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    Joseph C. Yates v. Ncholas Phipps.
    An order of seizure and sale by executory process, cannot issue upon a mortgage unless there be authentic evidence of the acceptance of the -mortgage by the mortgagee. C. C. 1794, 1796, 1803.
    APPEAL by defendant from the District Court of Assumption. Randall, J.

      G. C. Raby, for appellee.

      J. C. Beatty, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by the defendant Rom an order of seizure and sale which was granted by the district judge on certain authentic acts.

By the first, of date the 29th of January, 1848, a mortgage was given by the defendant to secure the payment of"$2500, payable in March, 1849. On the 9th of February, 1848, a.n act was passed before a notary, which was signed by the defendant alone, by which he acknowledged himself to be indebted to the original creditor and mortgagee in the sum of $2500, due in March, 1849, with eight per cent interest from the date of the act. This debt was afterwards, to wit, in March following, transferred by an authentic act to the plaintiff. By the act of February 9th, additional security was given by a mortgage on some slaves of the defendant; but the mortgage was not to take effect until the creditor should consent that a mortgage on a tract of land, created by the original act, should be released. The order of seizure, in conformity with the prayer of the petition, subjects the properly included in both acts to seizure and sale.

The second act not having been accepted by the creditor as a party to it, its acceptance rests in pays, and we have no authentic evidence of the fact. Under the decision of this court in the case of French v. The Mechanics and Traders Bank, 4th Ann. 12, 152, no order of seizure could be granted on it. Vide also C. C. 1794, 1796, 1803.

The order of seizure and sale could be sustained under the first act, which is complete within itself; but the petitioner asks the interest acknowledged to be due in the second act from its date, 9th February, 1848, which we have seen does not authorise executory proceedings. The order of the court is entire, and we cannot divide it, under the plaintiff’s own petition.

Judgment reversed and plaintiff’s petition dismissed, with costs in both courts.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Williams and Savage v. Narcisse LeBlanc.
    Under the act of 7th February, 1829, concerning roads and levees, the plaintiff, who furnished hands upon the requisition of the inspector, is entitled to compensation for closing a breach in defendant's levee.
    APPEAL from the District Court of Lafourche Interior, Randall, J.
    J. C. and A. Beatty, for plaintiff.

      J. L. Cole, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs claim to be paid for work and labor done in closing a breach in the levee of the defendant, under the provision of the act of 1829, concerning roads and levees. The defence is, that no compensation is allowed by that act to planters who furnish hands for the purpose of stopping a crevasse; and further, that the plaintiffs did not send their hands when first called upon to do so by the inspector ; and that by reason of this delay, the expense of closing the crevasse was increased two thousand dollars, which the defendant claims in reconvention.

The case was tried before a jury, who found in favor of the plaintiffs the sum of three hundred and seventy-two dollars; and in favor of the defendant on his demand in damages, for the sum of four hundred dollars. Judgment was entered accoi'dingly, and both parties appealed.

The act of 1829 makes it the duty of the inspector to employ all means at his disposal to stop crevasses, and clearly authorises the plaintiffs’ claim, whether the labor was furnished to the inspector voluntarily, or under a legal requisition.

The claim of the defendant in reconvention has nothing to rest upon; the inspector testifies that he never served a legal notice on the plaintiffs. Without such a notice, they were not bound to send their hands; if they had been notified, we know not upon what principle they could be singled out among all the planters in the same neighboi'hood, who also refused to send their hands, and held liable in the manner claimed.

It is ordered, that the judgment in favor of the defendant in reconvention be reversed, and the claim in reconvention dismissed. It is further ordered, that the judgment in favor of the plaintiffs be affirmed, with costs.


author: Slidell, J.

text:
    James Dailey, et al. v. N. G. Pierson and Wife.
    The wife is liable for work done on her paraphernal property, which was beneficial to it.
    APPEAL from the District Court of Assumption. Randall, J.

      C. A. Johnson, for plaintiffs.

      Rahy, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This is an action to recover the value of work done for the defendants, under a contract to dig a ditch upon lands which were the separate property of Mrs. Pierson. After the contract had been partially performed, the defendants forbade the plaintiffs to proceed with the work ; and if the testimony of one of the witnesses be time, the conduct of Pierson on the occasion was violent and alarming.

The case was submitted to a jury, who found a verdict for the plaintiffs. The district judge refused to grant a new tidal; and the defendants have appealed.

The appellants object to the verdict, principally with reference to its amount. They contend, that the evidence is not sufficiently full and specific as to the quantity of the work performed. If we were sitting originally in this matter, without any knowledge of the parties, the locality, the nature of the work, &c., except what is directly derivable from the depositions of the witnesses, we would have easily concluded, that an important amount of work had been performed; but would have had difficulty in estimating its precise extent. But the case has been tried by a jury of the vicinage. It involved no questions of law by which they could have been embarassed, but turned upon mere questions of fact in a matter within their every day experience, and probably, in this particular case, falling under the personal .observation of some of them. Ought we to reverse the assessment of this work which they have made, unless we are prepared to gay, that their verdict is clearly unsupported by the evidence, and must have been the result of caprice and conjecture ? We think not.

The wife was properly held liable, the lands being her paraphernal property, and the work benificial to it. See Dickerman v. Reagan, 2d Ann. 440.

Judgment affirmed, with costs.


author: Eustis, C. J.

text:
    Littleberg Wright v. P. B. Roussel.
    Where the act of mortgage decribes the land as containing six hundred and forty acres, the mortgagee will not he allowed to proceed to sell the property under an order of seizure and advertisement, describing the land as containing six hundred and forty superficial arpents.
    APPEAL by defendant from the District Court of Terrebonne. Randall, J.

      J. C. Beatty, for appellee.

      Ilsley, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

The petitioner complains, that under a writ of seizure and sale, issued on a judgment against him, the sheriff has advertised for sale, as his property, “ a certain tract of land, situated in the parish of Terrebonne, and containing six hundred and forty superficial arpents, and bounded, on the 12th of August, 1836, above by lands belonging to Widow H. S. Thibodeaux, and now R. R. Barrow, and below by lands then belonging to Thomas R. Shields, now R. R. Barrow.” He alleges that he has never been legally notified of the seizure; and that the description of his land given in the advertisements is defective, and will prove injurious to his interests, by misleading purchasers as to the quantity or superficial contents of the tract.

The proceedings .under this description were enjoined; but upon the trial the injunction granted was dissolved, with damages against the plaintiff and his surety on the injunction bond. From this judgment the plaintiff has appealed.

The difficulty in this case is the result of a mistake. The act of mortgage describes the tract with its boundaries as containing 640 acres. The writ of seizure and sale, the notice to the debtor, and the advertisement describe the tract as 640 ai-pents. The difference of quantity of land in the tract under the two descriptions would be upwards of 117 acres; and under the description' in the advertisements the tract of land to be sold is so much short of its true contents. Such proceedings are entirely inadmissible and lead to inextricable difficulties. Not only the interest of the parties, but that of the public who are invited to become purchasers, requires that they should not be countenanced. It is said that this court has determined this matter by affirming a judgment against Wright on a previous injunction, which he took out on the original order of seizure. In that case the description given was 640 acres, not arpents.

The judgment of the district court is therefore reversed, and the case remanded for further proceedings; the appellee paying costs of this appeal.


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    J. B. Arnandez v. Thomas B. Lawes.
    Whether a party be justified by the 32d article of the Black Code in the use of fire-arms to prevent the escape of a slave arrested by him at an unseasonable hour, is a question with the decision of which juries may safely be trusted.
    Where the damages allowed by the jury for the unjustifiable killing of a slave, are less than the sum which should have been allowed, the court will increase the amount.
    APPEAL from the District Court of Iberville. Burk, J.

      H. F. Deblieux, for plaintiff, contended:
    The plaintiff sued to recover from the defendants, as damages' resulting from the gross fault and act of the defendant Lawes, in killing his, plaintiff’s, slave, the amount of the value of the slave, and other loss suffered by him in consequence of the deprivation of his services or of his value.
    It was admitted by plaintiff, although doubtful of existence, that defendant was a freeholder; on which quality, it is expected, from the course pursued at the two trials below, much will be the stress laid here. The plaintiff’s counsel considered that quality, in a ease having the features of the present, of so little importance, that it was not cared for whether or not he was a freeholder. Even if not one, it was considered that, as he alleges it, he has much more interest in the good police of slaves, than perhaps one thousand others, who are undoubtedly freeholders by purchase of 80 or 40 acres of public land, not being even citizens of the State. The plaintiff’s counsel was well acquainted with the decision of this court, in Z. Blanchard v. J. F. Dixon, rendered 29th January, 1849, which was quoted and read to the juiy, as exculpating Lawes in this case, in his quality of freeholder. The plaintiif’s counsel also read and relied on that opinion of this court, and will do so here, to show that what was then pretended, is not the doctrine of the Supreme Court.
    The court says, after quoting the 32d section of the act of 1806, B. & C. Dig. pp. 53 and 54: “We deem it unnecessary to inquire whether a freeholder, under the circumstances of this case, would have been justified in resorting to the violent means used by defendant to arrest a slave, in the day time, on the high way, on a day of rest, suspected of no crime, who is guilty of no assault, and who merely endeavors, by flight, to escape from an examination, more particularly, in the absence of proof that the arrest could not have been otherwise safely effected. See Oliver v. Young, 9 M. R. 221.”
    The provisions of the section under consideration are departures from the general law, and must be strictly construed.
    After thus very clearly intimating, that in the case then under consideration, Dixon, even being a freeholder, would not be justified, the court then proceed to state, what they find in the record, that he is not a freeholder, and that as he could, not in any way interfere in the police of slaves, he was clearly in no case to use dangerous means to effect their capture; and Dixon is condemned to the full amount of loss incurred by the plaintiff in consequence of the maiming of his slave.

      It is to be noticed that in that case a j ury had found for the defendant; and this court being of opinion that they had so done clearly against the testimony and law did not deem it just to remand the case, but passed upon it finally.
    Had Dixon, proved himself a freeholder, no doubt the court, after discussing more fully the sections 30 and 32, would have rendered against him the same judgment on the evidence before them.
    In the present case the facts present a more aggravated case of useless, barbarous, unjustifiable violence. The two slaves had their permits. On the first summons they landed their boat; came onshore; delivered their permits, and submitted to defendant. No need was there of violence or fetters; they were submissive and confiding in their innocence and obedience to their master’s commands : two strong white men stood by them, one of them provided with a loaded gun. But defendant must have them tied, and ordered it to be done; with what view, under the circumstances, could the poor negroes think ? For purpose of chastisement they musthave thought. So thought the boy William, and fearful, as the witness describes him, (i. e. craintif,) as he was, his first impulse was to run. He had never deserved a whipping for the nine years he had belonged to his good master, the plaintiff; he will be whipped now. He went a few yards— even the distance he did run we must believe exaggerated by the witness who had so large a share in the causes of his death — a voice calls for him to stop; it is that of Iris fellow slave, who is being tied by the witness ; he no doubt recognises this voice; his just fright abated; the thought suddenly occurs to him that by running he aggravates the probable consequences of their arrest; that this attempt to avoid defendant will be fruitless, and he stops; but at that moment is shot down dead. He is shot at the moment when he is turning round to come back and submit to be tied. He receives his death wounds, three penetrating wounds, in his left side and left arm; other shots graze his back, inflicting flesh wounds.
    But the defendant thought that his gun was loaded with bird-shot, and though it was loaded with buck-shot he did not know it, and is excusable because, indeed, this bird-shot does not generally kill a man at thirty yards.
    Both the medical witnesses say that this bird-shot will kill at that distance, although rarely, perhaps in two cases out of eight. (Dr. Stone’s testimony.) They could have said-also, that buck-shot in many cases does not kill. However, buck-shot was used and did kill, and the defendant was bound to know what was in his gun, or submit to the civil consequences of his ignorance of the fact which could only discharge him from crime of a high grade. Had he killed the negro with small shot, only intending to stop him, he would be as well liable as he is now. How can it be known that he would not have caused death with such shot on this occasion ?
    It must be clear to all legal minds, and even to any right mind, on this series-of facts, that the defendant has been shown guilty of what is called a gross fault; and were it necessary in such cases as the present to establish the degree of his fault, whether in commission or omission, no doubt could remain.
    But under the great principle embodied in the articles 2294 and 2295 of the Civil Code, that whoever has occasioned damage to another is bound to repair it; no such discrimination is admitted; the conclusion which may be arrived at, that the fault of the party is less in its degree, does not lessen his civil liability. Equity, and such also is the law, requires that not he who is not at all to blame, but he who has by his fault, whatever it is, caused a loss or damage, should suffer that loss or damage. The amount of reparation must be full, complete to the party injured, no deduction can be made in regard to the greater or less imprudence, or fault, which’ gives right to the action. Such are the principles unanimously laid down by the great commentators on our civil law, copied, word for word, on this subject, from the French code. Vide Code Napoleon, art. 1382. 7 Duranton, Nos. 708 and 1199, includes all faults and omissions. 11 Toullier, Nos. 119, 121, 135, Dornat, p. 2, art. 8, sec. 4.
    That the defendant himself was aware that he was guilty of a fault which entitled the plaintiff to reparation from him, is evident from his declaration to some of the witnesses, to the effect that he wished him to be told that he wanted to see him, and would satisfy him for the loss of his negro; and this was soon after the occurrence, when he severely felt the enormity of his fault; the dead body of the slave being still before him.
    This cause, after a fuflinvestigation before a jury, in which the plaintiff had to contend against the prejudices of many planters, about the necessity of extreme measures in the police of slaves, and the right of any one to shoot down a slave who does not instantly submit, terminated in the court below in their finding a verdict for $1000’ for the value of the slave, and for damages in the shape of interest from the day of the slave’s death.
    The first branch of the verdict clearly assesses the value of the slave below the minimum value established by all the witnesses who knew him. This is $1250, the price plaintiff paid for him, which he was better worth then, says one witness, than when purchased. Three of the witnesses, after enumerating his good qualities, declared that to his master he was worth $1500; i. e., they themselves would have valued his possession, if their’s, at more than that amount. The jury, in finding only $1000, were influenced, to some extent, by the prejudices above alluded to, in not allowing the full amount of value.
    The second branch of the verdict, allowing interest as the damages due plaintiff beyond the value of the slave, is clearly illegal, insomuch as it allows interest on a.n amount yet unliquidated, and also unjust, as it would allow only $80 a year to plaintiff, when it is positively proved that he lost not less than $1 per diem.
    The plaintiff, in stating his damages over and beyond the value of the slave, which he sincerely estimated at $1500, wished to claim from defendant no more than would prove to be his damages at the termination of this suit. Instead, therefore, stating those damages at some enormous and vague amount, he directed his counsel to claim them in proportion to the time which would elapse until justice was done towards hjm by defendant. He estimated these at $1 per day, and it was so put down. It may be said that we are claiming the value of the services of a dead slave; but this sum is claimed as damages only, and damages incurred in consequence both of the killing, and of the failure to remunerate the plaintiff,' and to put it in his potver to replace, if possible, the slave by as good a subject.
    Had the defendant not appealed, however, this cause might not have been taken up to this court. The plaintiff, had the judgment been acquiesced in, although it does him not full justice, would have ceased litigating further. He only appealed when and after the defendant had done so, and determined, if litigation must continue, he would assert his rights to their full extent.
    He therefore claims before this court: First. That the'judgment of the court below be increased, so as to assess the value of the slave at the sum of $1500. Secondly. That the full damages claimed by him, over and above that sum, be allowed by the judgment of this court, and, as damages, not in the shape of interest. And that the judgment of the court below be reversed, and that judgment be awarded him by the court in accordance to his claims. All which is respectfully submitted.”

      W. E. Edwards, for defendant:
    This is an action for damages brought by plaintiff against the defendant for shooting his slave. The jury rendered a verdict in favor of the plaintiff for the sum of $1000 damages, with interest thereon at the rate of eight per cent per annum, from the date of the death of the slave until paid.
    The evidence adduced, shows that the defendant, Thomas R■ Lawes, who it is admitted is a freeholder, at the date alleged in the petition, after nine o’clock at night, in front of his plantation, discovered two of the plaintiff’s slaves in a skiff upon the river, rowing up; hailed them; made them come ashore; demanded their passes; received a paper from them; and when in the act of getting a light to read its contents, the slave William broke away and fled, when the defendant, calling upon him several times to stop without being obeyed, fired upon him, then at a distance of thirty to thirty-two yards. That the night was very dark, and that the defendant, Lawes, at the time he fired at the slave, believed that both barrels of his gun, were loaded with little bird-shot, and was ignorant of the fact that JDaigle, the overseer, the day before, had extracted the small shot from one barrel, and charged it with buck-shot, for the purpose of shooting a crane. And that, if both barrels of his gun had been loaded with fine shot, as defendant believed they were at the time he fired, the said slave would have received little or no injury therefrom.
    From these facts, then, the defendant contends that the verdict of the jury and judgment of the court a quo is erroneous, and should be reversed upon the following grounds: 1st. The defendant, being a freeholder, and finding plaintiff’s slave William at a late and unlawful hour of the night in front of his plantation, absent from the dwelling of his master, to a distance of four miles, without a white person accompanying him, was authorised by law to arrest and examine him. Acts 1806, section 30 and 32, page 176. Bullard & Curry. 2d. It was the duty of the slave William, under the law, after defendant had stopped him upon the river, to passively submit until defendant had completed his examination; instead of this, as soon as he lands from the skiff, he attempts to malte his escape by running, to prevent which, the law fully authorised the defendant to make use of arms, as he did. Acts of 1806, section 32, page 176. Bullard & Curry. 3d. The question then will arise, in the use of arms upon the slave, has the defendant brought himself strictly within the statute above cited. We answer, he has. He is a freeholder, as admitted by piaintiff. He is in front of his own property; the negro William is passing there at a suspicious and unlawful hour of the night, a distance of four miles from his usual place of working or residence, without being accompanied by any white person. Seeing this, the law permitted the defendant to stop and examine him. He did so; the slave stops; declares he has a pass; hands it to defendant; it being too dark to read, the defendant turns from the slave in search of a light; that moment the slave flies and attempts to make his escape, before the defendant could possibly know whether the paper in his hand was a pass or not; and, if a pass, whether the same was genuine and legal, and whether the slave was acting in obedience to its contents or not. And the'very fact of the slave making the attempt to escape after giving up the pass, and before it could be read, instantly created a well grounded belief in the mind of the defendant, that the paper was a forgery or ruse, the examination of which would afford him an opportunity to escape. In one word, the slave refused to submit himself to defendant’s examination, and was in a state of resistance when he attempted to escape ; and the defendant was authorised to make use of arms to carry out the examination.
    Did defendant, in the use of arms to enforce the examination of the said slave, use due caution to avoid killing him. The evidence shows that he called upon the slave several times to stop ; that he permitted him to run to the distance of thirty-two yards before he fired, and, at the time, believed that both barrels of his gun were charged with No. 8, or bird-shot, which, at that distance, under ordinary circumstances, would not have killed. That he was ignorant of the fact that either of the charges of small shot, which he himself had put into his gun, had been extracted by the overseer, and one barrel loaded with buck shot. We, therefore, contend that all due caution was used by defendant to avoid the killing of the slave, and that his death was purely accidental; for which defendant is not responsible. If the slave had been shot with the other bore of the gun, in which there was fine bird-shot, and from which death could only have occurred by the shot striking the eye, or cutting one of the great arteries of the body, or from some other extraordinary cause, no one would have pretended that the defendant would have been liable in damages, as the law, when the slave was attempting to escape, allowed the use of arms, which could not have been used in a form less dangerous than shooting the finest kind of shot at a distance of thirty-two yards, and the death would have been accidental, growing out of the performance of a legal and justifiable act.
    It is therefore contended, that the defendant has brought himself within the 32d section of the act of 1806, and thatthedenth of the slave was an accident, originating from an act authorised and directed by that statute-. This act of the Legislature of 1806, has conferred upon freeholders extraordinary power over slaves. Each one is made a police officer, and every slave found absent from his dwelling, prima facie, a criminal. To keep slaves under proper subjection and discipline, such a law was necessaiy for the country, where there was no standing or salaried police. It has operated well, and kept the country free from riot and rebellion. But the moment the use of arms is taken out of the hands of the freeholder, in the arrest and examination of wandering slaves, the peace and safety of the public is at an end. And if eveiy freeholder, when he uses arms to compel the arrest and examination of a straggling slave, is to be mulcted in damages for whatever injury he may do the slave, whether that injury be accidental or otherwise, no one will attempt to enforce it; and the slave, the moment he leaves his master’s premises, is without government or control. The slave is controlled only by fear; that fear arises solely from arms which the law puts into the hands of the white man, and takes from him. The principle settled in this case will be an important one for the country ; for by the verdict of the juiy the act of 1806 is abrogated, and the freeholder left witliout protection, in his attempt to enforce the police regulation of slaves.

      4th. The court permitted the juiy to retire to their homes during the trial, contrary to law.
   The opinion of the court was pronounced by

Rost, J.

The main question presented to the juiy who tried this case, was, whether the defendant Lawes was authorised by the ' 32d article of the Black Code, to make use of arms in the manner he did, tc(|prevent the escape of a slave of the plaintiff arrested by him at an unseasonable' hour. It is a question with the decision of which juries may be safely trusted, so far as the public interest is concerned. The verdict was in favor of the plaintiff; and there is nothing in the record which would authorise us to disturb the judgment entered thereon, on the application of the defendant and appellant.

The plaintiff also has appealed, and asks that the judgment be amended so as to allow a larger sum for the slave, and damages at jjle rate of thirty dollars a month since he lost the services of said slave, instead of the interest allowed by the juiy on the amount of the verdict.

We are of opinion that the plaintiff is entitled to have the judgment amended so as to be for the sum of $1200 including damages.

It is therefore ordered that the judgment is this case be amended, so as to be in favor of the plaintiff and against the defendant for $1200; and that as amended it be affirmed, with costs.


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    Fellows Johnson & Co. v. S. B. Dickens.
    Where an attachment was issued upon an affidavit, and the bond given was sufficient in amount for that sum, but was not sufficient to cover interest for several years, which was claimed in a supplemental petition, the attachment was good for the amount claimed in the affidavit, but not for a greater amount.
    APPEAL from the District Court of Terrebonne, Randall, J.

      W. Hall, for plaintiff.

      Beatty, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The affidavit for attachment alleged the debt to be $2848, and a bond was given for $4500; the petition claimed a like amount. In an amended petition, the plaintiff claimed $2848, with five per cent interest fiom January 13th, 1845. The suit was brought in April, 1848. The defendant obtained in the court below a dismissal of the attachment, upon the ground that the sum due exceeded the amount stated in the affidavit, and that the bond was insufficient in amount. There was a subsequent remittitur for the interest; but this, it is urged, could not cure the alleged insufficiency of the bond.

Upon the authority of the case of Pope v. Hunter, 13 L. R., 308, we are of opinion that the attachment was improperly set aside. The bond was sufficient with reference to the amount claimed in the affidavit. The judgment could not be given with privilege for a greater amount than was named in the affidavit, nor would the plaintiff be justified in holding under a levy, a greater amount of property than was necessary to cover the amount sworn to and costs. But the discrepancy between the amended supplemental petition, was not a sufficient reason for dissolving the attachment.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for further proceedings according to law, the defendant paying the costs of the rule, and of this appeal.


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    Alcide Fuselier v. Aglac Fuselier wife of Robin.
    The proceedings to effect a partition are not evidence against a married woman who wag absent, and not a party to those proceedings.
    Where real property and slaves are adjudicated to a purchaser at a public sale, and the titles made in the name of that purchaser, parol evidence is not admissible to show simulation in the title, or an agency to make .the purchase for the- benefit of other co-heirs of the purchaser.
    APPEAL from the District Court of Point Coupée, Farrar, J.

      T.J. Cooley, for appellant.

      L. A. Lacoste, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff sues the defendant for certain expenditures made by the late Edward Fuselier, of whose succession the plaintiff is administrator, upon .certain lots in New .Orleans, of which it is alleged the defendant was a co-pr.oprietor, and also one-seventh of the price of a slave, and a brand of cattle, which together with the lots, it is charged in the petition, were bought by the deceased, Edward Fuselier, in his own name, but, in point of fact, belonged .to .the defendant and six co-heirs, and were so purchased and held for their benefit. With these causes of action is joined a demand for one-twentieth part of a judgment recovered by the deceased against widow Vincent Ternan, whose heir for one-twentieth part of the succession the defendant is.

The district court gave judgment in favor of the plaintiff for the share of the price of the slave, and of the judgment, and the defendant has appealed.

The district judge considered that the plaintiff had not proved that the defendant was a co-proprietor of the lots in New Orleans. The evidence relied upon by the counsel to establish the fact, was certain proceedings in partition, had before the court of probates of Point .Conpé.e, in 1842. But the defendant was a man-ied woman and absent, and was no party to these proceedings, which cannot be considered as evidence against her.

The interest of the defendant in the slave was held to be proved by the witness, who acted as crier at the sale at auction, at which the slave was purchased. This evidence was objected to by the counsel for the defendant. The bill of exceptions taken to the admission of testimony of this witness, embraces also the parol testimony upon which the interest of the defendant in the lots is attempted to be established. The testimony went to prove an understanding among the heirs, that the deceased, Edward Fuselier, should buy and hold certain immoveable property, for their benefit. The titles were in the name of the co-heir, Edward Fuselier, to whom the adjudication was made, and parol evidence was not admissible, to show a simulation in the title, or an agency to make the purchase. Dabadie v. Poydras, 3 Ann. 154. Seaton v. Sharkey, 3 Ann. 333. Stevens v. Wellington, 1 Ann. 73. But, independent of this testimony, there is a fact which we consider conclusive against the right of the plaintiff, to claim from the defendant any portion of the price of the slave, and that is, that she was sold with the effects of the succession of Edward Fuselier, in 1841. This of itself defeats any claim against the defendant, depending on her having a right of property in the slave.

With regard to the judgment against the defendant’s grandmother, Mrs. Ternan, of whom she is one of the heirs, as she is also an heir of Edward Fuselier, whose succession is the plaintiff in this suit, and as that succession is solvent, there is nothing before us on which we can adjudge the defendant to pay. to the administrator what she may have the right to exact as heir.

The judgment of the district court is therefore reversed, and judgment rendered for the defendants absolutely for the expenditures on the lots, and the share of the price of the slave; and for the portioifafof the judgment against Ternan, as in case of non-suit, the plaintiff paying cults in both courts.


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    Benite Marini v. Victor Mourain.
    A sale under execution of all the surplus funds in the hands of a certain person after the payment of a prior attachment, has no validity for want of a sufficient description, and a monition to'confirm such a sale will he dismissed.
    APPEAL from !the District Court of Point Coupée. Farrar, J. In this case A. Eecoux applied for a monition to confirm the title acquired by him at a constable’s sale.

      T. J. Cooley, for appellant. A. Provosty, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a judgment of the Court of the Ninth District, sitting in the parish of Point Coupée, by which a sale of certain credits, made by a constable, under a judgment rendered by a justice of the peace, was homologated and confirmed. The appeal is taken by the debtor. The description of the objects sold is thus given in the officers return: all the surplus funds, credits, notes and claims , in the hands of P. J. Mourain, after the claims of the Congregation of the Roman Catholic Church of St. Francis, v. Victor Mourain, No. 40, and belonging to Victor Mourain, and which were attached on the 26th of October 1846, at the suit of the Congregation of the Roman Catholic Church v. Victor Mourain, No. 40.

Without determining the question as to the power of justices of the peace to confirm sales made under their authority, by virtue of the monition acts, or the other questions which this case obviously presents, it is sufficient to state that, under the repeated decisions of this court, a sale by judicial authority under such a description as this, has no validity.

It is therefore decreed that the judgment appealed from be reversed, and the proceedings of Hypolite Eecoux, for a monition, be dismissed, with costs in both courts.


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    Joseph A. Raguet v. Narcisse Carmouche.
    A submission to arbitration and the award' thereon must be proved by evidence in writing. C. C. 3067.
    APPEAL from the District Court of Point Coupée. Farrar, J.

      T. J. Cooley, for plaintiff.

      A. Provosty, for defendant.
   The judgment of the coart was pronounced by

Rost, J.

This is a suit upon a building contract. There was judgment for •'be plaintiff and the defendant appealed.

The appellant has called our attention to several bills of exception; one of which it is first necessary to notice. The plaintiff offered witnesses to px-ove that after he had left the work, the defendant proposed to him to submit the matter between theixx to two persons, one to be chosen by each party, and that they would abide by the decision of those persons as to the compensation to be allowed to the plaintiff for his work ; to which the defendant’s counsel excepted, on the ground that this fact must be shown by written evidence.

The judge overx-uled the exception on the gx-ound that the evidence was admissible to show a change in the original contract between the parties, as to the amount of remuneration the plaintiff was to x-eceive for his work.

We are of opinion that the judge eired. The witnesses were offered to prove a submission to arbitration, and the award thereon, which the code expressly declares, imxst be in writing. C. C. 3067.

The ground upon which the judge admitted the evidence was not acted upon in the trial; he told the jury, in his charge, that they were to disregard the award of the arbitrators, only in case they should be of opinion that the examination of the work had not been properly made by the experts, and that the defendant was not present, and had no opportunity to make any objection thereto.

The testixnony should not have been admitted ; and the cause must, on that accouxxt, be remanded.

The judgment is therefore reversed, and the cause remanded for further proceedings according to law; the plaintiff and appellee paying the costs of this appeal.


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    Jean Besse v. Joseph Aycock et al.
    In a possessory action, it is incumbent on the plaintiff to prove his possession of the premises at the time of the disturbance, and within one year from the day on which his petition was filed.
    APPEAL by plaintiff from the District Court of Terrebonne, Randall, J.

      W. Hall, for appellant.

      Beatty, for appellee.
   The judgment of the court was pronounced by

Rost, J.

This is a possessoiy action; the judgment of the district court was in favor of the defendants, and the plaintiff appealed.

It was incumbent upon the plaintiff to px-ove his possession of the premises, at the time of the disturbance, and within one year from the 20th of September, 1848, the day on which the petition was filed; so far from having done this, the vei-y first witness introduced by him px-oves that the plaintiff was in possession of the lot up to the 3d of July, 1847, the date of the coi-oxxer’s sale, under which the defendant’s claim, and that the defendant’s have been in possession ever since.

Another witness says, that the plaintiff filled up a ditch on the road, in front of the px-operty, after the coroner’s sale; this does not px'ove the possession alleged, especially after it is shown that the defendant’s themselves have kept the x’oad in repair.

The judgment is affirmed, with costs.


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    Syndics of A. Dunbar v. E. E. Woods et al.
    "Where a note was given, secured by mortgage, which recited that the note was to be signed by A. B. and C., but which was never signed by 0., and the transaction appearing to be still incomplete and still pending before the notary, there being no evidence as to the manner in which the plaintiff came into possession of the note, an action on the note against B. cannot be maintained.
    APPEAL by plaintiffs from the District Court of West Baton Rouge, Burk, J.

      George S. Lacey, for appellants:
    “It was not the duty of the plaintiffs to procure the additional security; and if Frame A. Woods was contented to affix his signature to the notes, in the absence of Erasmus P. Woods, he must abide by the consequences. The syndics could have demanded the names of both; but it was not imperative upon them to do so. If, however, the defence is well urged, the court should, at least, have rendered a judgment against Frame for the third amount of the note ; this would be placing him in the same situation he would have been in, had Erasmus signed ; he ought not to be in a better situation.”

      J. M. Elam, for appellee:

      E. P. Woods, not signing the notes sued on, and the syndics taking judgment by confession from E. E Woods, the principal debtor, and granting a stay of execution, Frame A. Woods, as the security, became discharged from any liability.”
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action on three promissory notes, signed by Ezer E. Woods, and the appellant, Frame A. Woods. Judgment was asked against the defendants, and that certain slaves mortgaged, to secure the payment of the notes, be sold to pay the debt.

Ezer E. Woods confessed judgment, and afterwards the suit having been ti-ied against Frame A. Woods, judgment was rendered in his favor, and the plaintiffs have appealed.

It appears, that by the act of mortgage, of which the plaintiffs seek to avail themselves in this action, the notes which the mortgage was given to receive, are described as having been signed by Ezer E. Woods, F. A. Woods) and E. P. Woods. The latter did not sign the notes, though his name appears in its proper place, written in pencil. There is no evidence as to the manner in which the plaintiffs came into possession of the notes, and the transaction appears to be incomplete and still pending before the notary, before whom the act was passed. On the authority of the case of Villere v. Brogner, 3 Martin, 326 and 507, the action on the notes against the appellant, cannot be sustained.

The judgment of the district court is therefore affirmed, with costs.


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    The Syndics of Dunbar v. Frame A. Woods et al.
    A mere understanding without any substantive agreement between one of two syndics, with a surety of a purchaser at the sale,.that the notes to be taken by the syndics in payment were to be signed by a third person also as surety, does not sustain the defence that the surety is discharged because the third person did not sign. The delivery of the notes to the payees, payable to order and in complete form, without any reservation, is conclusive against the defence.

      APPEAL from the District Court of West Baton Rouge. Burk, J.

      G. L. Lacey, for plaintiffs.

      Elam, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action on two promissory notes drawn by A. Dunbar and the defendants, in favor of the syndics of Dunbar, which were given in payment of property purchased at the syndics’ sale of property of the insolvent, by said A. Dunbar. The defence is, that, these notes were to have been signed by E. P. Woods; and not having been so signed, the obligation of the appellees was inchoate, and affords no ground of action. The district judge considered the defence as made out, and gave judgment for the defendants. The plaintiffs have appealed.

The defence rests exclusively upon the testimony of one of the syndics, with whom, it is alleged, an understanding to the effect alleged existed. This evidence is too meagre to sustain the defence; it discloses an understanding between the defendants, but no substantive agreement between the syndics or either of them and the defendants, that E. P. Woods should sign the notes. We think the fact of the delivery of the notes to the payees, (thus being made to order, and complete in form,) without any condition or definite reservation, conclusive on this point.

It is therefore decreed that the judgment of the district court be reversed; and that the plaintiff recover from the defendants in solido, the sum of $1053 60, with interest on $526 80 at ten per cent, from January 4th, 1844, and on $526 80 from the 19th February, 1845, at the same rate, and $6 costs of protest, with costs in both courts.


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    Maunsel White & Co. v. U. Slaughter et al.
    The circumstance that the person making a purchase which is attacked as being simulated and fraudulent, had been the attorney at law of the vendor, does not warrant the court in setting aside the verdict of a jury sustaining the validity of the sale.
    APPEAL from the District Court of Iberville, Burk, J.

      H. A. Bullard, and Morgan, for plaintiffs.

      W. M. Randolph, for defendants.
   The j'udgment of the court was pronounced by

Eustis, C. J.

The plaintiffs are judgment creditors of the defendant Ursine Schlatre, otherwise called Slaughter. The original debt, for which others were bound besides the judgment debtor, was reduced by receipts from the insolvent estates of the former to some $7600, on which interest had accumulated at ten per cent since 1838.

The object of this suit is to set aside a sale of the interest of Schlatre in the succession of his father, which it is alleged is simulated and fraudulent. This sale was made by Schlatre to the co-defendant, W. E. Edwards; and it is alleged was made for the purpose of defrauding the petitioners by preventing the collection of their judgment debts. 'It is charged that the share of Schlatre in the succession of his father, thus fraudulently conveyed to the plaintiffs’ detriment, was worth the sum of $30,000.

The defendant insists, in his answer, that the sale complained of in the petition, was legal and bond fide, and for a proper and valid consideration ; and that the charge of fraud is false and malicious. The case, on the prayer of the defendant, was submitted to a jury, who found a verdict for the defendant. After an ineffectual application for .a new trial, the plaintiffs have appealed.

The arguments of counsel have been confined to the single point, whether the sale was of such a character as would authorise the court to set it aside and subject the property included in it to the plaintiffs judgments, as being made in fraud of their rights. The sale was by authentic act before the recorder of Iberville, and bears date the 29th of October, 1847. It purports to convey to W. E■ Edwards all the right, title, and interest of Ursine Schlatre to the succession of his deceased father. The consideration is declaredtjta be the sum of twenty-thousand dollars, the receipt of whieh is aclinowledgoÜjn the act.

On the day of the execution of this act it appears that an agreement was entered into between the parties, under private signature, in which, after reciting the contents of the act, and that, though the consideration of the sale is therein mentioned as being for cash, it states the real consideration to have been two promissory notes for $10,000 each, the first payable in March,'1848, and the second in March, 1849, drawn by Edwards to the order of Schlatre ; and it was further agreed, that if Edwards should realise and receive from the succession a sum exceeding twenty-three thousand dollars,-he should pay over one-hali the excess to Schlatre*■

On the 28th day of December, 1847, Edwards sold the share of Joseph Schlatre in the succession of his father, thus acquired by him, to the widow and co-heirs of the deceased for the sum of $26,000. One thousand dollars cash was received, and the balance, $25,000, bore interest from’date ; $7000 was payable in March following, and the balance, $18,000, in March, 1849. Of this total sum seven or eight thousand dollars, with the interest, remain due and unpaid.

The grounds upon which the charge of fraud is attempted to be supported, are, 1st, the relations between the parties defendant, Edwards having been the attorney at law of Schlatre ; 2dly, the act of sale of the rights of Schlatre in the succession of his father and the counter letter bearing the same date; and, 3dly, certain answers to interrogatories by Edwards, which were offered in evidence to the jury by the plaintiffs. One' of the plaintiffs’ judgments, which was for upwards of $10,000 with interest, was rendered by the late Court of the Third District, sitting in East Baton Rouge, on the 3d Of July, 1841. In this case Edwards was the attorney o-f record of the defendant. The other judgment was for nearly alike amount, and was rendered by the same court on the 27th of June, 1845. The case appears to have been tried ex parte; no counsel appearing for the defence. Edwards Was one of the attorneys of record of the defendant, and, as such, filed an answer for the defendant on the 5th of June, 1840.

It is admitted, however, that Edwards, whose residence is in the parish of Iberville, has not been practising law in the parish of East Baton Rouge for the last five or six years. Schlatre resides in the latter parish, and there is no evidence of any relations of business between the parties from the time of the suits above mentioned up to the' date of the act of sale, Which is sought to be set aside.

The fact of the public act of sale from Schlatre to Edwards not stating the true mode of payment of the price, and the reservation in the counter letter of a contingent interest in the ultimate result of the settlement of the succession, stipulated in it for the benefit of the vendor; and perhaps the very existence of a counter letter furnished grounds for suspecting the bona, Jides of the transaction. It is but an act of justice, however, to state that on the notice received by Edwards from.the plaintiffs’ attorney, that the validity of the transfer from Schlatre would be attacked, the real character of the transaction, as afterwards disclosed in Edwards' answers to interrogatories, was promptly communicated, and a copy of the counter letter transmitted to the plaintiffs’ attorney.

But whatever inferences may have been drawn from the instruments themselves, there was evidence before the jury well calculated to control them. There does not appear to have been adduced on either side any circumstantial evidence, other than that of the relation Edwards bore to Schlatre, of having been formerly his attorney in the plaintiffs suit. So that the case rested mainly upon the instruments and what we shall next notice.

Certain proceedings were taken by the plaintiffs, in order to subject property alleged to belong to Schlatre, and to be in the hands of Edwards, to the payment of the judgments. Execution was taken out, and interrogatories were propounded to Edwards, who answered them. These answers were in evidence before the jury and are relied upon as sustaining the charge of fraud.

In these answers the respondent declares, that the true character of the transaction is contained in the counter letter; that the purchase was made by him in good faith and with the hope of gain, and without any intention of defrauding any one; that the notes mentioned in the counter letter were for the price of the purchase, and that they have been paid; that such was the understanding before the sale which was nominally for so much cash; that the purchase, on his part, was a speculation, and the motive assigned by Schlatre for making it, was one which it is not necessary to state; but of which no creditor could complain.

The plaintiffs themselves having put these answers before the jury, have placed before them, to say the least, prima facie evidence of the facts they disclose. The jury was bound to take the answers together, and to judge of their truth, as they should be or not in accordance with other facts established in the cause. Their verdict has been the result.

It is necessary to notice the reservation in the counter letter of one-half of any sum, the shai’e in the succession might nett above the sum of $23,000, which Edwards bound himself to pay over to Schlatre. This interest the creditors of Schlatre could have the benefit of. But it is charged in the petition that Edwards has sold his share in the succession, for which he has received some $20,000; butfor the balance unpaid of the price, he is in litigation with the widow and heirs of Joseph Schlatre, who were the purchasers.

This cause has been twice tried in the court below. A previous jury could not agree. There is nothing in the evidence which would authorise us in disturbing the present verdict.

The judgment of the district court is therefore affirmed, with costs.


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    Hiram Sigler v. Alexis Gauthier et al.
    Where in a succession sale tlie property is described as containing three lots of four arpents front each, and\ a remaining lot; all of "which are sold, and it turns out upon examination there are but two four arpent lots, the court cannot pass upon the rights of the purchaser of the third lot, and the purchaser of the remainder, without all the purchasers are parties to the suit.

      APPEAL from the District Court of Iberville, Burke, J.

      Edwards, for plaintiff.

      Berry and Eeblieux, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This litigation originated in a mistake of the executor of Nathan Meriam,. A tract of land belonging to the succession was advertised as follows :' “ 3d. A tract of land in the rear of the town of Plaquemine, at about 22 arpents from the river, measuring 220 feet French measure, on the back line of Henry Keller, and running in depth to and along the bayou Plaquemine, containing about fifty superficial arpents ; this tract will be offered for sale in four divisions, to wit: three lots of four arpents each, front to .the Bayou Plaquemine, with the depth therefrom across the tract, and one lot comprising the remainder of the lot to the bayou, and all the lands therefrom to the lands of Henry Keller.”

Lot No. 1, being one of the four arpent lots, was first sold to C. Teal, and in succession, lot No. 2 was sold to Bernard ; lot No. 3, to Sigler, the plaintiff, and lot No. 4 to Gauthier, the défendant.

The sale was made according to the advertisement, without fixing the limits of the respective lots; and the parties to this .suit went into possession of the land they supposed they had purchased.

This suit was instituted by the plaintiff, against Alexis Gauthier and Louis Eesobry, testamentary executor of Meriam, to be quieted in the possession of lot No. 3, against the claim and alleged trespasses of the said Gauthier ; there was judgment in his favor, and Gauthier appealed.

This case is not in a situation that will enable us to pass finally upon it. It is proved, that there was but two four arpent lots fronting upon bayou Plaque-mine ; and before we can determine how this deficiency affects the parties to the suit, the purchasers of the other two lots must also be made parties, and the limits of the different lots fixed according to law.

It is therefore ordered, that the judgment in this case be reversed, and the case remanded to make proper parties, and for further proceedings according to law; the plaintiff and appellee paying the costs of this appeal.


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    Alexis Gauthier v. Louis Desbony, Executor.
    See preceding case.
    APPEAL from the District Court of Iberville, Burke, J.

      Berry, for plaintiff.

      Eeblieux, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who is the defendant in the suit just determined, has sued the executor of Meriam for an alleged deficiency in the quantity of land sold to him at the probate sale of the succession, as alleged in the former case. The question at issue depends upon the location of the different lots, intb which the land of the succession was divided; and as that location has not yet been judicially ascertained in presence of all the parties interested, the action is premature.

It is therefore ordei'ed, that the judgment in this case be reversed, and the plaintiff’s petition dismissed, with costs in both courts.


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    Succession of Valery Decoux.
    A party cannot appeal from a decree in his own favor appointing him administrator, when its effect could be avoided by a refusal to accept the appointment. .
    Au appellee who seeks a change of the judgment in his favor, must file an answer to the ap • peal The argument filed by counsel is not such an answer as is required. G. P. 588. Succession of Hilligsberg, 1st Ann. 340, affirmed.
    APPEAL from the District Court of Point Coupée. Farrar, J.

      T. J. Cooley, for appellee.

      Provosty, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by Desalives Deceux, from a decide of the district court sitting in the parish of Point Coupée, appointing him administrator of the succession of Valery Decoux.

The party cannot appeal from a decree in his own favor, when its effect could be avoided by his refusal to accept the appointment.

The party applying for the administration, in the district court, was cited as the appellee, but he has filed no answer in this court, on which alone he can ask a change in the judgment. Code of Practice, 888. Succession of Hilligsberg, 1st Ann. 340.

The briefs of argument filed by counsel we have held not to be answers on the appeal, which the Code of Practice requires the appellee to file when a change merely in the judgment in his favor is sought.

The case turned in the court below on the propriety of -having an administration on the succession of Valery Decoux. The appellee could have appealed from the decision of the district court, or, in his answer, llave brought before the court the matters adjudicated upon in the district court. But having done neither, and considering the appellant is not the proper party to question the validity of the judgment in his own favor, we think it proper to leave matters in statu quo.

The appeal is therefore dismissed, at the cost of the appellant.


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    Heirs of Davenport v. Labauve and Landry.
    A judgment rendered in 1825 is not barred by prescription in 1848.
    Where a judgment creditor has slept on his rights for a long course of time, it is a circumstance which corroborates and strengthens the testimony of a witness in proof ofpayinent.
    APPEAL from the District Court of West Baton Rouge. Burk, J.

      J. M. Flam, for plaintiffs and appellants.

      A. S. Herron, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

In this cause the execution of a judgment was enjoined upon an allegation of payment. The district judge being satisfied by the evidence, that the judgment had been paid, perpetuated the injunction; and the judgment creditor has appealed.

The judgment was rendered in 1825, and is not barred by prescription. Payment could not therefore be presumed from the mere lapse of time; it was incumbent upon the debtor to prove it. The witness upon this question of fact was a member of the bar who had been the counsel of the judgment debtors, to whom his services were rendered gratuitously. He is not their counsel in this case. He states the professional connection he had with the matter; the negotiations he conducted with the creditor; the fact of payment; and the subsequent acknowledgment of payment by the creditor. In portions of his deposition he speaks without qualification to the fact of payment; but in one portion of it he declares his belief of the fact, as far as he recollects. And it is upon this qualified character of the testimony that the appellant relies to obtain a reversal of the judgment.

We are not prepared to say that, if the testimony stood alone, we should feel authorised to disturb the decree of the district judge, who heard the witness, and from his character, and manner in testifying, could appreciate better than we can, not only his credibility, but the force and effect of what he said.

It must also be observed that a conscientious witness, after asserting what had occurred a long while ago, might naturally, in the course of his examination after-wards, qualify his assertion by speaking of the occurrences more guardedly, as matters of conviction and belief, resting upon the best of his recollection. There is no rule, says Mr. Greenleaf, that requires a witness to speak with such expression of certainty as to exclude all doubt in his mind. “If he has any recollection of a fact, he may express it as it lies in his memory; and it is for the jury to say what weight shall be given to it.” The very cautiousness of a witness might sometimes be received by the jury or judge as a strong assurance of his truthfulness and accuracy.

But the case does not rest solely upon the testimony of this witness. His testimony is aided by the surrounding facts and circumstances. For example, the long inaction of this creditor. We have said that the time which has elapsed is insufficient to defeat him by prescription. But still the lapse of time and staleness of the demand, comes in aid of the testimony as to the fact of payment. Moreover, a party who 'has slept on his rights, during so many years, until the memory of witnesses has become in some degree clouded, and the other means of proof may have been lost or impaired, has not a right to demand from his adversary the same full and strict evidence of payment as might properly be required in matters fresh and recent.

Being of opinion that the conviction expressed by the district judge, that the judgment has been paid, is warranted by the evidence, it is our duty to affirm the decree.

Judgment affirmed, with costs.


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    Louis A. Duhart v. Citizens’ Bank.
    Under the charter of the Citizens’ Bank, the court has no control over mortgages given to secure aloan, unless the debt has been paid.
    APPEAL by plaintiff from the Fifth District Court of New Orleans. Buchanan, J.

      C. Roselins and C. Dufour, for appellant,

      A. Pitot, for appellee.
   The judgment of the court was pronounced by

Rost, J.

This case only differs from that of Bertoli, against the same dePendants, reported in 1st Ann. 120, in this: that after the probate sale of the property mortgaged to the defendants, a rule was taken upon the bank and other mortgage creditors to show cause why the mortgages existing thereon should not be erased from the records; and the defendants not having appeared, the rule was made absolute and the mortgages erased, before the plaintiff acquired the property.

The mortgage of the bank was not a stock mortgage of which courts of justice may in certain cases order the erasure when the stock has been sold separately. It was a mortgage given to secure a loan, over which the court could have no control under the charter of the bank, unless the debt had been paid, which is not pretended.

The court having acted without warrant of law, the order and erasure are nullities by which the defendants cannot be prejudiced.

The judgment of the district court, that the injunction be dissolved, and the issues between the plaintiffs in injunction and the various parties called in warranty reserved till after the hypothecary claim of the Citizen’s Bank shall have be.en satisfied, .and the mortgage property exhausted, is therefore affirmed.

ITudgmen't.affirmed, with costs.


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    Succession of Louis Rivet.
    The court cannot take notice of the rejection of testimony, unless bills of exception were taken to the rejection.
    Under the Code of 1808, although the words, “ dowry, settlement, and constitution de dot,” are not sacramental, or essential in the designation of property as dotal in marriage contracts, yet the intention to make the property dotal must be clearly expressed in the instrument. The paraphernal character of the wile’s property is the general rule; and dotal the exception.
    The Code of 1825 uses broader language than the Code of 18X58, in declaring what property is to be considered dotal. C. C. 2318.
    APPEAL by Widow L. Rivet and J. H. Rils, opposing claimants against the succession, from the District Court of Iberville. Burk, J.

      J. J. Berry, for H. LeBlanc, one of the creditors,
    contended: The first question presented in the consideration of this case is, whether the property received in marriage was dotal or paraphernal? Under the Code of 1825, this could not be a question; for article 2318 declares that everything that the marriage contract declares to belong to the wife, or to be giyen to her on account of the marriage, except by the husband, is dowry, unless there be a contrary stipulation. But this marriage took place under the Code of 1808, and must be governed by what was then the law. The article of that code which must govern this case holds the same language in substance which we find in the present one. Article 17, page 326, of the old code reads as follows: “Every thing which the wife settles upon herself, or which is given her by the marriage contract, is included in the dowry, unless there be a contrary stipulation.” On a comparison of the articles in the two codes on this subject, the only difference seems to be that under the old code dower embraced more than under the present one. For then the husband could settle dower on the wife. Not so under the present law.
    It is objected by Rils, that the reception of the monies and effects of the wife by the husband is not sufficiently proven. The contract of marriage was entered into in 1821, and the marriage celebrated about the same time. The contract referred to the settlement of estates of the father and mother of the wife, when it should be made; to ascertain and fix the amount of the wife’s portion. The settlement was a suspensive condition, and the contract was not complete as to the amount contracted about, until the settlement was made. In the following year this settlement was made according to law and the agreement of the parties, and has long since become final as to all concerned. This settlement shows that there was due from the estates of the wife’s ancestors $3065 94. That this is no fictitious sum the inventory of the estate of Joseph LeBlanc, and the process verbal of sale, conclusively show. It was the duty of the husband to sue for and collect the dower of the wife. (C. C., articles 2330, 2349.) By article 2349, he was required, incase he could not collect the things due, “to restore the deeds and vouchers on which the debt is grounded.” The marriage, lasted more than ten years, and it is not necessary to prove that the money was received. (C. C. art. 2352.) Again: the contract of marriage states especially that; the wife’s portion consisted in her interest in the successions of her father and mother. This interest was what constituted the dower, and not the money when it should be collected. The value of her “interest” was ascertained in the way prescribed in the contract, by the parties themselves. It is then for the husband, or those that claim his rights, to show that the dower was not recovered by him. This could be done by showing that the administrator and securities failed; that after suit and all the diligence required by law, the money could not be realized. After so much time as has elapsed since this marriage was celebrated, and since the dower should have been pj¿¿¡ it very rare that a case can be so perfectly proven as this one has 1 that a fact of that nature can be proven by parol after so¿ of the husband would not be evidence in a suit of this naffl rarely be obtained by the wife or her heirs for the purp| judgment dismissing the opposition of J. IL Rils, shoulf one dismissing the opposition of H. Leblanc, reversed,jj for further proceedings.
    The wife has a mortgage on the real property of her on movables for the restitution of her dower. C. C. art.^

      Zenon Labauve, for Rils,

    contended: The pretended mj3Sg«§8&cl£w<!P5f1iaid Widow Rivet was denied, and she was bound to establish it by law ana evidence, and she failed to do so. The parties married in the year 1821, and entered into a contract 1st October, 1821. The said Henrietle LeBlanc had no dowry, and whatever properly she had was paraphernal. Code of 1808, page 326. art. 16 ; p. 334, art. 56. Guilleau’s Heirs v. Cormieu, 2 L. R. 6. Napoleon Code, arts. 1541, 1574. Duranton, vol. 15, art. 335. Toullier, vol. 14, art. 358. Binoit, Traite de la Dot, vol. 1, ait. 4. The rights of said widow, when she married, consisted in monies derived from ihe properly belonging to the successions of her deceased father and mother, and sold on the 30lh July, 1821, payable : slaves by thirds, in March, 1822, 1823, and 1824; land by fourths, in March, 1822, 1823,1824 and 1825. The claims of the wife, being paraphernal, remained under her control. Code of 1808, p. 334, art. 58. New Code, art. 2361. There is no proof in the record showing that the deceased husband received anything belonging to the wife, who can, therefore, have no mortgage. 2d Ann. 636, Succession of Guilmin, and the authorities therein cited. 10 R. R. 155, Turnery. Parker et ais., and authorities therein referred to.
   The jndgment of the court was pronounced by

Slidell, J.

The counsel of Widow Rivet states, in argument, that evidence was offered in the court below to prove that the improvements which have in part given rise to this controversy, were erected by Louis Rivet, and that the evidence was rejected by the court. There is no bill of exceptions nor other entry in the record, showing an attempt to adduce such evidence. In its absence we see no reason to disturb so much of the judgment as sustains the privilege of Rils upon the price of the improvements.

In the consideration of the claim of mortgage and privilege, asserted by Widow Rivet, our inquiry must be first directed to the nature of her rights. Are they dotal or paraphernal ? Her claim is based upon her interest in the estate of her deceased parents, which is enunciated in the marriage contract in the following words: Before me, John Dutton, judge, in and for the parish of Iberville, came and appeared Louis Rivet, an inhabitant of the said parish, of the age of majority, of the one part; and Henrietta Le Blanc, minor, daughter of Joseph LeBlanc and Cor aline Longuip&e, both deceased; said Henrietta, duly assisted and authorized in passing these presents by her curator ad bona, Pierre Rivet, junior, of the other part. Which parties did make and enter in to a contract of marriage, in the terms hereinafter set forth. Article 1st: The part and portion of property belonging to the future husband, a tract of land of one and one-halfarpents front by thirty arpents in depth; which land, together with other property of the said future husband, is amicably valued by the parties at $1,000.

Article 2d: The part and portion of the future wife consists in her share in the successions of her father and mother, with reference to the liquidations of said successions, when they shall be made, for the amount of the said shares.

Article 3d: In case of ihei'e being no-children born of said marriage, or in case children shall be born of said marriage and die before either of the parties of this contract, then the heirs of the first deceased shall have a right to claim forthwith the restitution of the share of the first deceased brought in this contract.

Article 4th: If no children shall be born of the future marriage, or being born, should all die before either of the parties of this contract shall die, then after the restitution of the proper goods brought by the parties in the first and second articles of this act, the survivor shall have a right to the enjoyment, during the lifetime of such survivor, of all the acquets made or gained during the future marriage.

This marriage contract was made in 1821, and its legal effect must be controlled by the Code of 1808, then in force. It is there said: If there be no marriage agreement, nor any special convention, the rights of the husband and wife are determined by law, and by the rules contained in the following chapters : art 8, p. 324. The most ordinary conventions in marriage contracts are the settlement of the dowry, (la constitution de dot,) and the various donations which the husband and wife may make to each other, either reciprocally, or the one to the other, or which they may receive from others in consideration of the marriage. Ib. art. 9. In the following chapter it is said: By dowry, are meant the effects which the wife brings to the husband to support the expenses of the marriage. Art. 16. Every thing which the wife settles upon herself, (tout ce que la femme se constitue,) or which is given her by the marriage contract, is included in the dowry, unless there be a contrary stipulation. Art, 17. The settlement of the dowry, (la constitution de dot,) may include all the present and future effects of the wife, &e. Art. 18. In art. 56, page 334, it is said: All the effects of the wife, which have not been settled on her as a dowry, are paraphernal.

We do not consider the words “ dowry, settlement, constitution de dot,” as sacramental. Quia in stipulatione nan est necessarie dotis adjectio, etiam in donatione tantumdem ducimus. But, though those very words are not indispensable, the marriage contract under the Code of 1808 should contain words of equivalent import, clearly indicating the intention of the wife to clothe her property with a dotal character. For it must be observed, that in making it so she is in reality impairing her own rights. The whole income of the dotal property belongs to the husband for the purposes of the marriage. He has the sole administration ; and the wife cannot deprive him of it. If an immovable it is inalienable during the marriage, except in a limited class of cases. Arts. 28, 29. 36 Ib. But on the contrary, the paraphernal property of the wife, under that code, is in a much larger sense her own, and under her own control. She had the administration and enjoyment of it; she was bound to contribute only one third of her income towards the matrimonial expenses, and might alienate it with the authorisation of the husband, or if he should not give it, with the authorisation of a court of justice. Arts. 51, 58. The constitution of dowry by the wife is therefore in the nature of a gift; and an intention to give must be clear and unequivocal. Nemo facile presumptur donare. The same conclusion results from the consideration that the paraphernal character of the wife’s proporty is the general rule, and dotal the exception. La constitution d’une dot ne se présumed’ailleurs jamais: celui qui attribué á une chose la qualité dotóle, doit prouver cette qualité. Mackelday, Insti. de Droit Romain, 268.

Applying these principles to the case at bar we are unable to deduce,from the instrument a clear intention on the part of Mrs. Rivet to clothe her property with the dotal character. The expressions dowry,- settlement,- constitution, are nowhere used, nor language of equivalent import. The only words which would seem to indicate such an intention, we mean the words bought and restitution, are susceptible of an interpretation quite consistent with an intention to leave the wife’s estate under the dominion of the general rule. These words are used with reference to the properly both of the husband and wife ; and the object of the recital of what they respectively owned may all have been to avoid discussions, at the dissolution of the marriage', as to what property the parties owned before marriage, and what was acquired during the marriage. For, by the contract, the survivor was to have the usufruct of the entire community. See also Rian v. Rian’s Syndics, 4 Martin, 342, 591. Duranton, liv. 3, tit. 5. § 333, et seq.

It is proper to observe that the Code of 1825 uses broader language than that of 1808 in declaring what property is to be considered dotal. See Art. 2318, &c.

Being of opinion that the interest of the Widow Rivet in the succession of her parents was paraphernal, it was incumbent upon her to prove that the share which was allotted to her by the partition, prepared by the parish judge after her marriage,, was received by her husband.

It is therefore decreed, that so much of the judgment of the court below as sustains the privilege of J. H. Rils for $250 be affirmed. And it is further decreed, that so much of the judgment as dismisses the opposition of J. H. Rils, be reversed, and that said opposition be remanded for a new trial, and for further proceedings according to law; the costs of the appeals to be paid by the said Widoio Rivet.


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    J. C. Beatty v. Celeste Tanner.
    In a suit by the holder of a note against the maker, where the payee has transferred it, the plaintiff is bound to prove the endorsement of the payee, before he can recover.
    APPEAL by plaintiff from the District Court of Terrebonne, Randall, J.

      J. C. and A. Beatty, for appellant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff has not proved the endorsement of the payee, and cannot, therefore, recover against the maker of the note. It is therefore decreed, that the judgment of the district court be reversed, and that there be judgment aB in case of non-suit; the plaintiff paying costs in both courts.


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    William M. Shaw, Tutor, v. Zebulon York et al.
    Where a testator institutes certain persons as heirs, in general terms, and directs that they should receive ten per cent interest on a certain debt due him, which comprised all the property belonging to him at the date of the will, and he afterwards acquires other property, the heirs thus instituted are entitled to the property subsequently acquired, and the directions given in the will do not restrain the effect of the institution in general terms.
    APPEAL from the District Court of Concordia, Farrar, J.

      Stacey and Sparrow, for plaintiff,
    contended : 1. The intention of the testator is to be ascertained from the terms of the will alone, if these are positive, clear, and distinct; but, when the will is in the least vague, or doubtful, as to its meaning, his intentions are to be gathered from all the concomitant acts and circumstances derived from other sources. (C. C. 1705, 1708; 7 R. Rep. 427, 428 ; Duranton, vol. 9, Nos. 361, 363 ; 2 Ann. Rep., 581,) and especially from his acts and declarations. 1st Ann. Rep. 455, 456. Now, all the circumstances, acts, and declarations of the deceased, which have been without objection received in evidence, prove conclusively, that it was his intention to give to his nephew and niece all the property of which he should die owner, with the exception of the particular legacy made by him.
    2. He instituted them his heirs, that is, his universal testamentary heirs. C. C. art.1563. Pothier,vol. 13, p. 82,200,209. Duranton9, nos. 178,179. Hedirects his executors to dispose of the whole of his estate according to his will. They could act only after his death, and would, of course, take his estate as he might leave it. He evidently did not intend to die intestate as to any portion of his property. He simply expressed his wishes as to the future investment of that portion of his estate in the hands of Dr. Jenkins. It was then only $3,000, but was all his property except the specific legacy. This imposed no restriction upon the institution of heir, which could only take effect after his death. C. C. 1455. 4 N. S. 428. The decision in the case of Shane and Withers v. Withers' Legatees, 8 La. Rep. 489, 496, lays down the true principles upon which the present case should be decided.
    3. The institution of heir by the testator, which could have effect only after his death, can be viewed in no other light than as a disposition of all his property at the time when the disposition should take effect. The construction contended for by the defendants would render the will entirely contingent: that is, that it was restricted to the $3000 then in the hands of Dr. Jenkins. If this amount had been withdrawn by the testator, previous to his death, the legacy being a conditional one, would have failed entirely. But this was not his intention. He simply declared what was then the bulk of his property ; where it was to be found ; and lastly, the manner in which he wished it to be managed and administered for the benefit of the legatees. A similar question is well reasoned in 2d Ann. Rep. 581, 582. It is earnestly hoped and believed, that the evident and benevolent intentions of the testator, their uncle, in favor of his indigent and bereaved nephew and niece, can be legally sustained to their full extent, and that the judgment of the district court will be affirmed.

      B. B. Shaw, for defendant.
   The judgment of the court was pronounced by

Rost, J.

Bichard Began made a will by which he instituted Margaret and William, Began, two orphan children of one of his brothers, who were then under his care, his heirs. The testator then goes on to say, that he bequeathes to them the sum of three thousand dollars, to be allowed to remain, as it was then, in the hands of Ur. John C. Jenkins, at an interest of ten per cent per annum ; the interest to be applied to their maintenance and education. He further bequeathed three hundred dollars, out of a particular fund, for charitable purposes, and directed the executors named to dispose of his property as above directed. Between the date of his will and that of his death, he acquired a considerable amount of property,- which the executor and curator, and the attorney of absent heirs allege, did not pass under the will, and has been inherited by the collateral relations of the testator, he having left neither ascendants nor descendants.

This action has been instituted by the tutor of the legatees, for the purpose of testing that question; the prayer of the petition is, that the executor be compelled to account to the plaintiff, and to delivei to him all the property left by the testator at the time of his death. The heirs at law all reside out of the State, and appear in these proceedings by the curator and the attorney appointed to represent them. There was judgment in favor of the plaintiff, and the defendants appealed.

Under the authority of the case of Shane and Withers v. Withers' Legatees, 8 L. R. 496, and Clark and others v. Preston, executor, we are of opinion, that the words of the will, “I hereby constitute the children of my brother William Gegan, my heirs,” and the directions given to the executor, to dispose of his property in the manner provided by the will, sufficiently show that he did not intend to die intestate, for any portion of his property, and that the mention of the principal object of which it consisted at that time cannot be construed so as to restrain the institution of heirs, made in general terms. Ward on Legacies, p. 214, and cases cited.

The evidence of the acts and declarations of the testator, which have been received without objection places beyond all doubt his intention to give to his nephew and niece all the property of which he should die possessed, with the exception of the particular legacy mentioned in the will.

Judgment affirmed, with costs.


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    James M. Lancaster v. Lucy Carriel.
    The prescription of five years, under C. C. 3505, does not apply to notes not negotiable.
    The service of citation upon a free white person, above the age of fourteen, living and residing at the domicil of the defendant, she being absent, is not sufficient. The return must show that the service was made at the domicil. C. P. 201.
    APPEAL by defendant from the District Court of Madison. Snyder, J.

      J. B. Beamiss, for appellee.

      H. Short, for appellant.
   The judgment of the court was pronounced by

Rost, J.

This action was instituted upon a note not negotiable. There was a judgment by default, which, after the legal delays, was made final, and the defendant appealed.

The defendant has pleaded in this court the prescription of five years, and has assigned the following grounds of error in the judgment: 1st. That she was not served with a copy of the petition and citation, as required by law. 2d. That the judgment decrees the defendant to pay interest from the 1st of January, 1843, when the law only allows, and the plaintiff only claims, interest from the judicial demand, which was subsequent to that date.

She prays that the cause be remanded for further proceedings.

The note not being -negotiable is not subject to the prescription of five years, under art. 3505 of the code.

The return of the sheriff on the citation is as follows: “Received 21st day of March, 1849, and served on the 28th day of the same month and year, by handing a certified copy of the within citation and of the petition to Mrs. Seale, a free white -person, above the age of fourteen, living and residing at the domicil of the defendant, she being absent at the time. Same. Anderson, Sheriff.

The sheriff does not state that the service was made at the domicil of the defendant. Under art. 201, C. P., the omission is fatal. Huntstock v. His Creditors, 10 L. R. 488. State v. Johnson et al., 12 L. R. 550. Ballard et al. v. Leeds Administrator, 14 L. R. 212.

If the service had been regular, there was error in the judgment in this, that interest should only have been allowed from the judicial demand.

It is therefore ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law; the plaintiff and appellee paying the costs of this appeal.


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    J. B. LeDuff, f. m. c., v. Widow A. Porche and L. Carmouche.
    Where a party takes upon himself the selection of a person to .do a certain job of work, lie takes upon liimse.lf the risk .of skill if the contractor employs the person thus seleeted.
    PPEAL from the District Court of Point Coupeé, Farrar, J.

      A. Provosty, for plaintiff,
    contended: We rely upon the following points: 1st. That the court erred in admitting proof of damages sustained by defendants, either for delay or otherwise, as it was not alleged nor proved that they put plaintiff in mora. See bill of exception. 2d. That defendants took upon themselves the risk of the work when the contract was made; and, besides, received it without objection when completed. 7th, R. R. 131. 3d, R. 06, R. 10. 3d, 2 R. 1. 3d. That the defendants did not suffer the damages alleged and claimed; that if they did, they were caused by their own act, at any rate, that they never entered into the contemplation of the parties at the time of the contract, and were not even tjie direct and immediate consequence of plaintiff’s fault.
    1st. For a full statement of our objections, we refer to our bill of exception and to the following authorities: 14th L. R. .81; 5th L. R. 416; Morion v. Pils, 1st Ann. 333.
    2d. The defendants took upon themselves the risk of the work. The evidence in this point is conclusive: plaintiff would not assume the work; he alleged his inexperience as a kettle setter; yet defendants insisted in his undertaking it, because it was easier to get along with him, a man of color and well known, than with white men (Americans) who, he said, “ did not behave well;” plaintiff still asserting his incapacity, defendants pointed out to him his brother Honoré Le Buff, who to their knowledge, they said, was a very competent workman ; then, and then only, plaintiff agreed on condition that his brother should help him, adding that otherwise he would not contract. Honoré LeBuff was employed. The defendants wanted but one chimney, to which Honoré objected, stating he preferred two chimneys for the furnaces, as was customary. The defendants insisted upon one chimney, although Honoré said he had a bad opinion of the plan.
    3d. That as a matter of fact, the defendants did not suffer the damages complained of from any fault of the plaintiff or the work done; and that even under ordinary circumstances, we could not be made responsible for the damages, supposing them proved; for it will readily be perceived that when the contract was formed, such damages never entered into the contemplation of the parties, and are not even the direct and immediate consequence of plaintiff’s faults. C. C. art. 1928, sec. 1 and 2. Poth. Oblig., Nos. 160 and 161.

      T. J. Cooley, for defendants,
    contended: 1. The testimony to prove the damages suffered by defendants, in consequence of defective work of plaintiff, was properly admitted. Morton v. Pollard, 9 L. R. 174. C. C. art. 1927, No. 1. 2. If the defendants were entitled to a deduction for work not done, and for the price of re-setting the kettles, it must be because the jury were clearly of opinion that the plaintiff’s work was unskilfully done, and that his contract was not complied with. If so, defendants were clearly entitled to damages which they suffered in consequence of that unskilful work. C. C. 1928.
    What damages .entered into the contemplation of the parties at the time of the contract? Both parties knew that a set of sugar kettles cannot be tried until the sugar cane crop is ripe; and that then, if the kettles do not work properly, time will be necessarily lost before the kettles can be re-set or repaired; and time, during the grinding season, is all important. They knew, too, that in such cases a prudent man will put his canes in wind row; and that a loss is always suffered in consequence thereof. Therefore, under the rule, plaintiff is liable for that loss, as established by the testimony.
    They knew that if the kettles were unskilfully set, more wood would be consumed than is necessary for a good set. Therefore, plaintiff is liable for the excess of wood burnt, as established by the testimony.
    They knew that if the kettles were so badly set as to require their being torn down during the grinding or any other season, that they must not only be re-set, and the price to the contractor paid, but that all new materials must be paid for; the labor of slaves furnished to assist in setting them up; the board of workmen, &c., must all be paid for; and that these expenses were the direct result of the bad work put up. For how else can the defendants be compensated for their losses occasioned by the plaintiff’s bad work ?
    If these losses and damages were the direct consequences of the unskilful manner of setting up the kettles, they must have been in the contemplation of the parties at the time of the contract. Duranton des Contrats et Obligations, lib. iii, tit. 3, sec. 4, No. 478.
    The jury allowed defendants $200 for re-setting the kettles ; but on whatprinciple did they refuse to allow also $20 paid to F. Lieux for trimming the kettles ?
    Besides, the work was so unskilfully and so badly done, and such improper materials were used in the work, that the plaintiff was guilty of fraud, and is liable to all the damages that resulted from the improper execution of his contract. Magna negligentia, culpa est; magna culpa dolus est. L. 226, ff. de Verb. Oblig.
    By his undertaking he held himself up as a kettle setter, work which requires great skill and experience, in which great modifications on scientific principles have been made within a few years back, and it turns out that the person to whom he confided the work imbibed his principles of sugar kettle setting from Matre Lambert forty years ago, (see testimony of Honoré LeDuff, who set the kettles for plaintiff, where he says he is fifty-five years old,) and that after setting a number of sets of kettles, he had abandoned the business for some fifteen or sixteen years. The defendant, Carmouche, believed that he was a good kettle setter, and he was in perfect good faith.
    3d. If the court should find the virdict of the jury correct, the judgment on it must be reversed; for it allows interest on the sum allowed by the verdict from judicial demand, whilst the verdict does not allow any interest. See verdict and judgment. 5 N. S. 449, 462. 7 N. S. 224. 8 N. S. 263. 2 L. R. 157.
   The judgment of the court was pronounced by

Rost, J.

This is an action for work and labor done according to three distinct building contracts entered into, verbally, between the plaintiff and the defendants. There is no controversy before us about two of the contracts. The other was for the putting up of a set of sugar kettles and a chimney. The defendants allege that the work was completed too late, and that the kettles were so unskilfully put up that they could not be used, and had to be taken down and re-set during the grinding season; they claim damages in reconvention.

The case was tried before a jury, who deducted $200 on account of the defective work in setting up the kettles; and judgment was entered accordingly; the defendants have appealed, and the plaintiff asks that the judgment be amended, and that the $200 deducted by the jury be allowed to him.

It is proved that the defendant, Carmouche, asked several times of the plaintiff to set his kettles, saying that he preferred him to American workmen, and giving his reasons for the preference: he said that he knew Honoré LeDuff, the brother of the plaintiff, to be a good kettle setter, and that he believed him fully competent to set his kettles. The plaintiff then said, that if his brother consented to do the work, he would undertake it; otherwise he would not, he not pretending to be a kettle setter.

Honoré LeDuff accepted the proposal and put up the kettles. The defendants, in selecting, as they did, the person who was to do the work, took upon themselves the risk of his want of skill, and released the plaintiff from all responsibility by reason thereof. Their agreement was that they would pay the plaintiff two hundred and fifty dollars for the setting of his kettles, if he would get Honoré LeDuff to set them. The only obligation which the plaintiff contracted was to get Honoré to do the work. He has complied with that obligation and is entitled to be paid.

It is therefore ordered that the judgment in this case be amended, so as to be in favor of the plaintiff for nine hundred and twenty dollars; and that as amended it be affirmed, with costs in both courts.