Volume 8 — Louisiana Reports

The chairman and directors of- the “Alliance Marine Assurance Company ” of London, instituted suit against the “ Louisiana State Insurance Company ” in New-Orleans, for the recovery of an indemnity of two thousand pounds sterling, or eight thousand eight hundred and eighty-eight dollars eighty-eight cents, on a claim of re-insurance.

This is a petitory action. The plaintiff alleges he is the bond fide and legal owner of two tracts of land, or plantations, with the slaves and appurtenances belonging thereto, situated in the parish of Terrebonne, which he purchased from one Phineas Gardner and wife, for the price of thirty-seven thousand, five hundred dollars, by public act, passed before the parish judge of the parish of Rapides, the 6th day of November, 1833.

This action was commenced to recover possession and obtain judgment on a promissory note of twelve thousand dollars, executed by the defendants Babcock, Gardiner & Co., payable to the order of P. S. Newton & Co., and by them endorsed and deposited in the Canal' Bank until maturity, for collection. The note was payable at a future day, with six per cent, interest. The plaintiff had the note sequestered by the sheriff, before it became due.

This is an action to render the defendants liable for the conduct of the master and piloto of a vessel, of which they are the owners, and to recover damages from them for the injury done to the plaintiff and his wife, on their passage from Vera Cruz to New-Orleans, by the tortious conduct, and outrageous and indecent treatment of them by the said captain and piloto. See the facts of this case stated in 5 Louisiana Reports, 431, and 6 Louisiana Reports, 315.

<p>APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.</p> <p>This is an action on a promissory note executed by the defendant, for the sum of three hundred and fifty dollars, payable to the plaintiff.</p> <p>The defendant admits the execution of the note, but denies she is liable. She avers the note was given in error, that the sum which forms the amount and consideration of the note, was paid by her to Joseph Erwin, in his lifetime, who bound himself to hold her harmless against the claim of the plaintiff. She prays that Mrs. L. Erwin, who has accepted her husband’s succession, be called in warranty to assist in defending this suit, and that she pay one-half of any judgment that may be rendered against this defendant.</p> <p>On motion of the counsel for the plaintiff, so much of the answer as relates to the call in warranty was stricken out.</p> <p>The defendant applied for a continuance, on affidavit filed, stating that she expected to prove by certain witnesses, that the plaintiff’s claim had been wholly, or in part paid, as set forth in the answer. A commission had been taken out, but not returned to take this testimony. The continuance was refused.</p> <p>Judgment was rendered for the amount of the plaintiff’s c}a¡m against the defendant, on the 2d November, 1833. From this judgment the defendant appealed. During the pendency of the appeal, the defendant died.</p> <p>suggested to this court the death of the appellant, since the return day of the appeal, and moved for leave to cite in her legal representatives. The court ordered them to be cited to appear on the first Monday in March, 1834.</p> <p>Service was made on D. D. Chesnut, as testamentary executor of the deceased appellant. Chesnut denied that he was executor. Uppon this allegation, this court made the following order in writing:</p> <p>Martin, J., delivered the order of the court.</p> <p>The death of the defendant and appellant having been suggested to this court in January last, leave was given to the plaintiff and appellee to bring in the legal representative of the deceased party. He accordingly had D. D. Chesnut cited, in his character of testamentary executor of Mrs. Eliza Wilson, deceased, to defend and prosecute this appeal in her place. This person has appeared and denied that he is the executor. This forms an issue which cannot be tried in this court.</p> <p>It is, therefore, ordered that this cause be remanded to the District Court, with directions to have the issue tried of executor vel non.</p> <p>On the return of the case to the District Court, and upon the production of the exemplification of the • order of the Court of Probates, for the parish of Iberville, admitting the will of Mrs. Wilson to probate, which appoints and institutes Mr. D. D. Chesnut executor, he was declared to be her testamentary executor accordingly.</p> <p>The appeal in this cause was heard on the defence of the testamentary executor.</p>

APl’EAL FROM TIIE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action against the owner, and against the proceeds of the schooner Serafina, in the hands of Thayer, Hurd & Co., consignees, who received the insurance money for her loss, from the underwriters.

The plaintiffs, who reside in France, claim to be heirs and universal legatees, and entitled to one-half of the succession of veuve Magnon, who died in New-Orleans, and whose estate is administered by the defendant, as her testamentary executor. The testatrix, in her will, bequeathed to the four children of her sister Elizabeth.

ArTEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action by the plaintiff, against the president and directors' of the City Bank of New-Orleans-, to compel them to cancel and return to him a security bond, which he gave while cashier of said bank, in the sum of fifty thousand dollars.

This is an action by the holders, to recover from the defendants as drawers, the amount of a check payable to bearer, on the Union Bank of Louisiana,,for six hundred and fifty dollars forty-three cents, dated July 14th, 1834.

APPEAL PROM THE COURT OF THE FIRST JUDICIAL DISTRICT This case commenced by a rule taken by Garland & Osburn, attaching creditors of W. P. Grinnell, during the pendency of their suit, on Grinnell, Minturn & Co., judgment creditors by attachment of the same defendant, and who were proceeding to execute their judgment on the property attached, to show cause why the fund's attached in the two cases should not remain in the hands of the garnishees for equal distribution.

APrEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. This is an action on an injunction bond, against the defendant, as surety. The plaintiffs allege they obtained an order of seizure and sale against one Isaac Lazarus, in the parish of St. Tammany, on a debt due them of three hundred and fifty-seven dollars fifty cents.

This is an action to recover six thousand dollars from the defendants, being the amount of insurance effected on the brig Primero de Mahon, belonging to the plaintiffs and insured in the office of the Louisiana Insurance Company, at and from Havana, to New-Orleans, and seized and forfeited in the latter port, on account of the barratry of the captain and mariners, in introducing rum in demijohns and Spanish segars in boxes, in violation of the revenue laws.

The insolvent debtor in this case, filed his petition and schedule, praying for a meeting of his creditors to deliberate on his affairs; that his property be accepted for his creditors by the judge, and in the meantime, that all proceedings against his person and property be stayed.

This is the case of an application to the Supreme Court, for a mandamus to compel the judge of the first judicial district to sign a certain final judgment, rendered by him on the minutes.

APPEAL PROM THE PARISH COURT, POR THE PARISH AND CITY OP NEW-ORLEANS, THE JUDSE OP THE CRIMINAL COURT PRESIDING, ad interim. This is an action in which the plaintiff, as vendor, demands the rescission of the sale, and re-possession of certain slaves sold to the insolvent debtor, and now in the hands of his syndic, having been ceded with the other property.

On the 16th July, 1834, the plaintiff obtained a judgment against the defendants, the widow and minors Couprey, . residing in France, by attaching property in New-Órleans. On a sale under execution by the sheriff of the property attached, it produced the sum of eleven thousand five hundred and ten dollars twenty-eight cents, over and above the plaintiff’s demand.

<p>In applications for continuances of causes on the affidavit of the party^ necessity and the general practice of the courts admits suitors to swear for themselves. Counter affidavits, as a general rule, cannot be received against an affidavit for a continuance.</p> <p>Exceptions to the general rule, prohibiting suitors from swearing pro and cow, for continuances, ought to be allowed when the case has been repeatedly continued on the application of the party, or where suspicions arise that he is acting in bad faith.</p> <p>In applications for continuances of causes on the affidavit of the party, necessity and the general practice of the courts admits suitors to swear for themselves. Counter-affidavits, as a general rule, cannot he received against an affidavit for a continuance.</p> <p>Exceptions to ^oñwtíng’^saiforcontimiances, lowed, when the plSediy^continnotion the appii^orwhlresusbad faith.</p>

This is an action by the holder against the maker and endorser,of a promissory note, for two thousand three hundred and ninety-six dollars seventy-five cents, payable in all the month of March, 1834, at the parish judge’s office, in the parish of St. Charles, and protested on the 3d of April, 1834, for non-payment.

• This is an appeal from a judgment quashing a writ of capias ad satisfaciendum. The plaintiff obtained a judgment . against the defendant for four hundred and three dollars, ' with legal interest and costs, the 19th May, 1832.

AI>rEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. This case commenced by injunction. The plaintiff claims a credit of six hundred dollars on his note, and judgment thereon for eight hundred dollars, which judgment, he alleges, the present defendant obtained through fraud, and without allowing the proper credits. He prays that the execution, issued on said judgment, be enjoined for the sum of six hundred dollars, and for general relief.

<p>Where the plaintiff claims from the executor of his uncle’s estate,'a large sum for his services as clerk and book-keeper, at a stated annual salary for the time he served, and there is no proof of any contract or agreement to pay a salary or wages at any particular rate per annumand where that assumed by the plaintiff clearly appears by his own interpolation in the books of his employer: Held, that he cannot recover in such a case, having depended on the generosity of his relation for remuneration.</p> <p>So, the plaintiff cannot recover as on a quantum meruit, when he sues for wages on an agreement for an annual salary or hire, and when the evidence shows he served under no contract, expressed or implied, but depended on the beneficence of his employer, who was his relation; and when it is also shown he improperly interpolated a feigned contract for wages, in the books he was employed to keep.</p> <p>"Where the plaintiff claims from the executor of his uncle’s estate, a large sum for his services as clerk and book-keeper, at a stated annual salary for the time he served, and there Is -no proof of any contract or agreement to pay a. salary or wages at any particular rate per annum, and where that assumed by the plaintiff, clearly appears by his own interpolation in the books of his employer: Held, that he cannot recover in such a case, having depended on the generosity of his relation for remuneration.</p> <p>So, thepiamver on a quanh™sue7foi-V'rages on an ment for an annuai salary or the6; a evidence under ^no^con^ tract, express or pended1’ on* the hiemployer^ who was his rel lation, and when it is also shown he interpolated a feigned contract for wages, in the books he was employed to keep.</p>

This is an action on an. account for work and labor, done by the plaintiff, in the capacity of mill-wright, at the rate of three dollars per day. He claims seven hundred and five dollars as the amount due to him, with a privilege on a saw mill, which he built for the defendant.

The plaintiff, as parish treasurer of the parish of Assumption, instituted suit against the defendant, to recover the sum of four hundred and forty dollars, which he' alleges the latter collected in taxes, on suits due to the parish, during the years 1824-5, while -he was sheriff of said parish.

The plaintiff alleges, that in 1807, the late Daniel Clark, through his agent, R. Relf, sold to him a tract of land situated on the bayou Arroyo del Bosque Roxo, or Redwood Creek, near Baton Rouge, between the Perdido and Mississippi-rivers, for the sum of ten thousand dollars. That Clark derived the land in question through a grant from the Spanish government, after the date of the treaty of San Ildefonso, in 1800.

<p>The original holder of a note, who had, with other creditors, executed a release of the debtor, under an assignment of his property, for the benefit of his creditors, is a competent witness to testify in a suit brought against the maker, by another person, who afterwards gets possession of the note.</p> <p>Where the right to sue is expressly denied to the holder of a promissory note, and the evidence does not show he received the note from a person authorised to negotiate it, and where it,is shown the note was not put in circulation at the time a discharge was given by the original holder against it, under an assignment of property by the maker: Held, that the plaintilf cannot recover, but will be non-suited.</p> <p>The original • holder of a note, who had, with other creditors, executed a release of the debt- or, under an assignment of his property for the benefit of his creditors, is a competent witness to testify in a suit brought against the maker by another pei’son, who after-wards gets possession of the note.</p> <p>Where the right to sue is expressly deni'ed to the holder of a promissory note, and the evidence does not show -he received the note from a person authorised to negotiate it, and where it is shown the note was not put in circulation at the time a discharge was given by the original holder against it, under an assignment of properly by the maker: Held, that the plaintiff cannot recover, but will be non-suited.</p>

The plaintiff obtained a judgment against the defendant, Perry for six hundred dollars, with interest and costs. Judgment was signed 2nd November, 1831. Perry had given bail at the commencement of the suit, and the bond was transferred, to the plaintiff by the sheriff.

This case commenced with the opposition of A. Hodge, jr., a mortgage creditor of the insolvent debtor, made to the proceedings had before the notary, in the appointment of syndics. Held: cannot be counted as judicial days. Code of Practice, 318.

This is an action to require the Citizens’ Rank, in New-Orleans, to receive certain dotal property on mortgage for bank stock, subscribed by the plaintiffs in said bank.

<p>Where claimants are in possession of property attached, it lies on the attaching creditor to show title in the defendant.</p> <p>Where-the whole matter is left to the jury, who, under instructions from the court, of which the adverse party did not complain, find a verdict against them, and where even the evidence leaves the case doubtful, the verdict will not be disturbed.</p> <p>Where claimsession6 o? proP.e,r.ty attacheiJ> it lies on the attaching creditor the defendant.m</p> <p>Where the left to tiiejary, structio'n^Vom *e. ) co“-t of verse party did</p> <p>not complain, find a verdict against them, and where even the evidence leaves the case doubtful, the verdict will not be disturbed.</p>

This suit comes up on an injunction. Perron and wife are the transferees of a mortgage by act under private signature, which Jean Maillan gave on a tract of land in West Baton Rouge, to secure the payment of the balance of the purchase money to J. B. Guidry, his vendor. The act of sale and mortgage is dated the 22d November, 1830.

This is an action upon a judgment rendered in the state of Mississippi, against A. W. Breedlove and one G-reenleaf, jointly and severally, for one thousand three hundred and thirty-nine dollars sixty-two cents, exclusive of interest and costs, in favor of the present plaintiff. Suit, by attachment, was commenced on said judgment in the First District Court of Louisiana, against certain slaves alleged to be the property of A. W. Breedlove, who is a resident of Texas.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action on the balance of an account due for carpenters’ work done for the defendant, amounting to thirteen hundred and twenty-five dollars, according to an account annexed.</p> <p>The defendant averred, that the plaintiff contracted to ■erect a saw-mill and find the materials, according to a certain plan: that the price agreed on was three thousand dollars, and the work to be completed in four or five months. That a few days before the expiration of five months, he requested the plaintiff to leave the work; because of the delay and inefficiency of force employed, and the bad conduct of the petitioner, there was no possible chance to have the work completed within the time agreed on: that the plaintiff has received two thousand three hundred and two dollars, and the balance of the work done is worth about eight hundred ¿¡ollars.</p> <p>He further states, that in consequence of the delay and disappointment, in not getting his mill erected within the stipulated time, he has suffered damages to the amount of fifteen hundred dollars.</p> <p>He prays that the plaintiff’s demand be rejected, and that h'e recover fifteen hundred dollars in damages and costs.</p> <p>Upon these pleadings the parties went to trial. The cause was submitted to a jury. Testimony on both sides was produced to show the manner in which (.he work was executed. The judge charged the jury, that “if the defendant had sufficient reason to discharge the plaintiff then the amount of the contract was to be considered by them as the whole value of the work: but'if, on the contrary, he had not' good reason to do it, the contract was at an end, and they were to value the work according to a quantum meruit”</p> <p>The defendant excepted to the charge, and alleged there was no distinction in the article 2736 of the Louisiana Code, and that whether he had good reasons or not, the estimation of the work done, was to be made according to the contract, and not otherwise.</p> <p>The jury, upon the whole evidence of the case, returned a verdict of four hundred and fifty dollars, with costs, for the plaintiff. From judgment rendered thereon, the defendant appealed.</p>

as acceptors of two drafts, one drawn by Gr. Pollitt & Co. for five hundred dollars, and the other by Sterne & Co. for three hundred and fifty dollars forty-six cents; these drafts were drawn, payable on the receipt of the proceeds of another draft put into the hands of Newton & Co. for collection, by the drawers, and accepted accordingly.

This is an action by the acceptor against the drawers of a bill of exchange for eight hundred dollars, which was paid by the plaintiff. The petition charges that the firm of Cole & Co., in St 1. Have you in your possession any property of Cole & Co., of St. Louis, the defendants in this suit ? 2. If yea, specify every part of the same, with its value, as minutely as the nature of the case will permit 1 3.

In this case a re-hearing has been prayed for, and it is now before the court on this application. Sée the case ante. applied for a re-hearing, on the following grounds: 1. The point on which this case is decided, is new; it has never,been discussed in our courts, and was not made or discussed, or the authority on which the decision is based was not cited at the bar, on the argument of the case.

<p>ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>The facts of this case are the same as those of Blanchard vs. Cole et ah See ante 153.</p> <p>1. The garnishees are liable to the plaintiff’s claim, because they failed to file their answer within ten days after they were summoned. Code of Practice, 252.</p> <p>2. The answers of the garnishees, even if admitted as in time, are insufficient. They are not direct and positive, and do not state facts; they answer by a general statement.</p> <p>3. They had no right to amend and file a supplemental answer. This fact admits their first answer was insufficient.</p> <p>4. Even admitting all the answers to be in time and sufficient, the garnishees are liable. They show that the claim they plead in compensation, is due them by the defendants, as legatees of their brother; while they are indebted to the defendants, as a commercial firm.</p> <p>4. The garnishees from their own showing have become liable to pay the judgment obtained by the plaintiff against the defendant, and the judgment of the District Court must therefore be affirmed. 5 Louisiana Reports, 82.</p>

This is an action to recover the sum of two thousand four hundred and twenty-five dollars, with interest at six per cent, per annum, according to the laws of Pennsylvania, the balance due on three promissory notes, for one thousand dollars each, drawn by Kennedy Lodwick, the defendant, and one Haggarty. The plaintiff resides in Pittsburgh, and the defendant in Cincinnati. The notes were payable at the United States Bank, in Pittsburgh, and protested for non-payment.

AITEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE JUDGE THEREOF TRES1DING. This is an action to rescind the sale of a tract of land on account of fraud and lesion on the part of the purchaser.

This is an action on a negotiable note for one thousand, three hundred and eighty-three dollars, twenty-four cents, drawn by Daniel Boyle and endorsed by Wm. Doherty and Solon Hill, secured by mortgage on a lot of ground in faubourg Lafayette. . The plaintiffs Porter, Tileston & Co., are the holders, and had the note protested for non-payment, and instituted suit against the drawer and endorsers.

<p>A debtor who is arrested and gives bail, is not considered in actual custody, so as to entitle him to the benefit of the act of 1808, for the relief of insolvent debtors, in actual custody.</p> <p>A debtor who is arrested and gives bail, is not considered in actual custody, so ?is to entitle him to the benefit of the act of 1808, for the relief of insolvent debtors in actual custody.</p>

The plaintiffs allege, that Martin Gordon lately was, or is now, owner of twenty-eight shares of stock, of one thousand dollars each, in their company, of which one-tenth was paid in at the time of subscribing. Since then, two instalments, of one-tenth each of the capital stock of said company has been called for by the directors. That the defendant refuses to pay said instalments, alleging that he has sold said stock to E. E. Parker, who in like manner declines paying.

This is an action of partition. The plaintiffs claim to be the transferees, by public acts, of all the shares or portions of six of the heirs at law of the late Robert Lewis, who died in the city of New-Orleans, in 1832, leaving a large property or estate.

This is an action on a promissory note executed by the defendant payable to Patrick MThilin, for five hundred dollars. The plaintiffs sue in their capacity of executors of Patrick MThilin, deceased, and allege they have amicably demanded the same, and payment has been refused. They pray judgment.

<p>AYhere a corporation, by a vote of its directors, appoints an attorney at law to manage its legal business for a year, with a stated annual salary, and he accepts the office, the contract is binding on both parties for- the period of one year, when there is no provision authorising either party to retract at will.</p> <p>So where an attorney at law was appointed the attorney of the insurance office of defendants, with an annual salary of five hundred dollars, and was dismissed by the board of directors at the end of two months and a half: Held, that he is entitled to recover his salary for the whole year.</p> <p>Where a corporation, by a vote of its directors, appoint an attorney at law, to manage its legal business with a stated annual salary, and he accepts the office, the contract is complete and binding on both parties, for the period of one year, when there is no provision authorising either party to retract at will.</p> <p>So, where tm attorney at law was appointed the attorney of the insurance office of defendants, with an annual salary of five hundred dollars, and was dis — ' missed by the board of directors, at the end of two and a half months: Held, thatheis entitled to recover his salary for the whole year.</p>

a suit was instituted by the present plaintiff against the same defendant for the land in question, in the United States’ District Court for the Eastern District of Louisiana, in April, 1832, and judgment rendered thereon, concluding as follows: “The decree of the Spanish governor being in favor of the defendant’s title, and made by a competent tribunal, within the limits of the state, judgment must be given for the defendant and the plaintiff’s petition must be dismissed.”…

This is an action on a promissory note, payable to order, against the drawer and endorser, for one thousand one hundred dollars.

This is an action by the plaintiff as the original vendor of a tract of land, sold to the ancestor of the defendants, in which he seeks to have a former judgment rendered conditionally, in his favor for the price, made absolute.

<p>Where the note sued on and annexed to the petition, is described as bearing date in December, and the one offered in evidence, according to the report of experts, shows the Roman numeral X, was used instead of the word December: Held, to be properly admitted in evidence of the plaintiff’s demand, notwithstanding the objection of the defendant on the ground of variance.</p> <p>Where the note sued on and an** ncxed to the jietition,isdescrib~ ed as bearing £,-6 and one offered in <m-to^he Reportoí mcr,al. x> waa used instead of the word jOcecmpróperiy^ádmitofVeV^ntiff’s demand, notobjee^n'ol' the fheCngrouiid °of variance.</p>

This case comes before the. court on an application for a. mandamus to' compel the judge of probates to allow an appeal from an interlocutory order. The defendant alleges he is sued as the executor of Antoine Caraby in relation to transactions had with his testator and the late Jean Gravier, as far back as 1810.

This was an action of slander. The plaintiff had a verdict and judgment against thedefendant, for five hundred dollars in damages, and the costs of suit; from which the latter appealed. The appeal was granted on the 9th December, 1834, and made returnable on the third Monday of January following. The transcript of the record was filed in the clerk’s office of tbe Supreme Court, on the 2d day of February, 1835. moved to dismiss tlie appeal, on tbe following grounds: 1.

This is an action to recover from the defendants, a lot of ground in the faubourg Lafayette. The plaintiff alleges he purchased it from one P. L. Nott, now deceased, on the 26th March, 1829, as appears by a deed or bill of sale signed by the vendor in the presence of two subscribing witnesses, and recorded in the parish judge’s office, for the parish of Jefferson, a true copy of which is annexed to his petition.

This is an action on a curator’s bond, in the District Court of the state. The widow of the late John Pile, who died in New-Orleans, obtained the curatorship of his estate, and gave bond in the penal sum of three thousand seven hundred and fifty dollars, with Thomas Copping as surety. The bond was taken and filed in the Court of Probates.

This is an action in which the plaintiff seeks to recover damages to a large amount from the defendant, for an alleged breach of contract, on the part of the latter, in failing to employ and compensate the former, as a deputy clerk in his office, as clerk to the United States District Court, for the Eastern District of Louisiana.

This suit is instituted on three several promissory notes, executed by the defendant Williamson, and protested for non-payment, amounting in all to two thousand nine hundred and forty dollars. The notes were secured by a mortgage on certain leased premises, \Vhich Williamson occupied as assignee of the original lessee, who leased it from one John Mooney.

This case comes up on a second appeal, the first having beén dismissed for want of service of citation of appeal on the appellees, who were residents of the state. See case, *7 Louisiana Reports, 483. The defendant’s counsel took a rule, within the year after the rendition of the original judgment, on the plaintiff and appellees, to show cause why a new appeal should not be allowed.

<p>Opposition to the appointment of syndics, by a creditor, must be made within the ten days next following the appointment before the notary.</p> <p>So where the tenth day following the appointment of syndics, was Sunday, and the opposition of a creditor was filed on Monday, being the eleventh day thereafter t Held-, that it was in time, because all judicial proceedings are forbidden on Sundays, and the party is entitled to his ten full legal days.</p> <p>tii^appoinünent of syndics, by a made IktHn the ten days next following the appointment, before the notary.</p> <p>So, where the tenth day following the appointment of syndics, was Sunday, and the opposition*of a creditor was filed on Monday, being the lltl* day thereafter: Held, that it was in time, because all judicial proceedings are forbidden on Sundays, and the party is entitled to Ills ten full le&al day-s-</p>

APrEAL FROM THE TARISII COURT, FOR TIIE PARISH AND CITY OF NEW-ORLEANS. This is an action on a promissory note, signed by the defendant, (he making his ordinary mark) for five hundred and fifty dollars, secured by a mortgage on a slave.

This is an action by the plaintiff, who is the only daughter of Daniel Benoit, deceased, by his first marriage, against the defendants, who are children of the second marriage, to recover from them the sum of two thousand nine hundred dollars, which she alleges they received over and above then-legal share of the estate of the common ancestor, in the settlement of. the succession of the wife of the second marriage.

This is an action commenced in the Court of Probates, for the parish and city of New-Orleans, by the heirs at law of the late widow Bernard, to annul and set aside a will found among her papers since her death, and to be recognised as her lawful heirs, .entitled to the inheritance of her succession. The will being found, the judge of probates appointed the register of wills to carry it into execution. An attorney to represent absent heirs was also appointed.

<p>When parties litigating in respect to their several and separate rights to certain property, trace their titles to one common source, neither of them is at liberty to deny the title of their common author or original vendor.</p> <p>So when it is shown by the pleadings or evidence of a cause, that both plaintiff, defendants and warrantors claim under the same title, neither will be permitted to attack it.</p> <p>So in a petitory action, when the last warrantor cited sets up no title, but pleads a general denial, the plaintiff may show by legal evidence that the former derives his title from the same common source, and is forbidden to attack it.</p> <p>In a petitory action, the plaintiff is entitled to the use of any legal evidence or means by which he may render valid the title offered in support of his claim.</p> <p>lit Jüng Pin'res|yeLiIndsipa" rate rights to ?ertel?,P™P®r$>r> trace their titles to one common sourcej neiUiei. of them is at lib-title ^of^their OT^gUi^endor-</p> <p>shown'X pleadings or <mdence ol acause, that both piain- and warrantors olaim™der th.e therwiiibepermitted to attack it.</p> <p>So, in a petitory action, when the last warrantor cited, sets up no title, hut pleads a general denial, the plaintiff may show hy legal evidence, that the former derives his title from the same common source, and is forbidden to attack it.</p> <p>In a petitory action, the plaintiff is entitled to the use of any legal evidence or means by which he may render valid the title offered in support of his claim.</p>

This case comes before the court on an application for a re-bearing. See tbe decision ante, 234. applied for a re-hearing, on the following grounds: 1. The court erred in supposing “Harrod’s answer contains nothing more Chan a general denial of all facts alleged against him.” This is ■ an error of fact, as the answer expressly denies the plaintiff had any title; which, put him on the proof of it, and failing, his suit was dismissed. 2.

The' plaintiff took a rule on the defendants, to show cause why they should not pay over the amount of a judgment which they had collected, and was due to the estate he administered as syndic, they having refused to do so, on application made to them.

The plaintiff obtained a judgment against the defendant for four hundred and ninety-six dollars, with interest and costs. Execution was issued thereon; on which the sheriff relumed that the defendant had deposited in his hands five an¿ eleven dollars, conditioned to await the decision of the court with respect to an attachment suit, in which he, the defendant, had attached his own debt in a suit against Richardson, the plaintiff in execution.

<p>Where the wife makes opposition and procures an injunction against proceedings in the via execuliva, on the ground that she has a prior claim and mortgage "to the property seized, and the seizing creditor answers and denies her claim and mortgage, and av ors she has made herself liable for his claim, by intermeddling in her husband’s succession: Held, that the demand set up in the answer was reconventional, and not-a proceeding in the ordinary way, as distinguished from the summary, and the court did not err in proceeding to inquire into the personal liability of the wife, to pay the debt.</p> <p>Banks cannot, in any case, take more interest than at the rate fixed by their charters. Where the bank charter fixes the rate of interest at nine per cent., and ten is agreed upon, it will be reduced to the rate affixed by the charter.</p> <p>Where the wife makes opposition and procures an injunction against proceedings in the via executiva} on the ground that she has a prior claim and mortgage to the property seized, and the seizing creditor answers and denies her claim and mortgage, and avers she has made herself liable for his claim, by intermeddling in her husband’s succession: Held, that the demand set up in the answer was reconventional andnot a proceeding in the ordinary way, as distinguished from the summary, and the court did not err in proceeding to inquire into the personal liability of the wife to pay the debt.</p> <p>Banks cannot, in any case, take more interest than at the rate fixed by their charters. Where the bank charter fixes the rate of interest at nine per cent., and ten is agreed upon, it will be reduced to the rate fixed by the charter.</p>

ArrEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action to dissolve a partnership,' and procure a liquidation and settlement of its affairs, and to recover the sum that may be found due to the suing partner from the others, and finally to set aside a fraudulent sale and mortgage of certain property belonging to the partnership.

The plaintiffs obtained a judgment against the defendants, their original debtors, in a case in which M. & P. Maher, were summoned as garnishees, and all the funds of the said debtors attached in their hands. The latter pleaded a large claim against the common debtors, in compensation of the funds and property of the latter, attached in their hands, and claimed the right to oppose it to the plaintiffs’ demand.

This case comes up on an appeal from the refusal of the ¿igtñct judge to grant the defendant an injunction as prayed foj-_ The facts show that Peytavin had issued his fieri facias against Winter, on a judgment for 1500 dollars in damages, which the former obtained in an action of trespass against the latter, for trespassing on his premises, and stopping certain ditches which Peytavin used to drain his front lands through the rear into the swamp.

<p>The law makes the verdict of a jury a distinct and essential document, connecting the judgment of the court with the anterior proceedings.</p> <p>The verdict of the jury must be reduced to writing, and signed by the foreman, with the mention of his capacity.</p> <p>It is not a sufficient compliance with the requisitions of the constitution, that the verdict be recorded on the minutes of the court, in the English language, it niust be reduced to writing, and signed by the foreman in that language.</p> <p>So, where a verdict was reduced to writing, and signed by the foreman, in the French language, it was set aside as unconstitutional, and the cause demanded for a new trial.</p> <p>T he law makes the verdict of a jury a distinct and essential document, connecting; the judgment of the court with the anterior proceedings.</p> <p>The verdict of the jury must be reduced to writing and signed by the foreman, w ith th e men ti on of his capacity.</p> <p>It is not a sufficient compliance with the requisitions' of the constitution that the verdict be recorded on the minutes of the court, in the Englisji language : it must fte reduced to waiting and signed ]iy the foreman, in that language.</p> <p>So, where a verdict was reduced to writing and signed hy the foreman, in the French language, it was set aside as unconstitutional, and the cause remanded for a )ie\v trial.</p>

APrEAL PROM TIIE COURT OP THE PIRST JUDICIAL DISTRICT. This case comes before the court on an opposition filed by .the Bank of Louisiana, to the tableau of distribution of the funds of the estate of the plaintiff by the syndics of his creditors.

This suit commenced by injunction. The plaintiff shows that he became the purchaser of certain immoveable property, in the city of New-Orleans, which belonged to minors living in France, and which had been seized in an attachment suit against said minors. That he purchased it for the sum of twelve thousand dollars, and the purchase money, after paying a small judgment rendered in said suit, amounting to the sum of eleven thousand five hundred dollars, was deposited in Bank.

This suit is instituted for the recovery of the amount of five promissory notes executed by the defendant in favor of the plaintiff in Bourdeaux, in France, and payable in New-Orleans, amounting in all to one thousand two hundred and nineteen dollars eighty cents, exclusive of interest.

<p>Any one partner of a commercial firm, has power to dispose of the personal property of the society for the use and benefit of the firm.</p> <p>The signature of one partner in matters of simple contract, relating to the partnership, will bind the firm.</p> <p>So, where A brings a ship or vessel into partnership with B at a certain valuation, and B takes out a policy of insurance on the vessel, and in his own name transfers it to C and the vessel is lost: Held, that C is entitled to receive the insurance money in preference to.the creditors of .</p> <p>A, and who were such when he brought the vessel into the partnership.</p> <p>Any one partner of a commerciai firm has power to dispose of the personal loclity'yfor vqe, and benefit oi the firm.</p> <p>Xhe s3g.natui.e ofone partner in matters of simpie contract re-. MrtTersWp.wm “ind the firm-</p> <p>brings a ship or leXwfvXb" at a certain vaiutakes’out a poii- ^ fh^f^ssef and in ,lis °™ name transfers it to c, and the ¿®t cfs eníítled t° receive the msuranee- money, in thf creditors of A, and who were snch when he brought the vesnership.liepait"</p>

This is an action founded on a judgment obtained on a mortgage in a proceeding by scire facias, against the mortgaged property according to the laws of the state of Ohio. The plaintiff alleges, there is still-a balance due of seven thousand one hundred and thirty-two dollars on said judgment, for which he prays judgment against the defendant residing here.

This is an action to recover six hundred and twenty-five dollars, the price of a barouche which the plaintiffs allege they sold to the defendant, by their agent, Mafk Walton, The defendant was described and named as Thomas S. Saul, in the original petition. After service and return of the sheriff the plaintiffs amended their petition, and corrected the defendant’s name to that of Thomas II.

This case commenced with a rule taken by the syndics of the creditors of N. Goodale, on L. G. Hilligsberg, to whom seven lots of ground, being part of the ceded property, were adjudicated at a public sale, for the price of eleven thousand eight hundred dollars, in cash, to show cause why he should not comply with the terms of sale and pay over the amount; that he refuses to do so, although a bill of sale in due form of law has been made and tendered tc> him ; and that in…

<p>The action of the creditor to avoid the contracts of his debtor, made in fraud of his rights in cases of insolvency, is prescribed in one year from the date of his judgment.</p> <p>Where the evidence shows, that the sale by the debtor to a creditor was made for the purpose of protecting the property against the pursuits of other creditors, the debtor being insolvent at the time, any one, or all of the other creditors have an action to annul the sale, as made in fraud of their rights.</p> <p>But, where one creditor takes a mortgage on the property of his debtor on the eve of insolvency, it will be binding as against the other creditors, unless the knowledge of the debtor’s insolvency at the time is brought home to the mortgage creditor.</p> <p>thPcredRoi” to avoid the condeMor, made in rights in cases of insolvency, is oneSOyear^ from judgment °f 'US</p> <p>idenncf1'6^simws that the sale by the-debtor to a creditor, was purpose^of proteeting the properfy against the pursuit of other debtor^being insolvent at the time, any one or ail of the other action*to11amrS in fraud of their rights.</p> <p>cr^UtoT'TakeTa mortgage on the debtor,ly on tie °n '"riii^e Ending as against the other creditors, unless (he'Xbtoríinf s.olren.°y at the time, is brought home to the j”°rtsa£e °iecU“</p>

This is an action to recover tbe amount of a promissory note, executed by Jourdan and endorsed by Fagot, for eighteen hundred and forty-one dollars thirty-five cents, payable on the 1st of March, 1834. When it became due it was regularly protested for non-payment. The note was drawn by Jourdan, payable to the order of Fagot.

On the 14th May, 1834, the petitioner presented his petition accompanied by a schedule of his debts, credits and pecuniary affairs, alleging, that from the embarrassment of the times, depreciation of property, general loss of confidence and credit now existing in the community, he finds it impossible to meet his engagements; he, therefore prays the court to accept a cession of his property for the benefit of his creditors, and call a meeting of them to deliberate on his…

a'ppeal from the court of the first judicial district. Held: who declared that it would be for the benefit of the minors, to accept with the benefit of inventory, and the proceedings were homologated. On the 3d of April, 1833, an inventory of Poultney’s estate was taken, comprising the property now in dispute.

<p>So far as minors are prejudiced by the negligence or omissions of then-tutors, and in the sale of their property as such, the title being fully vested in them, when it is made without all the formalities of law being complied with, they are entitled to restitution. See decision in preceding case. Ante 425</p> <p>But, as regards the ordinary disposition and sale of the property of an estate, in which the rights of minors are contingent and residuary, and which is subject to the' claims of creditors, the acquired rights of third persons, resting on the faith of judicial proceedings, will not be disturbed; as the rules and forms for selling minors’ property do not apply. Ibid.</p> <p>So far as mlnovs are prejudiced by the nelions'ofSelrtuI sale of their pro* perty, as such, fuiiy^ested1in maSwithout ail the formalities compiled wilhj they entitled See decision in ante 32if *</p> <p>But as regards the ordinary disposition and sale of the property of an estate, in which the rights of minors are contingent and whloh^s subject oredhors^theaequired rights of third persons resting on the proceedings will notbe disturbed, as the rules and forms for selling donotap^^</p>

This is an action of revendication. Suit was instituted the 11th of February, 1833, by Mathilde andEmilie Poultney, minors, above the age of twelve years, assisted by their’ mother, Emilie Toutan… Held: “that where sales were destitute of formalities, but good in substance, they will be sustained; that infants in that case, were held bound to take notice of public acts, and were bound by them.

This is an action by the legal and forced heirs of the late Thomas Farrar M‘Caleb, Esq., to annul his last will and testament, and to have the property of his estate partitioned among all the heirs, according to law.

This suit commenced by an application for a respite. Held: are represented in said parish. 2 Moreau’s Digest, page 440, section 11. 5. That the creditors residing out of the state are not in any case to be summoned to the meeting, and that the delay of thirty days is provided for the benefit of creditors domiciliated in the state, but out of the parish, where the meeting is to be held.

<p>APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action against the defendants, as endorsers of a promissory note drawn by Tourné & Beckwith, to their order and endorsed in blank, for the sum of one thousand five hundred-and two dollars and protested for non-payment.</p> <p>The defendants admit their endorsement on the back of the note, and aver the plaintiff is not the owner, but that the same is the property of André Durnford, who took it from them without warranty, for the proceeds of a quantity of sugar, which they, as his agents, sold on his account. That the note was drawn to their order, and endorsed by them in blank, because the said Durnford was absent at the time it was executed, and on his return took it from them without warranty, all of which was known to the plaintiff, to whom it was given for collection in his name. They aver, they are not in any manner responsible, and pray to be dismissed.</p> <p>The defendants proved by their book-keeper, that they were the agents of André Durnford for the sale of his sugar; that they sold the crop of 1833 to Tourné & Beckwith, for two notes .including the one in suit, without guarantee; that no guarantee commission was charged to Durnford; that the plaintiff is the the agent of Durnford, and had this note protested for non-payment.</p> <p>The district judge was of opinion, the defendant proved the property of the note was in Durnford, and that the plaintiff was his agent; that the defendants were not liable, because they did not guaranty the sale of the sugar for which the note in question was taken and delivered to Durnford on settlement, without guarantee. Judgment was rendered in favor of the defendants, from which the plaintiff appealed.</p>

This is an action by the plaintiff, claiming the emancipation of her daughter, a mulattress aged twenty years, a statu libera. The petitioner alleges, that her daughter, Josephine, while a slave, belonging to Jean Mornay, was by him made a donation to Marie Susette Emelie Marot, the minor daughter of Toussaint Marot, who accepted the donation for his child, and was bound to emancipate Josephine, when she arrived at the age of twenty years.

The syndics of Yard & Blois instituted suit against the Mechanics’ and Traders’ Bank, to compel the latter to surrender to them one hundred and fifty shares of stock, which the insolvents had pledged to secure' the payment of a note of two thousand five hundred and twenty dollars, which they allege is now paid, and that the defendants refuse to give up the pledge.

APPEAL FR05I THE COURT OF THE FIRST JUDICIAL DISTRICT. Held: at which a resolution was proposed and adopted, by the majority present and voting, approving of the proceedings and conduct of the directors, in making •» ,. the sales m question.

This is an action by five of the sisters and heirs at law of the late-William Carr Withers, against his widow and two other sisters, whom he instituted his heirs and universal legatees under his will, to the exclusion of all his other relations; in which they claim a division in equal proportions, of all their brother’s estate which was acquired between the date of the will and the death of the testator; and, also, to annul a donation inter vivos of a valuable lot of ground…

' ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is a petitory action, claiming in the alternative, a tract of land or its price, in the possession of the defendant, Maunsel White, and which he purchased from the vendees of the late Joshua Lewis.

This is an action to rescind the sale of certain immoveable property. On the 10th June, 1822, Rosalie Picou, widow of George Desfonde, sold a tract of land in the parish of St. Bernard, to Richards Richardson, for twenty-five thousand six hundred and sixty dollars, payable in four annual instalments of six thousand four hundred and fifteen dollars each, reserving mortgage.

Al'I'EAL FROM THE l'ARISII COURT, FOR TIIE PARISH AND CITY OF NEW-ORLEANS.

<p>This is an action to recover one thousand dollars from the defendants Burt & Knox, as lessees of the plaintiff’s cotton press, for four months’ arrearages of rent, with the lessor’s privilege on one hundred and fifty bales of cotton, stored therein to be re-pressed.</p> <p>Rhodes & Peters and others, intervened and claimed the cotton as belonging to them, and which .they denied to be subject to the plaintiff’s lien or privilege for arrearages of rent due by the lessees.</p> <p>On these pleadings, and the facts appearing substantially on the face of them, the cause was submitted to the court.</p> <p>The district judge who presided, was against the lessor’s privilege. He was of opinion the article 2678 of the Louisiana' Code, was conclusive on the subject. If goods sent to an auctioneer to sell, are not liable to the privilege for rent, because they are only transiently there, to be sold; the principle applies equally to cotton sent to be pressed.</p> <p>Delvincourt says, there is no privilege if lessor knew the goods did not belong to the lessee. The lessor of a cotton press may fairly be presumed to know that cotton does not belong to the lessee. Sirey and Paillette both adduce cases to the same effect. The case from 11 Martin, 239, decides no point applicable to the case. ' Judgment for the claimants and intervenors. The plaintiff appealed.</p> <p>urged the reversal of the judgment. The plaintiff had a right to claim the lessor or landlord’s privilege on the cotton stored in his press, for rent due and unpaid by his lessees. Louisiana Code, articles 2185, 2677, 3157, 3112.</p> <p>2. The property of third persons found in the leased premises, and stored with the lessee, is subject to the lessor’s privilege for rent. La. Code, 2677, 2187, 3112. 11 Martin, 242. 1 Ibid., N. S., 718. Civil Code, page 468, article 74.</p>

DISTRICT. This is an action of debt, in which the plaintiff claims from the defendant the sum of two thousand and fifty-nine dollars thirty-seven cents, money lent to the latter, in New-York, on or about the 30th October, 1833. The defendant was held to bail. He took a rule on the plaintiff, to show cause why the bail should not be discharged, on his disproving the facts stated in the plaintiff’s affidavit to obtain the order of bail.

The plaintiffs sue-Greenbury Dorsey and Charles Creighton, for the sum of two hundred and seventy-five dollars, the amount of one month’s rent due on a lease of a certain store and warehouses.

This is a suit instituted against the acceptor of a draft. The petitioner alleges that a draft had been accepted, and that he inclosed it to a friend in New-Orleans, to present it for payment and collect the proceeds, and which was mislaid and lost before it reached its destination. He alleges he notified the defendant of the loss of the draft, demanded payment, and tendered security according to law against repayment. The defendant pleaded the general issue.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>In. this case, Baxter & Hicks took a rule on Jédediah Leeds, syndic of the creditors of the ceding debtor, to show cause why he should not pay over to them, as privileged creditors, the sum of one thousand four hundred and twenty-one dollars, being the net proceeds of the sale of the steam-boat Red Rover, in conformity with the decree of the Supreme Court. See 7 Louisiana Reports.</p> <p>On hearing the parties, the rule was made absolute, and the syndic ordered to pay over said funds accordingly. The syndic appealed.</p>

This is an action claiming damages of the defendants, in the sum of three thousand five hundred dollars, for the non-fulfilment of a contract to deliver one thousand barrels of flour, at four dollars fifty cents per barrel, to the plaintiffs.

The plaintiffs instituted suit as the holders, and for the recovery of the amount of the following note ; “ $1200 JVew-Orleans, 20th July, 1832. “ Two years after date, we promise to pay to the order of J. H. Krofft, at the United States Branch Bank in' this city, twelve hundred dollars, for value received. “H. M. Hart, “H. M. Hyams. Endorsed, “ J. H. Krofft, Thomas Toby, J. H. Field, & Co.” The defendants severed in their answers.

This is an action to recover from the defendant the second instalment of the price of a tract of land and slaves, amounting to four thousand six hundred and sixty-six dollars and sixty-seven cents, which the latter purchased of the plaintiff. The defendant sets up a sum in compensation of the plaintiff’s demand, which he avers he was compelled to pay to former vendors of the land in question, and for which the land itself was bound.

This case arises out of the classification of the privileged ' and mortgaged debts of the insolvent, as presented in the tableau of classification and distribution, by the syndics. Pierre Dubertrand, Joseph Abat and 'others are placed as mortgage creditors for' notes and acceptances which they have bound themselves to pay, on account of the óeding debtor.

The facts and dates, in obtaining and taking up this appeal, are fully and correctly stated in the opinion of the court. moved to dismiss the appeal in this case, on the ground, that it was not made returnable to the proper term of the Supreme Court. Code of Practice, 583. Petit et al. vs. Drane, ante 218.

This suit is instituted against N. Brigot, the proprietor, and J. M. Fernandez, the undertaker of three brick buildings for tbe former, to render the proprietor liable for a draft of six hundred dollars, which the undertaker drew on him, in favor of the plaintiff for materials furnished, payable when the buildings were completed, or out of the last instalment, which was protested for non-payment. The defendant pleaded a general denial.

This is au action to recover one thousand dollars in damages for the value of a slave, for which the plaintiff alleges the defendants are liable, as owners of the steam-boat ■ Chesapeake.

<p>A person who endorsed notes at the instance of the transferor, to enable him to raise money under an assurance that he was never to be liable, can avail himself of all the original equity against the subsequent holder who took them after their dishonor.</p> <p>Where an endorser endorsed for the accommodation of the holders without receiving any consideration whatever, they cannot recover against him ; nor their endorsee, who takes the note after its dishonor.</p> <p>A person who atníthee<instanev of the transferor, to enable him raise money, unthatXe*waTnever to be liable, can avail himself of ail the original equity against the subse- ' wholttook°them after their tiis-</p> <p>an ehfo”StLen.tcomd modation of the reeefwngWlthany consideration whatever, they cannot recover againa^him, nor note lafter Us dishonor. .</p>

This is an action of revendication to recover a slave in the possession of the defendant, Denison. The plaintiff alleges he purchased the slave in question from F. Proctor, by public act, dated the 27th February, 1833; that said slave is detained by Mrs. Emily Denison, who refuses to deliver him up; and also, that he fears he will be ill treated.

This is an action to recover the amount of three promissory notes of one thousand dollars each, drawn by tbe defendant Gustave Jumonville de Villier, payable to the order of Charles Framjois Coulon Jumonville de Villier. They were given for the price of one-fourth of a small sugar plantation, which the defendant purchased from Kernion and C. F. C. Jumonville de Villier, by public act, dated the 8th of March, 1832.

This is an action on a promissory note for four hundred and sixty-eight dollars, payable twelve months after date, drawn by E. Richards, and endorsed by J. Gontz, and C. Janin, given to the New-Orleans Savings Bank. When the note became due, it was protested for non-payment. The petition alleges, that due notice of protest was given to the endorsers. The defendants pleaded a general denial.

<p>So long as an act of partition, passed before the parish judge, in his capacity of notary public, setting out the net amount of the estate, and the distributive share of each heir, and signed by each, remains in force, and not rescinded, an action of partition by an heir, against his co-heirs, to provoke a new partition, will not lie.</p> <p>The partition made by the notary, must govern, as to the share of each heir; and if any of them received more than their share, at the sale of the estate, an action will lie in favor of the other heirs, to recover and equalize the shares, in courts of ordinary jurisdiction.</p> <p>So long as an act of partition, passed before the parish judge, in his capacity of notary public, setting out the net amount of the estate, and ‘ the distributive share of each heir, and signed by each, remains, in force and not rescinded, an ac-» tion of partition, by an heir against his coheirs, to provoke a new partition, will not lie.</p> <p>The partition made by the notary, must govern, as to the share of each heir, and if a*>y of them received more than their share, at the sale of the estate, an action will lie in favor of the otlier heirs, to recover and equalize the shares, in courts of ordinary jurisdiction.</p>

This is an action of revendication. The plaintiff as administrator of the succession of the late Reddin Pope, claims a mulatto girl, slave, which he alleges belongs to the estate he administers, and is now in the possession of the defendant, the widow of the deceased, which she claims as her own separate property.

APPEAL PROM THE PARISH COURT, POR THE PARISH AND CITE OP ■ NEW-ORLEANS. This is an action on a policy of insurance against fire, subscribed by the defendants. The plaintiff alleges he took out a policy of insurance, in the office of the defendants, on the 2d of September, 1834, insuring him from loss or damage by fire, “ on goods, being stock in trade, on consignment, or held in trust,” contained in five tenements or stores, on the corner of Commerce and Julia streets.

This is an action instituted by the plaintiif against the defendants A. • Foucher and M. Andry, as endorsers on the following promissory note: ■ “ Le quinze Mai prochain je payerai it Vordre de Mr. ¿2.

The testamentary executors of the late N. A. Baron, deceased, presented their petition to the Probate Court, alleging that the term of their appointment had expired, and they were unable to give the requisite security for a renewal of their office; that, owing to the pressure of the times, it was impossible to sell without sacrifice, the immoveable property left by the deceased; and that most of the debts of the estate had been paid by the late firm of Baron, jun. & Co., who…

The plaintiff instituted suit against the defendant to recover the sum of three thousand eight hundred and nine dollars fifteen cents, the amount of loss on a purchase and, shipment of cotton, made at the request and in obedience to an order from the latter.

This is an action of partition by the forced heirs of the deceased wife of Francisco Piacencia, against the latter as surviving partner of the community, for one moiety thereof.

<p>In a case where the creditor may resort to the executory process in another court from that which rendered judgment, in order to have it executed, no property can be seized and sold under the executory process, which could not have been taken under the judgment first rendered.</p> <p>The sheriff is required to execute process issued on executory proceedings, in the same manner as in ordinary cases under fieri facias.</p> <p>In a case where the creditor may resort to the ex-ecutory process, in another court from that which rendered judgment, in order to have it executed, no property can be seized and sold under the executory process, which could not have been taken under the judgment first rendered.</p> <p>The sheriff is required to execute process issued on. executory proceedings, in the same manner, as in ordinary cases under fieri facias.</p>

This suit commenced by attachment. The plaintiff filed his affidavit with the clerk, on the 9th of June, 1834, in which he swears, “that Antoine Foucher, junior, is fully indebted to him- in the sum of thirty-three thousand six-hundred dollars, and that said Foucher, has left the state of Louisiana, never again to return upon which a writ of attachment issued against all the property of the defendant.

This case comes before the court in this instance on a re-hearing, granted on the motion of the counsel for the plaintiff. See the case, ante, 582. made the following points, and cited the authorities below in support of the re-hearing. 1.