text:
    EASTIN vs. DUGAT.
    Western Dist.
    September, 1836.
    APPEAL PROM THE COURT OE THE EIETH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    A purchaser of a judgment against himself, at a sacrifice, or for a sum below its nominal amount, by misrepresenting it as of no value to the appraisers, even when such purchase is made through the means of an agent, he will not be suffered to derive any advantage from it.
    A purchaser should not (profit by his own wrong, or derive any advantage from a sacrifice which he sought to inflict on his adversary.

      But a purchaser, even in his own wrong, is, in equity, entitled to be allowed credit for the sum he actually pays; although the sale and purchase are annulled as to him.
    This is an injunction suit. See 4 Louisiana Reports, 397. On the return of the case to the District Court, the defendant in injunction filed an answer to the merits. He expressly avers, that he had obtained a judgment against the present plaintiff, Herbert Eastin, for three hundred and fifty dollars, being for moneys deposited in Eastin’s hands to be applied to the payment of a mortgage on certain lots in the .town of Vermillionville, which the latter applied to his own use. This judgment is the one enjoined. He further avers, that Wartelle’s judgment is illegal and void, and the proceedings under it illegal, null and void, under which his judgment against Eastin was attempted to be sold and purchased in by Mayfield for the benefit of Eastin. That Mayfield was employed by Eastin to bid for said right or judgment, whilst he (Eastin) was present and representing the claim to be of no value; in consequence of which it was bid off for the ’ sum of sixty-two dollars; that the transfer from Mayfield to Eastin is fictitious, and made for the better concealing of the real character of the transaction, who was in reality the agent and received no consideration for the same. He prays that the plaintiff’s demand be rejected; the injunction dissolved with damages; the transfer from Mayfield to Eastin annulled; and that he have judgment in solido against the plaintiff and surety in the injunction bond, with ten per cent, per annum interest on the amount of his judgment enjoined, and twenty-five per cent, for the wrongful suing out of the injunction.
    From the evidence exhibited, the district judge decreed that the injunction be dissolved, that the defendant in injunction recover from the widow and heirs of H. Eastin and his surety, in in solido, ten per cent, on the injunction bond; and also ten per cent, damages on the amount of the judgment enjoined, with costs. The plaintiff appealed.
    C. Voorhies, for the plaintiff.

      A purchaser •of a judgment against hiniself, at a sacrifice, or for a sum below its nominal amount, by misrepresenting it as of no value to the appraisers, even when such purchasers made through the means of an agent, he will not he suffered to derive any advantage from it.
    A purchaser should not profit by his own ■wrong, or derive any advantage from a sacriiice, which he sought to inflict on his adversary.

      Garland, contra.

   Bullard, J.,

delivered the opinion of the court.

This case was before the court at a former term on an exception, and was remanded for trial upon the merits. See 4 Louisiana Reports, 397.

The answer of the defendant contested the validity of the proceeding had in execution of the judgment of Wartelle & Co. against him, which led to the sale of the debt now in controversy, on various gvounds. The opinion we have formed upon another ground of defence set up, renders it unnecessary to examine these alleged informalities in the proceedings. The defendant alleges that the plaintiff interfered in the sale and proceedings which preceded it, and represented the claim of Dugat against him as of no value, and denied its justice, and that in consequence of his conduct no fair appraisement could be or was made; that it was cried off at a price much below its value, and purchased by one Mayfield who was acting for the plaintiff himself.

. The facts proved on the trial are, that Eastin stated to the appraisers that he owed Dugat nothing, and that the claim which, was for three hundred and fifty dollars was appraised at one dollar. After the sheriff’s sale judgment was rendered against him for that amount, and he then acknowledged that he did ow.e the money. Eastin furnished May-field the money to pay for (he claim, and it was sold for sixty-two dollars, and soon after transferred by Mayfield to Eastin. At the sale he took aside a bidder and upbraided him for bidding for the claim contrary to his interest.

Eastin certainly knew whether he was indebted to the defendant or not, and we are warranted in concluding, from his subsequent acknowledgment, that the amount was justly due; and from his conduct .at the sale, that he wilfully misrepresented the state of the case to the appraisers, with a view to gain an unfair advantage of'the defendant. We are of opinion that he ought not to profit by his own wrong, nor derive any advantage from a sacrifice, which he sought to inflict on his adversary. Ex turpi causa non oritur actio.

But a purchaSer, even in his own wrong, is, in equity, enti-tied to be allowed credit for the sum ue actually tEáieandpuí chase are annui-led as to him.

But in equity the plaintiff is entitled to a credit on the judgment for sixty-two dollars, which was paid by him in discharge of the judgment against Dugat. As this was not demanded in the court below we cannot reverse the judgment on that account, but by consent of parties amend it in , that particular.

It is, therefore, ordered, adjudged and .decreed, that the . , i aTa judgment of the District Court be affirmed with costs, but that the sum of sixty-two dollars be credited on the judgment of Dugat vs. Eastin, as paid on the 23d-of November, ° 1 1830.


source: Caselaw Access Project

author: Bullard, J.,

license: Public Domain

text:
    TIPTON vs. MAYFIELD'S CURATOR.
    Western Dist.

      September, 1836.
    APPEAL PROM THE COÜRT OF PROBATES FOR THE PARISH OF LAFAYETTE.
    Where a judgment has been obtained in another state, and offered as evidence of the debt or claim against the party in this state, and it appears from the record, that an appearance was entered for the defendant by an attorney, and issue taken on his plea of payment, the authority of the attorney to appear and defend the suit, will be presumed : Such a judgment will be evidence of the debt here.
    Where the transcript of the record is certified from another state, according to the act of Congress on that subject, and the judgment is stated to be in due form of law, the same faith and credit will be given to it here, that it would be entitled to there.
    This is an action against the defendant as curator of the vacant estate of Elisha B. Mayfield, deceased, founded on a judgment alleged to have been rendered against said May-field for one thousand two hundred and sixty-seven dollars and ninety-five cents, on the 22d of May, 1824, in favor of S. H. Williams and D. C. Mitchell, in the state of Tennessee.
    The present plaintiff alleges that he is the agent of the plaintiffs in said judgment, and demands the amount due on the same, (after allowing some credits) from the curator of the deceased debtor.
    The defendant pleaded a general denial, and averred that at the time the suit alluded to in the petition was instituted in Tennessee,-' the said Elisha B. Mayfield was a resident of the state of Louisiana ; that he never was served with the writ that issued in'said suit, and could not be legally cited there when he resided here. He further averred that said judgment is a nullity, and cannot be the basis of an action. He also pleads the prescription of ten and five years; and that the plaintiff’s demand be dismissed.
    The plaintiff in an amended petition alleges, that the deceased, Elisha B. Mayfield, made nó objection to the judgment sued on in his life time; but on the contrary, expressly acknowledged that he was indebted for the said amount, and paid a part of it, which he endorsed at the foot of the record of said judgment.
    Upon thefee issues and pleadings the parties went to trial.
    The plaintiff offered in evidence the record and judgment rendered against Mayfield, in the state of Tennessee, to prove his demand, which was objected to by defendant’s counsel, on the ground that it was not evidence against Mayfield, as he was not a party to it, and could not be a party, as he lived in the parish of Lafayette (Louisiana) at the time said suit was brought in Tennessee; and offered' to prove by" parole evidence, that said Mayfield was at that time a citizen of Louisiana. This testimony was objected to, and the objection being sustained by the court, the record was admitted, and a bill of exceptions taken.
    The record and judgment showed that in October, 1823, S. H. Williams and D. C. Mitchell, plaintiffs, sued out a capias ad respondendum against William Mayfield and Elisha B. Mayfield, defendants, on which vifas the following sheriff’s return.

      “Issued 27th October, 1823. Came to hand the day issued, and executed.”
    “JAMES H. YOUNG, D. S.” '
    “ November, 1823.”
    The declaration was then filed.
    “Plea, payment.”

      Haniest, Field and Young, for defendants.
    A jury was empannelled and the case proceeded to final judgment in solido against the defendants in the common law form.
    The partial payment made and endorsed on the record by Mayfield, in his life time, was proven.
    It was proved on the part of the defendant, that Mayfield was in Louisiana in May and June, in 1823. It was also proved that Mayfield came to live in the parish of Lafayette in the early part of the year IS23, and continued to reside there until his death in 1833.
    The judge of Probates gave judgment for the plaintiff, and the defendant appealed.

      Mouton, for plaintiff.
    1. The Court of Probates properly overruled the objection of defendant to the introduction of the transcript of the record, in the suit from Tennessee, against Mayfield; because it is authenticated according to the act of Congress. IngersolVs Digest, page 76, section 1st, 5 Martin, N. S., 128-9.
    2. Elisha B. Mayfield, one of the defendants in said judgment, appeared by counsel and pleaded in said suit. Though the citation may be irregular or null, as to the manner in which it was served, yet he is bound by the judgment as if he had been regularly cited. 3 Cranch, 496. 4 Martin, JV. S., 286.
    3. Elisha B. Mayfield, in his life time, paying a sum of money on account of said judgment, and writing the receipt for it in his own hand at the end of the transcript of the record upon which this suit is brought, is a sufficient acknowledgment of the whole debt.

      Crow, for defendant.
    The judgment rendered by the court of Quarter Sessions of Giles county, in the state of Tennessee, against Elisha B. Mayfield, is null and void.
    i. Because Elisha B. Mayfield, never was legally cited, as he resided in Louisiana at the time it was brought, and had lived permanently in the parish of Lafayette long before. 5 Johnson, 37.
    2. The judgment is null because it contains none of the reasons on which it was given. 5 Martin’s Reports, 686.
    3. It is null and void, and cannot have the effect, of res judicata, until it is signed by the judge of the court in which it was rendered. 5 Martin, N. S., 105. 8 Johnson, 270.
    4. The contract is governed by the laws of.the place where it is sought to be put in force, unless the law of the country where the contract is made is proven to the court. 4 Martin, N. S., 419. 6
    5. The copy of the execution is no evidence that judgment was rendered properly. 2 Martin’s Reports, 245.

    6. A judgment against two, without stating that they are bound in solido, makes each responsible for his virile share. 4 Martin, JV. 317. In this case there were three defendants.

   Bullard, J.,

delivered the opinion of the court.

This is an action to recover of the succession of Elisha B. Mayfield, the balance due on a judgment rendered by the Court of Pleas and Quarter Sessions of Giles county, in the state of Tennessee, jointly against William Mayfield and the defendant’s intestate. The defence set up is, that at the time the judgment was rendered, Mayfield was an' inhabitant of Louisiana, vand that as to him the judgment is a nullity. He further pleads payment and prescription.

In a supplemental petition the plaintiff alleges, that the deceased in his life time made no objection to the claim, but did formally and expressly acknowledge that he owed the amount of the judgment. This is denied.

Where ajudg-Xainedinano-fate’ an.d ottered as evi-deuce of the against” u^p™ and'nithappears from the record that an appear-anee was entered ^ by aníttor-ney, and _ issue ofkpaymen't,1 th e attmS^tí apPear an<1 defend the suit, -mil be presumed: such a judgment win be evidence of the debt here.

Where the transcript of the' record is certified from another state, according to the act of congress on that subject, and the judgment is stated to be in due form of law, the same faith and credit will be given to it here, that it would be entitled to there.

The curator of the estate is appellant from a judgment, by which he is considered to pay the balance of the judgment obtained in Tennessee.

It is contended that the judgment rendered in Tennessee is null and void.

I. Because Mayfield was never legally cited, but resided in Louisiana at the time the suit was brought and judgment rendered. To this objection we think it a sufficient answer, J ^ 3 that an appearance was entered for him by an attorney at law, and issue was taken on his plea of payment. We must presume the attorney had his authority to appear and defend the suit.

Lt is iurther urged that it is null, because no reasons are given, and because it is not signed by the judge of the court in which it was rendered.

.The transcript of the record is certified by the clerk of the court, under its seal, and the presiding judge certifies under his seal, that the authentication is in due form of law. The . . , whole appears to us to conform to the act of congress on that subject. We are satisfied that a judgment rendered as this was by the court, on the verdict of a jury, would be valid in Tennessee, because it is certified to be in due form of law; and we are bound to give it the same faith and credit here, to which it would be entitled in that state.

The Court of Probates condemned the defendant to pay the whole amount of the judgment rendered jointly against two. There is an admission in the record, that the laws of Tennessee authorize such a judgment, although by the laws of this state it would be otherwise. It has been intimated to this court, that such an admission is not to conclude the defendant, if it should be found to have been made in error.

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


text:
    FASTIN vs. EASTIN’S HEIRS.
    Western Disr.

      September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    Where the fairness of a judgment of separation of property, obtained by the wife against her husband, is put at issue, and tho jury find in support of it, their finding will not be disregarded, even where the evidence appears doubtful in relation to the amount for which it was rendered.
    Parole evidence is admissible to show the amount of property brought into marriage by the wife, even when the witnesses speak of written evidence existing in relation to it, if they derived their knowledge of this fact from hearsay.
    If the legal mortgage of the wife attach to property before the sale, the court will give effect to it on the property in the hands of the vendee.
    This is a suit instituted by the plaintiff against the widow and heirs of the late Herbert Eastin to enforce a judgment which she had previously obtained against her husband for one thousand and fifty dollars, the value of her dotal and para-phernal effects, against certain property or its proceeds which she alleges her said husband fraudulently sold to said Eastin in his life time. She alleges that shortly before she obtained her judgment against her husband, with a view to defraud her, he sold and transferred to said Eastin, eight negroes and a tract of land ; which said sale she alleges is fraudulent and without consideration, and was intended to cover said property from her husband’s creditors ; that said land and four of said slaves are now in the possession of the defendant, as administratrix of said Eastin’s estate and of the beneficiary heirs, and are subject to her legal mortgage. She prays that the sale to Eastin by her husband be annulled, as simulated and made without consideration, and that the property be sold to satisfy her demand.
    The defendants pleaded a general denial; and that the judgment which the plaintiff sets up as the' basis of her demand was obtained through fraud and collusion with her said husband. They further aver that Eastin was the owner of all the property of which he died possessed, the most of which has been sold by order of the Court of Probates: They pray that the plaintiff’s demand be rejected with costs.
    E. Simon intervened and joined the petitioner, and claimed the sum of three hundred and fifty dollars, with interest, and judicial mortgage from the husband of the plaintiff which he prayed might be enforced against the proceeds of the property, stated in the plaintiff’s petition to have been fraudulently sold.
    The plaintiff offered the record of her judgment against her husband as evidence of her demand, which operated as a legal mortgage on all his property, from the 27th April, 1827.
    The sale from the husband to Eastin of the property in question, dated the 11th February, 1832, was also produced in evidence. It was made for the consideration of ten hundred and ninety-two dollars only; the tract of land and six of the slaves, being at the time the subject of a lawsuit between the said husband and other persons, which was ceded to Eastin, and the property soon after recovered.
    The cause was submitted to a jury, who found a verdict for the plaintiff, allowing her all she claimed, and also the intervenor; and also annulling the sale to Eastin, as made in fraud of their rights: Judgment was rendered confirming the verdict and ordering the payment of said demands out of the proceeds of the sales of said property in the hands of the administratrix. The defendants appealed.

      C. Voorhies, for plaintiff.
    1. The judgment of the plaintiff against her husband, unless obtained through fraud and collusion, is prima facie evidence, in this suit, of the debt due to her. 8 Martin, JV*. S., 401, 403, 459. 1 Martin JV. S., 1.
    2. The judgment'of the plaintiff against her husband was not obtained through fraud and collusion. The suit she instituted against him was ably defended by learned counsel in the law, who made use of all legal means to defeat her claim. An intelligent jury, by their verdict, have negatived the idea of the existence of any fraud and collusion, and their vei'dictJ unless clearly erroneous in law or manifestly contrary to, or without legal evidence, is entitled to great weight, and ought not to be disturbed. 7 Louisiana Reports, 71, 198, 265 and 113. 3 Louisiana Reports, 529.
    3. This court cannot inquire into the correctness of the judgment of the District Court, because no appeal is taken from the judgment in favor of Edward Simon, Esq., the intervenor, which declares the sale from Francois B. Labauve to H. Eastin, to be null and void, on the plea of simulation and fraud ; and until that judgment be reversed, the property belongs to the creditors of the said Labauve, and the appellants cannot hinder the plaintiff from having it discussed, or its proceeds, to satisfy her judgment. Louisiana Code, article 1976, 1977. A Martin, N. S., 147. 9 Louisiana Reports, 473. How could this court declare the sale to be good as against the appellee, whilst the same should be annulled with regard to the intervenor ?
    4. Independent of the judgment in favor of the plaintiff against her husband, and the evidence excepted to by the appellants, she has clearly established her demand by legal ■evidence.

      ■Crow, for defendants.
    1. The judgment of the wife against her husband may be impeached by his creditors; and in an hypothecary action against third persons, if fraud be alleged, the burden of proof rests on her to show that her claim is genuine. 8 Martin, N. S., 459. 4 Louisiana Reports, 422.
    2. Parole testimony will not be received, showing the amount of propert}! brought in marriage by the wife, when the witnesses declare the fact, of the existence of evidence of a higher character, 8 Martin, N. S., 459.
    3. Conversations and admissions made by husband and wife, do not make evidence against strangers or third persons, Louisiana Code, 2260.
   Bullard, J.,

delivered the opinion of the court.

The plaintiff, in this case, having obtained judgment' of separation of property from her husband and recovered the sum of about one thousand dollars for the amount of her par-aphernal property, caused an execution to issue, which was returned nulla bona. She then instituted the present action against the widow and heirs of Herbert Eastin, in order to annul, so far as it relates to her claim, a sale made by her husband to Eastin, in his life time, of certain lands and slaves, which sale she alleges was in fraud of her rights, and she prays that at all events she may be declared to have a legal mortgage on the property thus alienated to secure the payment of her claim against her husband.

Another creditor of the husband intervened, but as he is not made a party to the appeal, that part of the case requires no further notice. The defendants denied the important allegations in the petition, and further set forth, that they are the widow and heirs of Eastin under benefit of inventory, that all the property of the estate had been sold except two slaves, who had been taken possession of by the plaintiff, and they pray judgment against her for their restitution. They further allege that the sale to their ancestor was valid, and aver that the judgment of the plaintiff against her husband was obtained through fraud. The plaintiff then amended her petition, claiming to be paid the amouut of her judgment by preference out of the price for which the slaves in dispute had been sold subsequently to the inception of this suit. The claim in reconvention appears to have been abandoned.

The questions thus raised were submitted to a jury, whose verdict being in favor of the plaintiff, the court decreed that the defendants should satisfy the judgment of the plaintiff against her husband out of the proceeds of the property in their hands, and recognized the validity of her legal mortgage on said property. The defendants appealed.

The defendants rely mainly on the principles established in 8 Martin, N. S., 459, and 4 Louisiana Reports, 422, and contend that a judgment obtained by the wife against her husband may be impeached by the creditors; and that in an hypothecary action against third possessors, if fraud be alleged, the burden rests on her to show the genuineness of her claim.

Where the fairness of a judgment of separation of property, obtained by the wife against her husband, is put at issue, and. the jury find in support of it, their finding will not be disregarded, even where tl^e evidence appears doubtful in relation to the amount for which it was rendered. '

Parole evidence is/admissible to show the amount of property brought into marriage by the wife, even when the witnesses speak of written evidence existing inrelation to it, if they derived their knowledge of this fact from hearsay.

If the legal mortgage of the wife attach to property before the ‘ sale, the court will give' effect to it on the property in the bauds of the vendee.

The fairness of the judgment first obtained by the plaintiff against her husband was put in issue in this case, and the jury found in support of it. The evidence in the record shows that she did bring some property into the marriage, consisting of horses, horned cattle, and furniture. Whether it was worth one thousand and fifty dollars or less is left perhaps doubtful, because the value of the different articles is not detailed. But the jury appears to have been satisfied that the first judgment was fair, and we are mot enabled to correct their finding.

Some of,the evidence upon which the jury came to that result was objected to, and a- bill of exceptions was taken. It is contended that parole evidente was inadmissible to show the amount of property brought into marriage, where the witnesses declared that there was evidence of a higher character. We do not find it positively proved- that there was a written memorandum or inventory taken at the time of the marriage. The supposed existence'of such a document "rests mainl'y on hearsay, and as the property consisted-of moveables, except a tract of land not now in controversy, we think the court did not err in admitting the evidence.

Whether the sale from Labauve to Eastin was bond, fide, or intended merely to. secure the latter the payment of a debt due him by the vendor, does not appear to us material in this case. The legal mortgage of the wife appears to have attached before the sale, and as the judgment of the District Court merely gives effect to her mortgage, we are not satisfied that it was erroneous.

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


author: •Martin, J,

text:
    BREAUX vs. MARTIN'S HEIRS.
    Western Dist.
    September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, TIIE JUDGE OF THE SEVENTH PRESIDING.
    Where a cause, after issue joined, is, by a consent rule of court referred to ' two persons named by the parties, with power to choose an umpire, they will be considered as arbitrators, whose decision is final in the case, and which is to be made the judgment of the court.
    The award of arbitrators is not liable to be excepted to, for want of precision in stating the facts on which it is grounded, as in case of the reports of experts and auditors of accounts. The article 455 of the Code of Practice does not apply to the awards of arbitrators.
    This is an action instituted against the defendants for the sum of six hundred and thirty-three dollars and fifty cents, which the plaintiff alleges was due to his deceased wife from André Martin, pére, now deceased, on sundry notes and small accounts of long standing. The plaintiff sues as heir of his wife. She was the daughter of the deceased ancestor of the defendants.
    The defendants admitted the signature of their deceased ancestor to the notes mentioned in the petition; but denied that he was in any way indebted to the plaintiff’s wife at his death.
    The defendants, on the contrary, aver that the succession of the plaintiff’s wife was and is indebted in the sum of eight hundred dollars for the price of a slave, given to her by their said 'ancestor. They pray that the plaintiff’s demand be rejected and that they have judgment in reconvention for the sum of eight hundred dollars.
    When the cause was thus at issue, by consent of parties, a rule was entered, that it be submitted to two gentlemen of the bar, with power to choose an umpire, as referees.
    The referees reported into court that they had carefully examined the evidence adduced by the parties, and find thq.t at the time that André Martin, pére, died, he was indebted to plaintiff’s Wife in the sum of thirty dollars; and that the defendants, through error, have since that period paid to the plaintiff one hundred and fifty dollars, leaving a balance due to them of one hundred and twenty dollars, for which they ought to have judgment.
    Whereacause, after issue joined, is by a referred °o°two persons named by the parties, with power to ph°e°,Sethey whi be considered whose decision case,"and.1 which the judgment^of the court.
    The plaintiff’s counsel filed his exceptions to the report or award, alleging that it was not made with the precision required by law, to enable the court to determine whether they acted properly in rejecting or admitting various items on both sides, and to judge of the correctness of the report. The exceptions were overruled and judgment entered for defendants, in conformity with the award of the referees. After excepting to the opinion of the court the plaintiff appealed.

      Simon, for the plaintiff.

      Crow, contra.

   •Martin, J,

delivered the opinion of the court.

After this cause was at issue, a rule of court was entered, referring it, by consent, to two members of the bar named in _ _ . . . order, with power to choose an umpire, if necessary. An exception was taken to their report by the plaintiff, on the ground that it was not made with sufficient precision to , . r enable the court to judge whether they acted properly in rejecting the plaintiff’s claim, or in allowing that of the defendants. The exception was overruled, and from iudg'ment rendered therein the plaintiff appealed,

The exception was evidently grounded on the article 455 °f Code of Practice, respecting reports of auditors of accounts.

The Code mentions experts, auditors of accounts and judicial arbitrators as persons called upon to aid in or to effect the settlement of claims. It is silent as to referees or their duties. Code of Practice, articles 441. 2, 3 and 4.

The award of arbitrators is not liable to be ex-^ant^o/'pree?sion stalins facts on which it is fas^of'tfuTre-Poi;ts experts and auditors of accounts. The cocieof Practice not “if1? to the award or arbitrators,

The rale in this case speaks of referees. It is not made with reference tc experts, for these _ are called in to afford information, as persons versed in the knowledge of some art, science or .profession. The persons to whom this reference was made, in the case before us, were not experts in this sense of the word. Code of Practice, article 441.

They were not auditors of accounts, for these have no need of any umpire. Their duty is only to examine and state an account. Ibid. 442.

The persons to whom this reference was made were . . , appointed by the parties and not by the court. Experts are appointed by the latter, and so are auditors. Judicial arbitrators are chosen by the parties. Ibid. 444.

. It is then correct to say that the referees in the present case were neither experts nor auditors of accounts, but arbitrators, mutually chosen by the parties themselves. The , , r article of the Code of Practice, on which the exception of the plaintiff is grounded, speaks only of auditors of accounts, and cannot be extended to arbitrators. The District Court therefore correctly overruled the exception, as inapplicable to the case.

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


author: Marlin, J.,

text:
    DITCH vs. WILKINSON'S CURATOR.
    westers Dist.

      September, 1836.
    APPEAL FROM THE COURT OP PROBATES POR TIIE PARISH OP ST. MART.
    An action for services done as a laborer or servant, for wages, must be-brought within a year after the service is rendered. A continuity of services does not prevent prescription from running.
    A verbal acknowledgment of a person, that he intended to give the plaintiff a certain sum, as a compensation for her services,, will not repel the plea of prescription.

      -A. declaration made by a party to a third person, that he was under a moral obligation to pay the plaintiff for services rendered, and mentioned a sum that he intended to give her, is not binding, when made out of the presence of the person in whose favor it was made.
    The plaintiff claims the sum of sixteen hundred and eighty dollars, for her services rendered to the deceased, Samuel Wilkinson, as house-keeper and sole manager of his domestic concerns, for nine years and four months, up to the time of his death, at fifteen dollars per month. She alleges she has claimed this sum from the curator of the estate of the deceased, who refuses to allow it, wherefore she prays for judgment.
    The defendant pleaded a general denial; and further averred, that if the plaintiff resided with the deceased, it was as an adulterous concubine, and that her maintenance was more than compensation for her services. He further pleaded the prescription of one year.
    Witnesses were produced by the plaintiff, who testified that she rendered great services to the deceased, in keeping house, making clothes for the negroes, and taking care of the young negroes and his domestic affairs. It appeared the plaintiff had a husband living when she went to live with Wilkinson. They were, never married. Wilkinson was heard to say, shortly before his death, that he considered himself bound to compensate the plaintiff' for her services, which were proved to be worth from ten to twelve dollars per month, exclusive of her maintenance.
    “A witness proved that Wilkinson, a short time before his death, stated to him (witness) that he and the plaintiff were going to separate^ and that he was going to give her one thousand dollars and a likely negro.”
    On the trial the plaintiff’s counsel introduced a witness to prove that Samuel Wilkinson, deceased, during his life time, and a short time before his death, acknowledged that he was indebted to the plaintiff, which was objected to by the defendant’s counsel, on the ground that no oral admission of a debt can bar prescription, and that parole evidence of such admission is illegal and inadmissible. The objection was overruled and the testimony received. The defendant’s counsel took a bill of exception to the decision of the court.
    It was admitted that Wilkinson died the 31st of December, 1834. The petition was filed in this case the 2d July, 1835.
    The plea of prescription was rejected; and the Probate Judge decided that, by reason of the acknowledgment of said Wilkinson, a few days before his death, he was indebted to the plaintiff in the sum of one thousand dollars, judgment should be rendered in favor of her for that sum.
    The defendant appealed.

      Lewis, for the plaintiff.
    1. The sum allowed by the judgment is shown to have been acknowledged by the deceased to be due to the plaintiff for her services. This much at least is owing, and the judgment must stand.
    2. Prescription cannot avail. It ceased to run, and was interrupted by the acknowledgment of Wilkinson that he owed the plaintiff. Louisiana Code, articles 3486, 3516, 17 and 18.
    3. A continuity of services prevents the wages during the first year’s services from being barred by prescription. 4 Louisiana Reports, 128-9.

      Morse, for the defendant.
    1. A concubine cannot receive, by donation, inter vivos or mortis causa, any immovables, and only of movables not exceeding one tenth part of the estate of the donor. Louisiana Code, article 1468.
    2. This is a claim for services which is barred by the prescription of one year. A continuity of services does not prevent prescription from running. 6 Martin, N. S. 228. 5 Louisiana Reports, 15.
    3. The parole admission of an account does not prevent prescription, on a claim for workmen’s wages, claims of servants. 3 Martin, JV*. 707.

    4. Prescription of an account for services rendered by a servant, workman, or laborer, for wages, continues to run, annually, against it, unless there has been an account acknowledged, a note given, or a suit instituted. Louisiana Code, 3499, 3500. 3 Martin, N. 'S., 707. 8 Martin, N. S., 492. 1 Louisiana Reports, 268. 2 Ibid. 382.
    An action for Uaiíom-1™ set--vam, for wages, must lie brought within a year af-rentiered.1Vl0°a continuity of services does not. prevent pro-canning? fl'°m
    A verbal ac-■of^apeillmdiat lie intended to give the plaintiff a certain sum as for'iier'serrices? the\)iea*of'pro-scription.
    5. The authority relied on by the plaintiff’s counsel in 4 Louisiana Reports, 128-9, relates to clerks’ hire or wages. It is governed by the article 3503 of the Louisiana Code, which says nothing about prescription running, though there be a continuity of services. That case is different from this.
   Marlin, J.,

delivered the opinion of the court.

The plaintiff claims a sum of money for her wages as a servant or house-keeper, during the period of upwards of nine years.

The defendant pleaded the general issue; and that the ■plaintiff was the concubine of the deceased Samuel Wilkinson, and as such was not entitled to wages; her services being compensated by her support. Prescription of one year was also pleaded. There was judgment in favor of the plaintiff for one thousand dollars, and the defendant appealed.

The services of the plaintiff in the various branches of house-keeping were proved. The concubinage was not established by the evidence in the case, and if it had been, {[ could not have affected or diminished her claim for .... compensation for the above services.

The plea of prescription certainly attaches to her claim, except for the services rendered the year preceding the death * “ t o of Wilkinson, with whom she lived. The Code requires an action for services of this kind to be brought within a year, and expressly provides that a continuity of the services does not prevent prescription. Louisiana Code, 3499, 3500.

The Court of Probates, however, was of opinion that judgment could be given for the sum of one thousand dollars, on a declaration of the deceased that he was under stl'°ng moral obligations to requite her services and intended to give her that sum. This declaration cannot avail the plaintiff in repelling the plea of prescription, because it was made orally. 3 Martin, N. S., 707.

A declaration, made by a party to a third person, that he was under a moral obligation to pay the plaintiff for services rendered, and mentioned a sum that he intended to give her, is not binding when made out of the presence of the person in whose favor it'was made.

It cannot be considered as a new promise, as it was not made to, or in the presence of the plaintiff. Had it been, it should, perhaps, have been disregarded, as proven by one witness only.

The services of the plaintiff are proved to be worth twelve dollars per month, and she is entitled to recover the amount due to her at this rate, for the last year.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the Court of Probates be annulled, avoided, and reversed: and proceeding to give such judgment as, in our opinion, should have been given in the court below, it is ordered, adjudged, and decreed, that the plaintiff recover from the defendant one hundred and forty-four dollars, to be paid in due course of administration of the succession of the deceased, with costs in the Probate Court, those of the appeal to be paid by the plaintiff and appellee.


author: Martin, J.,

text:
    GALE vs. KEMPER'S HEIRS.
    Western-Dirt.

      September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    When a note is payable at a particular place, a personal demand on the drawer cannot always be made, and is not required.’ It is sufficient if the demand is made of any persons at the place designated.
    A notary is not required to make a demand of payment, protest or service of notice in the presence of witnesses. They are only to attest his entry and record.
    A notice of protest is properly directed to the principal and nearest post , office to the residence of the endorser, when there are more than one in the parish.

      -A- latent ambiguity may be explained by parole evidence. So the certificate of a notary is not an authentic act, and may be explained by parole testimony.
    New trials may be granted ex officio, in the sound discretion of the court.
    This is an action against the widow and heirs of the late Nathan Kemper, deceased, to recover from them the amount of the following promissory note, on the endorsement of their ancestor.
    “Parish of St. Mary, April 1, 1829.
    “ Twelve months after date I promise to pay Nathan Kemper, or order, at the office of discount and deposit of the Bank of the United States, in New-Orleans, one thousand dollars, value received. “ F. T. HUDSON.
    “ Pay to the use of Levi H. Gale.
    (Endorsed) “ Nathan Kemper.”
    The defendants admitted their ancestor’s endorsement, but denied their liability for want of proper demand and legal notice of protest.
    The cause was tried on these pleadings and issues.
    The notary states in his certificate, dated the 3d April, 1830. “ I gave advice of the protest to F. T. Hudson and N. Kemper, by notice in writing, of even date with said protest, which I put into the post office, addressed to them respectively, at the parish of St. Mary, Louisiana; and again on the 5th (the 4th being Sunday,) I delivered to Levi H. Gale and L. Millaudon, the endorsers, of all of which I make this record in the presence of D. L. M‘Kay and D. 0. Hinks, witnesses. The original is signed by D. O. H. and D. L. M. “ G. R. STRINGER, Notary Public.”
    The testimony of the notary and his clerk, taken on commission, shows that the notices of protest were put in the post office at New-Orleans, and directed to the parish of St. Mary, on the day of protest. This testimony was excepted to as attempting to prove something contradictory to a written instrument by parole. It was shown that letters directed to the parish of St. Mary, generally, would arrive at Franklin which was the nearest office to the residence of the maker and endorser of the note. But it also appeared there was another post office in the parish, though the principal one is at Franklin, the parish seat.
    Judgment was rendered for the plaintiff for the amount of the note, against the widow of the deceased for one half, and against eight heirs for the other half, each one for his virile share. The defendants appealed.

      Brownson, for the plaintiff,
    1.Urged the affirmance of the judgment below. The defendants were duly notified of the endorsement of their ancestor, and liability under it.
    ' 2. The demand was made at the place where the note was made payable, in a proper manner, and duly protested for non-payment. Chitty on Bills, page 333, and note.

      Splane, for defendant.
    1. The notice of protest is not sufficient to bind the endorser. It is not stated in the certificate of the notary in what post office the notice was placed to be sent to the endorser. 5 Martin, N. 8., 512. 6 Ibid, 457.

    2. The notice is defective, because it was only directed to the parish of St. Mary, generally; there are three post offices in the parish.
    3. The demand for payment of the note is not properly made. It is not stated of whom the demand was made.
    4. The making of the protest, the demand of payment and the putting the notices in the post office, should all be done in the presence of the subscribing witnesses. Louisiana Code, 2231.
    5. The certificate does not show that the notices were put into the post office the next mail day, after protest. 1 Louisiana Reports, 125, 513.
    6. The protest of a note, or bill, is an authentic act which cannot be evidenced or supported by parole testimony; nor contradicted or established thereby. Louisiana Code, 2256.

      When a note is payable at a particular place, a personal demand on the drawer cannot always be made, and is not required. It is sufficient if the demand is made of any persons at tlie place designated.
    A notary is not required to make a demand of payment, protest or service of notice, in the presence of witnesses They are only to attest his entry and record.
    7. Protests should be registered in the notary’s office, and not kept in loose sheets. This copy is not certified b,y the proper person. ,
   Martin, J.,

delivered the opinion of the court.

The defendants complain of the judgment of the District' Court against them, rendered on a promissory note, endorsed by their ancestor, on the following grounds:

First, The demand was not legally made.

Second, The demand, protest and placing the notices in the post office, should have been made in presence of the witnesses.

Third, The certificate of the notary does not state in what post office the notices were put.

, Fourth, The notice of protest was improperly directed to the parish of St. Mary, when there are Several post offices in that parish. . '

Fifth, The certificate does not state that the notices of protest were put into the post office, in due timé.

Sixth, That the protest is an authentic act which cannot be proven, contradicted or eked out by parole evidence.

'Seventh, That a new; trial was improperly granted.

Eighth, The heirs are nine in number, and each of them is decreed to pay one eighth of half of the whole debt.

I. The note was made payable at the office of Discount and Deposit of the Bank of the United States, in the city of New-Qrleans, and the protest states that demand was made there from the proper officer. When a note is payable at a particular place, a personal demand on the drawer or maker, cannot always be made, and is not required. It suffices to have been made of any persons there. Chitty on Bills, 333, and note f.

II. The counsel has not shown, and we are unacquainted with any law requiring a notary to be attended by witnesses when he makes a demand or protest, or serves a notice. 1( In speaking of the witnesses, the counsel is understood as referring to those who attest the entry of the hotary in his . book. These, in our opinion, are called on merely to attest that the entry was made by the notary, and at the time it purports

A notice of p™iy directedTo iheprineipaiand flee to the rest-dorser”* ^when parish,

Aiatentambi-by6 par°ie .evidence. So the certificate of a notary is not amfm'ay'be e°¿ trained ;by parole testimony.

New trials may be granted ex officio, in the sound discretion of the court.

III. This point will be examined with the sixth.

IV. The evidence shows, that at the time the notice was sent, there were two post offices in that parish; one in the town of Franklin, the seat of justice, and the other at the Dutch Settlement. The officers of the post office have attestecl that letters directed, generally, to St. Mary, are always sent to the former post office; none being sent to the other, unless they be specially directed thereto. The office at Franklin is the nearest to the residence of the endorser of the note, and the one at which he received his letters and papers. The notice was therefore properly directed.

V. The certificate states that on the clay of the protest, the notary put the notice in the post office, directed to the endorser, at the parish of St. Mary. This was in time, and as soon as it could be done.

VI.No attempt has been made to prove, contradict, or eke out the protest, by parole evidence. The certificate states that the notice was put in the post office, directed to the . ,r ,, ,T t 1 endorser, at the parish oí St. Mary. It does not appear on the' face of the certificate, that there is any ambiguity in this. The ambiguity which appears is latent, and may be , . _ , , . rr 5 J explained by parole evidence.

The certificate is not an authentic act, in the meaning of the article of the Code, to which the counsel refers. Louisiana Code, 2256. The authentic act there spoken of, is the act which is received by the notary, in the presence of 'two witnesses, and subscribed by the parly or parties thereto.

VII. New trials, are within the sound discretion of the court, and may be granted ex officio.

VIII. The error suggested as to the amount for which each heir is liable, is evident on inspection, and the plaintiff’s counsel consents to its correction.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the. District Court be annulled, avoided and reversed; and proceeding to give such judgment as in our opinion should have been rendered in the court below, it is, therefore, ordered, adjudged and decreed, that the plaintiff do recover of the defendant, the sum of one thousand dollars, with interest at,five per cent, per annum, from the 3d day of April, 1830, until paid, together with three dollars, the costs of protest, 'and the costs in the court below ; one half of said sums to be paid. by the defendant, widow Nancy Whittaker, and one ninth of the other half by each of the other defendants, respectively; the plaintiff and appellee paying the cost of this appeal.


author: Martin, J.

text:
    SOJOURNER vs. CHARPONTIER.
    Western Dist.
    September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The parties to the appeal are alone competent to make a statement of facts, and not other persons who are not cited in the appeal.
    So where the appellant agreed with the warrantor that the original documents should be brought up and read in the Supreme Court, and such warrantor was not cited: Held, that the appeal must be dismissed on the motion of the appellee; the documents riot being produced.
    An agreement between the parties to the appeal, to bring up'the original documents as part of the record, would be binding on both parties.
    This is a petitory action. The plaintiff claims title to two tracts of land situated on the Bayou Téche, in the parish of St. Mary, in the possession and claimed by the defendant. The plaintiff alleges that-the defendant is cultivating and cutting timber from the locus in quo, to his great injury. He prays for judgment giving him the land and quieting him in the possession thereof, together with one thousand dollars in damages.

      The defendant set up title to the land in question, as derived from A. Porter and J. Baldwin, and cited them in warranty.. '
    The warrantors appeared and set up title in themselves, and acknowledge they sold to the defendant, and support his title. They state, that one Joseph Gerbeau, who claims land adjoining the locus in quo, has refused to abide by the boundary lines as established by survey, but claims his line by parallel lines, which has the effect of depriving the war-rantors of the land conveyed by them to the defendant according to the survey, &c. They pray that Gerbeau be made a party to this suit, &c. Gerbeau called one William Disk’s heirs to defend him.
    Upon these pleadings, and the evidence of title produced by the parties, the cause was tried by the court. Judgment was rendered in favor of the defendant for the land in contest, according to the boundary lines by which he claimed it. The plaintiff appealed. The defendant, Charpontier, alone was cited in the appeal.
    The clerk of the District Court certified that the record contained a true and correct transcript of the original proceedings in the suit of Sojourner vs. Charpontier, on file and of record in his office; and that said transcript contains a correct copy of all the evidence introduced on the trial of said cause, except the documentary evidence, the originals of which the parties have agreed to take up to the Supreme Court without having them copied.
    The appellant prayed an appeal, returnable to the next term, of the Supreme Court at Opelousas, &c.
    The judge granted the appeal as prayed for, on the appellant’s giving bond and security according to law, in the sum of two hundred dollars. “Dated, 26th December, 1834.”
    The record of appeal was filed on the 16th day of September, 1835; on which day the court met at Opelousas to hold the annual term.

      .Brovmson, for the defendant and appellee,
    moved to dismiss the appeal on the following grounds :

      1. The order of the District Judge granting the appeal, does not state any day on which the same shall be returned.

      2. Because the transcript of the record contains no statement of facts, Judge’s certificate, bill of exception or asssignment of errror, apparent on the face of the record.
    • 3. The appeal is made returnable to a court which does not exist, and not to this honorable court.
    4. Because the clerk of the District Court has certified to an agreement respecting the evidence,; which he was not authorized to certify; and of whose existence this appellee has no knowledge, and which was never made by him.
    5. The appeal has been taken from that part of the judgment below discharging the parties cited in warranty in the said cause, because those parties have not been cited to appear and answer to the said appeal, and because the appeal is irregular, informal, and erroneous.

      Splane, for the appellant,
    filed his affidavit, stating that A. Porter, the ostensible defendant in this suit, being called in warranty by the defendant, Chafpantier, did make the agreement mentioned in the certificate of the clerk, that the .original title papers on which the rights of the parties depend, and on which the suit was tried in the District Court, should be produced in the Supreme Court.

      2. That the statement of facts here produced by him, was agreed to between himself and Judge Porter; the original of which was to be brought into this court.
    3. He further contended, that the appeal was to be brought up and tried by agreement, between him as counsel for the plaintiff, and Judge Porter, who managed the defence.
    4. The appeal is made returnable to the next term of the Supreme Court, which necessarily means the first day of the term; and the record was returned and filed on that day.
   Martin, J.

delivered the opinion of the court.

The counsel for the appellee has moved this court to dismiss the appeal on several grounds; one of which only,.it is necessary to notice.

The parties to the appeal are alone competent to make a statement of facts, and not other persons tvlio are not cited in the appeal.

So, where the appellant agreed with the warrantor, that the original documents should he brought up and read in the Supreme Court, and such war-rantor was not citedJEfeld, that the appeal must be dismissed on the motion of the appellee, the documents not being produced.

An agreement between the par-tiestotheappeal, to bring up the original documents as part of the record, would be binding on both parties.

The clerk of the District Court certified, that all the evidence on which the case was tried, is faithfully transcribed and contained in the record, except certain documents which the parties agreed should not be copied, but that the originals should be taken up and read in this court.

As the clerk is without authority to attest such an agreement, the appellant has produced an affidavit, averring, that it was agreed between the counsel for the appellant and A. Porter, who was one of the parties cited in warranty, that the originals of the omitted documents should be used on the appeal.

The judgment in the court below having been rendered against the plaintiff and in favor of the defendant'in possession, the former contented himself with taking his appeal against the latter alone, leaving him (the defendant,) -the choice to make such of the persons cited in warranty parties to the appeal, as he chose. None were so made, nor could, perhaps, be made.

As the judgment appealed from is to he reviewed contradictorily with the defendant and appellee only, it was with him or his counsel that a statement of facts should first be attempted to be made. This was not done. The transcript which has been brought up is insufficient. But, it is contended, that this defect has been cured by the agreement which is stated in the affidavit. Had-this agreement been made between the parties to the appeal, they would have been bound by it. But this agreement took place between the appellant and one of the warrantors, against whom no judgment was given; and no appeal was prayed. The defendant and appellee, who was not a party to this agreement, correctly urges, that it was as to him, res alios acta, and he is not bound by it.

Let the appeal, therefore, be dismissed, with costs.


author: Martin, J,

text:
    FRIEBY vs. CHRETIEN ET AL.
    WESTERN DlST.

      September, 1836.
    APPEAL FROM TIIE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The circumstance of the plaintiff having proposed to take a less,sum than that which he claims, to avoid a suit, and which was not accepted, does not preclude him from recovering the sum which he legally proves to be due to him.
    Propositions or admissions for the purpose of buying peace, or made to avoid litigation, are not admissible in evidence in courts of common law; and the adverse party will not be allowed to avail himself of them in the courts of justice in Louisiana.
    The plaintiff claims two hundred and forty dollars, which, he alleges, Gerard & Francjois D. Chretien justly owe him, as a mechanic; for labor and services rendered. He alleges, that he was employed by the defendants to work as a mechanic, at the rate of fifty dollars per month, and his boarding allowed him, from the 3d April, 1830, until the end of the crop season. That the defendants unjustly discharged him and threw' jhim out of employment, which injured his reputation as a mechanic and engineer, to his damage three hundred dollars. - He prays judgment for his wages and damages, amounting to five hundred and forty dollars.
    The defendant denied that the plaintiff was entitled to any part of his account, because he left their plantation without any just cause, and left his work incomplete and unfinished, by which they sustained heavy damages, and would lose a great part of their crop, amounting to five thousand eight hundred and eleven dollars, according to an account annexed. They pray that the plaintiff’s demand be rejected, and that they recover the sum claimed by them.
    On the trial, the defendant's’ counsel asked a witness, “ if he was authorized by the plaintiff to propose to the defendants to give him a certain sum not to institute a suit; and whether he did not make the proposition, and whether the same exceeded fifteen or twenty dollars in amount.” To which question the plaintiff’s counsel objected as illegal evidence: which evidence was rejected by the court, and the decision excepted to by the defendants’ counsel.
    The circumstance of the plaintiff having proposed to take a less sum than that which he claims, to avoid a suit, and which was not accepted, does not preclude him from recovering the sum, which he legally proves to be due to him.
    Propositions oradpiissionsfor the purpose of buying peace, or made to avoid litigation, are not admissible in evidence in courts of common law, and the adverse party will not be allowed to avail himself of them in the courts of justice in Louisiana.
    The cause was submitted to a jury, who returned a verdict of one hundred and fifty-two dollars for the plaintiff. Judgment was rendered in his favor against the defendants’ confirming the verdict.' They appealed.

      Lewis, for the plaintiff,
    urged the affirmance of the judgment.
    2. The objection to the question asked by the defendants’ counsel of the witness was properly sustained: the question was illegal and the evidence inadmissible. 2 Starkie on Evidence, 37, note 9.

      Simon, contra.

   Martin, J,

delivered the opinion of the court.

This case is before us on a bill of exceptions.

The defendants having asked a witness whether he had not been authorized by the plaintiff to propose that they should pay him a certain sum, (fifteen or twenty dollars) on receipt of which he would forbear instituting a suit against them ; the plaintiff objected to the question being answered, and the objectidn was sustained.

It does not appear to us that the judge erred. The question was at least irrelevant. From the circumstance of the plaintiff having expressed a willingness to accept a less sum than that which he claimed, in order to avoid a suit, it cannot be concluded that, if the proposition be nót accepted, he is not entitled to a verdict and judgment for the sum which he legally proves to be due to him.

From a reluctance to embark in litigation, many are induced to submit even to heavy sacrifices, in order to avoid the delays, expenses and vexations attendant thereon; in other words, to buy their peace. To permit the persons to

whom such propositions are made to avail themselves of them, to the injury of their adversaries, would be to shut the door on pacification and reconciliation, and thus to perpetuate contention and strife. Accordingly, in the courts of common law, evidence of them is inadmissible. 2 Starkie on Evidence, 2d Jhnericcm edition, 37.

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


text:
    BALLEW vs. ANDRUS'S EXECUTOR.
    Western Dist.
    September, 1836.
    APPEAL PROM THE COURT OF PROBATES, FOR THE PARISH OF ST. LANDRY.
    Courts of Probate have exclusive jurisdiction of all claims for money against successions administered by an executor.
    Where the principal and his sureties are jointly and severally bound, either of them may be sued alone on the bond.
    If the party bound himself, his heirs and executors, the latter may he sued on the bond alone.

    Obligations arising from a sheriff’s bond, as relates to the sureties, are obligations ex contractu and not ex delicto, even when the bond is given to cover damages, resulting from torts or omissions of duty of the principal therein.
    Conventional obligations may be superadded to those resulting from torts or quasi offences, and the party complaining may resort to his remedy on either.
    This is an action instituted on a security bond, executed in 1821, by Benjamin S. Haw, the then sheriff of the parish of St. Landry, against the executor of the succession of the late Joseph Andrus, one of the sureties in said bond, to recover the sum of one thousand dollars, alleged to be owing to the plaintiff, on account of the illegal conduct of the said sheriff, whilst in office. .
    The plaintiff alleges, that in the year 1821, in the parish of St. Landry, Joseph Andrus, in his life time, together with Benjamin S. Haw and others, entered into a joint and several obligation, by which they bound themselves, jointly and severally, to the governor of Louisiana, &c. in the sum of six thousand dollars, on the following conditions, after reciting that the said Haw had been appointed sheriff of the parish of St. Landry: “ Now if the said Haw shall, after entering into said obligation, well and faithfully execute and make true returns, according to- law, of all such writs, orders, and process, as shall come into his hands as sheriff aforesaid, and well and truly pay over all sums of money that shall come into his hands, as sheriff, to the persons entitled by law to the same, and shall faithfully do and perform all such other duties as may be required of him by law, then the said obligation to be void; otherwise to remain in full force and virtue.”
    The plaintiff further alleges, that in 1822, Richard Baber, for whose use he now sues, caused to issue a writ of sequestration against one Samuel Fisher, which was executed by said Benjamin S. Haw, as sheriff, seizing and taking into his possession a negro boy, and so returned on the writ. That afterwards, in the year 1824, Baber obtained judgment against said Fisher, and the sheriff was required to deliver up said negro boy, in pursuance of said judgment, which he has wholly neglected and refused to do ; by reason whereof the sureties in the said bond became liable, and especially the estate of Joseph Andrus, deceased, who was one of said sureties, is liable to pay the sum 'of one thousand dollars, and for which the plaintiff prays judgment.
    The defendant, as testamentary executor of Joseph Andrus, deceased, pleaded to the jurisdiction of the Probate Court, averring that it belonged to the District Court. That the suit was improperly brought against him, and should have been instituted against Benjamin S. Haw, the sheriff, whose acts were complained of; or against the heirs of Joseph Andrus, who are of age, &c. That this is an action founded a íorí or quasi offence, and is personal in its nature, and have been brought against the sheriff. He prays that the suit be dismissed.
    After hearing the parties on these pleadings, the Probate1 Judge dismissed the suit, at the plaintiff's costs. He appealed.

      Parrott, for the plaintiff,
    insisted that he had two remedies; one against the sheriff, as for a tort or quasi offence, arising ex delicto; and also an action on the bond against the surety, arising ex coniractu.

    2.The Probate Court is the proper jurisdiction before which to bring suit for money demands against an estate of a deceased person.

      Lewis, for defendant.
    1. The Court of Probates is limited in its jurisdiction. It is a court of special jurisdiction for the settlement of successions, and cannot be extended to actions founded on torts and sounding in damages. Code of Practice, 924-5. 5 Louisiana Reports, 324.
    2. This case does not come within the provisions of law relating to the jurisdiction of the Court of Probates, but belongs exclusively to the District Court. 8 Louisiana Reports, 212.
    3. This is in the nature of a personal action arising ex delicto, and should have been brought against the heirs and not the executor. Code of Practice, 3, 26 to 40, 120. 6_ Louisiana Reports, 97.
    4. The cause of action in this case grows out of the misconduct or quasi offence of the sheriff, a neglect of duty, and not out of a contract entered into with the plaintiff Louisiana Code, 2294-5. 6 Martin, Jf. S., 668, 691, 708. 11 Toullier, 156-7, 161, &c.
    5. This action is prescribed by the lapse of one year. Louisiana Code, 3501.

      Courts of Probate have exclusive jurisdiction of all claims for money against successions administered by an executor.
    Where the principal and his sureties ■ are jointlyandseverally bound, either of them may be sued alone on the bond.
    If the party bound himself, his'heirs and executors, the latter may be sued on the bond, alone.
    Obligations arising from a sheriff’s bond, as relates to the sureties, are obligations ex edn-traclu and not ex delicto, even vvhen the bond is given to cover damages, resulting from torts or omissions of duty of the principal therein.
    Conventional obligations may be superadded to those resulting from torts or quasi offences, and the party complaining may resort to his remedy on either.
   Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment sustaining the defendant’s plea to the jurisdiction of the court.

The suit was brought on a sheriff’s bond, on which the defendant’s testator was a surety. An exemption from the jurisdiction of the Court of Probates is claimed on the following suggestions:

' First, That the District Court has e±clusive jurisdiction.

Second, That the suit ought to have been brought against the sheriff, whose acts alone are complained of.

Third, That it should have been brought against the heirs, and not the executor of the deceased surety.

Fourth, That it is an action grounded on a tort or quasi offence, and is personal in its nature.

• I.'According to the provisions of the 9Mth article of the Code of Practice, ISth clause, Courts of Probate have exclusive jurisdiction of all claims for money against successions administered by an executor.

II. The sheriff and his sureties were jointly and severally bound, therefore an action lies against either of them.

III. The party bound himself, his heirs, executors, &c. His executor is, therefore, suable on the bond.

IV. It has been decided by this court that obligations arising from a bond, even when it was given to cover damages resulting from torts or omissions, are obligations ex contractu and not ex delicto. Poydras et al. vs. Putin. 5 Louisiana Reports, 324.

Conventional obligations may be superadded to those which result from torts or quasi offénces, and the party in whose favor they accrue may choose between them and resort to either remedy.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, the plea to the jurisdiction overruled, and the case remanded for further proceedings, according to law, the defendant and appellee paying costs of the appeal.


text:
    PATTERSON vs. MAYFIELD’S CURATOR.
    WESTERN DlST.
    September, 1836.
    APPEAL FROM THE COURT OF PROBATES FOR THE TARISH OF LAFAYETTE.
    A judgment of another state, rendered under a statute requiring no notice to be given .to the defendant, will not be enforced in this state, whatever may be its effect in that state.
    The judgment of another state, regularly obtained, when the defendant had been served with process, or had otherwise appeared, is conclusive evidence of the debt. But the defendant must have had due notice or have actually appeared, to give validity to the judgment when sued on here. '
    Judgments taken by default, even when the party has been cited, cannot be proceeded on by the via executiva.
      A judgment of another state, rendered under a statute requiring no notice to be given to the defendant, will not be enforced ill this state, whatever maybe its effect in that state.

      This action is founded on a judgment rendered in the state of Tennessee, against the late Elisha B. Mayfield, in 1825.
    The plaintiff alleges that the estate of said Mayfield is indebted to him in the sum of five hundred and three dollars and forty-four cents, being the amount of a judgment obtained against the deceased and others, in Giles county, in the state of Tennessee, on motion, according to the laws of that state, at the August term of their Circuit Court, in 1825. That he is the owner of said judgment by transfer from one Irby, who was the plaintiff therein. He prays for judgment against J. B. Mudd, the curator of the estate of Elisha B. Mayfield, for the amount of said claim.
    The curator denied that the estate of Mayfield was indebted to the parties in said judgment, or that any judgment was legally rendered against him in Tennessee. He further avers, that Elisha B. Mayfield resided in the state of Louisiana from the year 1822 until his death, in 1833, and could not be sued in the state of Tennessee ; that he had no notice, and could have none, and never did appear or plead to said suit;' that said judgment is in no way binding on him, but is illegal and of no effect. He prays that the plaintiff’s demand be rejected, with costs.
    Upon these pleadings and issues the parties went to trial,
    The plaintiff offered in evidence an authenticated copy of a statute of the state of Tennessee, empowering sureties who have paid any debt, &c., to obtain judgment by motion against the principal debtor in their favor, without requiring any notice or process of citation on the party condemned, &c.
    He next offered the record of a judgment which one G. Irby obtained against Elisha B. Mayfield and others, as their surety, on motion at the August term, 1825, of the Circuit Court of Giles county, in the state of Tennessee, for the amount of the sum claimed; also a transfer of the same to the plaintiff. The defendant’s counsel objected to the introduction of this evidence, which objection was overruled; the record was received, and a bill of exceptions taken.
    It was admitted Mayfield lived in Louisiana when this judgment was obtained against him in Tennessee.
    The judge of probates was, however, of opinion the evidence was insufficient to authorize a recovery, and gave judgment for the defendant. The plaintiff appealed.

      Mouton, for the plaintiff.
    1. The judgment offered in evidence in this case was correctly rendered in Tennessee, according to the statute of that state, providing for a summary remedy against debtors, in favor of sureties who have been compelled to pay.
    2. The record of this suit and the statute are both properly authenticated and are admissible in evidence. Ingersoll’s Digest of the Laws of the United States, page 76, section 1.
    3. Notice to the defendant, in proceedings had under this statute of Tennessee, is not required, and the judgment is in accordance- with it.

      Crow, for the defendant.
    The Court of Probates erred in receiving as evidence the record and judgment from Tennessee.

      The judgment of another state, regularly obtained, when the defendant had been served with process, or had otherwise appeared, is conclusive evidence of the debt; but the defendant must have had due notice, or have actually appeared, to give validity to the judgment when sued on here.
    1. Because it was rendered against Elisha B. Mayfield, wp0 resided in Louisiana, to whom no notice was ever given of any suit existing against him in Tennessee. 5 Johnson, 37.
    2. Because the judgment, if such was ever rendered, is not signed by any judge and is null. 5 Martin, JV. S., 105.
    3. The law of Tennessee, cited by the plaintiff, does not exempt the party claiming a_ judgment on motion, from the necessity of .giving the defendant notice of such motion.
    ■ 4. The obligation sought to be put in force here must be governed by the laws of Louisiana. 4 Marlin, N. S., 419. 7 Martin, N. S., 108.
   Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from the decision of the Court of Probates rejecting his claim, founded on a judgment obtained in the state of Tennessee against the late Elisha B. Mayfield, deceased, whose estate is administered by the defendant, as curator.

The pleas were nil debit, and that the deceased was, long before and at the time of the judgment, a resident of the state of Louisiana. That he had no notice of the suit and did not appear therein.

The record and judgment of the case‘in the state of Tennessee does not show that the then defendant had any notice of the suit, by service of process or otherwise, or that he appeared : neither does this appear aliunde.

It is true the statute of that state, on which the suit was instituted, authorized judgment to be rendered on motion, without notice being required to be given to the party. It is not for us to inquire whether, in that state, the want of notice might be urged on an appeal or writ of error, or otherwise. It suffices for us to say that the “judgment of another state, regularly obtained, when the defendant had been served with process or had otherwise appeared, is conclusive evidence of the debt. But the defendant must have had due notice to appear, or must have actually appeared to the suit,” or the judgment of another state is of no validity in this. 1 Kent's Commentaries, 2d edition, 260, 261, and the note to the latter page.

jucigments'ta-ken hr default, even '"’hen the party has been proceedeTon by the via executi-va.

In cases in which the party has actually been served with process, but has neglected to plead, and judgment was taken against him by default, the ,Code of Practice disallows a resort to the via executiva. Code of Practice, article 717.

i • i i i • I he Court of Probates decided correctly in rejecting the plaintiff’s claim and in giving judgment fof the defendant.

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


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    CARLIN vs. HARDING.
    Western Dist.

      September, 1836.

    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING. >
    An oral agreement between the plaintiff and defendant, that as of a note, each will pay one half of the entire sum for which they are liable, is not annulled or suspended by a subsequent agreement to reduce the first one to writing. ,
    The oral agreement was perfect and binding on both parties when the proposition to reduce it to writing was made ; the latter agreement can only be considered as intending to give a less mutable form to the first one.
    This is an action by the second endorser of a promissory note, discounted in bank for seven hundred dollars, against the first one. Both endorsements are in blank. The bank, as holder of the note, recovered a judgment against the endorsers for the entire sum in solido, which was satisfied by each of them paying one half.
    The plaintiff alleges, that as second endorser he is entitled to recover the sum, which he paid on said judgment to the bank, from the defendant, amounting to four hundred and eleven dollars and fifty cents, with interest and costs.
    The defendant admits that he and the plaintiff endorsed an accommodation note for James Foster, which was discounted in bank for the sum stated, but that it was verbally and specially agreed between them, that in case the note was not paid by Foster, each one was to pay one half of the amount thereof and divide the loss equally. That, in pursuance of said agreement, he paid up and discharged one half of a judgment, interest and costs, which the bank obtained against them on said note. He prays that the plaintiff’s demand be rejected, with costs, and for general relief.
    Upon these pleadings and issues the case was tried before the court on the following facts, admitted in evidence.
    The plaintiff and defendant were the endorsers on an accommodation note drawn by James Foster, to the order of W. S. Harding, and endorsed by him and the plaintiff in blank, and which was discounted for the benefit of the drawer. A short time before the note became due, the parties, not knowing which was the first endorser, agreed, verbally, that each would pay one half. That previously to this the defendant had taken a mortgage from Foster on a negro man, to secure him against his endorsement. Nothing was said of this matter at the time of the agreement, but shortly afterwards the plaintiff demanded of the defendant a transfer of one half of the mortgage, which the latter refused. The former then said he would not consider himself bound by their first agreement. The defendant insisted on it, but still refused the plaintiff a participation in his mortgage. It appeared, also, that the plaintiff required the agreement with the defendant, that each pay half the note, should be drawn up in writing, and that defendant directed an attorney to draw it up accordingly, but it was not done. It was in proof that the mortgage was worthless, the negro being previously covered by judicial mortgages to a greater amount than his value.
    Judgment was given for the plaintiff, and the defendant appealed.

      An oral agreement between the plaintiff and defendant, that as endorsers of a note, each will' pay one half of the entire sum for wh i ch the endorsers are liable, is not annulled or suspended by a subsequent agreement to reduce the first one to writing.

      Splane., for the plaintiff,
    contended, that as the agreement between the plaintiff and defendant, that eachLshould pay one half of the note endorsed by them, was intended and contemplated to be in writing, the plaintiff had a right to 'withdraw from it and did so, in consequence of which it was'no longer binding.
    2. The second endorser of a promissory note is entitled to recover the whole amount thereof from the first, when their names are endorsed in blank, and when he has paid, or is the holder of it.

      T. H. Lewis, for defendant,
    said the only question is, whether a party to a verbal contract can recede without the consent of the other. This cannot be done.
   Martin, J.,

delivered the opinion of the court.

The parties to the present suit having endorsed an accommodation note for one of their friends, and not recollecting which of them was the first endorser, entered into an oral agreement that each of them should support one half of the loss, if there was any. The plaintiff having paid one half of the note, but discovering he was the last endorser, brought the present suit to recover the money thus paid. The defendant has appealed to this court from the judgment rendered against him.

He shows that, some time after the agreement had been entered into between them, the plaintiff required that it should be reduced to writing, to which the defendant assented. This agreement was, however, never carried into effect by actually reducing it to writing. The defendant’s counsel contends that the district judge erred in considering the oral agreement as annulled by the subsequent understanding that it should be reduced to writing, or at least as suspended until this was done.

It appears to us that the judge a quo erred in his decision. The oral agreement was perfect and binding on both parties, when the proposition to reduce it to writing was made by the plaintiff to the defendant. This proposition, and the assent thereto, must be considered as made with the view to secuve the performance of the oral agreement, by giving to ^ a iess mutable form, rather than to annul or suspend it. Had the parties proceeded to the confection of the writing, r r , . i neither would have had the right of insisting on the change or alteration of an iota of the agreement. Neither could .. . - insist on any thing but a correct and faithful transcript of tUe agreement, and in case of a disagreement in this respect, they would have to remain in possession of the right of establishing the first agreement by any evidence in his power, or by an appeal to the conscience of his adversary. His failure “ight be the consequence of his inability to establish the contract, not from its being annulled or suspended by the _ , , . agreement to reduce an oral contract to writing.

The oral agreement ivas perfectandbind-tíes^' wiien Pthe proposition to ting was made; mentcaiímdyTe intendhigtogive a less mutable form to the first one.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that ours be for the defendant and appellant, with costs in both courts.


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    KNIGHT vs. CALLENDER & DEBLOIS.
    Western Dist.

      September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    The plea to the jurisdiction is waived by pleading any other subsequent plea.
    An insolvent debtor, after cessio bonorum, is incapable of standing in judgment, even in the Supreme Court, as appellant in a suit in which he is made defendant.
    Where one partner makes a cessio bonorum, for himself individually, and for the firm, the other partner retaining his private capacity, may be sued in attachment for a debt of the firm, on his leaving the state.
    Judgment against a garnishee cannot be reviewed in the Supreme Court, when he is not made a party to the appeal.

      This action commenced by attachment. The plaintiff claims eight hundred and twenty-two dollars and seventy-eight cents from the defendants, who resided in New-Orleans, and attached a sum about equal to his demand, in the hands of one Walter B. Wilcoxon, in the parish of St. Mary, as a debt due and owing to the commercial firm of the defendants.
    The defendants excepted to the action; 1st., that they are residents of New-Orleans and should have been sued there. 2nd. They have made a cessio bonorum, which has been accepted, and the plaintiff’s claim put on their bilan.
    The district judge overruled these exceptions; sustained the attachment, as to Callender; and as regards Deblois, the cause was sent to the concurso.

    = The defendants further pleaded the general issue, and that a syndic had been appointed to take charge of their property and effects, who bad possession of their books and accounts, which would show payments. They pleaded payment of one thousand dollars.
    The garnishee admitted there was a balance of four hundred and odd dollars in his hands, belonging to the defendants’ firm. The plaintiff’s claim was admitted; as also the absence of Callender from the state, at the time of suing out the attachment. The insolvent proceedings were offered in evidence, in which it was shown that Deblois for himself, individually, and for the commercial firm of Cal-lender & Deblois, bad made a surrender, which was accepted, and the claim of the plaintiff placed on the bilan as a debt of the firm.

    The district judge rendered judgment in favor of the plaintiff, against Callender, for the amount of the debt claimed, and against the garnishee for the sum admitted to be in his hands; belonging to the firm. The defendants both appealed.
    Splane, for the plaintiff, exparte.

    1. The exceptions were properly overruled, both as to the domicil and surrender. It is shown that one of the defendants is absent from the state, and the surrender was made ]3y the other one, alone.
    , The plea to the jurisdiction is 'waived by pleading any ,other subsequent
    An insolvent ■debtor, afterces-¡sio bonorum, is incapable _ of menq^e'veiwn the Supreme Court as appellant, in.a suit in defendantmde Where one jiiobotmnlp/foi-lumseif «dm-dually, and for ¡the firm, ,tbe other partner re-capadty, ^uachmenfiorli debu>f the firm, the state.

      2. One partner of a commercial firm cannot make a surrender for the firm; nor is the other partner, who is bound jn in S0iid0} discharged from his liability in consequence of-such surrender. 8 Martin, N. S., 676-9.
   Martin, J.,

delivered the opinion of the court.

The plaintiff instituted suit against the defendants as partners in trade, for a debt of the partnership, and attached some funds and property in the hands of one Walter B. Wil-coxon, one of their debtors, who was made a garnishee.

The defendants pleaded to the jurisdiction of the court on the score of commorancy, they being residents of a different parish than that in which the suit is brought; and after-wards, on a suggestion that they had made a cessio bonorum, which had been accepted, and the claim of the plaintiff placed on the bilan; they prayed for a dismissal of the suit.

The exceptions were overruled, and the attachment against Callender sustained; and, as respects Deblois, the case was ordered to be sent to the concurso.

The defendants next pleaded the general issue and compensation ; and that . Deblois for himself and the firm, had r , made a surrender, which had been accepted, and a syndic __• , •» &PP0ÍHt6cL

The District Court rendered judgment against Callender ^01’ the whole amount of the sum demanded, and against the garnishee for the balance admitted by him to be due to the ° J , defendants’ firm, to be applied to the payment of the judgment against Callender. The defendants appealed.

The statement of facts show that the plaintiff’s claim was 1 admitted, and that the cessio bonorum was made by Deblois, for himself and for the firm, Callender and Deblois. It was shown, that the defendants were commercial partners in New-Oileans at the time of the surrender of Deblois, anq t]iat Callender had left the state at the time of issuing ° the attachment.

Judgment against a garnishee cannot be reviewed iri the Supreme Court, the appeal.

The plea to the jurisdiction, was, in our opinion, waived by the subsequent one. Deblois, having made a cession for himself and the firm, had no capacity to stand in judgment in this court as appellant from a judgment, which, if erroneous, must be reversed on the application of the syndic, The appeal, as to him, must therefore be dismissed.

Callender retaining his private property, the plaintiff was entitled to a judgment against him personally, notwithstanding the cessio bonorum of the firm.

The judgment against the garnishee cannot be reviewed . J ° ° # ° m this court, because he is not before us.

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


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    HARRIS ET AL. vs. KNOX.
    Western Dist.

      September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    The action of mechanics, as builders, brick layers, carpenters, &e., who undertake work by the job, and who do certain pieces of work at different times, is not prescribed by the lapse of one year.
    The prescription provided in the article 3499 of the Louisiana Code does not apply to the actions of mechanics who do work by the job.
    This is an action instituted by J. Harris, and the widow and heirs of Nathan Sargent, deceased, who were partners in the brick making and building business, to recover from the defendant the sum of five hundred and ninety-seven dollars and sixty-nine cents, for work done by them for the latter, in their capacity of undertakers, brick makers and brick masons, and for furnishing materials for the construetion of the building they undertook, according to a detailed account annexed.
    The defendant pleaded a general denial, and that if he ever was indebted to the plaintiffs it has long since been extinguished by compensation. He then sets up several detailed accounts of payments and articles furnished to the plaintiffs, which is pleaded in compensation.
    He further pleads the prescription of one, three, four and five years against the plaintiffs’ demand.
    The work and labor, and materials furnished by the plaintiffs is alleged and shown to have been performed between the first of April, 1825, and the 31st of December, 1827.
    This suit was brought the 22d of May, 1833.
    The district judge, after hearing the evidence, and explanations and arguments of counsel, examined the accounts between the parties, and gave judgment in favor of the plaintiffs for the sum of two hundred and seventy-eight dollars and fifty-six cents. The defendant appealed.

      Garland, for the plaintiff.
    1. The main question in this case is that of prescription. The prescription of one year is relied on. This is only applicable to workmen’s wages, who work by the day or month.
    2. The plaintiffs were a class of mechanics who undertook work by the job or piece, and their claims for the value of their work are not prescribed by the lapse of one year or any other period. 4 Louisiana Reports, 113. 5 Ibid., 15. 1 Ibid., 265. 6 Ibid., 591.

      Lewis, for defendant,
    contended that the plaintiffs’ claim was barred by the prescription of one year. Louisiana Code, articles 3499, 2742.
   Bullard, J.,

delivered the opinion of the court.

This is an action to recover the value of work and labor done, and materials furnished, according to the account annexed to the sheriff’s petition. Judgment having been rendered in favor of the plaintiffs, the defendant appealed.

The action of mechanics, as builders, bricklayers, carpenters, &c., who undertake work by the job, and who do certain pieces of work at different times, is not prescribed by the lapse of one year.

The prescription provided in the article 8499 of the Louisiana Code, does not apply to the actions of mechanics who do work by the job.

The only defence on which he relies in this court is the prescription of one year, under article 3499 of the Louisiana Code.

It appears that the plaintiffs are mechanics who undertake to do jobs, and that at different periods, as detailed in the account, they were employed by the defendant to work, not by the day or the month, but to do certain pieces of work, for which the undertaker, at the same time, furnished the necessary materials. We are of opinion that this case is not one of those contemplated by tbe article of the code relied on, and that the plea of prescription was properly overruled. Louisiana Code, article 2742. 1 Louisiana Reports, 268. 4 Louisiana Reports, 113. 5 Ibid., 5. 6 Ibid., 591.

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


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    SARGENT'S HEIRS vs. KNOX.
    Western Dist.

      September, 1836.
    APPEAL PROM THE COURT OS THE PISTH JUDICIAL DISTRICT, THE JUDGE OS THE. SEVENTH PRESIDING.
    The prescription of one year, as provided in article 3499 of the Louisiana Code, is not applicable to claims for work done by the job.
    This is an action for work done by the job, and at different times, by the ancestor of the plaintiffs, who was a brick mason and brick maker for the defendant. The services are alleged to have been rendered between the 1st of February, 1830, and the 30th of November following. The sum claimed is four hundred and forty-three dollars and fifty-five cents, according to a detailed account annexed.

      The prescription of one year, as provided in article 3499 of the Louisiana Code, is not applicable to claims for work done by the job.
    The defendant pleaded a general denial; that if the plaintiffs ever had any claim against him, it has been extinguished by compensation. He then annexed a detailed account of payments and articles furnished, and prays that the plaintiffs’ demand be rejected, with costs. He also pleaded the prescription of one year, &c.
    The District Judge gave judgment in favor of the plaintiff for part of the sum claimed. The defendant appealed.

      Garland,'fox plaintiff.

      Lewis, contra.

   Bullard, J.,

delivered the opinion of the court.

This case cannot be distinguished from the one against the same defendant just decided. The same plea is relied on under- similar circumstances, and the question must receive the same solution.

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