text:
      SWIFT vs. WILLIAMS & AL.

    The continuance of an executor’s functions by the probate judge, after the expiration of the year, enables him to maintain an action.
    A survey made before any application to the Spanish government may be given in evidence where it forms part of the res gesta.

    Appeal from the court of the eighth district, the judge of the second presiding.
    This suit was brought in the usual form of a petitory action, in which the plaintiff set forth the title of his testator, and claimed to recover a certain tract of land described in his petition from the defendants, as possessed without right.
    The defendants in their, answer, denied specially that the plaintiff was executor of McElroy, and set up title in themselves to the premises: the answer concluded with a prayer, that if the plaintiff’s title should be decreed to be better than the defendants’, the latter might have j udgment against the plaintiff for three thousand dollars, being the value of the improvements put u pon the land.

      The plaintiff first introduced the will of McElroy, constituting him executor, and a renewal of his letters after the expiration of the year. Secondly, a certificate of the land commissioners, dated in 1820. And thirdly, the Spanish recommendation, dated in 1806, upon which the certificate issued.
    He then, to show the location of the land claim - ed under the certificate, propounded to Nathan Alien, the following question. “Were you present on any occasion when land was surveyed undep the Spanish government for James McElroy, if so, state whether the land so surveyed was situate within the parish of St. Helena, whether lines were marked at the time of ■ surrey, and whether the defendants are now in possession of the land included in those lines?” In answer to this question, the witness proceeded to state, that he was a chain carrier when lands were surveyed in St. Helena, for James McElroy, in 1804, and having said thus much, was on. motion of the defendants’ counsel stop-ed by the court, on the ground that the witness could not prove a location of an earlier date than the Spanish recommendation dated in 1806. To this opinion of the court the plaintiff excepted. There was judgment for the defendants in the court below, and the plaintiff appealed.

      Workman, for the appellant, 11

    urged thé foi- ° , lowing points.
    1. The evidence of Nathan Allen ought to have been heard on the points on which he was questioned, and the exception to the refusal of the court to allow the same ought to have been sustained.
    Independent of that evidence there is sufficient testimony on record to enable the plaintiff to recover, viz: The Spanish recommendation and the certificate of the land commissioners of the United States.

      Watts, contra.
    The plaintiff was no longer executor, the will was probatedpn 1821, and the suit commenced in 1827 — the year had expired — C. C, 244, art. 166 — C. C. 246, art. 173 — Johnson. vs. Brent, 3, n. s. 601 — La. Code, 1666, 7— 1652.
    2. The testimony of Allen was properly rejected as to the survey in 1804, the commencement of the title being in 1816.
   Porter, J.

delivered the opinion of the court. This is a petitory action, in which both parties set up title to the premises there was judgment in the court below for the defendants, and the plaintiff appealed.

The contiuu-anee of an executors functions after the expiration of the year by the probate judge, enables an action.

The answer denies specially the representative character of the plaintiff. It appears, he was duly appointed executor ofMcElroy, and although a year and a day had expired, from # , the opening of the succession until the commencement of the suit, the continuance of the executor’s functions by the judge of probates, enabled him to commence and maintain this action.

On the trial of the cause, the counsel for plaintiff introduced a witness to prove, that previous to the testator having made any application to the Spanish government, for the land now in dispute, he had caused a survey of it to be made. This testimony was objected to, on the ground “that no location of an earlier date, than that of the Spanish recommendation, could be given in evidence,” and the objection was sustained, and as we think, erroneously, by the court.

What would have been the effect of such evidence, when received, need not be stated, nor indeed could it be well known, until the merits of the case were examined. But if . the boundaries of the land, the identity of the premises, or the right derived from first pos- . . session, were at all questions in the cause, a survey made, even before an application to the Spanish government, was proper evidence, as making a part of the res gesta. ,

A survey made before any application to the Spanish government, may be given in evidence where it forms a part of res gesta.

It is therefore ordered, adjudged and decreed, that the judgment of the district court J <= be annulled, avoided and reversed; and it is ' ' further ordered, adjudged and decreed, that

this case be remanded to the district court, with directions to the judge, not to reject proof of the survey made by the plaintiff’s ancestor, previous to his application to the Spanish government; and it is further ordered, that the appellees pay the costs of this appeal


source: Caselaw Access Project

author: Porter, J.

license: Public Domain

text:
      GRAINER vs. DEVLIN.

    The proper time for settling a question of privilege is upon filing a tableau of distribution.
    Where, the existence of a debt is at issue, the plaintiff may proceed to establish his claim notwithstanding the insolvency ef his debtor.
    Where a cause is transferred, testimony taken in the court of the first instance is admissable in that, to which it is transferred.
    Appeal from the court of the parish and city ofNew Orleans.

      The plaintiff sued out a writ of attachment against the property of the defendant on the groun(j that he had clandestinely left the state, never again to return.
    Pending a rule to show cause why the attachment should not be set aside, the defendant returned to the state, and made a voluntary surrender of his property in the parish court, to which tribunal, the attachment was transfered from the district court, where it originated.— On the trial of the rule in the parish court, the defendant in the attachment, offered in evidence the deposition of witnesses, which had been taken in writing in the district court. To the reading of these depositions, the plaintiff objected,, on the ground, that the cause being transferred to the parish court, as a court of the first instance, the judge was bound to hear the testimony from the lips of the witnesses, unless prevented by unforeseen circumstances. The objection was overruled by the court, and the plaintiff excepted. The attachment was set aside by the parish' court,, and the plaintiff appealed.
    Eustis, for appellant.

      1. The continued absence of the defendant, is the best evidence of his intention to absent himself permanently.
    2. The application for the benefit of the insolvent laws of New-York,' shews an intention to remain there.

      Conrad & Pierce, contra.
    1. The defendant is not properly before the court. The plaintiff could not, after a surrender,. continue his suit, either against defendant individually, or against the syndics of the creditors. He should have waited for the filing of ■the tableau.
    2. The attachment was quashed, by the surrender ipso facto.

   Porter, J.

delivered the opinion of the court. This case commenced by attachment in the court of the first district, and the defendant, subsequent to its institution, having 'become insolvent, filed a petition against his creditors in the parish court. The cause •was transferred to that tribunal, and cumu-lated with the other proceedings in concurso.

While the suit was pending in the tribunal ‘before which it was instituted, the defendant -took a rule on the plaintiff, to shew cause why the attachment should not be set aside. Before this rule was disposed of, the case was transferred to the, parish court, and the parties proceeded to try it there. The judge was of opinion, the attachment must be set aside, and the plaintiff appealed.

The proper time for settling a question of privilege, is,upon filing a tableau of distribution.

Where the existence of a debt is at issue, the plaintiff may proceed to establish his claim, notwithstanding the insolvency of his debtor.

The existence of the original debt is not disputed, and if the enquiry had no other object, but to ascertain whether there extsfed a privilege, in consequence of the attachment levied, we should say, as we did in the case of Astor vs. The Syndics of Saul, that the proper time of settling such question, would be on the syndic’s filing a tableau of distribution. But in the present instance, more is put at issue. If the attachment was properly brought, the estate of the insolvent is responsible fbr the cost incurred in sueing out the writ. If it was not, the plaintiff must pay them. The existence of a debt is therefore at issue, and we have more than once decide^, for reasons which need not now be repeated, that in such a case the plaintiff may proceed, notwithstanding the insolvency, and establish his debt_ 4. Martin, n. s. 632.

When the cause was on trial in the parish court, the defendants offered in evidence, cer-lain depositions, which had been taken and r . placed on file in that of the district. The plaintift objected to their introduction, because the judge who was to try the cause, should hear the testimony from the witnesses, unless prevented by some unforeseen circumstances. We think, with the judge below, that the testimony was admissible; that the cause was transferred from the one tribunal to the other, as it stood in that where it originated; # and that whatever were legal proceedings, and legal proof, in the latter, did not cease to be so by the transfer.

where a cause is transferred, testimony taken in the court of the first instance is admissible in that to which the case is transfer-ted.

The attachment was obtained, on an allegation, supported by the oath of the petitioner’s agent, that the defendant had left the state, never again to return. He did return after-wards, but we think with the counsel for the plaintiff, that this circumstance does not necessarily shew the allegation to be false, on which the writ was sued out. We have, however, given to the evidence an attentive consideration, and we are perfectly satisfied, that when Devlin left the state to go to New-York, he had the intention of returning, and that the attachment was improvidently taken out.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.


author: Mathews, J.

text:
      PRADOS vs. HIS CREDITORS.

    On an appeal, the supreme court will examine the facts as well as the law of the case, and whenever their conviction is entirely opposed to the finding of the jury, the case will be remanded.
    An appeal lies from the verdict of a jury on an issue of fraud in cases of insolvency.
    Appeal from the court of the first district.
    This was a case in which Arcenaut, a creditor of the insolvent, opposed his discharge on an allegation of fraud in the surrender of his property. The cause was tried by a jury in the court below, who acquitted the defendant of the charge, and the district court upon the ¿finding of the jury, dismissed the opposition ■and .granted a discharge to the insolvent. From this judgment the opposing creditor appealed. points.

      Canon, for appellant,
    urged the following
    1. The right of appeal in civil cases, where the demand is above three hundred dollars, is given by the constitution and cannot<be abridged by the General Assembly.

      2. As to the meaning and definition of fraud, _ _ , . „ see art. 3324 C. C. and acts of 1817, sec. 18, 23 Sc 24, regulating the surrender of property 3. This court will set aside the verdict of a jury when manifestly erroneous or corrupt.

      Seghers, contra.
    1. By the provisions of the act relative to the voluntary surrender of property, and for the mode of proceeding, approved February 20th, 1817, the jury are the sole judges to decide on an accusation of fraud brought against the insolvent: sec. 18, 20, 21 and 27 of the said act.
    2. The jury are proper judges of the credibility of witnesses: 2 Martin n. s. 377.
    3. On a question of facts the verdict of the jury will not be disturbed unless it evidently appears contrary to evidence. Cole vs. Louisiana Insurance Company, 2 Martin, n. s. 165.
   Mathews, J.

delivered the opinion of the court. This is a case in which the opposing creditor charges the insolvent with fraud and simulation in the surrender of his property,, by the introduction of false and feigned creditors on his bilan, for the purpose of covering his estate, to the injury and prejudice of those who are bona fide. The cause was . ... . . , submitted to a jury m the court below, who by their verdict acquitted the defendant of the charges brought against him. Upon which a judgment was rendered, dismissing the opposition of the complainant and granting a discharge from his debts to the ceding debt- or, in conformity with the art. 2173 of the L. Code. From this judgment the opposing creditor appealed.

The fraud charged upon the insolvent has reference to two debts acknowledged by him, one as due to his father, Manuel Prados, and the other to his brother Francois. The evidence by which the genuineness and justness of the claim of the latter, as well as his right to certain slaves, said to have been bought from his debtor, is attempted to be supported, consists of two authentic acts, one purporting to be a mortgage on, and the other a sale of slaves, to the creditor. The first was made on the 16th of April, 1828, and is expressed to have been given for the purpose of securing the reimbursement of 6,000 dollars, which the mortgagee had previously deposited in the hands of the mortgagor. The act of sale was passed on the 23d of April, 1829, of the greater number of the slaves which had been . , . previously mortgaged, and the consideration or price stated to be 4800 dollars, a part of the sum which had been placed in deposit with the vendor, and which he was unable to reimburse. The cessio bonorum was binding on the 15th May, 1829. Several witnesses were called to prove the truth of this deposit; which they did in express terms, and if they ought to be believed, the verdict of the jury is correct. But from facts disclosed by the testimony adduced in support of the allegations of fraud, we think the story told by these witnesses by no means probable. And taking into consideration the relationship of some of them to the defendant, and obscure character of others, we are compelled to declare, however reluctantly, that we do not believe them. One is the brother of the insolvent, and Francois Prados, who is alleged to be a partaker in the fraud — another, the insolvent’s concubine; and a third a person without honest employment, as appears by his own acknowledgement in the cross interrogatories.

0n an aPPea!» the supreme court wiU exam" weiias6 theCtiaw whenever their tSeJyCopposed to jury^n^he^vi wiUbe remanded

This court has been in the habit of acqui- * escence in the verdicts of juries in relation to matters of fact generally, and particularly when allegations of fraud have been made and formed the gist of a controversy; but accor<jing to its constitution, we are bound í0 weigh testimony on an appeal — we are compelled in some measure to examine the facts as well as the law of a case; and whenever our conviction is entirely opposed to the conclusion of a jury on the evidence, our respect for their verdict must yield to the claim of right of the party injured by its finding. In such cases it is generally proper to submit the cause to a second jury, which we have been in the habit of doing.

An appeal lies from the finding of a jury, on an issue of fraud, in cases of insoiven-7

The power to do this in the present suit, is . power denied by the defendant. He claims „ . the benefit of acquittal to the same extent as if it had been in a criminal prosecution. It is true, that the loss of privileges and the penalties consequent on a conviction of fraud, committed by an insolvent debtor, as prescribed by the act of 1817, are very severe: but they are inflicted in consequence of injuries done to particular individuals, in which the State takes no part in the prosecution of the delinquent. The charge of fraud arises out of a civil proceeding — is one of its incidents, and subjected to revision by the court of appeals: and unless the act expressly makes the verdict of a jury conclusive, when favorable to a defendant, we know of no general principle of law contrary to the propriety of granting a new trial. The provisions of the act referred to are silent as to the effects of a verdict of acquittal — they only establish the disabilities and penalties which are to be a consequence of conviction. We therefore conclude that nothing has been shown in the present case which makes it improper to remand the cause to be tried de novo.

It is consequently ordered, &c. that the judgment of the district court be avoided, reversed and annulled: and it is further ordered, that the cause be sent back to said court to be again tried, See.


text:
      CASANOVA'S HEIRS vs. ACOSTA & AL.

    r Where property of a succession has passed into the hands of third persons, the courts of ordinary jurisdiction, not those of probate, must be resorted to for relief.
    Where the inventory is false and fraudulent, all proceedings growing out of it must be set aside.

      The declaration of a testator that property was common when in truth it was not, must be regarded as a disguised donation, and consequently null and , _ VOld,
    Appeal from the court of probates for the parish and city of New-Orleans.
    The plaintiffs alleged that the defendant Acosta, who is their mother and tutrix, made a fraudulent inventory of the property belonging to the succession of their father. That a house and lot at the corner of Dauphine and Ursuline-streets was inserted in it as community property. That she concealed other effects, and that the property inventoried was appraised below its value.
    By the advice of a family meeting, the community property was adjudicated to the mother at the price of estimation, and she after-wards sold toiAregno, who was made party to the suit, three slaves. Aregno pleaded to the jurisdiction of the court, and the judge sustained the plea. The plaintiffs prayed that all proceedings predicated on the false inventory, as well as the sale to Aregno be set aside, and declared null and void, ¡ and further, they prayed for interest on the money retained in the hands of the defendant, and for the rent of the house and lot which had remained in her possession since the death of their father.

      Casanova declared in his last will and testa-mentj that the house and lot was community property, but the evidence was conclusive that he owned it prior to his marriage, and it was further established that the defendant had concealed effects of the succession, amounting to the sum of $6131.
    The court refused to set aside the adjudication and the plaintiffs appealed.
    Seghers, for appellants.
    1. The plaintiffs’ father was possessed, prior to his marriage, of the lot of ground with the buildings thereon, which after the dissolutionjof the marriage by his death, devolved on the plaintiffs.
    2. Their father however declared in his last will, that all his property was acquired during the marriage; the plaintiffs contend that this was a disguised donation to his wife, and that as such it is null and void; Old Civil ¡Code, page 258, art. 228.
    3. Should it be held as an indirect donation only, which the plaintiffs by no means admit, but on the contrary maintain it to be a disguised one, then it would be reducible not to 1-5 but to 1*10 only. Old Civil Code, page 257, art. 222.

      4. The proceedings in the court of probates upon which the adjudication of the common property to the mother of the plaintiffs was obtained having proved erroneous, and founded on false and fraudulent statements, are altogether null and void, and they cannot therefore be sustained in any part thereof.

      De Armas, for Aregno.
    The court of probates had no jurisdiction in this case, inasmuch as it was a case involving the validity of titles and the assessment of damages. Deveze vs. Plicque, Martin’s reports.
   Porter, J.

delivered the opinion of the court. This action is brought to annul and set aside the proceedings had in the court of probates in relation to the succession of the plaintiffs’ father. They allege that their mother, who was their tutrix, made a false and fraudulent inventory of the property: that a house and lot was inserted in it as community property, when in truth it belonged to the husband: and that the other property was appraised below its real value.

Since the opening of the succession, three slaves, making a part thereof, have been sold by the tutrix to one Aregno. By the petition he is made a party to this suit, and the plaintiffs demand that the sale to him be annulled and declared void.

Where property of a succession was passed into the hands of third persons, the courts of ordinary jurisdiction, not those of probate, must be resorted to for relief.

He pleaded to the jurisdiction of the court, and the judge sustained the plea. In doing so, we are of opinion no error was commit- ’ r ted. If property belonging to the succession has passed into the hands of third persons, the courts of ordinary jurisdiction, not those of probate, must be resorted to for relief.

The defendant, as mother of the plaintiffs, caused an adjudication of the property in community to be made to her at the price of estimation. The plaintiffs contend that this proceeding, as well as others predicated on the fraudulent inventory must be set aside. The judge of probates was of opinion the evidence established not only that a house and lot which had been considered common property, belonged to the father of the petitioners, but that other effects had been concealed by the defendant to the amount of $6131. He refused however to set aside the adjudication, on the ground that the father having declared in his last will that the. real estate belonged to the community, this declaration amounted to a donation to the wife of one half, subject to reduction.

We think the judge erred: by the ninth law of the sixth title of the sixth Partida, the heir who made a fraudulent inventory, was obliged to pay double the amount he had concealed, to those entitled to any part of the succession. On this law the better, and more generally received opinion of the commentator was, that the inventory and proceedings growing out of it were not null and void, because the statute had affixed a penalty and did not declare that nullity should be a consequence of the fraudulent conduct of the heir. Whether it was on the provisions of this law (which were in force at the time the inventory, was made) the judge of probates came to the conclusion announced in his judgment, the record does not inform us. We do not however, think they sustain it. The law of the Partidas inflicts a severe penalty, and accord-to the ordinary rules of construction cannot be extended to other persons than those named in it, viz. heirs. The mother of the defendants in the instance before us, acted either as their tutrix, or as a partner m the community - , , • -, 'ci or acquets and gams, and in neither or diese capacities can the penalty, to which the heir is made subject, be enforced against her. Febrero p. 2, lib. 1, cap. 1, sec. 4, nos. 146 and 147.

When the inventory is false and fraudelent, all proceedings growing out of it must be set aside.

It is on this consideration probably, the petition does not ask for it. But if the mother is not liable to the penalties indicted on the heir who makes a false inventory; neither can she claim any of the consequences which might follow, were she subject to them. Her conduct must be examined in relation tooth-er rules than those growing out of the particular enactment. Tried by these rules, we have no doubt the whole proceedings were null and void. The inventory was fraudulent and false, and being the foundation on which all the proceedings were had, it follows the adjudication to the mother must be set aside. Febrero p. 2, lib. 3, cap. 1, sec. 14, No. 500, Curia Phillippica verbo sentencia, no. 12, p. 74.

The next question is, the correctness of the judge’s opinion, that the declaration in the testament, of the house and lot being common property, amounted to a donation to the wife, which was not void, but reducible to the portion he might have given to her directly. The 228 article of the Old Code, p. 258, provides that husband and wife cannot give to each other indirectly beyond what is permitted by foregoing dispositions, which permits them to give directly, — and then proceeds to say; that all donations disguised, or made to persons interposed, shall be null and void. By the first clause, a violent presumption is raised: the law intended they might give indirectly to a certain amount, and the second would appear to positively prohibit it. It is difficult to make a satisfactory distinction between indirectly giving, and a disguised donation. Indeed, were it not for a subtile distinction existing in the Roman law on the subject, and in reference to which we presume this legislation was made, we do not see any difference in the meaning of the two expressions. But the Roman jurists distinguished: according to them, if the advantage conferred grew out of, or was incident to, a real contract, which had not exclusively for its object the bestowing an advantage on one of the spouses, it was reducible; but if the agreement was entirely simulated, and had in view alone the conferring a benefit on husband or wife, it was null and void. In the instance before us, the declaration of the husband, that the property was common, when in truth it belonged to him before marriage, can be regarded in no other light than made in the sole view of conferring an advantage on his wife, as disguising a donation, and we therefore conclude it was null and void. Pothier contrat des donations vol. 2, cap. 2, art. 1, no. 78.-Digest lib. 24, tit. 1, law 5, sec. 5.

The declaration of a testator that property was common, when in truth it was not, must be regarded as a disguised donation, and consequently null and void.

The petition contains a prayer for interest on the money retained in the hands of the defendant, and for the rent of the house and lot, which has remained in her possession since the death of their father; but there is no evidence on record to show the value of the rent, nor any in relation to the expenses of the minors, nor whether they have been supported by their mother. The cause must be remanded for proof on these matters.

It is therefore ordered, adjudged and decreed, that the judgment of the probate court be annulled,avoided and reversed: and it is further ordered, adjudged and decreed, that the cause be remanded,to be proceeded in according to law, the appellees paying the costs of the appeal.


author: Martin J.

text:
      M’DONOUGH vs. WINCHESTER.

    ^ proposition dors not become an agreement until the party to whom it is made accepts it, and it must be accepted precisely as made, unless the proposer agrees to a variation.
    Appeal from the court of the second district, the judge of the fourth presiding.
    This suit was instituted on the 13th May, 1828, to recover from the defendant the amount of his promissory note. The plaintiff introduced in evidence the note and protest; also a letter of defendant dated 10th October, 1825, proposing to plaintiff to renew the note; one half payable in the month of December, 1827, and the other half in December, 1828, bearing an interest of 8 per cent, per annum. The defendant introduced no evidence, and judgment was rendered in favor ofplaintifffur the amount of the note, with legal interest from the date of protest to the 10th October, 1825, and with 8 per cent, from that time time till paid. The defendant appealed.

      M‘ Caleb, for appellant.
    The judgment below is erroneous in allowing interest at 8 per cent, per annum from the 10th October, 1825. Defendant’s offer was , - ,. . , i i, to renew the obligation, by dividing the old note into two. Upon that condition he promised to pay 8 per cent, interest. The proposition was not acceded to, because the old note has been sued upon.

      Workman, contra.
    The defendant by his letter of 10th October, 1825, agreed to pay interest at the rate of eight per cent, per annum, provided time should be given him by renewals, up to the month of December, 1828. By reference to the petition, it will appear that time was given him until the 13th May, 1828 — that is five months longer than the time proposed — consequently interest at the rate of 8 per cent, is due.
   Martin J.

delivered the opinion of the court. The defendant and appellant complains of the judgment by which interest at 8 per cent was allowed on the note sued on.

It appears from a letter of the defendant, that he proposed to renew the note sued on, by two others, each for one half of the capital, payable in December 1827 and 1828, bearing interest at the rate of eight per cent, a year. There is no evidence that this proposition was accepted or rejected — but it appears the present suit is brought on the note proposed to be renewed.

A proposition does not become an agreement tiil the party to whom it is made accept it, and it must be accepted precisely as made unless the proposer agrees to a variation.

We think, with the appellee’s counsel, that no conventional interest was agreed upon by the parties, as the proposed offered proposition was not acted on. The appel-lee’s counsel has, however, urged that the defendant had the benefit of his proposition, since time was allowed him without suit being brought, till the month of May, 1828— after he had neglected to comply with his own proposition, by paying one half of the debt in December, 1827. It is clear the ■offer wa,s not accepted, since the note was not renewed, and payment was demanded of the; .whole before December, 1828. A proposition does not become an agreement, till the party to whom it is made accepts it: and it must be accepted precisely as made, unless the proposer agrees to a variation^

It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided -and reversed, and that the plaintiff have judgment for ($6,444 92) six thousand four hundred and forty-four dollars, with legal interest, from the day of the protest till paid, with costs in the district court, the appellee paying costs in this court.


author: Martin, J.

text:
      LAUVE vs. BELL & AL.

    A defendant who is interrogated on facts and articles, has a right to qualify his answers, by stating other facts pertinent to the issue, and connected with the facts, which the plaintiff seeks to establish.
    In a suit between the original parties to a due bill, the consideration of it may be inquired into, and the maker may show that the apparent was the agent of the real payee.
    Appeal from the court of the first district.
    This was an action to recover from the de. fendants, the amount of a d ue bill in the following words and figures: “Due Mr. Lai thousand dollars, New-Orleans, Jii 1829,” signed “S. C. and R. Bell.”
    The plaintiff alleged that he presented the^ due bill for payment to S. C. Beil, one^dFTne defendants, who tore it to pieces, and ; fused payment. The defendants, in their answer, denied owing any money to the plaintiffs, but admitted there was such a due bill for money borrowed of Fisher, Burke and Watson. That plaintiff’s name was inserted therein, as the agent of Fisher, Burke and Watson, whose clerk he was, but that said firm of Fisher, Burke and Watson, were indebted to respondents in a larger sum, and tlureiore they reius-ed to return the money to said Fisher, Burke and Watson, who were the only persons ever before pretending to have any interest in the loan.
    To establish the allegations in the petition, the plaintiff propounded interrogatories to S.C. Bell, who in answer thereto under oath, admitted the execution and destruction of the due bill as stated by plaintiff, but that the money for which it was given, was borrowed of Fisher, Burke and Watson, who were indebted to S. C. and R. Bell for a returned bill, of which they were the drawers, for $2151.
    That the name of the plaintiff was inserted in the due bill as agent and clerk of Fisher, Burke and Watson. That the plaintiff had no money to .lend — that he never pretended to be a creditor,, or to have any interest in the due bill, but frequently demanded payment on behalf of Fisher, Burke and Watson.
    The plaintiff moved the court to strike out all the answer, except that part whiclffadmitted the execution and destruction of the due bill, and the refusal to pay to plaintiff. The court , , , . , overruled the motion and the plaintiff excepted.
    It was proved at the trial, that the plaintiff had been a clerk for two or three years, and that his services as such, were worth from 1,500 to 2,000 dollars a year — that he was a prudent young man, had done some business on his own account, and at one time had made a deposit of §4000 in bank.
    The defendants offered in evidence a bill of exchange drawn by Fisher, Burke and Watson in their favor, and proved that it had been protested, returned, and that they had paid the amount. The plaintiff objected to this testimony, on the ground that it had no relation to the suit, and as being illegal against the plaintiff, who was no party to the same. The objection was overruled and the plaintiff took his bill of exceptions.
    There was judgment for the defendants, and the plaintiff appealed:

      McCaleb, for plaintiff,
    urged the following points for a reversal of the judgment.
    1. The answers were not categorical, C. P„ 349, 353.
    2. Because rthe due bill, being in writing, when its contents were proved, no further parol evidence is admissible. Bell stood as any other . witness before court, C. P. 348, 351, 352, 355. 4 Mart. n. s. 303; 3 Starkie 995, 999, 7 77 1002.
    3. Admitting that Bell borrowed the money of Fisher, Burke arid Watson, yet by assuming to pay to Lauve, he novated the debt, and cannot plead in compensation the bill of exchange. By giving the due bill to Lauve, Bell recogni-sed Lauve’s power so to arrange in behalf of his principal. The debt became novated, Lauve was the new creditqr, and cannot submit to compensation. Poth. Obligations,part 4, chap. 3, sec. 4, art 2; C.C. 2181,2184, 2209, 2212; Code Napoleon, art. 448.
    4. Bell recognised Lauve as agent to loan, he was bound to recognise his right to receive payment, he must therefore pay,unless he could show the compensation pleaded. ■ Notice to Fisher, Burke and Watson as drawers is not proved.
    5. There is no proof that plaintiff loaned the money as agent except Bell’s own answer. Verbal proof that one acts as the agent of another, must be made conformably to that proof required in the title of conventional obligations, viz. in an amount over 500 dollars, other evidence than one witness. N. C. C. 2961, 2257.
   Martin, J.

delivered the opinion of the court. The plaintiff eharges that the defendants being indebted to him, gave him a due bill for ¡02000, which being presented to one of them for payment, he took it from the plaintiff’s hands under pretence of examining it, and immediately tore it to pieces.

The answer denies the defendants were ever indebted to the-plaintiff, but admits they gave the due bill mentioned in the petition, for money borrowed from Fisher, Burke and Watson, and the plaintiff’s name (he being the clerk of the latter,) was inserted in the due bill, and they being indebted to the defendants in a larger sum, they refused to return the due bill to the plaintiff^ when he presented it, and tore it to prevent its being made an improper use of by the plaintiff.

The facts stated in the answer were sworn to by the defendants, on interrogatories being filed to establish by their oaths,the allegations in the petition.

The plaintiff’s counsel now excepted to the answer to his interrogatories, and moved that all the parts of them, except that by which the defendants admitted the execution and tearing of the due bill, should be stricken out, as irrelevant, contradictory, and explanatory ofa written instrument.

A defendant who is interrogated on facts and articles has a right to qualify his answers by stating other facts pertinent to the issue and connected with the facts which the plaintiffsceks to establish.

In a suit between the original parties to a due bill, the consideration of it may be inquired into, and the maker may show that the apparent was the agent of the real payee.

. The court refused to allow the parts of the answers objected to, to be stricken out.

There was judgment for the defendants and the plaintiff appealed.

His counsel has drawn our attention to two bills of exceptions. *

The first is to the refusal of the judge to order the parts of the answer objected to, to be stricken out.

The second, to the admission of evidence of a protested bill of Fisher, Burke & Watson in favor of the defendants, and the admission of parol testimony to prove its having been taken up by the defendants.

It is certainly clear that the parts of the answers objected to were pertinent to the issue and closely connected with the facts the plaintiff sought to establish, and the defendants had the right to qualify the answers they were called on to make, by setting forth facts, which prevented the consequence of absolute and unqualified answers.

The claim being between the two original parties to the due bill, the consideration of it,was a proper object of inquiry into, and for this purpose the defendants might show that the person, in. favor of whom the the bill was indirectly given, were his debtors. All this tended to show that the plaintiff’s was a borrowed name only, and between him and the defendants there was really no consideration.

If the tearing of the note be so improper an act, as ought to deprive the party to avail himself of it, so as to enable himself to give evidence for himself, as to the consideration of the due bill; the legislature has not placed it in our power to say so.

On the merits, the facts set up in the answer, appear to us established. It is shown that Watson, the acting partner of Fisher, Burke & Watson, had died, and the defendants, who were creditors of the firm, had been momentarily accommodated with the loan of a check from their debtors, and the due bill given in the evidence of this incident transaction,had been made out in the name of the plaintiff, their clerk, on account of their approaching failure.

It is therefore ordered, adjudged, and decreed, that the judgment of the district , , , court be affirmed with costs.


author: Pouter, J.

text:
      WARING vs. COX.

    •A defendant who, to the knowledge of plaintiff, contracts as agent, is not personally responsible.
    Appeal from the court of the first district.
    This was an action to recover from the defendant damages for a breach of contract, and the material facts of the case are as follows:
    In 1827, the defendant, as agent of one Thomas, contracted with the plaintiff, who is own-ner of the schooner Catharine, to transport from Thomas’s Island to New-Orleans the crop of sugar and molasses.
    In pursuance of this agreement, the Catha-rine proceeded to the Island and received on board a cargo of about 80 hogsheads, which was delivered to the defendant. On her again proceeding to the island and demanding a cargo, she was answered it had been shipped to New-Orleans in other vessels, which fact was proved on the trial.
    The answer of the defendant admitted the execution of the contract, but denied that he was personally responsible, having acted only as the agent of Thomas, to the knowledge of plaintiff, and alleged that the plaintiff by his delays, made it necessary for Thomas to employ other vessels in bringning the remainder of the crop.
    It was proved that the plaintiff was at great expense in making himself acquainted with the navigation to Thomas’s Island — that he used every possible dispatch, lost an opportunity of selling his vessel by reason of his engagement with the defendant, and was idle during most of the business season. The crop of Thomas’s Island usually consisted of from 180 to 200 hogsheads. The cause was tried by a jury, who found a verdict for plaintiff for 160 dollars. The defendant appealed.
    Strawbridge, for appellant.
    There is full proof that plaintiff knew the defendant acted only as agent, but no proof that defendant ever assumed any personal responsibility.

      Eustis, contra.
    1. The breach of the contract being fully proved, the plaintiff is entitled to damages.
    2. "Cox bound himself personally.

      A defendant, who contracts as •agent, to the knowledge of the plaintiff, is not personally kre-•■ejponsible.
   Pouter, J.

delivered the opinion of the court. The plaintiff claims from the defendant damages for failing to comply with a contract, by which he promised to furnish freight for a vessel, of which the former was owner. The cause was submitted to a jury in the court below, who found a verdict against the defendant. The court confirmed it, and he appealed.

The breach of the contract is very fully established. The defendant however insists he contracted as agent, to the knowledge of the plaintiff, and is not personally responsible. On this point the evidence is not so clear as in relation to the violation of the agreement, but after an attentive consideration of it, we do not think the jury and judge of the first instance erred in their conclusion.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.


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      FORD vs. FORD & AL.

    An attempt to screen property acquired during the marriage from the payment of community debts,by a separate right alleged by one of the parties, requires strict proof of the right alleged.
    Appeal from the court of the third judicial district, the judge of the eighth presiding.
    The defendant, Selah Ford, obtained an order of seizure and sale, on a judgment against Freeman Ford, (the husband of the plaintiff,) in the State of Mississippi, by virtue of which certain slaves were seized as the property of Freeman Ford, by the sheriff of East Baton Rouge. Rhoda Ford obtained an injunction, alleging in her petition that the order of seizure and sale improperly issued, the record from Mississippi not being properly certified,and con-tainin gmoreover, many erasures and interlinea-tions. She also claimed the slaves as her separate property. The defendants excepted to that part of the petition which alleged the insufficiency of the record, on the ground that if any irregularities existed therein, and the order of seizure and sale improperly issued. Freeman Ford, who was present, was the only competent person to contest the proceedings. These exceptions were sustained. It appeared from the „ evidence, that the slaves m controversy were purchased by one Knighton from Freeman jronj on 23d March, 1829, and that Knight-on by an authentic act of 20th April, 1829,being the same day on which the order of seizure and sale issued, conveyed them to the plaintiff, Khoda Ford, the husband authorizing the purchase, and the act of sale specifying that the price was paid from her paraphernal estate.
    The court below dissolved the injunction, and the plaintiff appealed,

      Duncan and Thomas Gibbes Morgan, for appellant,
    urged the following points:
    1. The court below erred in sustaining the exceptions of the defendant.
    2. The court below erred in receiving the copy of the judgment from the State of Mississippi, and in overruling the objection to its introduction in evidence. C. P. p. 252, arts. 746 and 747.
    3. There was error in dissolving the injunction. If the defendant, Selah Ford, had a judgment on which executory process could issue, she should have insituted a suit to set aside the sale under which plaintiff claims the slaves seized, previous to issuing the order of seizure. 9th Martin, 648; 7th Martin, n. s. 137; idem 580.
   Mathews, J.

delivered the opinion of the court. In this case, Selah Ford, one of the the defendants, obtained an order of seizure and sale, on a judgment obtained against Freeman Ford, in the State of Mississippi, by virtue of which certain slaves were seized as the property of the latter, by the sheriff of East Baton Rouge. The plaintiff in the present suit, claims the property seized as belonging her, and obtained an injunction by which its sale was arrested. The injunction was afterwards dissolved and judgment of non-suit given against her, from which she appealed.

It appears by the record, that the order of seizure was obtained on the 20th April, 1829, and was executed by'seizing the slaves in question on the following day. The letter introduced in evidence on the part of the plaintiff, bears date on the same day on which the order of seizure was granted. It is an authentic act, and purports to be a sale and conveyance of the slaves by one James A. Knighton, who derived title by a sale from Freeman Ford, the husband of the plaintiff, dated on the 23d of March, 1829.

These acts afford very strong internal evidence of fraud, although in the instrument of sale from Knighton to the plaintiff, a covering is attempted, by an acknowledgement of the parties to that act, that the purchase was made with the paraphernal property or funds of Ford’s wife, he authorizing her to buy. In consequence of the acquisition having been made during the marriage, notwithstanding the purchase was made by the wife in her individual name, the judge before whotn the cause was tried in the court below, seems to have been of opinion that the property acquired constituted a part of the community of acquets and gains, and as such, was subject to seizure to satisfy the debts of her husband. The correctness of this opinion depends on a just interpretation of several articles of the L Code. According to the art. 2361, the wife has the right to administer personally her pa-raphernal property, without the assistance of her husband. By the art. 2315, parapher-nal is considered as the separate property of the wife. The act immediately preceding, declares that to be common property which is acquired by the husband and wife during marriage; except such as is acquired by either, by inheritance, or by donation, made to him or her, particularly according to the art. 2371,?the partnership or community between husband and wife, consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase,or in any other similar way; even although the pur-' chase be only in the name of one of the two, and not of both: because, in that case, the period of time, when the purchase is made, is alone attended to, and not the person who made the purchase.’

From the nature of the partnership, or community, of acquets and gains, as established by law between husband and wife, it is not necessary that any common stock should exist between the partners at the commencement of the partnership for all the property which they have at that period, may be separately owned and administered by each individual of the marriage, when no marriage contract has been made.

An attempt to acquireduring from the rIpayt nity debts by a alleged by o^fof qufresarties’strict aneged!th°risht

The property acquired during the marriage by purchase, whether it be bought in the name of either husband or wife, becomes common to both. The first question that can arise in relation to such acquisitions, is whether a distinction must be made, when the .property is shown to have been bought with the separate funds of one of the parties?

2d. Whether strict proof should not be required to support an individual and separate claim of this nature?

Whatever would be a proper solution of the first of these questions, need not be determined in the present case; as we are clearly of opinion, that an attempt to screen community Pr°Perty from the payment of community debts, by a separate right alleged by one of the partners, requires strict proof of the right alleged. The principles laid down in the last article of the Code cited, creates a legal presumption that property acquired during marriage by purchase, .whether the acquisition be made in the joint names of husbánd and wife, or in the name of either separately, must be considered as common property, which can be defeated only by certain and positive evidence that it was acquired by the separate funds of one of the parties: even admitting that such evidence could be allowed in pursuance of the provisions of the Code, no evidence of this kind has been offered in the cause under consideration.

We are opinion with the judge a quo, that the slaves seized are community property of Freeman Ford and his wife Rhoda,the plaintiff; and as such was subject to seizure on the judgment from the State of Mississippi, as it appears to have been obtained against the husband duirng his marriage with the appellant.

Objections were made in the court below to the judgment from the State of Mississippi on which the order of seizure and sale was obtained. They relate to erasures and inter-lineations, and the want of a certificate as required by the laws of the United States. The record of the proceedings in the case, on which that judgment was rendered, does not come up to this court in any shape whatever: and consequently we are unable to decide on the force and effect of these objections.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.


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      KIMBALL vs. DREHER.

    If the plaintiff does not make out his case, judgment of non-suit will be given.
    Appeae from the court of the third district, the judge of the second presiding.
    This suit was brought to recover from the defendant, a moiety of a tract of land, and the .action was founded upon the following contract entered into in 1812, between the plaintiff and Godfrey Dreher, ancestor of the defendant — “An article of agreement between M. 'W. Kimball, of the one part, and Godfrey Dre-;her of the other, witnesseth that the aforesaid Kimball agrees to give the 'aforesaid Dreher, ■one hundred and fifty acres of a tract of land, ■claimed by the said Kimball, on the east side of the Comité river, he, the said Dreher to have one hundred acres where he is settled, and fifty on the river, in case the aforesaid Kimball’s right is confirmed by the government of the United States. Moreover, in case the settlement of the aforementioned Dreher, entitles him £o a donation right, he, the aforesaid Kimball, is to be entitled to one half; he, said Kimball, binds himself to be at the expense and trouble of entering the said land in the register’s office.”
    The answer, set up the following grounds of of defence. 1. The instrument sued on, contained synalagmatic contracts, and should have been in duplicate. .2. It was executed in error; and thirdly, it contained antecedent obligations, on the part of plaintiff, which had not been performed.
    It appeared, from the testimony, that the land on which the defendant resided, at the institution of the suit, was the same tract upon which Godfrey Dreher settled, on the east side of the Comite river, and for which he obtained a certificate, as an actual settler, in 1819. It was in evidence, that Godfrey Dreher, in his life time, offered the land for sale, subject to Kimball’s claim; and Fluker deposed, that Dreher told him, his reason for entering into the contract, was to be sure of land: he was sure to have it, either under his own or Kimball’s claim.
    There was judgment of non-suit in the court below, from which the plaintiff appealed.

      Preston, for appellant,
    made the following points in the cause:

      1. The plaintiff has fully proved all the matters of fact alleged in his petition.

      2. They sufficiently identify the land, and show that by the contract he is entitled to a moiety of it,
   Mathews, J.

delivered the opinion of the court. This action is founded on a synalag-tnatic contract, made between the plaintiff and the ancestor of the defendant. The answer to the petition, contains a general denial, and an exception to the instrument, declared on as not having been made in duplicate, being executed under private signature. The court below gave no opinion on the alleged nullity of the written agreement, in consequence of its want of duplicity. It was considered as imposing obligations on the plaintiff, to be by him discharged before he could claim the fulfilment of those contracted on the part of the defendant; in other words, a condition precedent of acts to be done by the petitioner, of which he neither averred or proved the performance. Judgment of non-suit was rendered by the district court, from which the plaintift appealed.

The contract relates to a tract of land, said to be situated in the parish of East Feliciana, on the east side of the river Comite. It is ...... . . , , not very explicit, either m relation to the subject about which the parties contracted, or the obligations which each of them took separately on himself From the tenor of their agreement, it seems that they had distinct pretensions or claims to the same piece of land, and that they considered it as a matter of doubt, which would succeed before the commissioners of land claims. The defendant (or rather his ancestor) was an actual settler on the public domain, and claimed a donation under settlement right, from the United States, in pursuance of the act of congress of 1819. The plaintiff pretended to have some other species of claim, but of what nature, the evidence on record affords no information: he, however, bound himself to be at the expense and trouble of entering the claims to the land in the register’s office, fyc.

There is neither averment nor proof, that he ever performed this part of his obligation. Whether he ever had any semblance of right or claim to the land in question, sufficient to form a basis of good faith, for the contract which was entered into between the parties, is not shewn in any manner whatever. In the event of süccess in his claim, he promised to convey to the ancestor of the defendant, one hundred and fifty acres; and the latter agreed, that if he obtained a donation, the former should be entitled to one half of the land thus acquired. Now it is evident, from this agreement, that they took.the chance, reciprocally, of each other’s claims; and both should have been prosecuted before the commissioners, which the plaintiff undertook to do, and which is not proven to have been done by him; for it does not appear, that the certificate of donation, obtained on the part of Dre-her, was acquired by any aid given by the ’ V. « . . . , , x appellant. We are of opinion, with the court below, that the plaintiff has failed to make out . his case.

If the plaintiff doe* not make judgment of non-anit will be given.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.


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      BENOIT vs. HEBERT & AL.

    The court properly rejected evidence, to prove a fact which was not set forth in the petition.
    Motions to amend, after issue joined, are entirely within the discretion of the court.

      When the object is to set aside a former settlement of an estate, on the ground of simulation and fraud, the court of probates is not the proper tribunal.
    Appeal from, the court of probates of West Baton Rouge.
   The facts are given in the opinion of the court, delivered by

Martin, J.

The plaintiff, daughter of D. Benoit, by his first wife, sues the defendant’s children and heirs of his daughter by a second, for a settlement and partition of the estate of their common ancestor and collation, of the value of a slave and other property, conveyed by the common ancestor to the defendants’ mother. It is alleged, the ancestor left no property, so that the object of the suit, is the recovering from the defendants, of what their mother received from her father, to the injury of the plaintiff by simulated and fraudulent conveyances. The settlement of the property of the community, which had existed between the plaintiff’s parents, is complained of

The defendants declined the jurisdiction of the court of probates, on the following grounds:

The court properly rejected evidence to prove a fact which was not set forth in the petition.

1. The plaintiff is an heir at law for property in the possession of third persons.

2. She seeks to set aside conveyances and alienations, as fraudulent and simulated.

3. She attaches the settlement of the estate, which had been in community between her parents.

4. It is alleged, her ancestor left no property, and it is not shown that he resided or died within the jurisdiction of the court.

The plea to the jurisdiction was sustained, and the plaintiff appealed.

At the trial, the plaintiff took a bill of exceptions to the opinion of the court, who rejected evidence of the common ancestor’s residence in Baton Rouge, on the ground, that it was a fact not averred in the petition, and which the defendants could not therefore be prepared to disprove. We think the court did not err.

The plaintiff afterwards moved for leave to amend his petition, by inserting an averment of the common ancestor’s residence. This was refused, and a second bill of exceptions taken.

Amendments may take place, by leave of the court, after issue joined—Code of Practice, 419. They are not a matter of right. The court must exercise its discretion, before leave be granted. Often an amendment, made on the trial, would prevent the trial from going on. If it could be had of right, it would be a sure and constant source of delay. We do not think the court erred.

Motions to amend after issue joined, are entirely within the discretion of the court.

Where the object is to set asida a former settlement of an estate on the ground of simulation and fraud, the court of probates is not the proper tribu nal.

It does not appear, that there was any estate of the common ancestor to settle or partition ; the plaintiff avers he left none. The object of the suit was, therefore, to set aside a former settlement of alienation and conveyances, on the ground of simulation and fraud, to divest the title of the holder of such property, so as to preserve property that had belonged to the common ancestor, in order to find something to be divided.

The attempt to do so, was improperly made in the court of probates; and would have been so, even if the ancestor had been a resident of the parish.

It is therefore ordered, adjudged and decreed, that the judgment be affirmed with costs.


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      AMEZAGO vs. VALLEGO & AL.

    If A. direct his debtor to pass his balance to the creclit °f B? who is a debtor of the latter, and it is so done, A’s claim is extinguished .
    Appeal from the court of the first district.
    This suit was brought to recover from the defendants the sum of $985, and the facts, as they appear in the record, were in substance as follows: In January, 1828, the plaintiff, being in Tampico, consigned to the defendant, Calico, a bag containg 81,000, which, after deducting charges, produced the nett sum of 8985. On the 15th April, 1828, the plaintiff by letter directed the amount to be passed to the credit of Valego, and the latter, by letter dated Tampico, 12th May, 1828, requested Calico to keep the money at the disposal of him, Valego; but on the 18th May, he again wrote to Calico, direct- . ing him to pass it to the credit of plaintiff; and on the 21st June, Calico wrote to Valego, informing him, that in compliance with the orders of plaintiff, he had credited him, Valego, for the sum of 8985.
    The defendants filed seperate answers. Calico admitted the receipt of the money, but denied being indebted to the plaintiff, as he had, in compliance with plaintiff's instructions of 15th April, credited Valego, who was his debtor, with the amount, and that this disposition of the money was made by the express order and particular request of the said Valego. Valego denied being indebted to the plaintiff, and in amended answer, prayed judgment against Calico for $770, which he alleged he had advanced, while Calico and himself were partners in 1825. By an order of court, the accounts between the defendants were referred to auditors, but it did not appear that they made any report. It was admitted, that there was no debt owing to the plaintiff by Valego, or any transaction between them, other than the $1,000 sent to Calico.
    There was judgment against Valego, in favor of the plaintiff, for the amount claimed, and Valego appealed.
    Morphy, for appellant,
    urged the following points.
    1. An absolute order for the payment of money, is a bill of exchange, whatever be its form.
    Bayley on Bills, p. 3.
    2. When an order is drawn on certain funds placed at the credit of the drawer by the drawee, the former is entitled to strict notice from the holder, when payment is refused by the drawer, on the ground that he has unsettled accounts with the drawer.
    3. A reasonable and bona fide belief, on the part of the drawer, that he had a right to draw, entitles him to notice. French vs. Bank of Columbia, 4th Cranch, 141.
   Martin J.

delivered the opinion of the court. The plaintiff states, that having $985 in the hands of the defendant, Calico, he directed him to pass it to the credit of the other defendant, who afterwards, at the plaintift’s request, directed it to be returned to his, the plaintiff’s credit, when, on various pretences, Calico refused to do so, pretending he was no longer a debtor of Vallego, the account between them having been balanced, by the credit given to Vallego, at the plaintiff’s request. The money was therefore claimed solidarily from Vallego and Calico.

They filed separate answers. Vallego admitted, the sum was really credited to his account by Calico, at the plaintiff’s request, but averred he suffered it to remain in Calico’s hands, till the plaintiff desired to have it placed to his own credit, which Vallego instantly direeled. He denied being now, or having been before indebted to Calico, in any manner that might authorize him to decline passing the money to the plaintiff’s credit.

If A direct hi* debtor to pass his balance to the credit of B, who is a debtor of the latter, and it is so done, A’* claim is extin* guished.

Calico presumed that Vallego was indebted to him, and the sum placed to the latter’s credit, although by plaintiff’s order, had balanced the account between them, Calico and Vallego.

There was judgment in favor of the plaintiff, against Vallego, and he appealed.

The record shows, that the accounts between the two defendants were submitted by the court, to two referees and an umpire, but it does not appear that they ever acted thereon, or made any return, and we have looked in vain in the proceedings for any proof or evidence, establishing any right in Calico to withhold the money from the plaintiff, on account of a claim of his, Calico or Vallego;

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for the appellant, as in case of a non-suit, with costs in both courts.


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      BRADEN vs. LOUISIANA STATE INSURANCE COMPANY.

    Where the agent effects insurance on account of his principal, and the policy contains a clause, that in the event of loss,payment is tobe made to the agent, the promise must be understood to be made in his representative character, and not in his own right.

    A debt due by the agent, cannot be offered in compensation of that which is owing by the principal.
    Appeal from the court of the first district.
    C This suit was brought on a policy of insurance, to recover from the defendants one thousand six hundred and six dollars and thirty-four cents, being the adjusted loss on a quantity of cotton, damaged by the perils insured against.
    The policy was effected by Fisher, Burke & Watson, on account of the plaintiff, who was owner of the cotton. The only question in the case, arose on a clause in the policy to this effect. “In the event of loss, payment to be made to Fisher, Burke & Watson.” The de-fence set up was, that the payment was to be made to the agents, and that these agents were indebted to the defendants in a larger sum than that claimed in the petition.

      Eustis for appellant.

      Morse for appellee.
   Porter, J.

. delivered the opinion of the court. The petition alleges, “that on the 20th day of April, 1829, the defendants subscribed a policy of insurance for the sum of four thousand eight hundred dollars, on a quantity of cotton, the property of the plaintiff on a voyage from Elk river to the port of New-Orleans, which policy was subscribed on the application of Fisher, Burke &, Watson, the agents and factors of the petitioners.”

The contract states that, “Fisher, Burke So Watson, on account of P. H. Braden, doth make insurance, and cause to be insured, So c. &c.”

At the close of the instrument, the following clause is inserted: “In case of loss, the amount to be paid to Fisher, Burke Watson.”

The property shipped, having sustained loss by the perils insured against, to the amount of one thousand six hundred and six dollars and thirty-foul* cents, this action is brought to recover from the defendants that sum. They resist it on the ground, that the payment was to be made to the agents, and that these agents are indebted to the defendants in a larger amount than that claimed by the petitioner.

gent Effects8 ini count°of iris prin-n'cy1, con tain °a clause that, in the event of loss, made¡e to 'the at gent, the promise must be under-made in his chametof^tnd right!" h S °Wn

A debt due by the agent cannot be offered in compensation of that which is owing to the principal.

The court below refused to sanction this defence, and gave judgment for the plaintiff, deducting, the amount of the premium, and p0|jCy ingurance. The defendant appealed,

We think, with the court below, that the promise to pay Fisher, Burke & Watson, in case of loss, must be understood to have been , , ... . .. , made to them in their representative character, and not in their own right. It cannot be . . . . . ¡.,, presumed it was the intention ot the parties, the plaintiff should bear all the burthen of the contract, and not enjoy any of its benefits, Considered in this light, the authority of the agents to receive the money, might be revoked at any time before payment, and the pay-J ment has not yet been made. A debt due by J the agent, cannot be offered in compensation of that which Í3 owing to the principal.

This view of the subject renders it unnecessary to enquire, whether an agent can in any case, where he contracts as such, insert in the agreement stipulations in his own favor, in relation to the matter which forms the object of his agency. We have considerable doubts of it. It is somewhat difficult to Understand, how he can by a contract acquire a right for another, and in virtue of his having done so, stipulate that such a right shall inure . • i „ _ , . , to his own benefit. In doing so, he does not act as agent, for a man cannot at one and the same time, be agent and principal. The in-lervention, either of the person whose rights he acquired, or some other representing him, would seem necessary to the validity of such a contract. But it is unnecessary to pronounce a positive opinion on this point.

There was no novation of the debt due for the premium, and the court below decided correctly in deducting it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.


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      McDONOUGH vs. DUPLANTIER.

    The parish court is the only competent tribunal to issue orders of seizure and sale, for the payment of repairs done upon roads and levees.
    Their power in this respect,under the act of 1807, is not affected by the enactments of the Code of Practice, limiting their jurisdiction to cases not exceeding three hundred dollars.
    Appeal from the court of the third district, the judge of the second presiding.
    The defendant, as ovérseer of the roads, obtained from the district court an order of seizure and sale against the land of the plaintiff, al- .... . : legmg in his petition, that the plaintiff had failed and neglected to make the necessary repairs to j^g jevees> That the defendant and other planters, did the work by requisition, and that the same amounted to one thousand and twenty-one dollars.
    The plaintiff arrested the sale by an injunction, and on the trial of the cause, he filed an additional plea, alleging that the order of seizure and sale was improperly granted by the district court. That exclusive jurisdiction was by law given to the parish judge, to issue orders of seizure, in all cases for the sale of lands, for the payment of repairs done upon the roads and levees.
    On this ground, the injunction was made perpetual, and the defendant appealed.

      Watts, for appellant.
    The district court erred, in dismissing the original seizure for want of jurisdiction to issue its it was irregularly done upon motion, instead of by action of nullity or appeal; acts of 1828, p. 128, give the action as upon executory process. C. P. 734 — 5. 6. 63.
    The district court had jurisdiction to issue the original order of seizure and sale; the acts of 1828 says an action before a competent court; the competence of the court or judge is explained. C. P. art. 87. 88. 89. 90.
    The jurisdiction of parish courts is limited to three hundred dollars. What court, but a district court, could issue a quasi executory process, for one thousand and twenty-one dollars, the amount claimed ? But as regards a parish judge, the district court is competent for any sum, because the parish judge cannot issue against himself.
   Martin, J.

delivered the opinion of the court. The petitioner procured an injunction, to stay proceedings on a writ of seizure and sale, obtained by the defendant, as overseer of the roads, against a tract of land of the petitioner, for the payment of sundry repairs made to his levee, in consequence of his neglect to have them done, according to the regulations of the police jury. The injunction was made perpetual, on the ground that the writ of seizure and sale having issued out of the district court, while the law authorized the parish judge alone to issue it. The defendant appealed.

By the act of 1807, 1 Moreau’s Digest,650. the parish judge is authorized to compel payment, in a case like the present, by seizure - , . , and sale of the land.

By the Code of Practice, the jurisdiction of parish courts is stated to extend to all cases, in which the matter in dispute exceeds in value the sum of three hundred dollars.

By the act of 1828, p, 128, overseers of the roads, in a case like the present, may obtain a writ of seizure and sale, from a competent judge, and district judges are authorised to issue the writ, when required, against a parish judge.

By a late act in 1829, posterior to the issuing of the writ in this case, parish judges are authorized to issue similar writs against defaulting planters.

As the writ of seizure and sale, against the petitioner, was for a sum of upwards of a thousand dollars, the appellant’s counsel has urged, the parish judge was not the competent judge, spoken of in the act of 1828, as the Code of Practice, by limiting the jurisdiction of parish courts to the sum of three hundred dollars, repealed so far the act of 1828, and there the competent judge was that of the district.

The appellee’s counsel has urged, that the special provision of the act of 1807 was not repealed by the Code of Practice’s general provision; that the latter code has no negative expressions.

The parish court is the only competent tribunal to issue orders of seizure and sale for the payment of re. pairs done upon roads and levees Their power in this regard under the act of 1807, is not affected by the enactments of the Code of Practice limiting their jurisdiction to cases not exceeding three hundred dollar*.

We think the authority given by the act of 1807, to enter into contracts for works to be done on levees, and issue writs of seizure and sale, to compel payment from defaulting planters, is personal to the judge, and to be exercised out of court. Hence we conclude, it is not affected by the restriction of the jurisdiction of parish courts, by the Code of Practice.

If the authority, in .case of works of more than three hundred dollars in value, was taken by the code from the parish judge, it was not placed elsewhere, and must have ceased to exist any where But the legislature, in the act of 1828, contemplated the authority as still existing, for it authorizes overseers of roads to obtain the writs of seizure from the competent authority, and this competent authority must be the parish, not the district judge, to whom it never was given, and to whom it was then given in particular cases, viz. against defaulting parish judges ; which raises a very strong presumption, they had not in other cases.

The act of 1829, appears to us a mere de- . ‘ claratory act, intended to remove every possible doubt.

We conclude, that the writ of seizure and sale was, in the present case, improperly issued by the district judge, and the injunction was therefore properly granted, and made perpetual.

It is therefore ordered adjudged and decreed, that the judgment of the district court be affirmed with costs.


text:
      ROCKWELL & AL. vs. SMITH & AL.

    Where the answers of a garnishee to interrogatories, are sought to be disproved, the garnishee must have notice.
    Judgment cannot be rendered, before issue joined, or an opportunity for defence.
    Appeal from the court of the parish and city of New Orleans.
    The plaintiffs sued out a writ of attachment against the defendants, and cited Vanbuskirk as garnishee. The latter answered under oath to interrogatories put by plaintiffs, and denied having in his possession, or under his control, any effects, rights or credits, of the defendants, Smith Sc Thurlow. These answers were sworn . to, and filed on the 22d February, and on the 2d March the plaintiffs, without notice to the . . ' garnishee, introduced testimony to disprove the truth of his answers.
    Judgment was rendered against the defendants, to be paid by the garnishee, and the latter appealed.

      Carleton and Lockett, for the appellant,
    as-' signed, for error apparent on the face of the record:
    1. Interrogatories were propounded to garnishee, who answered them according to law, and to whose answers no exception was taken or made. The plaintiffs introduced witnesses to contradict such answers, and no notice thereof was given to the garnishee.
    2. The garnishee has been condemned, without being cited or heard, and the proceedings are illegal and void.

      Morse, for appellees.
    There is no error in the judgment of the inferior court, and damages should be given for a frivolous appeal.

      when the an-nishe9°t<>ainter" 1.ogatories “ proved/'th^gar-“^®®must have
   Porter, J.

delivered the opinion of the court. This case commenced by attachment, and judgment was given against the defendants. An appeal has been taken by the garnishee, from that part of the decree which condemned him to pay the amount of the judgment.

The ground on which he claims a reversal is, that by his answers to the interrogatories, he discharged himself from all responsibility; and that without notice to him, by the pleadings or otherwise, testimony was taken to contradict these answers.

We think.this a sufficient ground to reverse the judgment; indeed no greater ferror could be well alleged. In a case where the plaintiff has a demand, no matter how well founded, a judgment obtained against his debtor, without hearing him or giving him an opportunity to be heard, would be null and void To make a man responsible in a suit, in which he has no concern, without affording him the means of sustaining the truth of what he has sworn to, is if possible a stronger case of injustice, than condemning the defendant unheard, It is said, the Code of Practice does not contemplate, and has not provided for notice to the garnishee, that his answer to the interro- . gatones would be contradicted. It may not have any provision to that effect, but it must have contemplated it. It cannot be presumed a violation of one of the first principles of justice was intended by the legislature, and if they did so intend, the constitutionality of such a provision might well be doubted. When a garnishee denies having any property in his hands, and the plaintiff, notwithstanding this denial, insists he should have judgment against him, a contest arises, in which the garnishee is substantially defendant. In the case of Allyn vs. Wright, this court decided, that an ex parte examination of this kind, did not authorize judgment against the garnishee. It is true, that the act of 1811, under which that opinion was given, required reasonable notice to be given, that the plaintiff would introduce evidence touching the matters in the . , , , . garmshee’s answer: but, under the general principle, that there must be issue joined, before judgment can be rendered, and that an opportunity must be afforded for defence, before there can be condemnation; we think the proceedings in the case were irregular, and must be set aside.—9 Martin 272 —1 Mart, Dig. 522.

nofbfrendereá before issue join-ea,and an oPPor-fo™défence? 8

It is therefore ordered, adjudged and decreed, that the judgment of the district court, so far as it aifects the appellant, be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the cause be remanded, to be proceeded in according to law, the appellee paying the costs of this appeal.


text:
      LOWERY vs. YOUNG & AL.

    The owners of a steam-boat, are liable for the acts of their captain.
    If he neglect to carry goods, the measure of damages is, the difference between the value of them at the period when they ought to be landed, and their value when they are.
    Appeal from the court of the parish and city of New-Orleans.
    The defendants were owners of the steamboat Powhatan, and by their agent at Cincinnati, received from the plaintiff a quantity of flour, to be shipped to, New-Qrfeans by the Powhatan, then at Louisville.
    It appeared from the evidence, that the Powhatan left Louisville before the arrival of the flour, which was sent in other boats, and did not reach New-Orleans until the price of the article had considerably fallen. There was judgment for the plaintiff for 357 dollars 20 cents, being the difference between the price of the flour at its delivery inNew-Orléans, and what it would have sold forbad it been sent by the Powhatan -according tothe bill -of lading. The defendants appealed.
    TJf owner of a steamboat is i^bie for the acts measure of damence between the value of them at the period when they ought to he landed, and their value when they are.

      Preston, for appellee: Hawes, for appellant.
   Martin, J.

delivered the opinion of the court. The plaintiff claims damages of the owner of a steam boat, for the neglect of their agents, who received the plaintiff’s flour in Cincinnati to be conveyed to New-Orleans, in the boat which was then at Louisville,and departed^before thfe flat on which the flour was put, reached the latter port. It is clear the defendants are liable for the act of their captain, who did not wait for the ar-1 rival of the plaintiff’s flour at Louisville,and the judge has correctly taken as the measure of damages, the difference in the value of flou at the time of the boat’s arrival, and at 7 *» the price proved of the flour’s arrival.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.


text:
      PRUDENCE vs. BERMODI & AL.

    Those who are not parties to a sale may prove its simulation by parol.
    Emancipation, is a donation of the value of a slave.
    When the donation is attacked as excessive, and evidence is given that the donor had insufficient property to justify it, it behooves the donee to show that he had.
    Appeal from the court of the parish and city ofNew Orleans.
    The plaintiff claimed her freedom by virtue of an act of sale from Malocher to her late owner, widow Batifol, wherein it was stipulated, that the plaintiff should be emancipated at the death of the vendee. The defendant is the legitimate daughter of Madam Batifol, by a former marriage in the Island of St. Domingo, and resisted the claim of the plaintiff on the ground, that the act of sale from Malocher to her mother, was fraudulent and simulated.— That it was made in consequence of a previous simulated sale of the slave Prudence, in 1814, by Batifol, the husband of her mother to said Malocher, and to which sale, her mother, who was owner of the slave previous to her marriage with Batifol, was no party. The answer further set forth, that Madame Batifol had two a children by her first marriage; the defendant, and a son who is absent. That sheleft no property but the slave Prudence, and was indebted to the defendants for necessaries furnished previous to her death.
    To prove the simulation of the acts, the defendants offered Malocher as a witness; he was objected to by the plaintiff, but the objection was overruled, and the witness sworn. He stated that both acts were fraudulent, simulated, and entered into without any consideration.
    Other witnesses testified that Prudence remained in possession of Madame Batifol until her death, which happened about a year previous to the institution of the present action, and that they knew her in possession of Madame Batifol, as owner,previous to her marriage with Batifol. There was judgment for the defendants in the court below, and the plaintiff appealed.

      Pichot, for appellant,
    urged the following points for a reversal of the judgment.
    1. Because the defendants, who are heirs to the parties to the deeds, could not be permitted to prove simulation. C. C. art. 2233.

      2. Because, admitting; for argument’s sake, . that the deeds are simulated, the defendants hav e failed to prove that they sustained any injury by the simulation. Martin’s Rep. 5, n. s. vol. 2, p. 15.
    3. Because, supposing the last sale was simulated, the witness introduced, could only prove it simulated, as to himself, and not as to the other party. Mart. n. s. vol. 2 p. 15.
    4 But supposing the sale to be a simulated one, it amounted only to a donation, and the heirs| have failed to prove that the donation, in case the sale was a feigned one, exceeded the amount of which the owner could dispose. C. C. art. 1480.
    5. Because the defendants have not proved that they were creditors of the estate, and failing to do so, are only to be considered as heirs, and in that capacity cannot prove the simulation of deeds to which their ancestor was a party. C. C. art. 2233.
    6. Because, if the sale was simulated and a donation, no injury resulted to them, and it stands valid as to heirs, the person who received, not being incapable. C. C. art, 1478, n. s. vol. 5, 693.
    CttlbtrUo#, Contra.

      1. Prudence, the appellant, was the property * 1 J of widow Batifol and her heirs, long before her marriage to N. Batifol deceased.
    2. That sometime after the marriage of the above, i.e. in 1814, N. Batifol, without any authorization of his wife, passed a notarial act of sale of Prudence to one Malocher, which act of sale was simulated, false and fraudulent? no consideration was paid by Malocher, and therefore can have no effect in law. Old C. C. p. 264, arts. 31, 33. Ib. p. 346, art. 11. Griffin’s Executors vs. Lopes, Mart. rep. vol. 5, p. 145. Crozets heirs vs. Gaudet, Mart. vol. 6, p. 524. Pothier on Obligations, Eng. Ed. vol. 1, p. 24, 25.
    3. That even a bonafide sale of extra dotal property, without the authorization ofits owners, and not turning to their profit and use is null, and cannot disturb the title or right of property in them, a fortiori, a simulated onejcannot. Old C. C. p. 334, art. 56,58, 59, 62.
    4. That from the fact, that Malocher never had for a moment, either the use, enjoyment or possession of the slave Prudence, but on the contrary, that said Prudence continued to remain in the use and possession of the ancestor of the defendant up to the time of her death, is a very strong presumption that the act of sale in ^g^ 0£prucjence was simulated and false.
    5, That Batifol was no ancestor of the defendant.'
    6. That, even a bona fide sale of a thing, belonging to another, without his legal authorization, is null. Old C. C. p. 348, art. 20.
    7. That an engagement without a cause, or which is the same thing, where the cause for which it is contracted is false, the engagement is null, and so is the contract which includes it. Poth. En. Ed. p. 24, vol. 1.
    8. That the cause upon which the contract of sale was founded from Batifol to Malocher was repugnant to justice, good faith and morality, and must therefore be annulled and declared void. Poth. E. E. p. 25, vol. 1.
    9. Malocher was a good and competent witness to prove that the acts of sale were simulated and false. Griffin’s executors vs. Lopes, 5 Mart. 145. Crozet’s heirs vs. Gaudet, 6 Mart. 524; Poth. E. E. vol 1, p. 506; Starkie 3 vol. part 4, p. 1737.
    10. The act of sale of Prudence in 1814 by Batifol to Malocher being false and simulated, the latter acquired neither title nor any interest or claim to said Prudence, and could not therefore make any disposition of her

      11. The defendant is one of the forced heirs and creditor to the amount of her legitime upon the estate of her deceased ancestor. Cro-zet’s heirs vs. Gaudet, 6 Mart. 524; N. C. C. art. 1480.
    12. That in the act of 1828 from Malocher to widow Batifol, there is no allusion to, nor any confirmation on her part of the act of 1814, between Batifol and Malocher.
    12. The judge# quo did not consider it necessary to prove the debts against the deceased widow Batifol after the simulation of the acts of 1814 and 1828, were proved and established by Malocher’s evidence.
   Martin, J.

delivered the opinion of the court.

The plaintiff a slave, claims her freedom from the heirs of her former owner. There was judgment for the latter and she appealed.

The record shows she was once the property of the defendant’s mother in Hispa-tiolia, whom she followed to New-Orleans. That her then owner married Batifol, who afterwards sold the plaintiff to Malocher, and afterwards, Batifol being dead, Malo-cher sold her to her former owner, she stipulating she should be free on the vendee’s death.

Those who are not parties to a sale, may prove its simulation ¡by parol.

The defendants contend that Batifol’s sale to Malocher was simulated,and had it been a real one, could not have transferred their mother’s right to the vendee without her concurrence. That Malocher’s sale to their mother was also simulated, and in fraud of their rights as the legitimate children and forced heirs of their mother, who had no property but said slave, and some wearing apparel of very little value.

Batifol’s sale is ofthe*29th of July, 1814, Malocher’s of the 18th of December, 1828. The slave always remained with the defendant’s mother from the time of their arrival in New Orleans till the death of the latter.

Malocher was sworn as a witness for the defendants, and proved both conveyances to be simulated. A bill of exception was taken to his admission. We think the judge did not err. Neither the defendant nor the mother were parties to the first alienation, which was made without her authority, and it cannot be imputed to her, as it is shown that she did not take a counter title. As to the second alienation, from which a ratification of the former is attempted to be implied, if such was the intention of the defendant’s mother, it was an act in fraud of their rights, the simulation of which they may be admitted to prove by witnesses, because as they were not parties to it, it cannot he imputed to them they did not take a counter letter.

te ® donation of slaveTand when attlckeXasTex-den™’is” given insufficient £yXifb¡Ljove¡ ^®w thathehad

Further, they have pleaded that their mother had no property, but the slave and some wearing apparel of but little value. Ifthere were other articles of property, it behooved the plaintiff to show it, that it might appear that the value of the slave does not exceed the part of her estate of which the mother might dispose. The emancipation of a slave is a donation of her value to her.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.


author: Martin, J,

text:
      GREENLEEZE vs. PENNY & AL.

    When the action is on a contract of the wife dum sola, the husband can only be brought into'court to-aid the wife in her defence.
    Appeal from the court of the third district, the judge of the eighth presiding.

      This suit was brought to recover from the defendants the amount of certain promissory notes executed by the wife previous to her marriage. The answer admitted the execution of the notes, and among other grounds of defence the husband set up a plea in compensation for a debt due .to himself. There was judgment for the plaintiff and the defendants appealed.

      Watts, for the appellants,
    assigned for error apparent on the face of the record:
    That the judgment was rendered against defendants jointly, when it ought to have been rendered against the wife only, out of her separate estate.

      Me Caleb, Contra.
    Penny the husband made no such point in the inferior court, as contended for by the counsel here. He joined his wife in thé defence and actually set up a plea in compensation of a debt due to himself, which was in part allowed.
   Martin, J,

delivered the opinion of the court. The defendants and appellants assign as an error apparent on the face of the record: 1

When the action is on ¿ con. tract >of the wife <ium sola, the husband can only be -brought into court to aid the her de' ,

That judgment is rendered against them J ° . jointly, when it ought to have been against the wife, and to be paid out of her separate «state.

. . ,. The action is on a contrract of the wue aum , sola, and the husband could only be brought ..... „ here to aid the wife in her defence.

But the appellees counsel has urged that “the husband made no such points in the inferior courts, as contended for by his counsel here. He joined his wife generally in the defence, and actually sets up a plea in compensation of a debt due to himself which was in part, actually allowed.”

We are of opinion that this defence cannot be sustained, the wife alone was a party to the contract sued on; the husband nevermade himself so.

It is therefere ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed as far as it concerns the husband, and affirmed as faff as it concerns the wife.


text:
      PHILLIPS vs. STANLEY.

    It is the sum claimed, and not that for which judgment is rendered, which confers jurisdiction on the court.
    Acts under private signature have no date against third persons, except that on which they are produced in court, unless supported by evidence aliunde, showing the real time of their execution, hut this circumstance in which they differ from authentic acts does not prevent their being given in evidence for what they are worth.
    Where a private act relates to land, and there is proof of possession by actual delivery accompanying the transfer it may be received in evidence.
    Appeal from the court of the third district, the judge of the fourth presiding.
    The plaintiff represented himself as the owner of a tract of land upon which the defendant had illegally entered, cut down and destroyed the timber. The petition concluded with a prayer that the defendant be condemned to pay one thousand dollars damages for the trespass and injury complained of.
    The defendant, in his answer, set up title to the land on which the trespass is alleged to have been committed; and to support this plea on the trial of the cause, he offered in evidence an act under private signature, and offered testimony at the same lime to prove the signatures to the act, and to shew that possession by actual ’ 1 * delivery accompanied the transfer.
    To the introduction of this document, the plaintiff objected on the ground, that acts under private signature, purporting to transfer land, could not be received in evidence against the rights of third persons: of this opinion was the court below, and the defendant took his bill of exceptions.
    The cause was tried by a jury, who found a verdict for the plaintiff, and assessed the damages at one dollar. The defendant appealed.
    Turner, for the appellant, relied:
    1. Upon the several bills of exceptions taken by him to the matters ruled against him in the court below.
    2. The court was without jurisdiction; the amount in dispute, as it appeared on the trial, being below the jurisdiction of the district court. C. P. arts. 126, 1061, 1063, 1064.
   Porter, J.

delivered the opinion of the court. This is an action in which the plaintiff claims damages for a trespass which she alleges the defendant committed on land belonging to her. He avers, in his answer, that he is the owner of the premises on which the injury complained of was committed. We . , . , « are thus required to examine the strength or their respective titles.

It is the sum claimed, and not that for which judgment is rendered, that confers jurisdiction on the court.

Acts under private signature have no date a-foi^except that p“0™ucCehdtheya-® court,unless supported by evi-showing the real time of their ex-eeution; but this which they differ from authentic acts, does not Fng^fen inevl-they are worth, vaS^et relates to land,and there is proof of possession by actual delivery accompanying the transfer, it may be received in evidence.

The cause was submitted to a jury in the court of the first instance, who found a verdict for the plaintiff The defendant appealed.

A question has been raised as to the jurisdiction of the court, and the 126, 1061, 1063 and 1064 articles of the Code of Practice, have been relied on to support it.

The petition alleges that damages to the amount of 1000 dollars had been sustained plaintiff. The verdict of the jury fixes at one dollar. We think it is the sum claimed, and not that for which judgment is rendered, ' which confers jurisdiction on this -court. The amount or value in dispute, is that which one party claims, and the other disputes his right to recover. Code of Practice, 570.

On the trial, the defendant offered a document sousseins privé in evidence, which the court rejected, on the objection of the plaintiff that papers under private signature were not evidence against third persons. We think the court erred. Instruments under private . ... signature, it is true, have mo d,ate against third persons, except that "on which they are produced in court; unless supported by evidence aliunde, showing the real time of their execution; but this circumstance in which they differ from authentic acts, does not'prevent their being given in evidence for what they are worth. Sec. 2, n. s. 171: 4 ib. 368

The circumstance of the paper offered be- . . , . ii i mgin relation to Jana, makes no difference; for the bill of exceptions states, that the defen-...i,.. r r. i • . n dant in addition to proof of the signatures of the parties to the instrument, offered evidence that possession by actual delivery accompanied the transfer.

it is therefore ordered, adjudged and de- # creed, that the judgment of the district court ° ' be annulled and reversed: and it is further ordered and decreed, that the case be remanded to the court below, with directions to the judge not to reject the document marked P.» because it was executed under private signature: and it is further ordered,that the appellee pay the costs of this appeal.