the renunciation required.

<p>Where the appellant makes no effort to sustain his appeal, and no reason appears from the evidence to hope for success, the judgment will he affirmed, and damages allowed as for a frivolous appeal.</p> <p>peiiant makes&no his appeal, and no reason appears from the evidence to hope for suement wi[i be ah finned, and damages allowed as for a fx*ivol^us-a^-</p>

The plaintiff alleges that he was married to Marie Tagiasco f. w. c. in June 1831, by whom he had several children; that in May 1833 his wife and children died with the cholera; and that, a few days before her death his wife made a will, in which, after bequeathing a few legacies she instituted her children her universal heirs and named Jean Louis Dolióle f. m. c. her testamentary executor, who caused an inventory to be made of said estate; all this took place during the…

This suit was instituted on a prison bond, against the defendant J. W. Zacharie as surety of H. W. Palfrey, for the prison limits of the parish of Orleans, on an allegation and preliminary proof that the latter had departed from said prison limits contrary to the tenor of his bond and without the order of the court or the consent of the plaintiff.

The plaintiff alleges he is the transferee by notarial act of all the rights of J. M. Benoit, and his two brothers to the succession of the late Eloi Hacher, who were his heirs instituted by his will; that A. Reggio the late husband of the defendant confessed judgment, by notarial act, which is annexed, and acknowledged to be indebted to said succession in the sum of seven thousand dollars, payable at the expiration of five years from the 29th of February 1828; and the…

The plaintiff sues to recover three thousand seven hundred dollars from the defendant which he alleges is the balance due him of the price of building three houses for her, in pursuance of an agreement between them.

This is a personal action on a notarial instrument of writing, instituted against Thomas Urquhart, and commenced by Wm. F. Goddard a citizen of South-Carolina in 1830, in which he claims five thousand and ten dollars, as the amount acknowledged to have been received by the defendant in said act.

The plaintiff as curator of the estate of the late Lawrence Earle, claims of the defendant five hundred and fifty-nine dollars, as a balance due the deceased for work and labor-done for the latter, as an iron and brass moulder, according to an account annexed for which he prays judgment.

The plaintiff as curator of the estate of E. Rillieux an absentee, claims from the defendant eleven thousand five hundred dollars, as the price of work and labor done and materials burnished by said Rillieux in erecting three houses and four kitchens for the defendant according to a written contract ^ between them.

This suit was instituted by the endorsees and holders of a promissory note against P. Du Bertand, Emile Douming and Henri Legendre, composing the late firm of Du Bertrand, Douming & Co. The note sued on was drawn by one P. Amirati in favor of P. Du Bertrand for one thousand four hundred dollars, who endorsed it, and then endorsed the name of the commercial firm of Du Bertrand, Douming and Co. thereon, which note was sold by a broker to the plaintiffs.

This was an action commenced in the Probate Court by Lincoln, Fearing & Co., a commercial firm in Boston, against the executors of Russell Ball, deceased, for the liquidation and payment of the partnership concerns of Russell Ball & Co., which the plaintiffs allege they caused to be established in New-Orleans, in 1818, to carry on the sale and trade in hardware and ship chandlery, as a branch of their firm in Boston; that Russell Ball had charge of said establishment, but in…

On the 2d January 1834, Toledano sold to F. Klingender fifty bales of cotton, weighing 23363 pounds, at ten and a half cents per pound, amounting to two thousand four hundred and fifty three dollars and eleven cents, on which one thousand five hundred dollars was paid, and the balance of nine hundred and fifty three dollars and eleven cents which the purchaser had advanced to one Rareshide, a broker who purchased the cotton, the latter failed to pay it over and absconded.

Papet, broker, late her agents, to sell and dispose of her sugar plantation and slaves, and all her property in Louisiana, which she charges they have done, and have failed to account and pay over a large balance, viz:_the sum of twenty thousand dollars: she prays that said defendants be com- , „ , . . pelled to render a faithful account of their agency, and pay over the sum that may be found due which she alleges to be twenty thousand dollars.

William Flower, a member of tbe firm of W. & D. Flower' alleges that said firm becoming embarrassed in business, about the 19th June, 1822, entered into a written agreement with the defendant, by which the latter was to advance said firm the sum of twenty thousand dollars, with interest at ten per cent, per annum, to pay olf their old engagements, which sum was to be paid in cash or in endorsements of the said W. & D. Flower’s notes of accommodation, and re-imbursj able at…

<p>APPEAL FROM THE PARISH COURT FORTHE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This is an action for the recovery of the freight on two hundred and ninety-eight bales of cotton and six packs of peltry, shipped on board the plaintiff’s steamboat Saratoga, at Ecore a Fabre, and delivered to the defendants as consignees in New-Orleans. The sum claimed is four hundred and fifty dollars.</p> <p>The defendants pleaded the general issue; and that the cotton and peltry which was shipped in good order, was damaged by the negligent conduct of the plaintiffs to the amount of four hundred and forty-seven dollars and fifty-four cents according to an account annexed, which they plead in compensation and reconvention.</p> <p>On the trial of the cause the plaintiffs offered several witnesses to prove that the cotton was damaged before it was A received for shipment on board the steamboat; the defendant’s counsel objected to the testimony on the ground that it went to contradict the bill of lading, which they produced to show that the cotton was shipped in good order; the court admitted the evidence, considering the bill of lading as only 'prima facia evidence of the highest order.</p> <p>After hearing the testimony of the parties, the jury returned a verdict for the plaintiff for the whole amount of his claim.</p> <p>1. The bill of lading relied on by the appellants constitutes only prima facia evidence in their favor.</p> <p>2. The numerous and strong facts irrefragably established in the record in favor of the appellees, in respect of the greatly damaged state of the cotton in question, show unequivocally that the damage complained of by the appellants, was produced or occasioned by causes altogether extraneous of any occurrence on board of the steamboat Saratoga, and causes that did not involve the responsibility of the appellees.</p>

*s a personal action against the defendant to recover five thousand seven hundred and fifty dollars, the balance alleged to be due on the sale of a lot of sugar.

The plaintiff alleges that he entered into a contract of affreightment or charter party on the 1st of October 1833, in New-York, with the defendants, owners of the schooner Messenger, for the use of the hold and cabin of said schooner, to carry passengers on a voyage from the city of New-York to the port of Aransasua, in Texas, for which '• he was to pay seven hundred dollars; the owners furnishing every thing necessary to the voyage; that a penal clause was inserted in said…

The plaintiffs are the collateral relations, and claim to he the heirs, and legal representatives of their deceased brother Hypolite Gaudé, who died in the parish of Lafourche, without leaving ascendants or decendants; they allege that Eulalie Baudoin, widow of the deceased, is in possession and claims his succession, estimated at about six thousand dollars, as his testamentary heir under a nuncupative will, which they allege is null and void for the following reasons: 1st…

This is an action against the drawer and endorsers of a promissory note for one thousand three hundred and twenty five dollars, given to the plaintiff in New-Orleans, as the price of two slaves purchased from the latter, the payment of which is also secured by mortgage retained on the slaves. The note is dated the 23d of November 1831, and payable in all the month of March 1833. It was put into the Bank of Louisiana for collection.

The plaintiff alleges that on the 16th of March 1829, he became the purchaser of two lots in the city of New-Orleans at a public sale by the city marshal, under an execution issued from one of the city courts against said lots by the corporation for taxes; and that by the tortious and illegal seizure and sale of said lots when no taxes were due; and by the neglect of the marshal to observe the formalities of the law in making the sale, he has been evicted therefrom after…

This is an action by the holder of a promissory note againt the City Bank of New-Orleans, to render it liable for the amount thereof, on the ground of negligence and failure to give legal notice of demand and protest to the endorser, by which he was released. The plaintiff put into the bank for collection a note drawn by Fuentes & Co., and endorsed by Felix Formento, for fifteen hundred and ninety dollars.

This is an action commenced by the Attorney General, in the name and for the use of the state of Louisiana, against the Bank of Louisiana, in obedience to a law of the Legislature passed the 7th March 1834.