Volume 7 — Louisiana Reports

The plaintiff instituted his possessory action against the defendants on the 15th July, 1833, and alleges that he has been in the peaceable possession of a lot of ground situated in the Nuns faubourg, now within the limits of the city of Lafayette, lying between the public road and the river Mississippi, and in the actual occupation and possession of his tenants.

This was an action for the balance due on a promissory note by the defendants, residents of the State of Mississippi. An attachment was levied on certain cotton and money, as the property of the defendants. The latter excepted to the jurisdiction of the court, on the ground, that no property of theirs had been attached, alleging, that the cotton seized belonged to one Woods ; and they prayed, that the suit might be dismissed.

The plaintiff alleges that one Lasalle, on the 23d of July, 1832, executed his note for three hundred and thirty dollars ninety-four cents, payable four months after date, to the order of one Plotz, who endorsed it to Madame veuve Daysson, who endorsed it to the petitioner. That said note was presented for payment, protested, and due notice thereof given to the endorsers, who have all become liable for the payment thereof. He prays judgment accordingly.

<p>Appeal from the District Court of Livingston, Jones, J.</p>

This was an action against the heir of the endorser of a promissory note. It was proved, that the heir had been put in possession of the estate of her ancestor before the maturity of the note; but the notice of protest was directed only to the legal representalive of the deceased. The plaintiff was nonsuited, and appealed. The notice is bad. It should have been directed to the heir.

<p>Appeal from the District Court of Livingston, Jones, J.</p>

The plaintiff alleges, that at a public sale by the inspector of roads and levees, for the Ninth District, in the parish of Iberville, made on the '3d March, 1832, he became the lowest bidder of certain works and repairs ordered to be done, on the front of the defendant’s plantation, at twenty-five dollars per arpent.

<p>Appeal from the District Court of Baton Rouge, Johnson, J.</p>

The present suit commenced by. injunction. The record shows, that on the 7th January, 1833, the executors of Antoine Abat obtained an order of seizure and sale against the present plaintiffs, who are the acknowledged natural children and heirs of Jean Grounx, deceased, for the sale of a house and lot of ground, on the corner of Rampart-street and the Bayou road, in virtue of a certain deed of compromise or transaction, entered into the 3d October, ■ 1832, between the said…

<p>Plaintiff purchased from the heirs of an actual settler, a claim to a tract of land which had been recommended by the Register and Receiver for confirmation, and which was subsequently confirmed. In an action against the defendants, who set up no title, for a trespass committed before the title was confirmed : Held, that plaintiff’s title was sufficient to maintain an action against a mere trespasser.</p> <p>Where one, through ignorance, commits a trespass on another’s land, by cutting and removing timber, he will be responsible only for the actual value of the timber used or destroyed. Per Curiam: The case is different, where one wilfully and knowingly commits a trespass on private property.</p>

<p>A purchaser of real estate, sued for the price, can only require security against the danger of eviction, where he has reasonable ground for apprehending it.</p>

<p>Appeal from the Court of Probates of St. Helena, Leonard, J.</p>

<p>Appeal from the District Court of West Feliciana, Weems, J., presiding.</p>

<p>Where a notary certifies in his protest that he demanded payment of a note at the place at which it was payable, though he does not state that he took the note with him or presented it for payment, it is sufficient. Per Curiam ; The person making a presentment or demand must have with him the bill or note he is charged to collect; but the presumption is that the notary did his duty, until the contrary be shown.</p>

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p>

contended, that the note sued on should not have been admitted in evidence until the erasures and interlineations were explained. McMicken v. Beauchamp, 2 La. 290. Slocomb v. Watkins, 1 Rob. 214. 1 Starkie, 32S, 329.

This is a petitory action. The plaintiffs, Caroline and Maria, f. p. c., the natural daughters of Nicola’s Maria Vidal, late auditor of war, &c. in the province of Louisiana; state that their ancestor died at Pensacola in 1806, and that in his iast wj¡p an¿ testament he instituted them, with two other natural children, who are not now known to exist, his universal heirs.

<p>Appeal from the District Court of East Baton Rouge, Johnson, J. The defendant appealed from a judgment perpetuating an injunction obtained by the plaintiffs.</p>

<p>Where the appellants cannot be injured by the judgment of the lower court, it will he affirmed.</p>

<p>Appeal from the District Court of East Baton Rouge, Johnson, J.</p>

<p>Any creditor of a succession administered under the supervision of a Court of Probates, may, at any time, compel the administrator to render a full and perfect account showing the true situation of the succession, and to make a distribution of the funds in his hands, according to a tableau of distribution, to be homologated by the court, after due notice to all the creditors. C. C. 1156 to 1158,1167 to 1170. • C. P. 1053 to 1055. Act 13 March, 1837, § 6, 7.</p> <p>An account rendered by an administrator of a succession cannot be homologated ex parte. It must be submitted to the court contradictorily with all the creditors.</p> <p>An administrator is entitled to credit for payments made by him to creditors of the succession, though without authority from*tlie Court of Probates, where the sums paid do not excoed the amounts whish the creditors were entitled to receive.</p>

'This is action of jactitation and slander of title to land, commenced by Peter Smith, residing in the state of Mississippi, against the defendant, residing in the parish of East Feliciana.

<p>Appeal from the Court of Probates of East Baton Rouge. Tessier, J.</p>

This is an action commenced against the defendant, to compel him to abate a certain nuisance, and for damages sustained by the plaintiff, in consequence of its continuation.

This action is founded on art. 35 of the Code of Practice, and on arts. 1884, 1896 of the Civil Code. Marigny v. Remy, 3 Mart. N. S. 607. Duchamp ard v. Nicholson, 2 Mart. N. S. 672. Flower v. Lane, 6 Mart. N. S. 152. Pemberton v. Zacharie, 5 La. 316. Code of 1808, art. 21, p. 262. An act sous seing privé, the date of which is not proved aliunde, has no date, as to third persons, but that of its production in court. Phillips v. Stanley, 1 La. 247.

<p>The decision of a court of the first instance refusing a new trial, will not be reversed unless clearly erroneous.</p>

This is a petitory action, in which the plaintiff, who resides in the State of Mississippi, sues to recover a tract of one thousand and twenty-five arpents of land, lying in the parish of East Baton Rouge, in the possession of one Sarah Roach, since married to the defendant, James Manning.

A bank with whom a note is left for collection, is, like other endorsers, entitled to one day to give notice. Bayley on Bills, 263-9, and cases there cited. Chitty on Bills, 288. 3 Kent’s Comm. 106. If the bank be not regarded as an endorser, it must be looked upon as the agent of the holder, and the one day taken by the bank must be considered as taken by the holder.

moved to dismiss this appeal, on the ground that no bond was executed, or citation of appeal issued, within twelve months from the date of the judgment allowing ah order of seizure and 'sale against the defendant, citing Sibley v. Roman Catholic Congregation of Natchitoches, 3 Rob. 77.

The plaintiff filed his petition and schedule, on the 11th day of September, 1832, and prayed for a surrender and discharge, under the insolvent laws. He put on his bilan a single credit of ten dollars; placed upwards of six hundred dollars, as debts due by him. The district judge accepted the surrender, and ordered a meeting of the creditors, to take place before the parish judge of East Feliciana.

<p>No re-inscription of a mortgage is necessary, where the mortgagor has made a surrender of his property and obtained a stay of proceedings. C. C. 3326. Per Curiam: The rights of the creditors of an insolvent must be acted on with reference to their situation when his hilan was filed, and all proceedings against him stayed.</p> <p>Satisfaction of a judgment may be proved by presumptions, as well as by positive evidence. The sufficiency of the proof must depend on the circumstances of each case.</p>

contended, that this was an action to annul a judgment of the District Court, and that the District Court had jurisdiction; (C. P. 608-, 610 ;.) and that the proceedings- of the Probate Court were inquired into collaterally only, which the District Court had a right to do. 12 La. 394. 14 Ibid. 149. 17 Ibid. 249. 1 Robinson, 116. 1 La. 19. 3 Ibid. 517. The District Court was without jurisdiction. 1 La. 19. 14 La. 146.

This suit commenced by injunction. The plaintiffs allege, that in May, 1830, they gave their note, seemed by mortgage on three hundred acres of land, for the sum of six hundred and fifty dollars and fifty-seven cents, payable on the 1st day of February, 1831, to A. Haraldson, for the balance of a judgment which had been obtained against the plaintiff Greenwell, by Rutherford, Fiske & M'Neil, of Natchez; Haraldson, the payee of the note, being the attorney of the plaintiffs…

The plaintiff alleges, that a commercial partnership formerly existed between him and one James H. Ficklin, deceased, whose succession is now administered by the defendant, as curator; that said partnership was dissolved in September, 1817, but that no final settlement of the partnership affairs ever took place.

Tammany, Jones, J. The question in this case is, can a wife in community, who has no means of her own, purchase property and make it paraphernal, by borrowing money on her own credit, to pay for it? No such device can take the case out of the operation of art. 2371 of the Civil Code-. The debt in this 'case is a community debt, and the property belongs to the community..

The plaintiff obtained an appeal, returnable to the first Monday in August, 1834, to the Supreme Court, sitting at East Baton Rouge. The order granting the appeal is dated 2d January, 1834, and the citation issued the 15th February following. The writ of citation is signed by the deputy clerk, but the seal of the court, or any other seal, is not affixed to it. moved to dismiss the appeal, on the following grounds: 1.

The plaintiffs allege that their store, in the parish of East Feliciana, was broken open and robbed, in the month of June, 1832, of five hundred dollars worth of goods, by a negro man slave, named “Big Sam,” belonging to the defendant Wilson, then under the control, and in the charge of one Tuberville, his overseer; and charges the latter with running said slave béyond the limits of the state, and preventing the punishment authorised by law, from being inflicted on him; that…

<p>Appeal from the District Court of Bast Baton Rouge, Johnson, J.</p> <p>cited, 5 Mart. N. S. 257. 1 La. 522. 17 La. 295. 11 La. 557.</p> <p>cited Civ. Code, arts. 2371, 2373, 2402. 11 La. 534-7. Campbell v. His Creditors, 3 Rob. 106. Davidson v. Stuart et al. 10 La. 148. De Blanc v. De Blanc., 4 La. 419.</p>

<p>Where a notary states in his protest of a note, “ that he demanded payment of the note of the cashier” of the hank, at which it was payable, at the bank, “ who answered that it could not be paid, there being no funds in bank for that purpose,” it is sufficient. On an objection that there was no evidence that the notary presented the note to the cashier: Held, that the latter having said there were no funds to pay the note, no presentation was necessary.</p> <p>The holder of a protested note must give notice of the protest to every one to whom lie intends to resort He need not give notice to any other person.</p> <p>An appellant will not be allowed, by delaying to complain, till after appeal, of a trivia] error in the judgment, which would have been corrected below had it been asked for, to mulct the other party with costs of the appeal.</p>

<p>APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.</p> <p>This action is founded on the following promissory note: “ On the first day of January, 1831, we, or either of us, promise to pay to Henry Tucker or bearer, the sum of four hundred and fifty dollars, for value received, this 26th day of January, 1829. ” “ Thomas C. Black, ”</p> <p>her</p> <p>“Drucilla \\ Liles.</p> <p>“ Witness, v mark.</p> <p>“ Robert Wilson. ”</p> <p>The plaintiffis the minor daughter of the payee of the note and sues the defendant Liles alone, by her curator ad litem John S. Gaylé, and prays judgment against the defendant Liles, for the amount of the note, and interest.</p> <p>The defendant admits her signature to the note, but says she rvas a married woman at the time, and was not aivare, that she was incapable of contracting; but she now declares, she is not liable in law to pay the note sued on, &c.</p> <p>The evidence showed, that the defendant was the wife of one Valentine Liles, at the time she signed the note; their marriage Avas proved by general reputation; and that they lived together as man and wife. It Avas also in proof, that Liles the husband, died about the 11th February, 1830. This suit was brought, filed the 17th January, 1831.</p> <p>Both parties gave in evidence, the record of a suit and judgment, on the first of these notes, (being similar to the one sued on, and given for the first instalment of a tract of land,) on which execution issued, and the land sold to pay the . ■ judgment.</p> <p>The defendant did not plead her coverture to the first note, when sued on it, but let judgment go by default.</p> <p>The plaintiff relied on a ratification of this contract, by the defendant, after the death of her husband, in making a partial payment, on the first of the notes given for the land; the one in the present suit being for the second instalment. Thejreceipt for the partial payment reads thus: “ Received on the within note, two hundred and twenty-five dollars, January 19th, 1330.” But the evidence shows that Liles the husband, died the 11th February, 1830, after the date of this payment.</p> <p>The Jury returned a yerdict for the plaintiff, for the whole amount of the note, with interest, upon which judgment was rendered accordingly. After an unsuccessful motion for a new trial, the defendant appealed.</p> <p>An opinion was pronounced in this case, at the August term, 1832, in which the judgment of the District Court was affirmed. See the opinion printed, in 4 La. Heporis, 328,</p> <p>This case was argued at the August term, 1832, at Baton Rouge, by Mr. Saunders for the plaintiff, and Mr. Andrews for the defendant.</p> <p>1. That the court has fallen into an error, in deciding that although plaintiff was a femme covert when she signed the note, she ratified the contract, by making a partial payment after she became a femme sole. The testimony shows, and so the fact is, that the husband died, the 11th February, 1830, and the partial payment was made the 19th January, 1830, preceding his death, and while she was yet a femme covert.</p> <p>2. The partial payment was not made on the note in the present suit.</p> <p>On examination of the record pending the application for a re-hearing, it appeared the record and judgment on the note, given for the first instalment of the price of the land, for which ^ note now suh was also given, was in evidence, which showed, that the defendant and appellant, remained in the possession of the land, aftersthe death of her husband. This fact is considered as a ratification of the contract, for which the note sued on was given, after she became a femme sole.</p>

The district attorney for the Third Judicial District, gave a written notice, before the commencement of the April term, 1832, of the… Held: then on the first day on which it will be held, &c., then the above bond to be null,” &c. At the November term, 1831, an order was entered, declaring the recognizance forfeited, for the non-appearance of the principal therein; and the sureties being called, and requested to produce the body of their principal in court, and having…

<p>Appeal from the District Court of St. Tammany, Jones, J.</p> <p>cited 3 Mart. N. S. 489. 5 Ibid. N. S. 196. 7 La. 7. 8 La. 170. 11 La. 51, 566. 10 La. 206. 14 La. 327. 15 La. 51. 16 La. 308. 17 La. 479.</p>

<p>Appeal from the District Court of West Feliciana, Johnson, J.</p>

The plaintiff alleges, the defendant is indebted to him, in ■the sum of two thousand four hundred and fifty dollars, with interest thereon, at the rate of nine per cent, per annum, from the 20th day of April, 1826, until paid.

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p> <p>cited Nott’s Executor v. Beard, 16 La. 308. Carlile v. Hold ship, 15 La, 375. Briggs v. Stafford, 14 La. 381.</p> <p>cited Chitty on Bills, 401. 1 Robinson, 83.</p>

contended, that the plaintiff’s opposition to the payment of the proceeds of the sale of the property to the seizing creditors, was too late; and that the proceeds became their property from the moment of adjudication. Civ. Code, arts. 2353, 3152, 3219, 3153, 3667. Code of Pract. 300, 301, 302, 722. 3 Robinson, 276.

T. C. Black, for one thousand eight hundred dollars, payable in four annual instalments of four hundred and fifty ¿0pars each5 for which they gave their joint and several notes. When the first note became due, in 1830, she paid her half thereof, (two hundred and twenty-five dollars,) but Black failing to pay his, judgment was obtained, and execution levied on the land.

contended, that the claim was a privileged one, and that the sickness during which the services were rendered by the appellant, was that contemplated by the Civil Code, arts. 3158, 3166.

<p>Appeal from the District Court of West Feliciana, Weems, J. presiding.</p>

This is an action founded on a written obligation of the defendant, to pay the plaintiff three hundred dollars, for the rent of two plantations, for one year, ending in January, 1829, in which the obligor bound himself “to take the most particular care of all the improvements, and return the rented premises under a good and lawful fence. ” The plaintiff charges the defendant with holding over, and not paying the rent for the year, ending in January, 1829, and doing great…

<p>Appeal from the District Court of St. Helena, Jones, J.</p>

This is an action to recover the balance of a mercantile account by the plaintiff, who was a commission merchant in New-Orleans, against the defendant, as administrator of the succession of Abel T. Norwood, deceased, in which the former claims a balance of five thousand four hundred and seventy-one dollars and thirty-one cents, for moneys advanced, services rendered as commission merchant, for cash paid on acceptances, commissions, guarantees, cash laid out and expended for…

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

The plaintiff, who is a resident of the state of Pennsylvania, alleges, he is owner and proprietor of a tract of land, situated in the parish of West Feliciana, and granted by the Spanish government, in to one John Collins, from whom, as grantee, he derives a regular, legal title.

<p>prayed for a re-hearing.</p>

<p>A judgment of nonsuit can, in no case, support the plea of res judicata. The fact that the costs of the action in which a judgment of nonsuit was rendered are unpaid, is only ground for a dilatory exception to protect the defendant from a second action before the costs of the first are paid. But where one claiming property seized under a fi. fa. against a third person, opposes the sale, and the Judge, without deciding on the merits of the opposition, merely decrees that the costs of it shall be paid by the opponent, the payment of the costs is a condition precedent to his filing a second opposition, but not to an action by him in another court, against the purchaser at the sheriff’s sale, for the restitution of the property and for damages for its detention. C. P. 53fi.</p>

<p>in an action against the curator to recover an amount due by the deceased, plaintiff alleged that the latter had been very careful in keeping his accounts, and that evidence of her demand would be found on his books, or among his papers: Held, that this allegation does not show that the demand was founded on a written contract, nor compel the petitioner to admit the books and papers of the deceased in evidence.</p> <p>All contracts, no t in writing, for the payment of any amount exceeding five hundred dollars, must be proved at least by one credible witness, and corroborating circumstances. C. C. 2257.</p>

This suit was instituted against John Reed, testamentary executor of Mrs. Sarah Rowell, deceased, for the rescission of the sale of three slaves, which the plaintiff purchased at the sale of the succession of Mrs. Rowell. The plaintiff prays, that the executor and Mrs. Mary Pierce, wife of Constantius Pierce, assisted by her husband, be cited &c. The citation in the District Court, was issued and directed to the executor, and Mrs. Mary Pierce, wife, fyc.

<p>Appeal from the Court of Probates of New Orleans, Bermudez, J.</p>

<p>In a suit between the transferee and the maker of a promissory note, where the answer alleges fraud and collusion, between the payee and transferor of the note and the plaintiff, parole evidence of the acts of the former is clearly admissible against the latter, if the collusion is established.</p> <p>And where the jury are to pass at once on both tha plea of collusion and the aojs 0f t]10 transferor, charged with colluding with the plaintiff, the evidence relating to these two points, mustbe administered simultaneously.</p> <p>On the score of irrelevancy, the objection to testimony is seldom of any avail in the Supreme Court.</p> <p>The promise of the vendor of a slave, to rescind the sale on account of redhibitory defects, is admissible in evidence, in a suit botween the transferee of a note and the maker, for the price of the slave, to show the existence of the redhibitory defects.</p> <p>Where the day of payment of a note is past, at the time of its transfer, it is a sufficient warning to whoever receives it, that the maker may have some just reason to withhold payment, as he has a right to any equitable defence after the transfer, which he might have successfully urged before.</p> <p>A note payable on demand, may be sued upon immediately, or pleaded in compensation.'</p> <p>A verdict found on the plea of fraud and collusion, is entitled to particular attention, because they are the objects for the cognizance of the jury.</p> <p>tweeiAhe'tnmsmissmy note, where the answer alleges Son betííeeifthé i,ayee andtransterror of the note and the plaintiff, o^theactTof the former is eiearnpinstthelatter, ]s eVtabiTshed.°n</p> <p>And where the jury are to pass at once on both the plea of collusion and the acts of the transferor, charged with colluding with the plaintiff, the evidence relating to these two points must be administered simultaneously.</p> <p>On the score of irrelevancy, the objection to testimony is seldom of any avail in the Supreme Court.</p> <p>The promise of the vendor of a slave to rescind the sale on account of redhibitory defects, is admissible in evidence, in a suit between the transferee of a note and the maker, for the price of the slave, to show the existence of the redhibitory defects.</p> <p>Where the day of payment of a note is past at the time of its transfer, it is a sufficient warning to whoever receives it, that the maker may have some just reason to ‘withhold payment, as he has a right to any equitable defence after the transfer which he might have successfully urged before.</p> <p>A note payable on demand may be sued upon immediately, orpleadedin compensation.</p> <p>A verdict found on the plea of fraud and collusion is entitled to particular attention, because they are the objects for the cognizance of the jury.</p>

<p>Appeal from the City Court of New Orleans, Collens, J.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

<p>Proof of possession, is indispensable to support a title, based on the plea of prescription.</p> <p>The vendor, from whom the defendant’s title is derived, is an incompetent witness, to prove the possession of the latter, so as to form the basis of a title, by a prescription.</p> <p>The vendor is an incompetent witness, on the ¿round of interest, for a party deriving title from him, even when his deed to his vendee, contains no clause of warranty.</p> <p>The vendor is bound in warranty to his vendee, when his deed of sale does not exclude it. His obligation extends at least so far, as to require him to refund, with interest, in case of eviction.</p> <p>Proof of pospeusabie^o support a tide based the plea ot prescription.</p> <p>f^^-ho^the defendant’s title incompetentwitpossession of 'the latter, so as to a title by apre-</p> <p>dor is an incompetent ^olnd of'intei®st>. for a deriving title from him, even to^his'* vendee “a*‘l“lsof ranty.</p> <p>bo^ TT^varranty to his vendec "when his deed of sale does '¿“j. ^biigatiot ext<r.nds at least so far as to require him to re-es^in^asT^of eviotion-</p>

<p>Proceedings of police juries and juries of freeholders, under the act of 12 March, 1818, relative to public roads, involving questions of police rather than of a judicial character, should be sustained unless manifestly unjust.</p> <p>The second section of the act of 12 March, 1818, which gives the right to any individual dissatisfied with the decision of a jury of freeholders laying out a road through his land, either as to the course of the road, or the damages allowed to him, to appeal to the District Court, does not authorize the appellant, on his single opposition, and without making any other party than the Police Jury, to contest the opening of snch road beyond the limits of his own property. Evidence to show that a better route might have been selected beyond his limits, is irrelevant and inadmissible in a proceeding to which the proprietors of the lands, over which the road is to pass are not parties.</p> <p>Where on an appeal from the decision of a jury of freeholders establishing a road, under the act of 12 March, 1818, the jury to whom the case is submitted in the District Court, are of opinion, that another route through the lands of the appellant, indicated by him, is practicable and reasonably convenient to the public, and less injurious to the appellant, they may substitute such route for that selected by the jury of freeholders, and order the road to be made along it. Per Curiam ; As a general rule the most direct and best route should be selected ; but this rule is subject to exceptions, one of which is, that too much injury should not be inflicted on individuals. Where a direct course would cause great damage, the road should approximate to it as near as it can under all the circumstances.</p> <p>A witness, under cross-examination, may state matters which, though not directly called for by the question propounded to him, might be brought out by a direct question from the other side.</p> <p>On an appeal from the decision of a jury of freeholders establishing a road through the lands of the appellant, defendants offered in evidence a petition addressed to them by the former, at a previous period, with parol evidence to show the action on it, and the selection by the appellant, of the route to which defendants consented in their answer: Held, that the evidence vías admissible ; and that if there had been any change in the property, or in circumstances, calculated to alter his opinion, it was competent for him to show it, and thereby destroy the effect of the evidence.</p> <p>On an appeal from the decision of a jury of freeholders establishing a road, under the act of 12 March, 1818, the appellant may introduce evidence to prove that a convenient and good road may be laid out through his lands, less injurious than the one proposed by the jury, though such route was not specially indicated in his opposition. So, evidence will be admissible on his part to show, that the construction of the road along another route would cost less than the one designated by the defendants, the law giving to the court and jury to whom the appeal is submitted, a power of revision over the damages as well as the course of the road.</p>

This is an action, instituted by tbe owner, to recover from the factors, tbe sum of seven hundred and eighty dollars ninety cents, as the price and proceeds of twenty bales •of cotton, consigned for sale at the limit of nine and a half cents per pound, according to the following receipt: “Received of John George, twenty bales of cotton, marked J. G., from one to twenty, for sale.s and returns at nine and a half cents, or more.

The plaintiff alleges, he entered into a written contract with the defendant, to build for him a cotton gin, for which the latter bound himself to pay him the sum of five hundred and fifty dollars. He further alleges, he has performed his part of the contract according to the terms thereof, and completed the gin within the time limited; and that the defendant refuses to pay him. He, therefore, prays judgment for the sum of five hundred and fifty dollars and costs.

<p>A sheriff who pays over money in violation of an injunction served upon him, will be responsible to the plaintiff in the injunction for the amount.</p>

This is an action in which the plaintiff claims her freedom. She alleges that she was held in slavery in 1809, in the state of Georgia, by one John Marshall, who in a clause of his will made that year, provided that she should be free on the first day of January, 1815.

<p>Appeal from the Court of Probates of St. Helena, $. Leonard, J.</p>

The plaintiffs sue as the administrators of the succession of Policarpio Regillo, which was opened in the parish of East Feliciana, on a note of one thousand one hundred and seventy-one dollars, dated 7th January, 1832, and executed by the firm of John Crenan & Co., composed of John Crenan and John Swift; that Swift is the surviving partner of said firm, residing in the parish of West Feliciana, and charged with its liquidation; that Madame Lorente, residing in East Baton…

<p>Where defendants claim title to certain^property under an act sous seing privé, dated on a particular day in JBaton Jtoug'e, and the plaintiffs show, that on that very day, in another state, one hundred and seventy miles distant, the same vendor executed a power of attorney before a justice of the peace, to the same Vendee: Held, that this fact, connected with the circumstance that this person, executing the two acts, had at that time left the state to avoid a criminal prosecution, will be considered such violent presumption of forgery and perjury, as will require the verdict to be set aside, and the cause remanded for a new trial.</p> <p>Where defendants claim title to certain property under an act sous seing privé, dated on a particular day inJBaton Rouge, and the plaintiffs show, that on that very day, in another state, 170 miles distant, the same vendor executed a power of attorney, before a justice of the peace, to the Meld, that this witíi th'ech'cumstance, that this tin^ tlm tweets, left the’sE-ite^o avoid a criminal prosecution, will he considered sumptio^offorgery and perjury, as will retjuire ^ the veraside and the cause remanded ior a new trial.</p>

<p>Lands belonging to a succession, though situated in another parish, may be sold by the probate judge of the parish in which the succession is opened.</p>

<p>Where one to whom property is bequeathed in case of her surviving a certain person, dies before the latter, the legacy will be without effect. C. C. 1691.</p> <p>To ascertain the intention of the testator the different clauses of a will must be construed with reference to each other. C. C. 1705, 1706.</p>

This is an action of revendication of a slave, alleged to be illegally possessed and claimed by the defendant. The plaintiffs are the heirs and legal representatives of Nathan Bradford, deceased.

<p>Action for damages for a trespass committed by defendants on lands possessed by plaintiffs as owners, and defence that the lands belong to the United States, and that defendants entered thereon for the purpose of acquiring a pre-emption right thereto.- Held, that the title of one possessing as owner cannot be subjected to investigation at the instance of a mere trespasser; and that a party cannot be permitted, under pretext of an intention to purchase from the United States, to assume that land, in the possession of another, is public, and liable to be entered on at pleasure.</p>

The plaintiff alleges he is the owner of a tract or strip of land, between a certain road and a creek, in the parish of East Feliciana, part of which the defendant entered into a written contract to convey to him; that he was in the peaceable possession of the land for more than a year previous to the 7th February, 1832, when the defendant illegally and forcibly took possession of the premises, pulled down the fences and made others, and still retains his illegal possession…

<p>Where in an action for damages against the owners of a steamer for injury result ing from a collision between the steamer and plaintiffs’ vessel, the evidence leaves it doubtful whether any fault was attributable to the officers of the steamer, plaintiffs cannot recover.</p>

The plaintiffs are the heirs and legal representatives of John Cooney, deceased. The widow, as tutrix of her two minor children, commenced this action to recover from the defendant two slaves, Lucy and Nelson, who, they allege, belonged to their father in his life-time, as appears by an act of partition between them and theft sister Mary M., wife of Vincent Vaughan.

<p>Appeal from the District Court of Iberville, Deblieux, J.</p>

<p>Appeal by one Laizer from a judgment of the District Court of the First District, Buchanan, J.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

<p>Appeal from the Commercial Court of New Orleans, Maurian, J., presiding.</p>

Robert Jones, the administrator of the succession of Doctor William Williams, filed his petition, with a tableau of distribution, of the effects of the succession administered, as an insolvent one: he alleges, that the heirs of said succession are minors, and reside out of the state, and prays that a curator ad hoc be appointed to represent them; that Eliza Williams, the widow of the deceased, and residing in the parish, be served with a copy of the petition and citation,…

<p>An attorney in fact appointed by the natural tutrix of minor heirs residing abroad, cannot represent the heirs in the settlement of the succession of their father, opened in this State, where the property left by the deceased was held in community, and the natural tutrix as surviving spouse, has rights which must be exercised contradictorily with the minor heirs. In such a case, an attorney must be appointed to represent the absent heirs. C. C. 1654. Per Curiam: If the natural tutrix were present, having rights to exercise contradictorily with the minor heirs, she could not represent them; an under-tutor alone could act for them. C. C. 301.</p>

<p>APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.</p> <p>The plaintiff sues, for the recovery of three hundred dollars from the defendant, on the following draft:</p> <p>“Cashier of the branch bank of the Bank of Louisiana, pay Sebastian Hiriart or order, three hundred dollars.”</p> <p>“$300.” [Signed] “E. W. Potts.” Endorsed. “ I have received the within amount,”</p> <p>[Signed] “ Wm. P. Cox.”</p> <p>The draft is without date; and the plaintiff alleges, that the defendant presented it to him as the cashier of the bank, about the 20th January, 1830, and represented, that Potts the drawer, was much pressed for money, and bound himself personally, to refund the amount of said draft; that he refused payment at first, but that the defendant, in addition to the promise of the drawer, acknowledged on the back of the draft, that he had received the money, before he would pay the same ; he charges, that it was upon the personal responsibility of the defendant, that he advanced the money, &c.; he alleges a demand on the defendant, and refusal to pay, and prays judgment for the amount thereof, and interest.</p> <p>The defendant pleaded a general denial.</p> <p>Louis Menard, witness for plaintiff, states, that E. W. Potts obtained a loan of one thousand five hundred dollars, from the branch bank of Louisiana, in 1830, which the plaintiff as cashier, paid over to the present defendant W. P. Cox, as the agent of Potts ; that it was paid as follows.- in a check for two hundred and sixty-four dollars, and in one of seven hundred dollars, and in another of one hundred and sixteen dollars, and the balance of three hundred dollars, (after deducting one hundred and twenty dollars, the amount of the discount) was paid, without any check, to said Cox ; that the draft sued on, was presented about three weeks after the above sums were paid over, and that the plaintiff told defendant at the time, that E. W. Potts had no money in bank; witness says, the consideration and inducement for paying the draft, were the representations of defendant, that Potts was in great want of money, and that the former-agreed to refund it, as soon as he should examine a memorandum, handed to him by the plaintiff) of th'e payments of the amount of Potts’s loan, which he said was in his pocket-book, at home.</p> <p>The cause was submitted to a jury,, who found a verdict for the plaintiff, for the amount of his claim, -with legal interest; from the judgment rendered thereon, the defendant appealed.</p>

The plaintiff claims to be a free man, and institutes this suit against the defendants, who hold him in slavery, to obtain his freedom; he alleges, that he resided in the state of Ohio, two or three years, where slavery is prohibited, and is consequently free: He prays judgment, that he may be entitled to his freedom, and for thirty dollars per month, from the commencement of suit until he shall be set free.

<p>The Earning of a city at large is not such an indication of a place of payment of a note, as will make it necessary to make a demand anywhere to entitle the holder to recover. Per Curiam : The words place of payment mean a house, hank, counting-room, store, or place of business, where the holder can present the note, and the maker provide or deposit funds to meet it, and where a legal offer to pay can be made.</p>

If the plaintiff, as holder of the note, has a claim against the United States, the defendants are not bound. They endorsed it without recourse, warranting only that it constituted a good and genuine claim against the government — not that it would be paid. They warranted the existence of the debt, (Civ. Code, art. 2616,) not the solvency of the debtors. Ibid. art. 2617. The Judge below has decided, that defendants warranted payment, without suit or contest.

The plaintiffs sue as tbe heirs and legal representatives of Esther McD. Kimball, to recover a slave named Peter, worth eight hundred dollars, who they allege, is illegally in the possession of the defendant’s ancestor. This suit was filed the 13th May, 1826, and'on the 20th, in pursuance of the prayer of the petition, the negro was sequestered. The plaintiffs set up title to the slave in contest.

<p>Appeal from the District Court of the First District, Maurian, J. presiding.</p>

<p>Where the record is not filed in the Supreme Court, on the return day thereof, and no application is made to the court for leave to file it after that day, the appeal will be dismissed on motion.</p> <p>Where the record is not filed in, the Supreme Court, on the return day thereof, and no application is made to the court for leave to file it after that day, the appeal will he dismissed on motion.</p>

This is an action on a promissory note, executed by Gregorio Bergel, to the ancestor of the plaintiffs, the 22d August, 1825, for five hundred and thirteen dollars, payable one year after date, with interest, at the rate of ten per cent, per annum, from the time it became due, until paid. The suit was filed December 21st, 1833, and citation served the third day thereafter.

<p>Where on an appeal from a judgment confirming one taken by default, the record contains no statement of facts, and the certificate of the clerk shows that parol evidence was produced on the trial, but not taken down in writing, it will be presumed that plaintiff’s claim was proved by legal evidence before the judgment by default was made final.</p> <p>Where the testimony introduced on the trial has not been taken down in writing, the party intending to appeal must require the adverse party, or his counsel, to draw, jointly with him, a statement of the facts proved, to be annexed to the record. C. P. 602. It is only when the other party refuses to join in making out such a statement, or when the parties cannot agree, that the party intending to appeal has a right to call upon the court for a statement of facts. C. P. 603.</p>

<p>In every action on a joint contract all the obligors must be made defendants, and no judgment can be obtained against any, unless it be proved that all joined in the obligation, or are by law presumed to have done so. C. C. 2080.</p>

The plaintiff alleges, that in the month of October, 1832, he entrusted one Samuel Barber, in Henderson county, in the state of Kentucky, with the captaincy and agency of a flatboat and her load, consisting of plank, scantling and house-frames, to bring to New-Orl eans; that in December, when the boat and load arrived at Baton Rouge, Hilaire Longuepe and Charles Lange, fraudulently and without any right or title, took possession of her, and converted to their own use, the…

<p>District Courts have jurisdiction of an action by heirs to compel the transfer to them of stock owned by the deceased, where there are no debts due by the succession. Per Curiam: Such a case is not one of those enumerated in arts. 924r 925 of the Code of Practice as coming exclusively under the power and jurisdiction of Courts of Probate, which being of limited and special jurisdiction cannot take cognizance of matters which, though relating to a succession, are not placed by law under their immediate control and jurisdiction.</p> <p>The heir acquires the succession of the person from whom he inherits immediately after the death of the latter. This right is vested in him by operation of law alone, before he has taken any step to put himself in possession. One of its effects is to authorize him to institute any action which the deceased had a right to institute, and to prosecute those already commenced. C.C. 934, 935-, 936, 939» He cannot be required, in order to authorize him to sue, to show that he has been recognized as heir, and put in possession of the estate by a decree of the Court of Probates of the place where the succession was opened. All that can be required of him is to furnish satisfactory evidence of his right to inherit. The recognition of the heir by the Probate Court is only required where he seeks to compel a curator, executor or administrator to render an account. C. P. 1000, 1001,1002, 1003.</p>

<p>In an'aetion instituted by one held as a slave to establish his right to freedom, the only issue which can be presented is liber vel non. Plaintiff cannot contest the title of the defendant but by establishing [his] own right to freedom. A slave is incapable of appearing in court for any other purpose than that of claiming his freedom.</p>

<p>By sect. 33 of the act of 1 April, 1833, incorporating the Commercial Bank of New Orleans, that institution is authorized to lay pipes in the streets of New Orleans for the purpose of supplying water for the use of the inhabitants, on the condition of restoring the streets, in as short a time as possible, to the condition they were previously in. Defendants having neglected to replace the pavements in certain streets in which they had laid pipes, the city authorities, through certain persons subrogated to their rights against the Bank, caused the pavements to be replaced. In an action by the latter against the Bank for the cost of the repairs: Held, that a notice to defendants that the pavements had not been properly replaced, and a demand of them to comply with the requisitions of the charter by repairing the streets, was indispensable to a recovery. ■</p>

The plaintiffs institute suit on an obligation, signed by one John Bostwick, as principal, and Stephen Yarborough, as surety, in which they acknowledge themselves indebted to the plaintiffs, in the sum of seven thousand dollars, conditioned for the faithful payment of five-thousand dollars, or such sum, not exceeding that amount, as the defendant Bostwick may be indebted to the plaintiffs, at the end of twelve months, in consequence of endorsements or advances made, and…

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

<p>Appeal from the District Court of the First District, Buchanan,, J.</p>

This suit was instituted by David Flower, as surviving partner of the late commercial firm of D. B. Finley & Co., in New-Orleans, to recover from the defendant as the heir of her deceased son, Stephen Bell, the sum of six thousand three hundred and thirty-six dollars eighty-six cents.

<p>A notary is entitled to charge for an inventory executed out of his office, fifty cents for every hundred words ; but he is not entitled to any allowance for memoranda made and attested by him for the purpose of preparing the inventory in proper form. For an attested copy of any act not proved to have been made out of his office, he can charge but twelve and a half cents for every hundred words. Act of 28 March, 1813, s. 8.</p> <p>By sect. 13 of the act of 14 March, 1842, for the liquidation of banks, it is provided, that it shall be the duty of the notary employed to make an inventory of the property and effects of the bank, and at the time of making such inventory, to destroy, under the inspection of the commissioners and of the board of currency, all the notes of the bank which may be on hand at the time, including such as may not be completed, in the presence of two witnesses and of the officers of the bank, if any be present, of all which mention shall be made in the inventory. Held: that the services required of the notary by this provision, are a part of the labor of making the inventory, and that he is entitled to no additional compensation therefor.</p>

This is an action, instituted by W. & D. Flower, against the defendant, as heir at law of her deceased son, Stephen Bell, whose succession it is alleged, she has accepted, with benefit of inventory; and to charge her with the balance of a mercantile account against the deceased, amounting to ten thousand six hundred and sixty-eight dollars, which the plaintiffs allege she is liable to pay, and for which they pray judgment, with ten per cent, interest thereon, from the 10th…

The court erred in rejecting evidence to show that the loss resulted from an unavoidable accident, for the consequences of which defendants are not responsible. Civ. Code, art. 2725. 1 Phillips on Insurance, 635-6. Story on Bailments, 332. Abbott on Shipping, part 3, ch. 4, s. 5, p. 256. Hale et al. v. Washington Ins. Co. 5 Law Reporter, 201. 14 Peters, 99.

<p>Where in' an action for damages for the loss of a slave drowned while engaged in an illegal traffic with defendants, no evidence is introduced to show the value of the slave, no judgment can be rendered in favor of plaintiff.</p> <p>Before the act of 19th February, 1844, amending art. 2304 of the Civil Code, co-trespassers were liable jointly only, and not in solido.</p>

<p>Appeal from the Parish Court of New Orleans, Maurian, J.</p>

<p>A judgment pronounced in another State by a court of competent jurisdiction, against an administrator appointed to represent a defendant, who died pendente lite, and after answering, ascertaining the balance due by the deceased on the settlement of a partnership, in the absence of any proof that such judgment is not as valid by the laws of the State in which it was pronounced as if rendered against the heirs themselves, is prima facie evidence against the succession in this State, and sufficient to support a judgment by default. Const. TJ. S. art. 4, s. 1. C. P. 122. Per Curiam .-We are not prepared to say, that it is conclusive against the heirs or executor here.</p>

This was an'action against the master of a steamboatrunning between Mobile and New Orleans, to recover from him individually, $322 50,, the amount of the tax levied by the act of 27 March,'1843, providing a fund for the support of the Charity Hospital of New Orleans, on passengers who had arrived on his boat at New Orleans, between the 9th April and 10th of May, 1843.

This was a suit, originally commenced at the September term, 1821, of the District Court for the parish of St. Martin,^ to settle the succession of Mrs. A. Broussard, who died in January, 1816. A community of property existed between her and her husband, the present plaintiff. After her death, the husband continued in possession, and made sales of the community property, without ever taking an inventory.

<p>Evidence consisting of extracts from the prods verbal, of commandants and parish judges in Attakapas, for a long series of years, in which the phrase “ ajin de fa-ire cesser la communauté ” is used in the caption to inventories, with other phrases of similar import, is insufficient to prove the existence of a custom in such place, that a community of acquests and gains continued between the surviving husband and the heirs of his deceased wife, until inventory is made.</p> <p>When there is no evidence to saSsfy the court, thatany succession has been settled and partaken, in conformity with an alleged or supposed custom of a place, recognising the continuance of the community after the marriage is dissolved, until inventory is taken; and nothing like a course of judicial aets recognising such a custom is shown, it will notbe considered as proved to exist.</p> <p>A community of acquests and gains as such, ceases to exist at the moment of the death of one of the partners, with all the legal effects resulting from it. Each party is seized of one undivided half of the property composing the mass ; and the surviving party cannot alienate the share not belonging to him.</p> <p>If the survivor of a community of acquests and gains, continues-to administer it without provoking a partition and is tacitly permitted to enjoy tho common estate, he will be considered, except in cases where he may have a legal usufruct, as intermeddling, and his responsibilities will be those of a negotiorum gestor.</p> <p>A judgment rendered by a court of competent jurisdiction, between parties legally before it, cannot be questioned indirectly and collaterally.</p> <p>Minors are bound by the judgments of courts of competent jurisdiction, when they come before them properly represented, in the same manner as other persons.</p> <p>The Fuero Real was not in force in Louisiana in 1816.</p> <p>While a judgment remains in force and unappealed from, the rights of the parties are concluded by it, leaving to those under age their legal recourse.</p> <p>Property purchased by the husband after the dissolution of the community by the death of his wife, becomes his sole property; but he is accountable for one-half of the net revenues derived from the common property after the death of his wife, and up to the time of making the inventory.</p> <p>.Evidencecontracts from the oTcomm^ndants f°r a long series of vfiíirs in which ’ the jí‘”se dfa cmmmmuté ” is used m the caption to invenof i-jar ;™Port> “ insufficient to prove the exist-inmdipiac™t°™t aequSt^'^nd gains continued yWiTi?”husband p"'1 *e ¿teased 'wife> ¿?tii iu_</p> <p>s°tisfyldheCcourt that any^suecesüed and partaty^tírlm™! le5ed or sui>p°sed custom oí a place, recognioT” the after dissolved, until nothing like a course of oo^'iiángtuc{ieá custom is shown, considered as proved to exist.</p> <p>A community of accpiests and ceases to exist at the moment of the death of one of the partners, with all the legal effects resulting from it. Each party is seized of one undivided half of the property composing the mass; and the» surviving party cannot alienate the shave not belonging to him.</p> <p>If the survivor of a community of acquests and gains, continues to administer it without provoking a partition, and is tacitly permit led to enjoy the common estate, he will be considered, except in cases where he may haw. a legal usefriu-l, as inter-meddling, and ties will be those 'mstorWgOÜOrUm</p> <p>A • judgment rendered by a court of competent jurisdiction between parties legally before it, cannot be (questioned indirectly and collaterally.</p> <p>Minors are bound by the judgments of courts of comJRtent jurisdiction, when they eomc before them properly represented, in the same manner as other persons.</p> <p>The Fureo lleni was not in force in Louisi. oua in 1816,</p> <p>While a judgment remains in pea*edfrom,ntíié ties^are'^onciuded by it, leavderage «íeir™gal recourse.</p> <p>Property purhusband after the dissolution of the Community by the death of his «ofe ,beproper^-1-countable13 for one-haif of the riTCdeVfrom3 the ty Mterdie'deatb of his^ife^and making Ve^inventory.</p>

contended, that the law of 1843 was not a violation of the constitution of the United States. Similar laws have been passed in other States, and their constitutionality has been sustained. See a statute of the State of New York, enacted for the support of its Marine Hospital. 1 Rev. Statutes, p. 48, and voL 3, p. 274, ed. of 1837. Also a law of the same State, (l Rev. Stat., vol. 1, p. 637, s. 69,) relative to paupers.

MARY. This is an action of partition. The plaintiff as surviving wife of the late Joseph Theall, instituted her suit in the Probate Court, for the parish of St. Mary, against the dative testarhentary executor, and the testamentary heirs and legatees of her deceased husband, for a partition of his succession, according to the provisions of his olographic will, duly admitted to probate. The will was dated the 9th February, 1832, and the testator died during that year.

<p>The widow and heirs of a surety on an appeal bond cannot be proceeded against in the same manner as the surety himself may be, under the 20th sect, of the act of 20 March, 1839, amending art. 596 of the Code of Practice. In authorizing the summary remedy provided by that act, the legislature contemplated no other proceedings than those against the surety himself.</p>

<p>A tutor cannot, by proceedings had contradictorily with the under-tutor during the minority of his pupil, make any settlement of his accounts, which will be conclusive upon the latter on attaining the age of majority. Nor does art. 301 of the Civil Code, which makes it the duty of the under-tutor to act for the minor whenever the interest of the latter is opposed to that of the tutor, give the under-tutor any authority to require the tutor to render his accounts.</p>

The plaintiff took a rule on the defendant, to show cause why he should not be made liable as surety in an attachment bond. The facts show, that one Miles, in Kentucky, sued out an attachment against William L. Brent, then residing in Attakapas, in a suit on a promissory note of the latter, for two thousand three hundred and fifty dollars, given for the price of slaves. Mr. Brownson was the surety in the attachment bond executed by the plaintiff Miles.

Rule on the Judge of the District Court of the First District, to show cause why a mandamus should not be issued, directing him to allow an appeal from a judgment rendered by him. Buchanan, Judge of the District Court of the First District, showed cause against the rule.

The plaintiff alleges, that through his agents in New-Orleans, in February, 1829, he employed captain R. W. Curry, commander and part owner of the steam-boat Attakapas, then running in the trade, from St. Martinville to New-Orleans, to carry five thousand seven hundred gallons of molasses, worth one thousand four hundred and twenty-five dollars, from the. sugar plantation of Messrs.

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p>

The failure of the creditors of Powell to advance the amount required by the first section of the act of 17 March, 1820, (2 Lislet’s Digest, 279,) entitled the latter to his discharge.

This is an action to recover the value of a slave, hired by the plaintiff, to the defendant, and which the former alleges, was lost by the negligence and misconduct of the latter.

<p>Where notes given for the price of a tract of land are left in deposit with the notary by whom the act of sale was drawn up, the notes or their proceeds to be delivered to the vendor when the property sold shall be released from certain incumbrances, and the notary places them in a hank for collection, and suffers them to remain there after the bank had suspended specie payments, until the makers paid them in the depreciated notes of the bank, he will be responsible to the vendor for the full amount of the notes.</p> <p>The second section of the act of 27 March, 1823, which declares “ that no person who has made a surrender of his property for the use of his creditors, shall be admitted as a witness, except in cases of usury and unlawful contracts, in any civil suit brought either by the mass of his creditors against any of his creditors or debtors, or by any of the said debtors or creditors against the mass of the creditors of said person, on any contract, note or obligation entered into, drawn or exe-' cuted, or subscribed by the said person previous to his having made a surrender of bis property,” is repealed by art. 3521 of the Civil Code. Art. 2169 of the Civil Code has no reference to that act.</p>

<p>Appeal from the District Court of the First Distrct, Buchanan, J. The petition alleged,.that one Caldwell leased from the plaintiff two stores connected with each other, one for the annual rent of $1200, and the other for $800, the rent payable monthly. That Caldwell being in debt to the petitioner for rent in arrear and otherwise involved, did, within the preceding fourteen days, abscond. That after he had abandoned the premises, the defendant, in violation of plaintiff’s privilege as lessor, illegally and without his consent, did, within the preceding fourteen days, remove from the premises ten boxes of manufactured tobacco, weighing about 35 pounds each, and worth at least thirty cents per pound, and that he has since disposed of the tobacco so as to place it beyond the reach of the plaintiff. The petition prays, that defendant may be compelled to restore the tobacco, or to pay the value thereof, &c. The defendant answered by a general denial.</p> <p>The defendant, in answer to interrogatories propounded by the plaintiff, stated, that he sold ten boxes of manufactured tobacco to Caldwell, on the 5th of February, for the price of which he took Caldwell’s note, at thirty days, but without granting Caldwell any discharge from the debt by taking said note ; that the boxes weighed each 148Tfy pounds; that the tobacco was sold for 30 cents the pound, and the note was for $444 90; that on Monday, the 9th of February, he removed nine boxes of the said tobacco, and two three-quarter boxes of a different brand, from Caldwell’s store, after purchasing the same from Caldwell, and returning to him his note in payment therefor ; that he resold all the tobacco before the commencement of this suit, the nine boxes at 30 cents per pound, one of the three-quarter boxes at 12|- cents and the other at 16 cents per pound, being an inferior article ; that Caldwell’s store was closed when he went to it for the purpose of removing said articles, which was during the ordinary business hours when such stores are usually open ; that he had no reason to suspect that Caldwell had left, or was concealed for the pur-, pose of secretly leaving the city, at the time of visiting his store ; that on the morning of the 9th, Caldwell’s clerk came to his counting-room, and stated to him, that Caldwell wished him to take back the tobacco, and give up the note given for the price ; and that Caldwell wished him to go to his store and receive the tobacco, and hand over the note at the same time; that he (defendant) went to Caldwell’s store, where he found the clerk, who pointed out to him one Conway who would deliver the tobacco and receive the note; that Conway, who had the key of the store, unlocked it, and delivered the tobacco, and received the note ; and that Caldwell had solemnly pledged himself to protest said note, so that he should lose nothing by giving him the credit.</p> <p>Conway, examined by the plaintiff, stated, that he kept a store in the next house but one to that occupied by Caldwell; that he saw Caldwell for the last time on Sunday morning, between seven and nine o’clock ; that he never saw Caldwell’s store open after that morning; that his store was usually opened every morning by half past six or seven o’clock ; that the key of Caldwell’s store was handed to him by a young man whom he did not know ; that when the key was delivered to him he was directed to deliver the tobacco to defendant; that defendant took the key from him and went into the store, which was kept open for twenty minutes, or less ; that he saw nothing taken from the store by defendant but the tobacco, which was removed on Monday morning about breakfast time ; the young man, as witness understood, had been living at the same boarding house with Caldwell; the key was sent to plaintiff after the tobacco had been removed.</p> <p>Folsom, examined by plaintiff, stated, that he' kept a store next door to Caldwell’s ; that the last time he saw Caldwell was on the1 Saturday preceding the removal of the tobacco ; that he did not see Caldwell’s store open after that day, except when Parrish removed the tobacco ; that at the time of removing the tobacco, he heard several persons say, that Caldwell had run away; thinks he had heard that Caldwell had run off, before defendant took the tobacco away.</p> <p>Haskell, examined by plaintiff, stated, that he lived next door to Caldwell’s store, and that he saw Caldwell, for the last time, on the Saturday preceding the removal of the tobacco.</p> <p>Smith, a clerk of defendant’s, examined by plaintiff, deposed, that he heard Parrish say, that Caldwell had gone off when he went after his tobacco ; believes that Parrish was in a hurry to get the tobacco back into his possession.</p> <p>Louisa Newton, a witness for the plaintiff, stated, that Caldwell boarded at her house until the morning of Sunday, the 8th of February, when he left after breakfast, without settling his account, and that she has not seen, nor heard of him since.</p> <p>White, another witness for plaintiff, stated, that on Monday, the 9th of February, between eleven and twelve o’clock, he received a letter written and signed by Caldwell, which was offered in evidence. So much of the letter as is of any importance, is transcribed :</p> <p>“ New Orleans, Saturday, 7th Feb. 1840.</p> <p>“ Mr. John N. White,</p> <p>“ Sir : I am sorry to have to trouble you on such a disgraceful communication, but it cannot be helped at this time. I have met with some losses and disappointments, and my neabour Lea & Co. closing doores has put a shock on me. I have sent my man Barron to Galveston with a small lot of goods on speculation, and fearing he would, not return quick, my creditors would put me in the calaboce and not give me a fair chance to get clear, I have made my mind up to gow up the river as far as Nacatoch, and cross over to Texas. You will please attend the store, and see what I do ow. I have all the bills and receipts with me. My intentions is not to defraud any person; they shall be paid. I will be able to pay all as it comes due except Mr. Bagley for sugar, and Mess. Yarian, and Ogden & Southgate. * * * I have told one or two I was going home, but you got the whole trouth. Tell Mr. Parrish on Poydress street, to take his tobacco back. I bought ten boxes, at 30 days, at 30 cents. He holds my note for the same: get my note back. He can claim the tobacco ) it bears his mark, Richmond. * * * * But.if my creditors is gentlemen, and will not go to extremes with me, I will be in Orleans in thirty or forty days, and pay all I ow ; the whole is not more than $3000 — say $2400, with rent. Please see them all for me. No more, but your troubled friend,</p> <p>“John Caldwell.”</p> <p>- On the back of this letter, under the direction, was written : “ This letter will give all inquiring friends information abot the subscriber in heast, J. Caldwell.”</p> <p>Plaintiff offered in evidence the record of an action in the Commercial Court, from which it appears, that on the 14th of February, plaintiff as Caldwell’s lessor, obtained an order for the provisional seizure of the property in his stores, and of the leases thereof, and that a judgment was subsequently rendered in favor of the plaintiff against Caldwell for $1862 24, and ordering the property provisionally seized to be sold to satisfy the same. The return of the Sheriff showed that the nett proceeds of the sale amounted to but $310 88.</p> <p>No evidence was introduced on the part of the defendant.</p> <p>The court below rendered the following judgment: “ Considering that articles 2294, and 2679 of the Civil Code are inapplicable to this case ; and further considering that the plaintiff has shown no cause of action : It is adjudged and decreed, that there be judgment for the defendant, with costs.” The plaintiff appealed.</p>

This is an action of trespass, in which the plaintiff claims three hundred dollars, for damages sustained, by the defendant’s cattle breaking into his fields, and destroying his fences and every thing in the fields ; and for fifty dollars damages, as the price of a favorite dog, which he alleges, the defendant wantonly shot, while assisting in turning the defendant’s cattle out of the fields.

This action was commenced by the plaintiff, as curator of Jean Babineau, alleged to be an interdicted person, against one Joseph Dugat, to render him liable for intermeddling with the estate of said Babineau, for the sum of two thousand dollars, with a legal mortgage, from the time of such, inter-meddling ; and against W. Bendy, to subject a plantation purchased by him, from Dugat, since the above mortgage attached.

having obtained a re-hearing, contended that the judgment of the lower court should be reversed in loto. The tobacco belonged to Caldwell at the time of its removal from the building leased to him by plaintiff. The testimony of Smith shows, that defendant removed it after he was aware that Caldwell had absconded as an insolvent. Defendant having sold the tobacco on a credit, had no right of revendication, (Civ.

Williams prayed that a mandamus might be issued to the Judge of the Criminal Court of the First District, to show cause why an appeal should not be allowed to him in… Held: that penal actions are within those statutes, and may be amended. 1 Bacon’s Abr. title, Amendment and Jeofail, A. anH C. 2 Sir. 1227. 2 Dallas’ Rep. 143. 1 Gallis. Rep. 23. In cases of acquittal on criminal prosecutions, no new trial can be granted, but new trials may be granted in penal actions. 4 Blac.

This is an action for damages, against the widow and heirs of the late Joseph White, to recover the value, of a negro boy, owned by the plaintiff, and alleged to have been lost by the. negligence of the said White, while in his possession on loan.

Tbe plaintiffs sue, as tbe testamentary heirs of Pierre D’Arby, f. m. c., deceased, late a resident of New-Orleans, to recover from the defendants, who are tbe heirs and legal representatives of Olivier Blancbet and wife, both deceased, a tract of land, fifteen arpents on one side, and fourteen on the other side of tbe river Vermilion, with tbe depth of forty, being tbe largest portion of an original tract, of twenty arpents front on each side of the Vermilion, with the…

This is an action instituted by the plaintiff, residing in Louisville, Kentucky, to recover of the defendants, one thousand dollars, the price of a sugar mill, delivered at their sugar plantation, in Attakapas. He charges, that the price of said mill was one thousand dollars, and that he proposed to one of the defendants, if they were dissatisfied with it, he would take it back, which was refused; that they have since sold said mill, for the sum of twelve hundred dollars.

This is an action, for work and labor done as a mechanic, at, a stipulated hire per month, in which the plaintiff claims from the defendants the sum of two thousand one hundred and twenty six dollars.

This action commenced by a written motion of the defendant, to annul and set aside a levy and seizure made under a writ of fien facias, which issued on a judgment of the plaintiff against the defendant, after the latter had made a cession of his goods. The judgment upon which the fieri facias issued, was recorded in October, 1832, in the parish of St. Mary.

In this case the following principle is settled and decided. 6 Martin, N. S. 265. This is a petitory action, which was commenced in 1819, to recover from the defendants a tract of land, containing sixty arpents of land in front, by forty-two in depth, on both sides of the Bayou Teche. The plaintiffs derive title in virtue of three Spanish grants of twenty arpents each, to C. & J. Dugat, and J. B. Labeauve, in the year 1777.

This is an action, on a store account, annexed to the petition, in which the plaintiff claims from the defendant, the sum of three hundred and twenty-three dollars and sixty-four cents, for goods and merchandise, sold and delivered to the latter in person, and to his wife.

<p>The Civil Code of 1808, article 44, page 462, and page 430, article 10, provides, that the third possessor of mortgaged property, who is not personally liable for the debt, may require the property in the possession of the principal debtor, to be first discussed and sold, before coming on him, if the property of the debtor is not situated in too distant a part of the state.</p> <p>According to the Code of Practice, article 72, the discussion of property not situated within the jurisdictional limits of the tribunal, where payment is to be made, is disallowed.</p> <p>The provisions of the Code of Practice, limiting the right of discussion to property, situated within the jurisdiction of the tribunal of the place, where payment is to be made, does not apply to contracts; made before its enactment.</p> <p>The effect of laws is generally prospective; and if they have a retrospective effect in any case, the intention of the legislature must be evident and clearly expressed. It cannot command obedience to laws, affecting the obligation of contracts, entered into before their passage.</p> <p>It is not necessary, that the money required to defray the expenses of discussion of property, be tendered at the time of filing the plea; it is sufficient, if the money be deposited in court, in pursuance of an order, directing it to be done within a specified time.</p> <p>The Civil Code pf «2^’and' art vfcíes’ ISt Pthe third possessor propeiqTwhots hable PfoTn üie debt, may require the proper-0 ty in the possession of the principal debtor to be first discussed and sold before coming; on him, if the property of the debt- or is not situated in too distant a of the state.</p> <p>the^ocieofPracdTseussioR2’ ‘of property not sithe jurisdictional ment is^ to^be lowed.</p> <p>o?thePCode°of Practice,^limit-discussion° • to witSfn^ie jmístribunal °of the place where pay-made, ‘does not tracts made °before its enact-m</p> <p>The effect of pi'osp'ecfire^'alid if they have arefbet m°any case, the intention of *®st ¿Petldent and clearly ex-notSSedéommand ^f^affecting the obligation of jntn0 before their</p> <p>neces_ sary thatthe money required to defray the expenses of discussion of properly, he tendered at the time of filing the plea5 it is sufficient if the money be deposited in court in pursuance of an order directing it to be done ■within a specified time.</p>

It is immaterial in the present case, to enter into a discussion of the formerly much vexed question, whether the Supreme Court can constitutionally exercise criminal appellate jurisdiction. Held: that an indictment would not lie, and that the proper remedy was debt, to be sued for in the court of revenue and not by indictment.” This is not a correct statement of the case.

This is an action for a separation from bed and board, and a divorce, instituted by the plaintiff against the defendant, her husband, on account of cruel treatment, excesses, outrageous conduct towards her, and hatred and neglect of her, to such a degree as to render living together insupportable.

This action was originally commenced, to recover the price of a tract of land, sold at the probate sale of Melan^on’s estate, and purchased by the defendant Duhamel. The suit was instituted against Duhamel, and Latiolais, his surety. Before judgment, Duhamel was evicted of a large portion of the land, by Pierre Broussard. The defendants now pray for a rescission of the sale, and to be discharged from the contract.

This is an action by the plaintiffs, who are the father, and brother and sisters, of Aimé Robin, deceased, late wife of the defendant, J» B. Castiiie, to recover from him two sums of money, of seven hundred and thirty-nine dollars, and seven hundred and thirty dollars, which he received as. portions, during marriage, inherited by his said wife from her grandmother. The defendant gave his two receipts, dated in 1829 and 1830, for said sums of money.

This is an action of warranty to recover damages of the defendant in consequence of eviction from a tract of forty superficial arpents of land. The plaintiff purchased of the defendant by public act, dated the 1st of June, 1831, a tract of forty supercial arpents with warranty of title, and also all the defendant’s right of settlement to the balance of one hundred and sixty arpents, for the sum of six hundred dollars in cash.

The plaintiffs allege, that they obtained a judgment against their father and natural tutor, Marcel Patin, on the 10th day of September, 1825, for two thousand four hundred and thirty-six dollars twelve cents, being eight hundred and twelve dollars four cents, in favor of each of them, with legal interest, on the claim or portion of each, from certain dates, and with a legal mortgage on all their father’s property, which he owned and possessed, at any time since the 15th day…

<p>Where the payee of a promissory note, payable to order, transfers it in writing on the back of the instrument, for twenty per cent, discount, it will be considered a sale, not an endorsement, in which the purchaser will be considered as having taken the risk of the solvency of the maker, without recourse on the transferor; and such a contract is, in its nature, aleatory and not usurious.</p> <p>Where the sale of a promissory note by the payee, in insolvent circumstances, has been made for one-fifth, less than the amount promised on the face of it such sale may be rescinded by the creditors of the insolvent; but they would be bound, first to refund the purchase money, when there is no evidence of fraud on the part of the purchaser.</p> <p>Where the payee of a pro.missory note, payable to order, writingS on* the back of the inslrument, for 20 per centum dis-considered1 a doraementm Tñ which the purchaser will be considered as risk "of ^the" solvency of the maker without recourse on the «uchícontraetis in its nature ale.atory and not usurious.</p> <p>Where the sale of a promissory note by the payee in insolvent circumstances, has been made for one-jiflh less than the amount promised on the face of it, such sale may be rescinded by .the creditors of the insolvent; butthey would be bound first to refund the purchase money, when there is no evidence of fraud on the part of the purchaseiv</p>

MARY. On the death of Dr. John Towles, in 1832, his widow was appointed administratrix of his succession, which was regularly accepted on behalf of his minor children, with the benefit of inventory. The administratrix finding the succession insolvent, petitioned the judge of probates of the parish of St. Mary, to call a meeting of creditors, to fix the terms and conditions on which the property belonging to the succession, was to be sold.

This action is founded on art. 2294 of the Civil Code. The loss sustained by the plaintiff is attributable to the wanton assertion of a right to a mortgage on plaintiff’s property, which the defendants knew, at the time, that they had no claim to. They are, consequent^ responsible for the damages sustained. Percy v. Millaudon, 3 La. 591. Thornton v. M.anslcer, 10 La. 121. The defendants having no color of title to any mortgage, malice must be inferred.

This case has been once before in this court. It was decided against the plaintiffs on the ground that they had purchased a debt due by a surety which could not be legally sold. See the facts of the case reported in 3d La. Reports, 48. On the return of the case, the debt was re-sold and the suit commenced de novo.

<p>Appeal from the Parish Court of New Orleans, Maurian, J.</p>

<p>The rights of an assignee of a deed of trust executed in another State, must be determined by the conditions of the assignment. In proceeding under the deed of trust he must conform to the conditions on which it was assigned to him.</p> <p>Where a deed of trust requires that public notice shall be given for a certain number of days of any sale made under it, the particular day on which the sale is to take place, must be notified to the public for the time required. If, after such notice, the sale be postponed, new notice must be given, for the full time required, of the day to which it is postponed.</p>

<p>The master and others employed in the navigation of a vessel, though servants of the owners in different grades of authority, are competent witnesses for their employers. A witness is not incompetent because he is, or has been in the employment of the party who calls him.</p>

<p>Appeal from the Parish Court of New Orleans, Maurían, J.</p>

<p>In an action to recover from defendants damages for their failure to deliver to plaintiff certain notes, which they had improperly delivered to a third person, the value of the notes at the time they should have been delivered to plaintiff is the measure of the damages to which he is entitled, no fraud being alleged or proved ; without prejudice, however, to his right of action against such third person for the delivery of the notes.</p>

The plaintiffs instituted suit on several promissory notes, executed by the defendant, amounting to tbe sum of two thousand three hundred and sixteen dollars fifty nine cents, with interest thereon, at ten per cent, per annum, from the several periods when said notes became due, until paid.

<p>A promise to pay a bill, made by an endorser who has been discharged by the laches of the holder, to be binding, must have been made with full knowledge of such laches, and with the intention of waiving his legal rights. Direct proof of such knowledge is not required; it may be inferred from circumstances attending the promise.</p> <p>Money paid by the endorser of a bill who had been discharged by the laches of the holder, in ignorance of his discharge, may be recovered back. C. C. 2280-There is, on his part, no such natural obligation to pay, as can prevent his recovering the amount. C. C. 2281. Per Curiam : His undertaking was, to pay, provided the holder made due demand of the acceptor, and gave him due notice of non-acceptance or non-payment. His obligation was conditional and when the condition failed, he was under no obligation, either natural or civil, to pay.</p>

» This action is instituted on the following promissory note, signed by the defendant: “ Alexandria, April 2d, 1826.” “ On the first day of January next, I promise to pay, to the order of James Armor, eight hundred and twelve dollars, value received, payable at the Bank of Orleans.” “Montford Wells,” Endorsed. “James Armor,” “perpro Samuel P. Morgan.” “John Walsh.” The note was duly protested for non-payment, The record shows, that in March, 1830, Samuel P. Morgan brought…

<p>Appeal from the-District Court of East Baton Rouge, Johnson, J,</p>

The plaintiff alleges he is the owner of a section of land, lying on Red. River, in the parish of Natchitoches, which was confirmed by act of congress, passed the 5th of February, 1825, to one John Litton, from whom he derives title. That notwithstanding his right and title to said land, the defendant has taken possession of a part of it, and refuses to restore it, although amicably demanded.

The plaintiffs instituted suit against Stephen Miner, in his life-time, for the recovery of three hundred and ten arpents of land, situated in the parish of Concordia, which they allege, the wife of the plaintiff, formerly Eliza A. Walker, inherited from her mother, Ann B. Walker, deceased, late widow of Peter Walker.

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

<p>Appeal from the Commercial Court of New Orleans, Waits, J.</p> <p>cited 8 Johnson, 245. 11 Ibid. 265. 6 Cowen, 404. 4 Dallas, 350. 2 Phillips on Ins. 350.</p>

This is an action by the holder of a negotiable note against the drawer and the payee as endorser, for five thousand seven hundred and fifty dollars, payable on the 1 st March, 1834, with ten per cent, interest thereon from the 14th of May, 1833, until paid.

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

This is aii action on a promissory note executed by the defendant on the 15th January, 1824, to M. Wells, for one thousand seven hundred dollars, with ten per cent, interest until paid; who endorsed it to the plaintiff, deducting for credits six hundred and sixty-eight dollars, credited the 20th January, 1825; three hundred and eighty dollars, the 26th April, 1826, and one hundred and twenty dollars, the 16th March, 1825, making in all one thousand one hundred and…

<p>A married woman, whether separated in property or not, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him during the marriage, (C. C. 2412); and when sued on such a contract, she may show by parol evidence, that she was only a surety, though such evidence expressly contradict her own declarations in an authentic act.</p> <p>Where in an action against the maker and endorser of a note, the maker pleads that she was a married woman at the time of executing the note, which was signed by her as surety for her husband, and that she was in no way benefitted by the consideration received therefor, and the endorser answers separately but adopts the defence set up by his co-defendant, he cannot be examined as a witness for the latter to establish the facts alleged in her answer, being interested in destroying her obligation as maker.</p> <p>The endorser of a note is a competent witness for the maker where the facts attempted to be proved by his testimony have no tendency to affect his responsibility, nor to change, as to him, the ultimate result of the suit.</p> <p>The act of 27 March, 1823, so far as it renders the maker of a note, bill of exchange, or other negotiable paper incompetent, under any circumstances, in any action by the holder against an endorser, was repealed by article 3521 of the Civil Code.</p> <p>A father is incompetent as a witness for his illegitimate child. C. C. 2260. Per Curiam,: The mere fact of a witness being the ascendant of the party for or against whom he is called, is sufficient to render him incompetent. The law makes no distinction as to fathers by legal marriage or otherwise.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

This is an injunction case. The plaintiff obtained an injunction to stay an execution which issued against him, in the name of the widow and heir of Thomas A. King, for seven hundred dollars, on the ground, that, since obtaining the judgment, on which said execution issued, he purchased a claim against the estate of Thomas A. King, now deceased, amounting to one thousand dollars, which he offers in compensation of the judgment and execution against him.

<p>Where creditors agree, to allow a syndic five per cent, commission on the real amount he may have in his hands in the course of his administration, he is only intitled to a commission on the amount of moneys actually received by him, and not on the amount of notes or property which came into his hands.</p> <p>low a syndic five sfon°onthe*1Teal wlnhishS in the course of lus administralion, he is only commission" on the amount of received by him, and not on the amount of notes which came"into hishands.</p> <p>^ ^ i8i/, the comScT'cannot ""exceed five per cent; and if the first syndic is aimissions ^one°the property which came into ins hands, his suerUs1’delivered for final distribution, would be entitled to no-</p> <p>1676 of the La. Code relates only to executors, and to two and a half per cent, on the amount of the inventory when. they have had seizin of the whole estate,</p>

<p>Action against defendants, who had guarantied plaintiffs against any loss they might sustain as sureties on bonds for the payment of duties, to recover the amount of certain bonds which they had been compelled to pay, with interest. Held, that plaintiffs were entitled to recover the amount of the bonds paid by them, with interest thereon at six per cent from the time of such payment. Act of Congress of 2 March, 1799, § 65.</p>

This is an action, instituted by William Y. Day, as assignee of Edward A. Day, on a-n injunction bond executed in favor of the latter, by the defendant Wm. C. C. C. Martin, as surety for Robert Martin, in the penalty of one thousand five hundred dollars.

The plaintiff, as attorney of the absent heirs of Jules Belot, deceased, applied to the judge of probates, for the parish of Rapides, for an injunction to restrain the defendant, as testamentary executor, from selling the property of said decedent, on the ground that he had no seizin of the property of the estate, given to him by the will.

This was an action to recover from the defendant $9305 59, which the plaintiff alleges that he was compelled to pay in consequence of the negligence of the defendant in the management of business, with which he was entrusted as an attorney at law. The facts of the case are stated at length in the opinion of Garland, J. There was a judgment in the lower court in favor of the defendant, from which the plaintiff appealed.

This suit is instituted by the plaintiff, as sheriffof the parish of Carroll, demanding from the defendant a sum of money, which he alleges the latter collected as taxes due in the parish of Carroll, while acting as sheriff of the parish of Ouachita.

The plaintiff alleges he is the lawful heir of one William Hyman, deceased, whose succession has been opened in the parish of Concordia, and that it consists of a tract of land, slaves, stock of cattle, plantation implements, crops gathered, rights and credits, amounting to about twelve thousand dollars, which property belonging to said estate, was sold by fjie widow of said Hyman, without the authority and formalities of law; there being no counsel for absent heirs…

This is an action instituted by the' syndic, appointed by the creditors of the late Samuel C. Cuny, to rescind two sales of certain negroes and other property, first conveyed by S. C. Cuny, in his life-time, by notarial act, dated 24th May, 1824, to Stephen E. Cuny, and by the latter to R. R. Cuny, by act dated 17th May, 1826. The consideration expressed in both, sales, was eight thousand one hundred dollars. See the case reported in 6 La. Reports, 67.

The judgment of a Probate Court ordering the erasure of a mortgage cannot be treated as a nullity. 6 La. 366. It can only*be annulled by a direct action. Code of Pract. arts. 605, 606, 610, 612.

• This is an action of revendication. The plaintiff sues to recover two slaves (Adam and Peter,) and two horses, which he alleges to belong to him, but now in the hands of the defendant, as executor of his deceased father, John Hall, and which the latter withholds from him, and is about to sell un¿er an order of the Court of Probates.

This was an action by Boggs, Cochran & Co. against the administrator of the succession of Hardin L. Tilghman, on a judgment which the petitioners had recovered against the deceased in the State of Alabama, on the 4th of October, 1824. The curator of Tilghman’s succession pleaded a general denial, averring that if any such judgment as that alleged ever existed, it had been satisfied. He also pleaded prescription.

This is an action in which the plaintiff seeks to make the defendants liable for the value of a slave, which he charges was killed by their orders, belonging to him, and worth the sum of fifteen hundred dollars. - He alleges that his slave, named Martin, was killed in the parish of Natchitoches, by three soldiers of the United States army, acting as a patrol, and belonging to Cantonment Jessup in said parish, acting under the orders of Gen. Henry Leavenworth and Captain…

<p>APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.</p> <p>This case is founded on two oppositions to the application of the defendant, to be appointed curator of the vacant successions of Jonas Meriam and J. W. Broaddus, merchants, lately trading under the firm of Meriam & Broaddus, in the town of Alexandria, and now deceased.</p> <p>On the 4th of February, 1833, M. P. Flint, attorney at law, applied to the judge of probates, for the parish of Rapides, for the curatorship of the successions of Meriam & Broaddus, alleging that said firm, and each of its partners, was indebted to him in the sum of forty-one thousand seven hundred and fifty-nine dollars, with interest. He prays that he may be appointed curator to said successions.</p> <p>On the same day, the probate judge made the following order: “ Let this application be advertised, according to law; which petition was duly advertised, on the day of the filing thereof.”</p> <p>On the 13th February, Robert Chew, a resident of the parish of Rapides, and cashier of the branch of the Canal Bank, &c., in Alexandria, filed his opposition to the application of Flint, which he alleges, is based on claims against said successions, that are illegal and unjust, and which ought not to entitle him to the curatorship thereof; and he further alleges, he is the agent and representative of sundry creditors, to a very large amount, residing in New-Orleans and New-York, and of the Canal Bank, for two thousand dollars; wherefore he prays that Flint’s application be rejected, and that he be appointed to the curatorship of said successions.</p> <p>On the 13th March, 1833, following the above, Ezekiel Hayes filed his opposition to the application of Flint, on the ground that he was not a bond fide creditor of said successions; that he was not the owner of the debts he set up against them, but that said claims were transferred, by persons having no rights, and which transfer to Flint was simulated, and without consideration, made to enable him to procure the curatorship of said successions. He alleges, he has the best right to the curatorship, his claim amounting to thirty-two thousand dollars. He prays, that he may be appointed, together with Robert Chew, the first applicant, and who represented his claim in that application.</p> <p>Hayes further prays, that the application of Flint be rejected, and that he answer on oath, the following interrogatories :</p> <p>1. Are you the bond fide owner of the claims against Meriam & Broaddus, on which your application is based ?</p> <p>2. Did you pay any consideration for them ? if yea, how much?</p> <p>3. From whom did you obtain the claims against Meriam & Broaddus, on which you base your application ?</p> <p>4. Were they not all obtained from Ivers Jewett? if not all, how many of them?</p> <p>5. Did you obtain said claims by purchase, before the filing of your application ? if not then, when ?</p> <p>6. Did you pay cash for them ? or what did you give, and how much ? ,</p> <p>-7. If you have not yet paid, what are you to give ?</p> <p>8. Do you not know, that Ivers Jewett was a partner of Jonas Meriam, or of Meriam & Rand, or of the late firm of Meriam & Broaddus ?</p> <p>9. Do you not know, that he has failed, and made an assignment of his property ?</p> <p>Hayes’s opposition was overruled, as coming too late; to which order of the probate judge overruling the same, Hayes’s counsel excepted.</p> <p>Chew, in his opposition, propounded the same and foregoing interrogatories of Hayes, to which Flint answered on oath, as follows:</p> <p>1. He says he is the holder and owner of a claim, for the amount stated in his petition, against the succession of Meriam & Broaddus, for forty-one thousand seven hundred and fifty-nine dollars.</p> <p>2. He says, that he gave his obligation, for the amount essentially negotiable, which was guarantied by his partner, Maj. Isaac Thomas, which said obligation has been transferred by Ivers Jewett, to whom it was given, and notice of transfer given to this respondent.</p> <p>3. He says, that he obtained the claim on which he has based his obligation, from Ivers Jewett.</p> <p>4. He says, that Ivers Jewett transferred to him, claims for the above specified amount, on the 4th day of February last.</p> <p>5. He says, that he has already stated the manner, in which he obtained the claim,' and refers to his previous statement for answer.</p> <p>6. He says he did not pay cash for said claims.</p> <p>7. He states that he paid on the obligation, that which he has already mentioned 1</p> <p>8. He states that he has already sufficiently answered this interrogatory, in his other answers.</p> <p>9. He answers, that he does not know that Ivers Jewett has failed, but has heard that he had suffered much by the house of Meriam & Broaddus, and that he does not believe he has made any surrender of his property, in Massachusetts.</p> <p>The counsel of Chew excepted to these answers, and object, that in his first answer, Flint does not reply to that part of the first interrogatory, which asks him, “if he is the bond fide owner of the claim.” To the fifth, he does not reply fully to that part, in which he is asked, “if he purchased the claim.” To the eighth, because he does not answer fully that part, which asks him, “if he-is to pay cash, and how much.” The exception was overruled, and a bill of exceptions taken.</p> <p>The claim on which Flint bases his application, is an account current of Messrs. Meriam & Broaddus, with Ivers Jewett, beginning in November, 1831, and ending February 1st, 1833, on which day a balance was struck, in favor of Jewett, amounting to forty-one thousand seven hundred and fifty-nine dollars and twenty-six cents.</p> <p>At the foot of the account current, is the following assignment:</p> <p>“For value received, I hereby assign, transfer and set over to M. P. Flint, the balance due me on the above account, against the firm of Meriam & Broaddus, said balance being forty-one thousand seven hundred and fifty-nine dollars and twenty-six cents.”</p> <p>“February, 4th, 1833.” “Ivers Jewett.”</p> <p>The testimony shows, that Meriam died in New-York, about the last of October, 1832, and Broaddus on the 2d of February, 1833, at his residence in Alexandria, Louisiana.</p> <p>There is no evidence in the record, that the application of Flint was ever advertised, except the statement from the - minutes of the court, that the “ petition was duly advertised, on the day of the filing thereof.”</p> <p>After hearing all the evidence concurrently, with the opposition of Robert Chew, the probate judge decreed, that Micah P. Flint be appointed the curator of the vacant successions of Jonas Meriam and J. W. Broaddus, deceased, on giving bond with security, according to law; and that Boyce and Barry be appointed attorneys, to represent the absent heirs; and that Chew pay the costs of his opposition, the said successions paying the balance.</p> <p>Chew and Hayes filed a motion for a new trial. 1. The judgment is contrary to law and the evidence. 2. Hayes, a principal creditor, moves specially, that his application ought to have been received as in time, and that he should have been appointed. This motion was overruled. Chew and Hayes both appealed.</p> <p>in support.of the appointment of the curator.</p> <p>1. In contestations for curatorships of vacant estates,, it must be granted to the creditors, in preference to those who are not. The judge is bound to exercise his discretion, in choosing between creditors, and to give a preference to the larger. La. Code, 1119.</p> <p>2. A creditor living at the place, or in the state, should be preferred to one who resides at a distant place, or out of the state. 4 Martin, 373, 374.</p> <p>3. Oppositions to appointments, can only be founded on a better right, than the person claiming the curatorship, and must be made within ten days after the application is advertised. The record declares, Flint’s application was duly advertised; and Hayes was therefore properly rejected. La. Code, 1111. Code of Practice, 970, 972.</p> <p>4. The curator should be a resident of the parish, where the succession is opened. In this respect, Flint must be preferred, and his appointment maintained. La. Code, 444, 445, and 1149. See case of Rust vs. Randolph, 4 Martin, 373.</p> <p>5. Chew, one of the appellants, was not a creditor, but only the attorney in fact, or agent of creditors; he had therefore no personal interest in the succession, and is not authorised to vote for, or be appointed curator, for it is only for the appointment of syndic, that an attorney in fact can vote.</p> <p>6. The transfer of Jewett’s claim to Flint, was after the succession was opened, but previous to the application for the curatorship and judgment thereon, which latter period is to be looked to, in pronouncing on contestations between creditors, on their respective claims. 5 Martin, 89.</p> <p>7. There is no weight in the objection of the counsel for the appellants, that Flint was the purchaser of a litigious right, and therefore not entitled to the curatorship. A right is not litigious, because it is required to be settled by law, in a court of justice. On this principle, every right or claim might be said to be litigious, because it is liable to be collected or settled by a law-suit.</p> <p>for the oppositions of Chew and Hayes, to the appointment of the curator, contended:</p> <p>1. That in all contestations of curatorships of vacant successions, the creditors of the deceased, at the opening of the succession, are entitled to the preference, over those who become such afterwards. La. Code, 1114.</p> <p>2. Although Chew is not a creditor, he is the attorney in fact of creditors, to a large amount, and is authorised represent them as fully in this casé, as if they were present; in this he is pro hac vice a creditor, and entitled to the curatorship.</p> <p>3. Heirs may accept and administer a succession, by an attorney in fact, and the same reasoning and analogy applies with greater force to creditors: La. Code, 1038, 1042, 2966.</p> <p>4. The application of Flint to be curator, was never in fact advertised, and his appointment is therefore null and void, on this ground. The mere endorsement on the petition, and statement in the record, that it was advertised according to law, is no evidence that it was so advertised. The advertisement must be shown By legal proof. Code of Practice, 967-8. La. Code, 1109.</p> <p>5. The claims of Flint were purchased by him, as litigious rights against this succession, and therefore do not entitle him to the curatorship. La. Code, 2523, 3622, JVb. 22.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

<p>Appeal from the District Court of theFirst District, Buchanan, J.</p> <p>cited Febrero Add., part 2, vol. 3, Nos. 4.11 to 421, pp. 538 to 546, 5th ed.</p>

This is a possessory action, in which the plaintiff alleges, he is owner of a tract of land, of ten. arpents front, by the usual depth, on Bayou Robert, and that he has been in the quiet possession of it, for more than a year, and in the actual occupation and cultivation of the same, until recently, the defendant invaded'his premises, and forcibly and violently took possession of a part of said tract, without any legal authority.

<p>Appeal from the Parish Court of New Orleans, Maurian, J.</p> <p>contended, that the agreement between plaintiffs and Jacobs was vitiated by error. Civ. Code, arts. 1815, 1818, 1821, 1826, 1S40, 1875, 1890. Gasquet v. Johnson, 2 La. 167. Greenwell v. Roberts, 7 La. 65. Trudeau v. Mather, 7 La. 554. Parmele v. McLaughlin, 9 La. 436. Eastin v. Dugat, 10 La. 188. Ni. John v. Sanderson, 15 La. 346. Pothier, Oblig. Nos. 17, 29, 30, 42. 6 Toullier, Nos. 36, 37, 45, 59, 167, 168.</p> <p>Plaintiffs sold their note to Jacobs, by a complete contract. Civ. Code, art. 2431. There was no error on the part of plaintiffs. If there was any, it is for them to show it. 6 Mart. N. S. 207. They must show, that they believed in the existence of something which did not exist, or in the non-existence of something which did exist; (Civ. Code, art. 1S15 ;) that this belief was the cause which induced them to sell; (Ibid. art. 1819;) and that the purchaser, Jacobs, was aware that this belief was the principal cause of their contract. Ibid, art. 1820. Pierce v. Mahan et ah, 15 La. 221. The error alleged is, that plaintiffs believed that the property mortgaged for the payment of their note had been sold to Lambeth under the execution of Bullard & Bludworth. The proceedings at the suit of Bullard & Bludworth were public, and any ignorance of their effect could only have resulted from plaintiffs' gross neglect, for which they alone are responsible. Civ. Code, art. 1841. Pothier, (Evans’ translation,) pp. 182,299. But the sale to Lambeth was valid. Code of Pract. arts. 690, 695. Civ. Code, arts. 2585, 2586. 7 Mart. N. S. 227. 17 La. 497. 19 La. 237.</p>

This is a possessory action. The plaintiff alleges, he was in the peaceable possession of a tract of deadened and cultivated land, in the parish of Rapides, situated on both sides of the bayou Toro, more than three years before instituting this suit, when in February, 1832, the defendant, by forcible entry and detainer, ousted him of his possession, by which he has sustained damages, to the amount of three thousand dollars.

<p>Appeal from the City Court of New Orleans, Collens, J.</p>

The plaintiff sues as the representative and administrator 'of the estate of Thomas Grimball, deceased, to recover the amount of a note of three hundred and seventy dollars, and one of fourteen dollars and twelve and a half cents, executed by the defendant, Brown, as principal, and Flint as his surety. The plaintiff alleges, that the first note was given as a part of the price of two slaves, purchased by Brown, at the sale of Grimball’s succession.

pleaded prescription against the re-conventional demand, citing Civ. Code, art. 3505. Defendants are entitled to recover back the amount of the notes paid through error, the money not being due either legally or naturally. Civ. Code, art. 1887. 17 La. 127. The burden of proving that notice was given so as to bind them is on the plaintiffs ; defendants cannot be required to establish a negative.

<p>Appeal from the Court of Probates of New Orleans, Bermudez, J.</p>

, This suit was instituted in the name of the plaintiff, by his attorney in fact, to obtain the benefit of the insolvent laws, relative to a voluntary surrender. Held: under the English bankrupt laws, to be traders. Eden on Bankruptcy, p. 9. Cooke, 49. 8. The variety of the transactions of the debtor, as disclosed in his bilan, shows that his affairs were more of a mercantile than an agricultural character. 12 Martin, 27.

<p>Appeal from the Court of Probates of St. Charles, Labranche, J.</p>

Appeal fiom the Court of Probates of New Orleans, Bermudez, J. Donations inter vivos, though made by marriage-contract to the husband and wife, or to either of them, are subject to the general rules prescribed for the donations made under that title, and are, at the time of the opening of the succession of the donor, reducible to the portion which the law permitted him to dispose of. Civ. Code, arts. 1727, 1735.

This is an action against the acceptor of a bill of exchange, for one thousand eight hundred and seventy-six dollars, drawn by one Page, a silent partner of the firm, in behalf of which the plaintiff sues. The plaintiff sues for the use of the late firm of J. G. Stevenson & Co., which he alleges, was composed of himself and one M'Carty, and had been dissolved by mutual consent. The defendant pleaded a' general denial.

<p>Where plaintiff sues before maturity, on a written promise of defendant to pay him a certain amount at a future period, and introduces no proof that the amount was payable, as alleged by him, at an eailier period, he must be nonsuited.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

The plaintiff alleges, she is separated in property from her husband, and that owing to many losses, and diminution in the value of her property, she is unable to pay all her debts. She annexes a schedule of her affairs, and prays that she be allowed to make a cession of her property, for the'benefit of her creditors, and a meeting of them be called; and that all proceedings against her person and property, in the mean time, be stayed.

<p>Appeal from the Court of Probates of New Orleans, Bermudez, J.</p>

<p>A plaintiff, who instead of submitting his case to the jury on the evidence received, moves for a nonsuit with leave to set it aside, may appeal from a decision of the court refusing to set aside the nonsuit and grant a new trial. Per Curiam: Such a mode of proceeding is a convenient way of bringing up for the decision of the Supreme Court incidental questions, without going into a trial on the merits of the case.</p> <p>Complete mutuality or identity of all the parties is not necessary in order to admit depositions of an absent witness taken in a former suit. It is generally sufficient if the matters at issue were the same in both cases, and the party against whom the deposition is offered had full power to cross-examine the witness.</p> <p>Proceedings under a rule, not connected with the suit, taken by plaintiff against defendant and yet under advisement, are inadmissible in evidence, where it is not shown that the witnesses examined on the rule are absent, or that their attendance cannot be procured.</p> <p>A deposition made by a party in an action which he had brought as a syndic, is admissible in evidence in an action in which he is sued both individually and as syndic. Per Curiam: Extra-judicial statements made by the defendant would be good evidence in support of a personal demand against him ; a fortiori, his testimony taken in open court should be received. How far such testimony is to affect those whom he represents as syndic, is a question which goes more to the effect, than to the admissibilty of the evidence.</p>

This case commenced by an application for a mandamus, to compel the judge of the First Judicial District, to entertain jurisdiction of a certain suit, instituted in his court.

<p>An order having been granted enjoining defendants from obstructing a passage way alleged to be necessary to the use of houses belonging to the plaintiff, the latter subsequently took a rule on defendants to show cause why the obstructions which prevented the free use of his property, should not be immediately removed at their expense. Plaintiff having appealed from a judgment refusing to order the removal of the obstructions until the case could be tried on the merits, on a motion to dismiss, the appeal on the ground that the judgment was not a final one, nor the injury irreparable: Held, that an appeal will lie ; that the judgment is final so far as it relates to the immediate removal of the obstructions ; that it is not indispensably necessary to entitle a party to appeal from an interlocutory judgment, that the injury should be absolutely irreparable, it being sufficient that it may become so; and that the obstruction of a passage, by which a party can get in or out of his house is, in its immediate consequences, so serious an injury, as to be considered irreparable.</p> <p>’Where an injunction has been obtained to prevent defendant from obstructing the petitioner in the free use of a common passage way, on proof that the obstruction which existed at the time the injunction was sued out has not been removed, the court may order it to be removed at once by the Sberifij without waiting for a trial on the merits.</p> <p>An injunction may be directed to parties or to public officers to compel them to do certain acts, as well as to restrain them from acting. It is as effective to enforce a right, as to prevent a wrong. Thus an injunction may issue to compel the removal of an obstruction in a common way. C. P. 298.</p>

The plaintiffs are appellants from a judgment, dismissing their claim and suit, and which gave to a seizing creditor, the sum claimed in the petition. They took a suspensive appeal, on the 26th June, 1834, returnable to the third Monday of July following, but no citation of appeal issued, or was served on the appellee.

<p>To support the plea of res judicata, the parties to the two suits and the question presented must be the same.</p> <p>Plaintiff having obtained an order directing defendants to sell for cash certain property mortgaged to him, subsequently took a rule on the latter to show cause why they should not be punished as for a contempt for disobeying the order of sale. There was no opposition to the order of sale, nor was any appeal taken from it. Defendants in answer to th.e rule, having alleged their willingness to comply with the order, but suggesting that the sale ought not to be made for cash, the court directed it to be made on the terms suggested by the defendants : Held, that the court had no authority to set aside its first judgment but on a regular opposition.</p>

<p>Appeal from the Commercial Court of New Orleans, Maurian, J., presiding.</p>

This is an action, to recover of the defendant, as syndic of the estate of James Lambert, five per cent, commission, on forty-four thousand seven hundred and sixty-three dollars, as a compensation for his services, in arranging, settling and adjusting the accounts of said estate. He alleges, he was employed by the defendant, expressly to perform this service, and that he is entitled to demand the commission claimed.

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

<p>A judgment is inchoate only, and no appeal lies from it, until signed by the judge.</p> <p>Where on an appeal from a judgment confirming one taken by default against an absent defendant as endorser of a bill of exchange, the record shows that no evidence was introduced to establish the agency of the person on whom the citation was served, nor to prove the signature of the defendant or a demand and notice of protest, the judgment must be reversed.</p> <p>The testimony of a witness that he gave defendant legal and timely notice of the protest of a bill, is insufficient to prove notice. Per Curiam: A notary, or other person called to prove a notice of protest, must state the time, manner, and circumstances under which the notice was given, that the court may judge of its sufficiency. He is not to take upon himself to decide upon its sufficiency.</p> <p>A promise by an endorser to pay the amount of a bill exceeding five hundred dollars, made after protest, is an agreement to pay money, which, under art. 2257 of the Civil Code, must be proved by one credible witness, and other corroborating circumstances appearing aliunde.</p>

This was originally an action of boundary, but under the pleadings, presents mixed questions of title, boundary and recourse in warranty.

<p>' Appeal from the District Court of the First District, Buchanan, J.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

The judgment must be reversed. The damages allowed are preposterous. Malice and want of probable cause are essential to a recovery on such a claim as that set up by plaintiff. See 2 Starlcie, 862, 867, 863. 3 Washington, 36. 9 East,361. 5 La. 319. Should it be considered that the checks were forged, the claim of the depositor for damages is limited to legal interest on the amount of the checks from judicial demand. Civ. Code, art. 1929.

This is an action of warranty, instituted by the heirs and legal representatives of Charles Babin, deceased, to recover one thousand eight hundred and seventy-five dollars, the price of three'arpents of land by forty in depth, sold by the defendant to the ancestor of the plaintiffs, from which the latter was evicted, by a pre-existent mortgage.

contended, that the debt due by plaintiffs had been extinguished by compensation, citing 7 Toullier, book 3, tit. 3, No. 377. Domat, part 1, book 3, tit. 3, § 1, No. 8. Pothier, Oblig. Nos. 27, 2S. Compensation takes place by operation of law only where “two persons are indebted to each other.” Civ. Code, art. 2203. The debtor in one case must be the same person as the creditor in the other. Plaintiffs are not in the situation of debtors, in solido.

There was no answer to the rderits. The plea of prescription is .a peremptory exception. Code of Pract. art. 345. The Judge should have required proof of plaintiff’s claim. The plea of prescription does not, like that of payment, admit the existence of the debt. No presumption as to the merits cnn be drawn from such a plea. Civ. Code, arts. 2126, et seq. 3494, 3496, 3515.

<p>Where a judgment rendered below is affirmed oil appeal, but the ease remanded for the purpose of ascertaining the amount of expenses and damages due to the plaintiff for the reimbursement of jail fees, and other charges incurred ia taking care of the property in dispute pending the suit, the amount of which had not been liquidated, though the right of the plaintiff to recover them had been recognized in the judgment of the lower court, the surety on the appeal bond will not be discharged. There is no change in the judgment appealed from. C. P. 579.</p>

This is an action for the rescission of a contract with the defendant, to furnish the plaintiff a. steam engine and sugar and corn mill, for six thousand dollars, and for the restitution of the price, with damages.

<p>Partnership in commendam is not considered by the Civil Code as a distinct species of partnership, but rather as an incident or accessory which’may Be attached to and incorporated with all kinds of partnerships. The partner in oommcndam is1 viewed as a partner only to a certain extent. G. C. 2799, 2810, 2811, 2815.</p> <p>The liability of a partner in commendam closes with the expiration of the partnership, when he may withdraw the funds contributed by him and his share of the-profits, subject only to the debts created during its existence.- C. C. 2812, 2847. And where the partnership was formed for a limited period, and the contract recorded in the office of the Recorder of Mortgages, no other notice of the dissolution is necessary.</p> <p>On the dissolution of a partnership in commendam, the acting partners have a right,, in the liquidation of the partnership, to continue to use the social name. The partner in commendam cannot prevent their doing so ; nor can the knowledge off the latter that the acting partners continued to use it, subject him to any liability. The presumption upon which liability may be fastened on an ordinary retiring partner who suffers his name to remain as part of the firm, that the partnership’ was trusted upon his responsibility, does not apply to a partner in commendam,. whose name cannot appear in that of the partnership, and whose liability, as to-amount and duration, is determined by, and may be ascertained from the registry of the contract which the law requires to be made. So long as he does none of those acts which by law impose on him the liabilities of a common partner, no> one has a right to look beyond such registry. C. C. 2819, 2820.</p>

<p>Appeal from the Court of Probates of Ascension, Duffel, J.</p>

The plaintiff obtained an order of seizure and sale, on the following note, secured by a mortgage on a house and lot, in the city of New-Orleans. “$2,700.” “New-Orleans, April, 16, 1834.” “Eighty-five days after date, I promise to pay to the order of Morris Jacobs, two thousand seven hundred dollars with interest, at the rate of ten per cent. ; value received.” “ Aaron Daniels.” Endorsed, “ Morris Jacobs, J. Barbarin.” Paraphed,, “Ne varietur, 23d April, 1834.” “Carlisle…

This action was instituted before the Court of Probates for the parish of East Feliciana. Held: that in case he died without exerting that act of ownership, the remainder over should then take place ; for the restraint of the power of alienation, especially in very large terms, was introducing a species of perpetuity.

This suit is brought by the plaintiffs to recover the sum of nine hundred and four dollars and forty cents, for work and labor done, and materials furnished, at the instance and request of the defendant, according to an account annexed.

This case grew out of a conflict of claims between the plaintiff, who had seized two schooners under a judgment and execution against the defendant Dimitry, and his wife, who claims a privilege on said vessels. The plaintiff obtained judgment against Dimitry, and in virtue thereof seized twoschooners belonging to the defendant, on the 30th January, 1834.

apreal from the court of the first judicial district. This is an action against the owner and schooner Henrietta, for supplies furnished, amounting to six hundred and ninety-nine dollars and fifty cents, in which the plaintiffs claim judgment with a privilege on said vessel, and pray that she may be provisionally seized, and held subject to their demand.

This is an action against the endorser of a promissory note, signed by A. Peychaud, for one thousand dollars, payable to the order of the defendant, and by him endorsed to the plaintiff. The latter alleges, that payment was duly demanded of- the drawer, and the note protested for non-payment, of which the defendant as endorser had due notice. He prays judgment against said defendant for the amount of the note, interest and costs.

<p>APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT.</p> <p>■ This is an action on a promissory note, protested, for four thousand dollars, against the second and last endorser, drawn by A. Foucher, jr. to the order of F. Saulet, on which his name was endorsed, and which was subsequently endorsed by the defendant.</p> <p>The defendant admitted his signature and endorsement; but averred that the endorsement of Saulet was a forgery, known to the drawer thereof, for whose use and accommodation he endorsed the note; and that his endorsement was fraudulently obtained by the drawer’s counterfeiting Saulet’s endorsement, and without consideration.</p> <p>The evidence showed that the plaintifF refused to take the note sued on, until the defendant assured him his endorsement was genuine. He then took it in renewal of another note of the same drawer. It was also shown the note was duly protested for non-payment, and notice thereof given to the defendant. The defendant proved the endorsement t>f Saulet to be a forgery, committed by the drawer of the note.</p> <p>On these pleadings and evidence, the cause was submitted to a jury.</p> <p>The district judge refused to charge the jury, “ that the endorser on a note, by the mere fact of endorsement, guarantied the genuineness of the signatures of the preceding parties thereto, to the subsequent endorsees and holders.” But the judge charged in substance, that if the jury believed the plaintiff, who is the holder, was a party to the contract, by which the note in question was drawn and endorsed by all the parties to it, the name of Saulet being forged, is a fraud, which entered into the original contract, against which Andry the last endorser may avail himself; but if the holder was no party to the original contract, but took the note in the course of business, or discounted it after it was made, without any previous agreement with the parties to it, the forgery of Saulet’s name as the first endorser, is no defence to the defendant, who is the second and last endorser.</p> <p>The jury returned a verdict for the plaintiff. The defendant moved for a new trial, on the ground that the verdict was contrary to law and evidence, which being overruled and judgment rendered confirming the verdict, the defendant appealed.</p> <p>1. The only question which this cause presents is, whether in an action against an endorser on a negotiable note, the fact that a prior endorsement is forged, forms a legal defence against a bona fide holder.</p> <p>2. The plaintiff contends that the defendant, by endorsing the note sued on, guarantied and admitted the signature of every antecedent party, and is liable even though such signatures were forged. This principle is fully established by the following authorities. Bayley on Bills, 312 — 13. Chilly on 397. l Lord Raymond, 443. 2 Campbell, Jf. P. C. 182. 10 Wheaton, 353.</p> <p>3. But it was argued for the defendant in the court below, that this was an accommodation endorsement. This court has frequently decided that, in relation to third persons and bond fide holders, the obligations of accommodation endorsers were co-extensive with those of endorsers of business paper. See the cases of Jfolte vs. Their creditors, 7 Martin, Jf. S. 12. Weir vs. Cox, 7 Martin, Jf. S. 369. Dorsey vs. Their creditors, 7 Martin, Jf • S. 499.</p> <p>insisted that the name of the first endorser being proved to be forged on the note, was sufficient cause to exonerate and discharge the defendant from his endorsement.</p> <p>2. That the defendant endorsed the note in error, supposing the preceding endorsement to be genuine, which alone is sufficient to annul the engagement he thereby contracted. La. Code, 1875,1876.</p> <p>3. The engagement or contract of endorsement is void, by the nullity resulting from the fraud committed by one of the parties, to wit: the drawer of the note. La. Code, 1841-2.</p>

The seizure of the bonds in the hands of Allain, constituted him the agent of the Sheriff for their collection. The return of a fi. fa., after seizure, leaves the writ in full force. 5 Mart. N. S. 286-7. 2 La. 280. 2 Robinson, 341-2. contended that there had been no valid seizure of the bonds or notes, citing Bacon’s Abridg. verbo Execution, A. p. 685.

This is an action to recover from the defendant a slave, alleged to be worth eight hundred dollars, and his hire amounting to one hundred and fifty dollars in addition; which slave the plaintiff alleges, is in the possession of said defendant, who refuses to deliver him or to pay the amount of his hire. The defendant pleaded a general denial.

This is an action to recover of the Louisiana State Insurance Company, the sum of four thousand dollars, on a policy of insurance taken out by Alexander Baron, on the schooner Eliza Thomas, “ for whom it might concern.” The plaintiffs allege they are the transferees of said policy, and entitled to recover its amount.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an áction by the vendor of an auction sale, to recover of the defendant two thousand and twenty dollars, the difference in price and commissions on the re-sale, between the first and second adjudications, in consequence of the bidder failing to comply with the first.</p> <p>The defendant pleaded a general denial, and averred that the plaintiff could not make him a good title to the property bid off by him, within ten days after the adjudication, in consequence of, which the sale became null and void; that after the property was put up and advertised to be re-sold, the sale was countermanded and postponed, so that the last sale can have no effect or validity against the defendant.</p> <p>deposed, that on the 17th April, 1833, the plaintiff caused to be sold at public auction, a lot of ground with the improvements, which was adjudicated to the defendant, as the highest and last bidder, for eleven thousand eight hundred dollars. The plaintiff told witness he had agreed with the attorney of the defendant, to cancel the sale if the title was not good, and requested witness to examine it with the defendant’s attorney, which he did, and they found the titles to be correct; that the attorney of the defendant came to witness the same day, and told him that a deed of sale could be prepared, and a safe title passed; that some days after deponent saw the defendant, who told him he had arranged his affairs to go to the north, and would not take the property, inasmuch as he had agreed with the-plaintiff to cancel the sale.</p> <p>The lot was re-sold on the defendant’s account, for ten thousand dollars. The difference in price was one thousand eight hundred dollars, and two hundred and twenty dollars commission on the re-sale.</p> <p>The procbs verbals of both sales, and the notices and advertisements of the second sale were produced, and the testimony of the auctioneers taken down in writing, constituted the principal part of the evidence on which the cause was tried.</p> <p>The counsel for the defendant, excepted to the charge of the judge to the jury before they retired. The charge is fully set forth in the opinion of the court, delivered by judge Martin,</p> <p>The jury returned a verdict for the plaintiff, on which judgment was rendered for the sum claimed. The defendant appealed.</p>

<p>Under the 24th sect, of the act of the I April, 1833, incorporating the Citizens Bank of Louisiana, which provides “ that all property mortgaged to the bank for any purpose, may be seized and sold, at any time, according to law, in whosesoever hands or possession the same may be found, notwithstanding any alienation thereof, or change of possession by succession or descent to heirs or legatees by last will and testament, or otherwise, in the same manner as if the same was in possession of the original mortgagor,” the bank may obtain from a court of ordinary jurisdiction an order of seizure and sale against property mortgagjd to it, though in possession of the executor of the mortgagor, on notifying the latter in order to give him an opportunity by paying the mortgage debt, to avoid being disturbed.</p> <p>Where plaintiff, having prayed for an order of seizure and sale against certain property and notified defendant as executor of the mortgagor, subsequently changes he proceedings to those via ordinaria, and, representing that defendant is in possession of the mortgaged property, prays that he may be cited and for a judgment against him for the amount of the debt, and in case of his failure to pay, ordering the property to be sold, the judgment should direct the mortgaged property to be sold, unless the defendant pay the mortgage debt. The defendant being cited in the proceedings via ordinaria, merely as the actual possessor of the mortgaged premises, no judgment can be rendered against him as executor.</p>

In this case, the plaintiffs petitioned the District'Court for a mandamus, directed to the president and directors of the Commercial Bank of New-Orleans, commanding them to allow the plaintiffs-, who are the directors appointed on the part of the city council of New-Orleans, to vote as any other directors in said board, to fill all vacancies that have and may happen, as is authorised by the charter; and that the board of directors be enjoined from proceeding in any election,…

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

<p>Where the judgment appealed from is not signed, the appeal will he dismissed with costs.</p> <p>where thejudg™eu£ aPPealecl from is not signed, the appeal wlíh ce0<stsmlSSecl</p>

<p>Appeal froto the District Court of the First District, Watts, J.</p>

This is an action for work and labor done by the plaintiff as a carpenter, on a sugar-house of the defendant, in which he claims a balance due, of six hundred and forty-two dollars forty-two cents, together with five hundred dollars in damages, for being dismissed before the work was completed. ~ The defendant pleaded the general issue; and denied specially that he was liable for any damages as alleged.

This is a redhibitory action, to annul the sale of a slave, and recover back the price, with the fees and costs of sale, on the ground of the redhibitory vices of craziness and running away. The plaintiff alleges he purchased a slave named Kate, from the defendant, for which he paid five hundred dollars in cash ; that three or four days afterwards, it was discovered the slave was crazy and run away.

<p>Appeal from the Court of Probates of New Orleans, Bermudez, J.</p> <p>cited Marchand v. Grade, 2 La. 147. Millaudon, v. -Gajus, 6 La. 222.</p>

<p>In an action on a written lease defendant may introduce parol evidence to show that plaintiff had consented, prior to the expiration of the lease, that a third person should occupy the premises as his tenant. Per Curiam: The testimony does not contradict the written lease, but only show's a subsequent agreement in relation to it.</p>

<p>APPEAL. FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.</p> <p>This is an action to recover the balance of an account, due by the defendant to the plaintiff as a commission merchant, for advances, amounting to one thousand seven hundred and ninety-nine dollars fifty-three cents, payable the 9th May; 1831. The petition charges that the defendant agreed to pay conventional interest on each advance, from the time it was made until payment. Interest at this rate, is included on each advance, up to the time of striking the general balance now claimed, and the same rate of interest is claimed on this balance until payment.</p> <p>The plaintiff annexed the following interrogatory to be answered by the defendant:</p> <p>“ Did you or not agree to pay the petitioner an interest at the rate of ten per cent, per annum, on all sums advanced by him to you from the day on which the advances were made, until their final reimbursement 1”</p> <p>The defendant pleaded a general denial, and averred that he and one Kendall were joint owners of a sugar plantation, and in the year 1830, consigned to the defendant, one hundred and twenty thousand pounds of sugar, and one thousand seven hundred gallons of molasses to be sold on their joint account; and which he expressly charges was fraudulently and collusively sold to Kendall or some other person unknown to him, by said Cox, at three cents per pound, being one-half less than its real value, and at a loss of one thousand six hundred dollars, for which he prays judgment, and that the plaintiffs demand be rejected.</p> <p>The plaintiff filed an amended petition, alleging that the sugar and molasses mentioned in the answer, is duly accounted for and included in the general account current annexed to his original petition, the balance of which is yet due as claimed. He then propounded a number of interrogatories to the defendant, which he requires to be answered, explaining and proving various items in the account, showing the business transactions between them, together with detailed accounts annexed. The amended petition and interrogatories were duly served on the defendant.</p> <p>In an amended answer, the defendant charged the plaintiff with the additional sum of one thousand one hundred and twenty-four dollars eighty-nine cents, and also with five hundred dollars, the proceeds of thirty-four bales of tobacco, for which sums he prays judgment.</p> <p>Before trial the defendant moved to have the interrogatory, requiring his answer concerning the agreement to pay ten per cent, interest on all the advances made to him by the plaintiff, stricken out, on the ground that it tended to establish a fact which could only be proved by written evidence. The court sustained the motion, and the plaintiff excepted to its opinion.</p> <p>The defendant neglected to answer the series of interrogatories annexed to the supplemental petition, touching and explaining the various accounts and transactions between the parties.</p> <p>Upon hearing a mass of testimony on the merits, and the explanations of the parties by their counsel respectively, the jury returned a verdict in favor of the defendant, for one thousand three hundred and eighteen dollars; after an unsuccessful effort to obtain a new trial, judgment being rendered in conformity to the verdict, the plaintiff appealed.</p> <p>The account sued on in this case, is completely established by the interrogatories propounded to the defendant, which are to be taken as confessed by the refusal and neglect of the defendant to answer them. It is proved further, by. the testimony of Kendall, former partner of the defendant, by the vouchers annexed to the petitions, and by the admissions of counsel.</p> <p>2. The sums set up by the defendant in his reconventional demand as alleged in his several answers, are all accounted for and fully explained in the accounts rendered by the plaintiff</p> <p>3. The district judge erred in ordering the first interrogatory propounded to the defendant to be stricken out, by which the plaintiff was deprived of his testimony concerning the agreement to pay conventional interest. La. Code, art. 2255. 6 Marlin, 280.</p> <p>4. The interrogatories propounded, relative to the several accounts and transactions between the parties, should have been ordered by the court to be taken as confessed, and all the facts stated therein as proved in favor of the plaintiff, and the jury instructed to receive them as proved and admitted. Code of Practice, 349.</p> <p>5. The verdict of the j ury is clearly contrary to the evidence of the case, and if this court is not willing to render a final judgment on the merits, on the evidence in the record, it will remand the case for a new trial, with directions that the defendant be required to answer relative to the agreement to pay conventional interest.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

Ari’EAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action against the captain and owners of the ship Tarquín, to recover of them three hundred and fifty dollars, for an alleged breach of contract, to tow said ship from the Balize to New-Orleans.

APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT, This was an action to recover damages against the defendant, for the loss by fire of the steam-boat Saratoga, while in the custody of the defendant. The plaintiffs allege the boat was destroyed through the negligence, carelessness and fault of the defendant, for which he is personally liable.

This is an action for damages against the defendant, as captain of the schooner Mayflower, for alleged ill treatment of the plaintiff, on a late voyage from Charleston to New-Orleans. The defendant pleadéd a general denial.

This is an action on behalf of the late commercial firm of Delpeuch & Co., against the defendant as a factor, to compel him to pay over the balance due on an invoice of goods, sold by him at Tampico, on account of the plaintiff’s late firm.

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

<p>Appeal form the District Court of the First District, Buchanan, J.</p>

<p>Appeal from the Court of Probates of New Orleans, Bermudez, J.</p>

This is a hypothecary action against the third possessor. The police jury for the parish of Assumption, obtained a judgment against a surety of the sheriff of said parish, in 1828, and on issuing execution it was returned, no property foun^ Suit was commenced against the defendant, to subject a tract of land which he had purchased from the surety, since the latter bad become liable on his bond, on the ground, that a legal mortgage attached to all the property of the sureties…

<p>The certificate of a notary by whom a bill or note has been protested should state the day on which notice was given to the endorser. It is not necessary to mention the date of the letter containing the notice.</p> <p>Where, after due diligence, a notary is unable to ascertain the residence of an endorser, notice of protest must be put in the nearest post-office to the place at which such protest was made, addressed to him at the place at which the note or bill appears, from its face, to have been drawn. Notice in a letter addressed to the endorser, and left at the domicil of a subsequent endorser is insufficient. Act 13 March, 1827, § 3.</p>

This is an action of partition. Pierre Berluchaux, the plaintiff, and Antoine and Joseph Berluchaux were the children, of Charlotte Broyard, by her first marriage with Simon Berluchaux. She afterwards married V. Daublin, and died aftér her second husband, leaving in her will to her three children, among other dispositions, two lots of ground with the buildings thereon, and a slave in New-Orleans, which remains undivided.

contended, that the stipulation requiring the interest to be paid in advance was usurious : that it is equivalent to exacting interest upon interest, which is expressly-forbidden by art. 1934 of the Civil Code. Such a stipulation cannot be assimilated to the discount of a note.

Waterman, the surety in an appeal bond executed by the defendants, is appellant from a judgment rendered against him on a rule to show cause why he should not be condemned to pay the amount of the original judgment against the defendants.

<p>It is a general principle, admitted by the comity of nations, that the tutor, of a minor, deriving his authority from the law of their common domicil, has a right to exercise the actions of his pupil every where.</p> <p>The law 9, Hi, 16, Partida 6, adopts the system of the Roman law in the 118th novel of Justinian, requiring the mother who accepts the tutorship of her children, other than that conferred by testament, to give security</p> <p>It is a general principle admitted by the comity of nations, that tlic tutor of a minor,deriving his authority from the law of their common domicil,has a right to exercise the actions of his pupil every where.</p> <p>The law 9, tit. 16, Partida 6, temPtof the So-a mth^Nove/of Justinian, reqniwho accepts the IhUcRen, “other remytestament” to give security.</p>

Rule on the plaintiff and on Corrigan, Judge of the City Court of Lafayette, to show cause why a writ of jfrohibitiou should not be issued forbidding them to proceed any further in the case of Berthaud, v. The Police Jury of the Parish of Jefferson. The plaintiff and Judge of the City Court showed cause as stated in the opinion of Martin, J.

On tbe 2d March, 1831, the plaintiff made a surrender of his property to his creditors, which was accepted, and J. Leeds appointed syndic. Among the articles surrendered, was the steam-boat Red Rover, valued in the schedule at six thousand dollars. • After selling the property surrendered, the syndic filed a tableau of distribution on the 26th March, 1826.

This is an action of mortgage, to compel .the payment of three thousand two hundred dollars, due as the first instalment of a debt of nineteen thousand four hundred and fifty dollars, acknowledged by the defendant.

<p>APPEAL PROM THE COURT OP PROBATES FOR THE PARISH OF JEFFERSON.</p> <p>The plaintiff having been appointed curator ad bona to the minors Foucher, applied to the Court of Probates, to be discharged, and that a tutor and under tutor be appointed to said minors.</p> <p>It appeared by a statement of facts admitted, that A. Foucher, jr., was appointed curator ad, bona of the minors Foucher, the 26th January, 1830, and regularly removed-from said office, in December, 1834, and the plaintiff nominated as curator ad bona in his place.</p> <p>The judge of probates decided, that Foucher having been appointed before the passage of the act of the 11th March, 1830, abolishing the office of curators to minors, by the proviso in the 9th section of said act, that law is not applicable to a case like the present. Judgment was rendered, maintaining the plaintiff in his appointment, from which he appealed.</p> <p>that the judgment of the Probate Court was erroneous, because by the 9th section of the act of the 11th March, 1830, there shall hereafter be no curator ad bona or ad litis appointed to minors.</p> <p>2. That although by the proviso in the 9th section of said act, this law shall not apply to cases, in which curators ad bona shall have been appointed previous to its promulgation, yet this proviso cannot be so construed, as to suppose that curators may be now appointed, but that only those in office at the time, were to be maintained until it became vacant.</p> <p>3. The legislature having in 1828 passed a law, that minors should remain under the authority of their, tutors, until they obtained the age of majority, it became necessary to abolish the office of curator ad bona and ad litis, to make the system harmonise with the civil law, the office therefore no longer exists, since 1830.</p> <p>4. By reference to the articles of the Code which treat of tutorship and curatorship, it will be seen that the alteration was made in the law, for the greater security of minors; so that in this case, the minors Foucher should have the benefit of it.</p>

This is an action on two promissory notes, executed by the defendant in favor of Pierre Caseaux, deceased, the ancestor of the plaintiffs.

The plaintiff alleges that he sold a lot of ground, in the city of New-Orleaus, on the first of November, 1828, to one P. S. Hamblet, for two thousand, one hundred dollars, payable by instalments of seven hundred dollars each, in one, two and three years from the date of the sale, with interest at the rate of ten per cent, per annum, from the times when said notes respectively became due, if not punctually paid, until final payment, together with a mortgage retained on the…

This suit commenced by the executory proceedings, in which an order of seizure and sale was obtained against a piece of ground, mortgaged to secure the payment of several promissory notes, executed by the defendant, one of which, amounting to one thousand seven hundred and thirty-three dollars and thirty-three cents, had become due.

Lafaye and Delpeuch, two of the creditors of the plaintiffs, made opposition to the homologation of the proceedings of the creditors of the insolvents, so far as they had a tendency to discharge the insolvent debtors, or lessen their liabilities, on the ground of fraud, in not making a fair exhibit of their property, and giving undue preference to other creditors over them, and gambling and wasting away their property, &c. Several specific charges of fraud were made 'out, to…

This is an action to recover damages, of the defendant, for false imprisonment of the plaintiff, under a writ of capias ad satisfaciendum, which was quashed, as having illegally issued. • The defendant, in the present suit, obtained a judgment against the now plaintiff, for a sum of money, and levied his execution on certain property of the latter, which was after-wards claimed by the wife of the defendant in execution, in virtue of her judgment and legal mortgage against…

This is a redhibitory action, for the rescission of the sales of two slaves and return of the price. ’ The plaintiff alleges, that in February and March, 1829, he purchased two slaves from the defendant, for six hundred dollars each. That soon afterwards, one was discovered to be crazy or mad, and ran away, and the other had a consumption, of which he died shortly afterwards.

<p>APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action of slander, for slanderous words spoken by the wife of Brandt, respecting the wife of Beale, and for ah assault and battery committed by Beale on Brandt’s wife; damages laid at one thousand dollars.</p> <p>The plaintiffs allege that the wife of John Brandt, publicly, maliciously and wickedly called Mrs. Rosina Beale a thief and a whore, and with a view to defame her character; that such charges are false and malicious, and have damaged her in the estimation of her neighbors. They further allege, that John Brandt came to plaintiffs’ house, and in the absence of her husband, without cause, assaulted, beat and whipped the plaintiff Mrs. Beale, in a cruel manner; all of which matters have caused her great injury and damage, to the amount of one thousand dollars.</p> <p>The defendants pleaded a general denial, and alleged that Rosina Beale, one of the plaintiffs, had for four months harrassed and slandered Mrs. Brandt, calling her a thief, and chargjng j0]ln Brandt the husband, with stealing sheep, &c., all of which is false and malicious, and was uttered by Mrs! R. Beale, knowing it to be false, and with a view of injuring ber in public estimation, &c.; that in consequence of said slander and defamation, she has suffered damage, to the amount of five thousand dollars, for which she prays judgment jn re-convention.</p> <p>The plaintiffs excepted to the plea and demand in re-convention of the defendant, as matter independent, and unconnected with, and not incidental to the cause of action; they averred the demand' and allegations set up in defendants’ answer were too vague and uncertain, as to time and the manner of making the charges alleged, and pray that the answer be amended.</p> <p>On the trial, the reading of the deposition of a certain Catherine Swab, was objected to by the defendants’ counsel, on various grounds, as stated in the opinion of this court, but being admitted, the defendants’ counsel took his bill of exceptions.</p> <p>The cause was submitted to a jury on all the testimony, who returned a verdict for the plaintiffs of two hundred and fifty dollars. From judgment, rendered on this verdict, the defendants appealed.</p>

The plaintiff alleges that his store on Chartres-street, in the city' of New-Orleans, was broken open by several slaves belonging to the defendants, and goods, jewelry and merchandise, to the value and amount of two thousand five hundred and fifty-six dollars and seventy-nine cents, stolen by said slaves, for which their masters are liable in solido The petitioners annex an account of the goods stolen, with the value and amount thereof, and an affidavit that the account is…

This is an action, by two partners in building, to recover from the defendant three thousand six hundred dollars, the price of building .six two story houses, and five hundred dollars for extra work, and one thousand dollars in damages, for delays occasioned by the defendant, in not furnishing materials as fast as the work progressed, according to contract.

TAMMANY. The plaintiff sues to recover his late wife’s inheritance from the defendant, «as executrix of her deceased mother.