Volume 9 — Louisiana Reports

This suit commenced by injunction to stay the proceedings under an order of seizure and sale, which the defendants obtained against a certain mortgaged slave named Randal, in the possession of the plaintiffs in the injunction, to satisfy and pay the sum of seven hundred and fifty-fotir dollars, with interest, due on the original price of said slave.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action for the rescission of the sale of a negro woman and her daughter, on the part of the purchaser, on the ground of fraud, false representation of her qualities, and concealment of the vice of drunkenness, by the seller. The case was submitted to a jury on all the evidence adduced, who, after hearing the arguments of counsel, returned a verdict for the plaintiff, rescinding the sale, and restoring the slaves to the defendant, and requiring him to return the price; and also in favor .of the defendant against her warrantor -r she paying costs.</p> <p>After an unsuccessful attempt to obtain a new trial, the defendant, Madame Labat, appealed.</p> <p>contended that the verdict in this case, was against law and evidence, and thatdrunkennessisnot a redhibitory vice, so as to authorise the rescission of the sale.</p> <p>urged, that in the sale of slaves, where a false representation of their qualities and characters is alleged and charged upon the seller, the question is one 'of fraud, and the sale only voidable on this allegation being sustained. Louisiana Code, 1842.</p> <p>2. The present case is, therefore, merely a question of fraud, in which the jury were the proper judges, who have found against the defendant. The judgment thereon must be affirmed.</p>

' The plaintiff sues as assignee of John Grant, to recover the sum of five hundred and two dollars from the Rail Road Company, which sum stood as a balance due Grant on the company’s books, and was by him transferred to the plaintiff.

ArPEAI. FROM THE PARISH COURT FOlt THE I>AIUSH AND CITY OF NEW-ORLEANS. On the 11th March, 1835, the plaintiffs filed their petition, accompanied by a schedule of their debts and effects, with a list of creditors and general statement of their affairs, alleging their inability to meet their engagements, and praying for a meeting of their creditors to deliberate on their affairs.

This is a case of insurance against fire, on a policy executed by the defendants the 4th of February, 1834, to W. T. Thompson, and by him transferred to the plaintiff. The latter seeks the recovery of fifteen thousand dollars, the amount insured therein, on a block consisting of five houses or tenements, destroyed by fire, as in case of a total loss.

This is an action by the master of the brig Good Return, to recover from the defendants and consignees, the sum of two hundred and forty-one dollars and sixty-two cents, the amount of freight on a cargo of cotton, shipped at the port of St. Marks, on board of said brig, and consigned to Wilcox & Fearn, in New-Orleans.

On the 11th February, 1835, the petitioner applied for the benefit of the insolvent laws, relative to debtors in actual custody. The judge made an order that the creditors of the petitioner be notified to appear in open court, on the 18th of March, 1835, to show cause, if any, why the insolvent. should hot have the benefit of the insolvent laws extended to him. The debtor did not appear on ' the day fixed.

ArTEAL FROM THE COURT 03? PROBATES FOR THE PARISH AND CITY OF NEW-ORX.EANS. On the 31st of December, 1834, S. W. Nye, one of the executors of Joseph Longbottom, deceased, filed an account of the administration of himself and co-executor of the estate of said deceased, and prayed that notice be given to all concerned to make opposition according to law. On the 10th of January, 1835, sundry oppositions were filed to said account..

ArPEAL PROM THE PARISH COURT FOR THE PARISH AND CITY OP NEW-ORLEANS. This is an action to recover from the defendant the sum of six hundred and one dollars and seventy-two cents, for merchandise sold by the plaintiff to the defendant.

<p>The laws of Congress granting settlement or pre-emption rights, give no absolute title in themselves, but only grant a preference in purchasing from the United States government, on certain conditions prescribed, and the individual claiming a right under them, obtains a title from the government only by a compliance with all the conditions imposed.</p> <p>The act of Congress, passed April 12, 1814, granting pre-emption rights to settlers, requires a part of the price of the land to be paid at the time of entering, and where this is omitted, and another purchases the government right and pays the price, even after entry but before payment of any part of the price, he will hold it.</p> <p>The laws of ing®1 'settlement rigi)te'e"«-ivel'no absolute “title in only grant ápre-chasing from the United. States certain™6condi-andSthleeSindhd-dual .claiming a them, obtains a governmentonly by a compliance with all the conditions imposed,</p> <p>Theact of congress April 12th, 1814, granting pre-emption rights to settlers, requires a part of the price of the land to be paid at the time of entering, and -where this is omitted and another purchases the government right and pays the, price, even after entry, but before payment of any part of the price, he will hold it.</p>

'APPEAL PROM THE COURT OP PROBATES POR THE PARISH OP IBERVILLE. The only question presented in this case relates to the time within which oppositions may be filed to administrator’s accounts/ The facts upon which the case rests are set forth {n the opinion of the court. The heirs of Chiasson appealed from the judgment of the Probate Court dismissing their opposition. 1.

This is an action by the syndics appointed by the creditors of J. B. Ory, a ceding debtor, to recover from the defendant the price of three slaves adjudidated to him at the sale of the property of the insolvent.

APPEAL PROM THE CODJIT OP TIIE FOURTH • JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING. This is a case of insolvency. On the 13th of May, 1830, the plaintiff presented her petition and schedule, and prayed for a respite. A meeting of creditors was held on the 12th of July following, who after deliberating on her affairs, refused the respite and proceeded with the case as a forced surrender, and appointed B, Poydras de la Lande syndic.

This is an action of nullity, to annul and set aside a former judgment of tbe same court.

This is an action, in which the plaintiffs seek to make the owners and master of the steam-boat Philadelphia liable for a package or sealed letter, containing the sum of three thousand eight hundred dollars in bank notes, remitted to the plaintiffs by their agent, and stolen from the custody of the person who had it in charge on board, while the boat was on her passage to New-Orleans.

This is an action by the plaintiff, as an attorney at law, against the defendant, who was appointed by the court curator ad hoc, to defend an absentee residing in France, on being sued in the parish of Pointe Coupée, in 'an action of partition.- The curator ad hoc employed the plaintiff as counsel, to defend the case in court, to which he had been appointed.

This suit commenced by injunction: it was instituted by three of the heirs of Louis A. Reboul, to injoin the defendants’ execution, and the sheriff from selling three-eighths part of a tract of land which they inherited from their ancestor.

<p>RULE ON THE PARISH JUDGE FOR THE PARISH AND CITY OF NEW-ORLEANS, AND FOR A MANDAMUS, COMMANDING HIM TO ALLOW AN APPEAL.</p> <p>This is an application for a mandamus to compel the judge-of the Parish Court, for the parish and city of New-Orleans, to allow an appeal from an order of court admitting an opposition to the proceedings in "insolvency to be filed, charging one of the insolvent debtors with fraud.</p> <p>resisted the filing of the opposition, and excepted to it on the ground that it was not sworn to by the opposing creditor, and did not contain that written deposition which is contemplated by the provisions of the insolvent law of 1817. The exceptions were overruled by the judge presiding and the opposition permitted to be filed.</p> <p>The counsel for the insolvents prayed an appeal, which was refused. An affidavit being filed in this court by D. Seghers, stating that the judgment might work an irreparable injury to the insolvents, a rule was .taken on the Hon. C. Maurian, parish judge, to show cause why a mandamus should not ¡sslle commanding him to allow the appeal in this case as prayed for.</p> <p>The judge showed for cause, first, that according to law an appeal lies only in two cases, to wit: 1. On final judgments. 2. On interlocutory judgments, when they work an irreparable injury to the party complaining.</p> <p>1. The judgment complained of is not a final judgment.</p> <p>2. It is an interlocutory judgment, or rather an order which does not and cannot work an irreparable injury to the insolvents. ,</p> <p>argued in support of the rule.</p>

This is an action of partition, in which the plaintiff claims ' the one undivided third part of a lot of ground in the possession of the defendant, who claims the entire lot under a sheriff’s sale. The facts and pleadings of the case, and evidence of the respective claims of the parties are fully stated in the opinion of the court.

This is an action on a promissory note, executed by Robert Lewis, the 4th of November, 1822, for the sum of three thousand five hundred and fifty-five dollars, in favor of his brother N. Lewis, the ’ present plaintiff. The maker of the note died in New-Qrleans, .in 1832. Nicholas Lewis was one of the heirs, and sold his interest in the succession to C. A- Jacobs and W. M. Lambeth, who with the other heirs took possession of the property and effects of the succession.

This case commenced by an injunction to stay an order of seizure and sale obtained by the defendant against the property of W. Aborn, in the parish of Iberville, on which the plaintiff in injunction claims to have a higher mortgage. The plaintiff obtained judgment against Aborn for one thousand five hundred and forty-seven dollars, which was recorded in the parish judge’s office the 15th of October, 1834.

<p>APPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This is an action on an account, stated by the plaintiff, against the estate of the late J. J. Trappan, in which he claims a balance of five hundred and two dollars, as due to him, after allowing credit for cash paid him at various times. He alleges the executor refused to allow his account, wherefore, he prays judgment, &c. _ _</p> <p>_ _ The executor pleaded the general issue. The plaintiff made proof of his demand.</p> <p>In the course of the trial, the defendant offered written evidence to show that the plaintiff had received at various times, sums of money to a greater amount than he has given credit for in his account annexed to his petition. The court refused the evidence, on the ground that it was inconsistent ' with the plea of the general issue ; that payment or compen- . sation are pleas inconsistent with the plea of the general issue, and that as the defendant did not avail himself of the right of withdrawing the plea of the general issue and to plead specially, either compensation or payment, the proof of either was inadmissible. A bill of exceptions was taken by the defendant’s counsel to the opinion of the court.</p> <p>The court, after hearing the evidence and scrutinizing the account, rendered judgment in favor of the plaintiff for three hundred and ninety-five dollars and fifty cents. The defendant appealed.</p> <p>1. An examination of the bill of exceptions will show that this claim is unfounded. It states that the defendant wanted to prove that the plaintiff had received more than he had allowed in his account. The court refused to admit the testimony, “because the defendant had pleaded the general issue, and ought to have pleaded compensation and payment, and refused to plead them now, and withdraw the general denial.”</p> <p>2. The defendant, therefore, attempted to prove payment or compensation. These are peremptory exceptions, which . the Code of Practice requires to be pleaded .specially. Code of Practice, 345-6. 6 Louisiana Reports, 457.</p> <p>3. The case of Fram vs. Allen, 3 Martin's Reports, 381, cited by the appellant, was decided before the Code of Practice, when the privilege granted by article 346 of that code, of pleading peremptory exception at any stage of the action, did not exist. Under this code there exists, therefore, no longer any reason for permitting the defendant to prove payment, without pleading it expressly. He might plead it at the trial, and if he refuses to do so, it is difficult to find any reason for it, except a wish to surprise his adversary. It appears from the bill of exceptions, that it was suggested to the defendant to plead payment or compensation at the moment of the trial, that this plea would have been admitted, and that be refused to inafce it.</p> <p>4. The plaintiff had certainly a right to be made acquainted with the payments it was intended to prove, in order to procure evidence, either that they had not at all, or that they had been made to him on a different account, and to demand time, if necessary, to obtain this evidence. The latter privilege would be granted by the Supreme Court, article 902, and could not be justly refused by the inferior court.</p> <p>contended, the judge a quo, erred in rejecting his evidence, as shown by the bill of exceptions, in deciding that it could onty be received under a special plea of payment or compensation. This court has1 decided differently. See case of From vs. Mien, 3 Martin, 381.</p> <p>2. In that case, as in this, the plaintiff submitted to the consideration of the court, not his claim against the defendant alone, but the credits or offsets to which the defendant was entitled. In the very words of the court, he established a balance, and if was competent to the defendant under the general issue, to show that such balance was erroneous.</p> <p>3. The decision in the case of Gleises vs. Faurie, is opposed to me, but an inspection of that case will show its difference from the present one. There a demand was made for rent, without any credits given. The answer was the general issue, and a small offset. On the trial, plaintiff attempted to show that the sum claimed had been paid, an attempt manifestly at variance with the pleadings. But here, a clerlr sues for wages, and credits with so much received at sundry times: the defendant denies the correctness of the account, and on trial, attempts to show that the credit giveil is too small; that plaintiff has received more cash than is allowed in his account. This testimony was properly admissible, because the general denial, was a denial of the credit as well as the debit side of the account.</p> <p>4. The authority of the case of From vs. Allen, is impugned on the ground of its having been made’ before the-Code of Practice. This work has, however, made no change in the point of pleading in question. The court say, in that opinion, that payment or compensation must be pleaded specially, but go on to inquire, whether this is a case where compensation need be pleaded at all, and decide in the negative.</p> <p>5. The liberty was offered me, says my adversary, to plead compensation on the trial. This was not a favor, but a right. Code of Practice, 367. But l^could not consent to avail myself of it, for compensation would have admitted the principal demand. Plaintiff claims wages at the rate of "sixty dollars per month! _ The defendant’s witness, Ralph Jacobs, proves positively that plaintiff was to have but forty dollars per month.</p>

This is an action by Voisin as agent of Didier Dreux, the endorsee and holder of a promissory note for two thousand five hundred and fifty dollars, executed by the defendant, widow Jewell, and payable at the end of March, 1834, at the domicil of Dubertrand & Legendre, in New-Orleans. The petition alleges, that when the note became due it was duly protested for non-payment, of which the maker was duly notified.

This is an action by the acceptors against the drawer of the following bill: “$600. New-Orleans, August 18th, 1834. “Four months after date, please pay to Messrs. J. C. Garthwaite & Co., or order, the sum of six hundred dollars, value received, and charge the same to account of steamer Walter Scott. “ Oblige yours, “J. P. Overton.” “ To Messrs.

This case comes up on a motion to dismiss the appeal, for want of several documents to complete the record.

APrEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. In this case the plaintiff claims an omnibus and pair of horses, which he alleges have been illegally and forcibly taken from his possession, by the agent of the corporation of New-Orleans, and by them illegally detained.

AITUAL FROM THE COURT OF THE FIRST JUBICIAL DISTItICT, This is an action on a bill of exchange.

This is an action on a contract to deliver a quantity of cypress timber, at the saw-mill of the defendants, on certain stipulations and conditions. The plaintiff alleges he delivered fifty trees, containing two hundred and sixty-five cypress logs of ten feet each, and was proceeding to deliver the remainder of one hundred trees, when he was forbidden by the defendants.

ATrEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action of revendication. The plaintiffs, heirs and legal representatives of Marcia Davis, deceased, late wife of George W. Dewees, on the 13th of March, 1833, instituted suit to recover the one undivided moiety of four and a half lots of ground in New-Orleans, in the possession of the defendants.

<p>la a possessory action to regain possession of a space of ground situated behind the Levee, and between it-and the public street in the city of Lafayette, where the plaintiff was in actual possession more than a year, as a riparian proprietor, (the locus in quo being susceptible of private ownership) : Held, that the question, whether it be in fact the plaintiff’s property, or has been destined to public use, is one of title which cannot be inquired into. No testimony is admissible except as to the fact of possession and disturbance.</p> <p>A corporation can maintain a petitory action, to remove nuisances and clear the banks of rivers, by showing that the land occupied is destined to public use.</p> <p>There is no particular form or ceremony necessary in the dedication of lands to public use. If the assent of the owner is shown, and the land is actually used for the public purposes intended by the appropriation, it is sufficient.</p> <p>in a possesso-gainCtpos;sessioñ of a space of ground situated behind the Le-jt a„d the public street mjhe cay where the plain-possession more r¡parfanear’pr0!! prietor, (the Jo-suLlplMebeinof ship qVe/Jthat the question, whether it be in fact the plain-tined to public use, is one of ti-tie-which cannot No^testímmyiá admissible, ex-oept as to the fact of posses-|1.1°ntlcancl distur"</p> <p>A corporation petitOTy^cUont clear the hanks of ri-that the land o"?</p> <p>There is no orMremony0™ °es,s.aiT. in the dedication ot lands to public sent o/the own" “d ^ actually used for llic public purposes intended by the appropriation, it is sufficient.</p>

ArrEAIi FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. On the 25th of November, 1834, the syndic of the insolvent filed his tableau of distribution of the proceeds of the sale of the property surrendered, and took a rule for all persons interested, to show cause on or before the 8th December following, why the said tableau should not be homologated, and the creditors paid accordingly.

This is an action in which the plaintiff claims her freedom and that of her children. She alleges she was born free, in the Island of St. Domingo, which place she left under the care of Marie Jeane Berard, her aunt, and came to New-Orleans, with whom and Marie Louise Berard, her sister, she lived for a long time, and until the death of the former, in 1814.

, APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT. The plaintiff, as surviving partner in the community existing between her and her late husband, and as natural tutrix of her minor child, sues to recover the balance of an account of three hundred and thirty-seven dollars due the community. The defendant avers, that at the time of the purchase of the articles in the account, he was in partnership with another person, whp should have been sued jointly with him.

<p>An appeal from an order sustaining the opposition of the attorney of absent creditors, to the fairness and honesty of, the surrender of his property by the insolvent, on a charge of fraud, will be dismissed as a case not appealable.</p> <p>An appeal 01^*’ opposition of the attorney of absent creditors, and^hone'sty 6of p“or®"dty™y the insolvent, on a charge of fraud, will be (lismissf<b as a case not appeal-able.</p>

This is an action to recover a horse and dray, and four boxes and a basket of porter and ale, which the plaintiff alleges the defendant illegally and wrongfully took from him, and refuses to deliver up, although amicably requested. He prays judgment for the delivery of said property, and one thousand dollars in damages, for the illegal detention thereof.

The plaintiffs commenced this action on a policy of insurance, effected in the office of the defendants, the 4th of January, 1831, but the policy was not delivered until eight days afterwards.

This is an action instituted by the syndic of the creditors of Francis M'Manus to annul the sales of certain property made by the insolvent, M'Manus, to the defendant, on the eve of his absconding and leaving the state, on the ground of fraud and simulation. This case was before the court in 1834. See the facts and evidence fully stated in the former report of the case. 3 Louisiana Reports, 530.

<p>APPEAL PROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This is a redhibitory action. The plaintiff alleges she purchased a negress slave of a certain C. W. Diggs, who soon after died of scrofula, which disease existed before and at the time of sale. She claims a rescission of the sale with a return of the price, (four hundred and twenty-five dollars,) from the heirs and legal representatives of said C. W. Diggs, now deceased, who in his lifetime admitted the justice of her claim.</p> <p>James B. Diggs, heir and attorney in fact of the other heirs of C. W. Diggs, deceased, admitted the sale, and pleaded the general denial to all other matters alleged in the petition, and further pleacjed prescription.</p> <p>On the trial the plaintiff proved by one witness that the deceased started from New-Orleanssoon after the sale, which was made the 23d of November, 1831. The slave'died in three or four months afterwards. The deceased promised to pay, and the defendant, J. B. Diggs, acting for himself and the other heirs renewed the promise after receiving certificates from three physicians.</p> <p>Upon this assumpsit the judge of probates gave judgment in favor of the plaintiff, for the price claimed, with interest thereon from the day of sale. The defendants appealed.</p>

<p>In an action on a special agreement, for the price of putting up a mill, evidence of the value of the work and labor done on it, will not he admitted; the parties having agreed on the price.</p> <p>There is no law requiring a party claiming damages, for an injury resulting from the non-performance, or unskilful performance of a contract for work and labor to be done, to first put the delinquent party in mora.</p> <p>In an action on a special agreement, for the price of putting up a mill, evidence of the ’value of the work and labor done on it, will not be admitted, the parties having agreed on the price.</p> <p>There is no law requiring a party, claiming damages for an injury resulting* from the nonperformance, or unskilful performance of a contractforwork and labor to be done, to first put the delinquent party in mora.</p>

ArPEAL FROM THE COVET OF THE FIEST JUDICIAL DISTRICT. This is a hypothecary action against the third possessor of mortgaged property.' The plaintiff claims the amount of a promissory note for nine thousand three hundred dollars, executed by his son to him for advances of money, and secured by a mortgage on certain property in the city of New-Orleans.

APPEAL PROM THE COURT OF PROBATES FOR THE PARISH AND CITY Op' NEW-ORLEANS. The defendant, Unruh, became the purchaser of a slave at the sale of the succession of Mrs. Berthoud. The sale was made by the register of wills, and by order of the Court of Probates.

<p>An inscription of a mortgage made the day before the death of the debtor,, by one of the creditors, will have effect against all the others, although the succession proves to be insolvent and insufficient to pay all the creditors at the lime it is opened.</p> <p>An erased credit on a note in the possession of the creditor, is not conclusive proof, but may be repelled by evidence to show that it was erroneously endorsed.</p> <p>A note with the signature of the debtor crossed or erased, is still admissible in evidence on the part of the creditor, to show he has paid it for the former, and is entitled to be refunded out of his estate. The erasure furnishes a presumption in favor of the debtor, but it is not a presumption juris et de jure. It may be entirely repelled by showing that the signature was crossed through error or inadvertency.</p> <p>A note to which the deceased was no party, is per se inadmissible in evidence to charge his estate with its amount. But evidence to show that the proceeds of it when discounted went into his hands, is admissible.</p> <p>of a "mortgage ibrelhe^ieathof the debtor, by tors,° will have theCoti?ers,Stai-thpngh the sue-cession proves to be insolvent, to^paySaUC'the creditors at the time it is open--fed.</p> <p>An erased credit on a note in the possession of the creditor, is not conclusiveproof, but may be repelled by evidence, to show that it was erroneously endorsed.</p> <p>A note with the signature of the debtor crossed or erased, is still admissible in evidence on the part of the creditor, to show he has paid it for the former, and is entitled to be refunded out of his estate. The erasure furnishes a presumption in favor of the debtor, but it is not a presumption ju-ris et de jure. It may be entirely repelled, by showing that the signature was crossed through error orinadver-tency.</p> <p>A note to which the deceased was no party, is per se inadmissible in evidence , to charge his estate with its amount. But evidence to show that the proceeds of it when discounted went into his hands, is admissible.</p>

APrEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. The plaintiff made a surrender of his property on the 29th of December, 1835, for the benefit of his creditors and prayed that all legal proceedings against his person and property be stayed. An order was granted according to the prayer of the petitioner.

This is partly a hypothecary action, and in part an action of revendicalion against the third possessor of three slaves, to recover one undivided moiety thereof in the plaintiffs’ own right, and to enforce a legal mortgage against the other moiety to which said slaves were subject in the hands of their mother as natural tutrix.

' This case commenced by a rule taken by the plaintiff on D. Prieur and F. W. Lea, commissioners appointed by the parties litigant, and on P. Landreaux, recorder of mortgagés, to show cause why certain mortgages should not be erased and cancelled.

<p>Where a workman makes a piece of machinery to order, and it is alleged by the employer that it does not suit the purpose intended, and it is not objected that it was unskilfully made, the former will be entitled to recover the price of his work.</p> <p>i f a piece oi machinery to order, bytheemployer suit ^purpose intended, and it is not objected that it was un-skilfully made, the former will be entitled to recover the pnce of his work. Where workman makes</p>

This is an action to condemn a portion of land belonging to the defendants, through which the New-Orleans and Carrollton rail road runs for the use and occupation of the rail road.

This is a suit to obtain freedom. The plaintiff, a woman of color, alleges she was born free in the state of Pennsylvania, and that she and her two young children are held in slavery by the defendant. She prays that she and her children be adjudged free, and allowed five hundred dollars as damages for their illegal detention in slavery.

This is an action to recover from the defendant the sum of nine hundred and eighty-nine dollars and sixty-five cents, for work and labor done in the month of December, 1834, by ditching in front of the property of the latter in the city of Lafayette, &c. The plaintiff alleges he done this work at the special instance and request of the defendant, which will more fully appear by an account annexed. There was a general denial pleaded.

<p>APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. '</p> <p>This is an action by the plaintiff to recover from the defendants, owners of the steam-boat Chesapeake, the value of a slave alleged to have been illegally employed by the captain of the boat, as a hand, without the authority or consent of the plaintiff, and while in this service, was drowned.</p> <p>This cause has once before been in this court. See 8, Louisiana Reports, 537. On its return to the Parish Court, the plaintiff had leave to amend his petition, by adding to his former allegation the further one, “ which act of the said master, the said owners might have prevented, by using due diligence.”</p> <p>The cause was again submitted to a jury who returned a verdict of seven hundred dollars for the plaintiff. From judgment rendered thereon, the defendants appealed.</p> <p>1. This case presents purely a question of law. The facts proved by the plaintiff and defendants are substantially the same. Indeed, I will suppose the plaintiff to have proved precisely what he alleges in his petition, “ that Wright ” (the master) “ received on board said boat a slave named Stephen, the property of your petitioner, and continued to employ him as a hand on board said boat to Alexandria and elsewhere,” (that is back) “without the knowledge or permission of petitioner, which acts of said master the said owners might have prevented by using due diligence.”</p> <p>2. To render the defendants liable on the allegation in the petition, the loss must be caused by their act, or occasioned by their negligence, imprudence, or want of skill. Louisiana Code, 2294, 2295. The damage must be immediately caused by the act, &c. itself. 11 Toullier No. 117.</p> <p>3. It is alleged further, in the petition, that “ when the plaintiff had said slave arrested on board said boat, in endeavoring to escape, said slave fell or jumped overboard, and was drowned.”</p> <p>This drowning was not caused by the hiring of the slave, but, in the words of the petition, by “ his attempting to escape when arrested.” It was caused entirely and immediately,</p> <p>First. By the unskillful manner in which the master attempted to arrest the slave.</p> <p>Second. By the physical force of the slave overcoming that of his captors.</p> <p>Third. By the evil disposition of the slave, which prompted him to risk his life rather than be arrested. For none of these acts are the defendants responsible.</p> <p>4. The captain (Wright) being utterly unable, from the nature of his situation, to hire, personally, every man to be hired on a coasting boat, charged his mate to procure firemen, and in doing so, cautioned him “ not to hire any slaves, unless they produced satisfactory proofs of the consent of their masters.” This is the only connexion he had with the act which it is alleged caused the damage. Can he be rendered liable for this 1</p> <p>5. The slave was a runaway, as is proved, and was arrested where he was hired, by his master, in an unskillful manner. “That want of skill, connected with the physical force and bad disposition of the slave, caused the loss” which it is now attempted to be inflicted on the owners, through the acts of the master.</p>

This is an action instituted by the plaintiff, as syndic of the creditors of one Carlos Vidal, in Havana, against the commercial firm of John A. Merle & Co., of New-Orleans, claiming a balance from the latter of one thousand nine hundred and eleven dollars and thirty-seven cents, resulting from commercial dealings and transactions between them. The defendants pleaded the general issue, and denied that they were indebted toj or had any funds of Vidal in their hands whatever.

This is an action to. recover from the defendant the sum of four thousand dollars, as endorser of A. L. Boimare, The plaintiff alleges, that thé note was protested for want of payment when it became due, as may appear by the said note, and a certified copy of the protest thereof annexed to this petition.

This case comes up on a rule taken by the plaintiff, on J. S. M‘Favlane, a surety in an appeal bond, to show cause within ten days why judgment should not be rendered against him for the sum of one thousand seven hundred and thirty-three dollars and thirty-three cents, with interest, being the amount decreed against the defendant in the appeal.

<p>An instrument of writing, acknowledging the receipt of certain notes for collection, and the money to be handed over, or ihe notes returned when called for, does not come within that class of obligations which are prescribed in five years. No prescription runs against it, until some act is done by which a right of action accrues.</p> <p>A receipt for notes to collect and pay over, or return when called for, is rather evidence of a mandate than an obligation to pay money, in which the subscriber to the instrument of writing constitutes himself an agent to secure and receive payment, and pay over the sums collected, &e.</p> <p>An instrument of writing, acknowledging the receipt of certain notes for collection, and the money to be handed over, or the notes returned when called for, does not come within that class of obliga-gations which are prescribed in five years. No prescription runs against it, until some act is done by which a right of action accrues.</p> <p>A receipt for notes to collect and pay over, or return when called for, is rather evidence of a mandate, than an obligation to pay money, in which the subscriber to the instrument of writing constitutes himself an agent, to secure and receive payment, and pay over the sum collected, &c.</p>

This is an action instituted by the surviving widow of Henry Crabb, deceased, in her owii right, and as guardian of her minor children, assisted by her present husband, also guardian of these minors, all residing in the state of Tennessee, against the defendants to recover certain property, and compel the rendition of an administrator’s account of an estate in Louisiana.

This is an action to recover from the defendant, the sum of seven hundred and twelve dollars and thirty-five cents, being the balance of an account stated, for carpenters’ work done on the houses of the latter.

ArFEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action of divorce, a vinculo matrimonii. The plaintiff alleges she was lawfully married to the defendant, in North Carolina, in 1812, and that he had left her and came to Louisiana to reside.

<p>The record and judgment of a suit against the plaintiff by a mortgage creditor, under which a tract of land, sold by the former to the defendant, was seized and sold, is admissible in evidence' in an action for the price, under the plea of eviction.</p> <p>Tlie record and judgment of a suit against the plaintiff, by a mortgage creditor, under which a tract of land, sold by the former to the defendant, was seized and sold, is admissible in evidence in an action for, the price, under die plea of eviction.</p>

This is an action in which the plaintiff claims the sum of five hundred dollars, as a compensation and indemnity for sleeping in, and guarding, the defendant’s store.

This is an action for damages, and for the removal of incumbrances and nuisances, against the defendants as a corporate body.

This is an action in which the plaintiff claims indemnity for seven bales of cotton shipped from Alexandria, on Red River, and consigned to John Linton, in New-Orleans, and lost by the perils of the river, but protected by an open policy of insurance, taken out of the office of the defendants’by the consignee. The defendants pleaded the general issue.

<p>The price of immoveables producing fruits, bears interest from the time it is due, which is its accessory and forms part of the capital; and the privilege or mortgage of the vendor, extends to the accessory or interest as it becomes due on the price.</p> <p>Tho vendor’s privilege is a right arising out of the very nature of the contract; inasmuch as the transmission of the property is not perfect until the price is paid, which is composed of the capital and interest. The interest represents the fruits of the immoveable sold.</p> <p>But interest promised in an accordat with creditors, to be paid on a privileged debt, is not itself a privileged claim.</p> <p>Interest continues to run on property ceded to creditors under the insolvent laws; even conventional interest is due on claims, when there is riot a sufficiency to meet all.</p> <p>The price hears interest from the time it is due, -which is fomspSof the «apM; and the Mortgage of the to'the1 accessory ,or interest, as it becomes due on the price,</p> <p>right arising-out ture oftheconsion °f the pro-Feed7 untu Pthe isCOmpo-sed of the eapi-The interest rel Fmitsof theim-moveal)i°sold-</p> <p>prom'íLfhfau paúl on á privi-n^ltaeif aplivl-le§'ei1 olaim-</p> <p>Interest continues to run on property ceded to creditors, under the insolvent laws; even conventional^ interest is due on claims, when there is not a sufficiency to meet all.</p>

This case commenced by a rule to show cause. The defendants took a rule on the plaintiff, to show cause why execution should not issue against him for the amount of a decree or judgment of the Supreme Court, they having complied with its conditions and requisites on their part. The plaintiff showed for cause, that a certain engine named in the decree, had not been returned or tendered to him, which was required as a condition precedent to execution issuing.

This is a petitory action. The plaintiff claims a tract of land, “ measuring about thirty superficial' arpents,” situated in the suburbs of the town of Donaldsonville, comprised within certain defined and specified limits or boundaries, which she inherited from her mother.

' ' This is an action to recover from the defendant, the value of improvements made on a large tract of land, from which the plaintiff was evicted, which he alleges are worth three thousand dollars; that the defendant resides in England and has no known agent in this country, and no curator has been appointed to administer his property here.

<p>Parole evidence is admissible to prove filiation and heirship generally; but when it is shown that there exists record or written evidence, or its existence is rendered highly probable, it ought to be produced, especially where several persons, strangers to each other, claim the succession.</p> <p>The certificate of an American consul, residing in a foreign country, attesting the official character of an officer of that country, before whom the depositions of witnesses are taken, is insufficient to make them legal evidence.</p> <p>^ Is not the duty of an American consul to attest the signatures of public functionaries, in the countries where they reside; and in order to give their certificates the form of testimony, it will be necessary to show that this is one of their consular functions.</p> <p>!i'_ Parole evidence is admis-¡¡¡Me to prove heirship gene-ifiíLown"that there exists record or written evidence, or its dered"00 highly probable, it ought to be produced, especial-person^ ^tra'n-other ciaimMhe succession.</p> <p>¿muMcarL consul, residing country, attest-factor°*°an officer of that country, before whom tiie depositions of witnesses are taken, is insufficient to make them legal evidence.</p> <p>It is not the duty of an American consul to attest the signatures of public functionaries, in the countries where they reside, and in order to give their certificates the form of testimony, it will be necessary to show that this is one of their consular functions.</p>

TAMMANV. This case commenced by an opposition to the account filed ■ by the defendant, as curator of Nicholas Stein’s estate, and to the prolongation of his term. Bowman presented an account to the Court of Probates for the parish of St. Tammany, of his first year’s administration, and prayed that it be homolo-gated, and that he be continued another year in his curator-. ship. The amount of available funds accounted for, was three thousand six hundred and forty-four dollars.

This is a case in which the defendant in an execution attached the amount of the debt after he had paid it into the sheriff’s bands-, in a suit for a larger sum, which he had in the mean time instituted against the plaintiff. Vide the facts of the case reported in 8 Louisiana Reports,- 255.

This is a petitory action, in which the plaintiffs sue to recover a quarter section of land in the possession of , the defendant. It is alleged and shown, that one Benjamin Craft purchased the land in dispute from' the government of the United States, at the government prices, as a pre-emption claim, on the 7th of May, 1831, who, on the 12th February, 1833, sold it to the petitioners.

<p>A judgment obtained by the heirs of the deceased wife against the surviving husband, annulling the adjudication of the property of the succession to him, on the ground that it was the wife’s exclusive property, and made through error, cannot affect purchasers and mortgagees of this property from the husband. It is as to them res inter alios acta.</p> <p>Where the property of a succession is adjudicated to the surviving husband as common properly through error, (it being the wile’s exclusive property) and this sale is ratified by the heirs, on having their respective shares of their deceased mother’s succession set off to them by the husband, any contract of mortgage he may make, will bind this property in favor of third persons, who contract on the faith of these public acts.</p> <p>A judgment obtained by the heirs of the deceased wife, against the surviving husband, annulling the adjudication of the property of the succession to him, on the ground that it was the wife’s exclusive property, and made through error, cannot affect purchasers and mortgagees of this property from the husband. It is as to them res inter alios acta,</p> <p>Where the property of a succession is adjudicated to the surviving husband as common property,through error, (it being the wife’s exclusive property,) and this sale is ratified by the heirs, on having their respective shares of their deceased mother’s succession set off to them by the husband, any contract of mortgage he may make, will bindthisproperty in favor of third persons, who contract on the faith of these public acts.</p>

presented the following petition and argument fúr a re-hearing : “ The counsel for the plaintiffs, under the firm conviction that the opinion of the court is erroneous, is impelled to solicit a re-hearing in this case.

.APPEAL PROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS. This case comes up on an opposition to the tableau of the executor, filed in the Court of Probates, of the estate of the late Madame Magnon. The executor charged commissions and counsel fees on the value of certain slaves, which were bequeathed by the husband at his death to legatees, with a usufruct to Mrs. Magnon during life. The same person was executor of both estates.

ArrEAI, FROM THE PARISH COURT for' the parish and city of NEW-ORLEANS. The plain tiff' became the purchaser of a parcel of ground in the parish of Orleans, sold at sheriff’s sale, under a judgment and execution obtained by the New-Orleans Canal and Banking Company, and others, against one Robert Copeland, for the sum of nineteen thousand five hundred dollars. The sale of this property took place on the 12th January, 1835.

This is an action on a promissory note, executed by the defendant and another person to the plaintiff, as agent of the Free School Lottery, in the parish of Ouachita, for the sum 0jr two thousand dollars, payable on the first day of January, 1834. , The defendant admitted the execution of the note, but averred that the consideration had failed, in consequence of which he was not bound to pay it.

APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OF • NEW-ORLEANS. The plaintiff alleges that the late firm of Durel and St. Victor established a grocery store in the lower faubourg of New-Orleans, and employed the defendant, at a salary of fifty dollars per month, to attend to its concerns, and the sale of the goods.

This is an action for damages. The plaintiffs allege that a firm in Liverpool shipped to their house in New-Orleans, a quantity of hoop and sheet iron, worth ■ the sum of two thousand eight hundred and sixteen dollars and ninety-five cents, on board the ship Chieftain, in good order, which was so damaged, by the negligence and bad stowage of the master and officers of that vessel, that it was sold, on landing at the port of New-Orleans, for only the sum of six hundred and…

. In this case the plaintiffs bad obtained an injunction 'ag.ajngt the defen(jarit, to stay an order of seizure and sale she was prosecuting against certain mortgaged property, in their possession. At the October term, 1835, of. the District Court for ¡the parish of Ascension, the following proceedings were had in this cause: “Tuesday, October 13th, 1835. It is ordered that this suit be set for trial on Thursday next.” “Friday October 16, 1835.

• This is an action by an applicant to become a stockholder in the Louisiana State Marine and Fire Insurance Company, against the president and directors of the late Louisiana State Insurance Company, acting as commissioners of the former company, for a mandamus, compelling them to show cause, why the subscriptions received by them should not be declared null and void, and the books of the new company be re-opened, and the subscriptions again received by them, according to…

This is an action against the widow and only son and heir of the late Nathan Morse, to render them liable for the amount of a promissory note, endorsed by the deceased, and which became due and payable after his death. The defendants admitted the signature of Morse, and their heirship; but denied that they were liable, for want of legal notice of protest. The parties went to trial on this issue.

This is an action to recover two annual instalments of interest, amounting in all to twelve thousand dollars, which became due the 1st January, 1835-6, on the sum of one hundred thousand dollars, being the price of a sugar plantation and slaves sold by General Wade Hampton to one Le Roy Pope, payable in twenty years, and drawing an annual interest in the mean time.

This is an action for damages. The plaintiff alleges he leased a store from the defendant, and enjoyed for a while the uninterrupted privilege of opening his door and windows into the back yard of the premises, which was necessary to the enjoyment of the benefits of his lease; but that the defendant, with a view of vexing and harrassing him, illegally ordered one of his slaves to nail up the door and windows, who, in executing this order in the absence of the petitioner,…

This is an action against the mayor and aldermen of the city of New-Orleans, to render the corporation liable and recover from it six hundred dollars, being the alleged value of a runaway slave, which the plaintiff’s agent had sent to the city jail for safe keeping, and who escaped from the city guards while working on the streets.

This is an action for damages. The plaintiff alleges his wife Eliza Holmes contracted with G-. W. Holmes, commander of the ship Princess, on the 15th November, 1832, for her passage from Liverpool to New-Orleans, on certain terms and conditions. The husband who sues, alleges further, that the defendant violated the terms of his contract witli his wife, for which he claims one thousand dollars in damages. This case was before the Supreme Court in 1834.

APPEAL PROJ1 THE COURT OP PROBATES POR THE TARISII OF ASCENSION. This case comes up on an opposition to the tableau of .distribution, made out and filed by Narcisse Landry, administrator of the estate of Francis A. Bond, deceased. L. B. Macarty the opposing creditor, made opposition to the sale of a tract of land and slaves, which was adjudicated to XI.

ArPEAI. non THE COURT OF PROBATES FOR TIIE PARISH AND CITY OF NEW-ORLEANS. This suit was instituted by Bazile Montreuil alias Bazile Dédé and Charlotte his wife, and Jeanne Dédé, f. p. c., to •recover the estate of one Francois Montreuil alias Louis Dédé.

This is a petitory action. The plaintiff sues to recover a tract of land, six arpents front and forty in depth, situated on Carr’s creek, in the parish of East Feliciana, which he alleges, is in the possession of the defendant, together with the original Spanish titles, and which he detains illegally, and unjustly, although amicably demanded to surrender them up.

This suit commenced by injunction. it appears (be defendants, under a judgment which they had obtained against one Rachel O’Connor, in 1832, caused an-execution to issue, directed to the sheriff'of the,parish of West Feliciana, and instructed him to levy on ten bales of cotton, besides other cotton in the gin house and in the field, and on twenty-six slaves, all of which is alleged to be the property of the petitioner, and which he alleges the defendants knew belonged t.o…

ArrEAL from the oodrt of the first judicial district. This case comes before the court on the opposition of several creditors united, to the proceedings of the creditors before the notary, by which John D. Bein and Joseph Le Carpentier were appointed syndics of the creditors of the insolvent debtor.

This is an action to recover a s,um of money from the' New-Orleans Building Company, yunder an-agreement or contract with the stockholders thereof. The plaintiffs allege, that they became the purchasers of two houses and lots in New-Orleans, which were sold at public auction on the 9th of December, 1834, by said company.

<p>The affidavit of the defendant, annexed to his answer, that his signature to the notes sued on is forged and counterfeited, will not be permitted to go to the jury as evidence, when not made the basis of some preliminary or interlocutory proceeding.</p> <p>The different modes of proof of hand writing or signatures, pointed out by the Code of Practice, are concurrent, and the court is not required to appoint experts for this purpose, unless moved to do so by the party.</p> <p>A confession drawn from an unhappy parent who is sued, by a letter threatening to prosecute his son for forging his signature to certain notes sold and delivered to the plaintiff, will not bind him.</p> <p>The provisions of the Code of Practice, in articles 518, 522, 526, 527, and others, requiring certain forms to be pursued in the trial of a cause, are directory, and a non-compliance with them, when not required at the time by the party complaining, does not import pain of nullity.</p> <p>The party may require the observance of all the forms, as far as practicable, which are directed in the trial of a cause; but if when present, he does .not require a rigid compliance with them, and they are substantially .complied with, it is not assignable as error, nor sufficient ground for a new trial.</p> <p>The a(riclavi(-offlie defendant, annexed to lus answer, that his note^suedon*!» not he permitted Is S° * evidence^ ^basisofsome preliminary or interlocutory proceeding.</p> <p>modes ofproof of hand writing pointed§outl<by Praotice0<le are concurrent, and the court ig not required to ap-fhis*purpose,Sunless moved to do A confession draun from an unhappy parent, who is sued, by ingto1 prosecute his son for forg-to certain notes ed to the plain-him7llln°tblnd</p> <p>The provisions of the Code of Practice, in ar-526^ 527,’ ami others,requiring certain iorms to be pursued in the m-e1 °directory, pikncen0n"wíth them, when not time'bj^timpar-doe^not^mport-pain of nullity,</p> <p>The party may require the observance of all the forms, as far as practicable, which are directed in the trial of a causej but if when present, he does not require a rigid compliance with them, and they are substantially complied with, it is not assignable as error, nor sufficient ground for a new trial.</p>

The plaintiffs, A. Parsons and Justine Crevillier, sue to recover from the defendant the sum of one thousand five hundred and sixty dollars, being the amount of a draft remitted to him to purchase a tract of land, and which they allege he has retained and failed to comply with their request. They pray for judgment, and require the defendant to answer interrogatories in relation to the sum of money received by him.

The plaintiffs, Freret, Brothers, sued Bernard Marigny for the rescission of a sale of a tract of land or plantation, alleging a defect of title. Marigny cited in his vendors in warranty, and after an investigation of the several titles, the District Court decreed the land to belong to the plaintiffs, free from all claims, &c., but that they pay the costs of suit. They appealed. made the following point in this case : 1.

In this case the heirs of Madame Guesno, deceased, took a rule on the defendant who was testamentary executor of the deceased, to show cause why he should not deliver over the seizin and possession of the estate to the heirs, and file an account to ascertain the amount coming to them. The executor filed his account, to some parts of which opposition was made.

<p>APPEAL FROM THE PARISH COURT FOR THE PARISH ANI> CITY OF NEW-ORLEANS.</p> <p>The defendant, as curator of the vacant estate of Francois Loiseau, deceased, on the 10th April, 1834, filed an account of the first year’s administration, and a tableau of the effects and debts of said estate, and prayed that his appointment be prolonged for another year and that his account be homolo-gated. Joseph Abat made opposition to the tableau, and claimed to be placed thereon as a mortgaged creditor of the deceased, for the amount of a judgment and costs of four hundred and fifty-eight, dollars, which he had obtained in May, 1827, and which was duly recorded.</p> <p>The curator denied that the estate of Loiseau owed the opponent any sum, and that the judgment annexed was rendered on a promissory note which had been paid. He pleads payment, and calls upon the opposing creditor to deliver up the note on which- he obtained judgment.</p> <p>The certificate of the recorder of mortgages showed, that the general mortgage resulting from recording the judgment, had been erased and cancelled, by order of the Court of Probates.</p> <p>H. R. Denis, Esq., testified, that he obtained this judgment for Abat on a note drawn by Sendos, and endorsed by Loiseau ; that, on referring to the papers lately, he finds his receipt for the note, which is withdrawn. He thinks, from the circumstance of his withdrawing the note, that it must have been settled; although he has no recollection of- the money having passed through his hands, &c.</p> <p>Other witnesses • testified as to fhe presumption and probability of the note and judgment being paid.</p> <p>The probate judge was clearly of opinion, from the cir-cnmstancial testimony in the case, and the fact of the note not being produced, that it was paid. Judgment was given for the curator, from which Abat appealed.</p>

This is an action for separation of bed and board. The plaintiff is the wife of the defendant, and she alleges, her and her husband have been married since the year 1822, and that she has behaved towards him as a good and affectionate wife; but that his violent and quarrelsome disposition, notwithstanding her endeavors to preserve peace and harmony, makes her unhappy; and further, that on the 19th May, 1835, her husband struck her, which, added to his other brutal, abusive…

This is a redhibitory action to annul the sale of a slave, and recover back the price. The plaintiff alleges he purchased a slave from the defendant for the sum of seven hundred dollars, with a general warranty against all diseases, vices and redhibitory defects of every kind.

This is an action against the defendants as part owners and agents of the steam-boat Abeona, claiming the sum of two thousand dollars in damages for carelessly and negligently running down and sinking the plaintiff’s schooner, with said boat, on the Mississippi river. The defendant, in a plea of the general issue, denied every thing alleged in the petition.

<p>ON AN APPLICATION FOR A RE-IIEARING.</p> <p>applied for a .re-hearing in this case.</p> <p>The opinion pronounced in this case seems to rest exclusively on the rule, that in mere questions'of fact the court below is the best judge of the evidence. The appellant has the right however to have the evidence considered and collated by this court, without regard to the opinion-of the judge in the first instance. This rule however is not without exceptions. The reason why the inferior judge is deemed better prepared to decide on the evidence, ceases when in cases like this he has not seen the witnesses. In this case, the testimony is all taken on commission, and out of the presence of the judge, except a small part of it.</p> <p>2. The whole of this testimony goes to show that the fault did not lie with the master of the steam-boat. This is clearly shown by the testimony of the defendants, and especially that of two witnesses who were examined in the District Court, in suits there, by the owners of the cargo against the defendants. This testimony consisted of the captain and .mate of a vessel the steam-boat, had in tow at the time, and js now in evidence in this case.</p> <p>3..This court will certainly not be prepared to say the district judge erred in deciding differently in the suit by the owners of the cargo against the present defendants, than the parish judge in this case. The district judge heard the witnesses and decided in favor of the defendants. The same ¿evidence is in both cases. • The other case will come before ■this court also, and under the same circumstances. This court must then either violate the rule or apply it in contradiction to their preseht judgment, that the judge who hears the evidence is the best judge of the facts. It would be somewhat singular .to decide one way for the vessel, and another for the cargo. A re-hearing is respectfully prayed for. ,</p>

This is an action for damages. The plaintiff alleges he is testamentary executor and universal legatee of one Tambourline, who had obtained a license from the corporation of New-Orleans, conferring on him the privilege of vending fruit on the levee and occupying a eland, for the annual sum of fifty dollars, payable quarterly.

This is an action on an account for merchandise sold and delivered by the plaintiffs to the defendant, between the 20th April and 1st of October, 1835, amounting to the sum of five hundred and sixty-five dollars and seventy-five cents, according to an account annexed.

This is an action to recover from McLaughlin, the •purchaser, and Patton, his transferee of an invoice of goods, the sum of two thousand and thirty-nine dollars and fifty cents, the amount for which they were sold by the plaintiffs to M'Laughlin. The pleadings, facts and evidence of the case are stated in full in the opinion of judge Bullard. The case was tried against Patton, who was arrested In New-Orleans and held to bail.

<p>Where certain moneys, arising on the balance of a judgment, are ordered to be paid into court, and before it is deposited, execution issues for the whole amount of the judgment, an injunction will be sustained for so much of said moneys as are shown to have been paid, and for such further sum as the defendants in the judgment will be entitled to receive in their own right, and dissolved for the remainder.</p> <p>Wherecertain bahincf of .a iudS”‘ent. are ordered , to be paid into it k deposited “““ amount of the judgment, an injunction will be sustained for so much of said moneys as are shown to have been paid, and for such further sum as the defendants in the judgment will be entitled to receive in their own right, and dissolved for the remainder.</p>

prayed for a re-hearing in this case, on the following grounds: 1. The judgment does not give full effect to the agreement between the parties, which states that the defendants in the judgment shall not be required or bound to pay over, either to the sheriff, or the plaintiffs in the judgment, the amount of stock held by them, and the sums which are due to them as stockholders. 2.

appeal prom the court op probates por THE PARISH OP ST. JOHN T11E BAPTIST.

• The counsel for the plaintiff took a rule on the defendant., to show cause within ten days, why judgment should not be rendered against him, as bail for Wm. Wilkins, in the sum of six hundred and forty-six dollars and sixty-six cents, with interest, being the amount of a judgment obtained against the latter, and which remained unpaid.

This case commenced by the institution of two separate actions. The wife first sued her husband for her half of the community, alleging that he had endeavored to defraud her, fey selling his property t'o his two sons, and by suing his creditors. See the facts of this case, in the suit of Tourné vs. His Creditors, reported in 6 Louisiana Reports, 459.

This is an action instituted by the heirs and representatives of Joseph Chardon, deceased, residing in France, against the defendant as testamentary executor, to annul and set aside the will of the deceased.

LEANS. This is an action to recover from the defendant, Bagneries, two slaves in his possession, which are claimed as the property of the plaintiffs. The defendant set up title to the slaves in question, as purchaser at a marshal’s sale. He cited the plaintiffs and defendant in the execution, which issued from the United States District Court, under which the sale took place, to defend his title as warrantors.

This is a suit for freedom. .The cause was before this court at June term, 1835. 8 Louisiana Reports, 475.

Ari'EAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. The Bank of the Consolidated Association of Louisiana, obtained an order of seizure and'sale, on a note and mortgage, executed to secure the sum of ten thousand dollars, which the defendants, Antoine Foucher, sen’r, and his wife, borrowed from the bank, the 30th December, 1830, payable one year after date. The mortgage contained a stipulation for prolongation of payment.

This is an action by the holders of a promissory note, against the drawer, executed at Louisville, Kentucky, May 27, 1831, payable fifty days after date, to the order of John B. Guthrie, by whom it was endorsed in blank, for the sum of one thousand three hundred dollars.

This is an action by the holders and endorsees of a promissory note for seven hundred and twenty-nine dollars and forty cents, against the defendant hs the last endorser. The •note was regularly protested for non-payment at the Branch Bank of the United States, in New-Orleans, and due notice thereof given to the endorsers. The defendant pleaded several exceptions, which were overruled. He then answered to the merits, and pleaded various matters in defence.

This is an action by the heir, to compel a compliance with the last will and testament of his ancestor.

This is an action by the heir, as protector of certain slaves, and to have executed his ancestor’s will, in relation thereto.

This is an action in which the plaintiffs, who are free people of color, claim the right, and privilege of being stockholders in the “Citizens’ Bank of Louisiana.” The rights and privileges claimed by the plaintiffs, are denied by the bank, on the ground, that by a proviso to an act, amendatory of the original charter, passed the 30th January, 1836, it is provided “ that no person or persons who are not free white citizens of the United States, and domicilia-ted in the state…

APÍEAL FROM THE PARISH COURT FOR THE. PARISH AND CITY OF NEW-ORLEANS. This is an action instituted by the executor and brother of Marie Louise Tagiasco, f. w. c., deceased, to recover a lot of ground with its improvements, in the city of New-Orleans, which the said Marie Louise and Jean Tagiasco, f. p. c., inherited from their deceased mother, Louise Baptiste Roux.

This is an action or an alleged verbal lease, to recover from the defendant the sum of eight hundred and fifty dollars, aá the price of the rent of a store and warehouse, for about eleven months. The defendant pleaded a general denial. The plaintiffs’ clerk, Layet, sworn, says he had several conversations with thp defendant after the store was leased, and he was of opinion from these, the defendant had rented it.

This case was formerly before this court. The facts and evidence are fully stated in the report then made of it. See 7 Louisiana Reports, 37. After the first décision was pronounced in this case, it was discovered that the copy of the will of Vidal in the record was imperfect; the signatures of the testator and witnesses having been omitted.

This is an action by the heirs of the late R. L. Rochelle, against the defendant, George P. Bowers, to recover his proportion of the sum of seven thousand four hundred and fifty-six dollars, being the one-half of a judgment which the executors of the ancestor of the plaintiffs paid and satisfied to the United States; which had been obtained against both of them, as sureties in a paymaster’s bond.

This is a petitory action. The plaintiff alleges, that he is the owner and proprietor of a large piece of property in the city of New-Orleans; and that about the 11th November 1834, the curator of the estate of the late John Gravier, obtained an order from the Court of Probates for the parish and city of New-Orleans, to sell said property in lots, according to a plan and advertisement published in the gazettes of the city; the sale to take place the 30th January, 1835.

This is an action against two endorsers of a promissory note, residing in different parishes. The plaintiff alleges, that one Louis Melchier Raymond, • of New-Orleans, executed his promissory note for two thousand dollars, payable twelve months after the 16th January, 1S34, to the order of and endorsed by Laroque Turgeau, of the parish of Ascension, and afterwards endorsed by Pierre Dubertrand, of New-Orleans.

This is a petitory action, in which the plaintiff claims a lot of ground in the city of New-Orleans, now in the possession, and claimed by the defendant, Abat. The vendors of the latter were called in warranty.

This is an action on a promissory note for the sum of six thousand dollars, drawn by Antoine Foucher, junior, with lhe names of Antoine Foucher, senior, and Hermogene Labranche, endorsed in blank on the.back of if. The plaintiffs pray judgment against the endorsers, for the amount of the note sued on. The defendants, Labranche and Foucher, senior, answered separately; and both of them expressly averred that their names on the back of said note, were forged and counterfeited.

This is an action to recover and compel a re-conveyance of certain city property, which the plaintiff conveyed to the late John Linton by public act dated May 15, 1834. The suit is instituted against the executors, the widow in community and heirs of the deceased.

This case comes up on an appeal from a judgment of the Probate Court, rendered on a rule taken by the plaintiffs, to compel the defendant to comply with the conditions of the sale of a lot of ground in New-Orleans, purchased by the latter, at, tlie sale of the estate of the late Thomas L. Harman.

This is a petitory action, in which the plaintiffs claim certain slaves in the possession of the defendants. The defendants claim the slaves in question in virtue of a private act of sale, under the ordinary mark of the vendor, one James Sides, attested by two subscribing witnesses, dated at East Baton Rouge, February 28, 1825. See the facts of this case, reported in 7 Louisiana Reports, 143.

ATPEAL FRO_M THE COURT OF THE FIRST JUDICIAL DISTRICT. The plaintiff claims a balance due him for wages and disbursements, as master of the steam tow-boat Grampus, in the employment of the defendants, (an incorporated company) amounting to the sum of five hundred and three dollars, according to an account annexed. He alleges he has demanded payment, which has been refused, and he prays judgment for said s,um.

This is the case of an application for a mandamus to the district judge of the first judicial district. The plaintiff applied in the first instance to the district judge, by petition, to grant a mandamus, commanding the mayor of the city of New-Orleans, to issue a warrant on the city treasurer, for five hundred dollars, being a quarter salary due him, (the plaintiff) as city printer.

This suit is instituted by the heirs of Mrs. Nancy Nicholls, deceased, late wife of Reuben Nicholls, against one Alfred Gay, as the third possessor of a slave which formed part of the community property of Mr. and Mrs. Nicholls, and which was sold by the former to the defendant after the death of the latter.

This case arises under a rule taken by the purchaser of two lots and improvements thereon, seized and sold by the plaintiffs, as the property of A. Dimitry, on the sheriff and the creditors of Dimitry, who had mortgages to show cause why they should not be erased and cancelled.

ON A RE-HEARING. In this case a re-bearing was applied for, and obtained. made the following points: 1. The instrument termed declaratoria de dote, on which the wife rests her pretensions and claims to a mortgage, was executed in 1803, under the Spanish laws, and must be tested by them.