text:
    N. King Knox v. John Buhler.
    Notarial Certificate of notice of nonpayment, put in tlie Post Office at Baton Rouge, was headed as follows: “Baton Rouge, May 19, 1852. Mr. JoJm Buhler—Parish of West Baton Rouge—Lobdell’s Store Post Office, La.” It was objected that this was no proof that the letter to Buhler, on the outside, was directed to any place. Meld: that the Certificate was sufficient.
    Appeal from the District Court, Sixth District, Parish of West Baton Rouge. Bobertson, J.

      J. M. & J. S. Flam, for plaintiff.

      Seymour, for defendant and appellant.
   Slidell, J.

The defendant is sued as endorser of a promissory note. There was judgment against him in the Court below. The only ground for reversal argued here is the alledged insufficiency of the notarial certificate of notice of protest.

The only evidence offered to prove notice was a certified, .copy of the certificate of the Parish Recorder ( ex-officio a notary) in these words:

Baton Rouge, May 19th, 1852.
Me. JOHN BUHLER,
Parish of West Baton Rouge,
Lobdell’s Store Post Office, La.
Me. JOHN BUHLER, Parish of East Baton Rouge,
Baton Rouge Post Office, La.
Me. N. KING KNOX,’ Baton Rouge, La.
Sib.
Please to take notice that a Promissory Note, drawn by Thos. Devall, for $1910 89, dated the 29th day of May, 1850, and due this day, has been duly protested by mo for non-payment, and that the holder looks to you for payment as endorser thereof. Respectfully, your obt. servant,
[Signed.] SAM. SKOLEIELD, Recorder.
I hereby certify, that on this nineteenth day of May, eighteen hundred and fifty-two, I served three original notices, whereof the above is a true copy, by depositing two for John Buhler, first endorser, in the Post Office at this place, and by delivering one for K. King Knox, second endorser, to him in person, and of which I made this record in presence of J. La/rguier and Joseph Nephler, witnesses, at Baton Rouge, on the day and year above written.
J. LARQUIER. [Signed.] SAM. SKOLEIELD, Recorder.
JOS. NEPHLER.
I certify the within to be a true copy of the original notices of protest and manner of the service.
Given under my hand and Seal of Office, at Baton Rouge, this 16th day of June, 1852. [Signed.] SAM. SKOLEIELD, Recorder.
[Seal.]

It is admitted that Lobdell’s Store Post Office, in the Parish of West Baton Rouge, was the proper post office to which to address by mail a letter to Buhler ; but it is argued that the certificate is defective in this respect, “ that the certificate of the notary does not state that the notices of protest were directed to him at that or any other place.” The address stated in the certificate, it is said, is the mere inside address of the letter, and it does not appear from the certificate that such an address was on the outside of the letter which the notary put into the Post-office.

It is obvious from his decree that the District Judge thought the certificate imported a declaration by the notary that one of the letters put into the post-office was externally addressed to “ Mr. John Buhler, Parish of West Baton Rouge, Lobdoll’s Store Post Office, La.: ” and we are not prepared to say the District Judge erred in considering this the reasonable and fair intendment of the certificate, taken as a whole. The notary, after copjnng the letters so addressed, says, ho deposited the two letters for Buhler in the post-office of the place of protest. Taking this expression in its popular sense, and reading it in connection with the rest of the certificate, we may fairly understand the notary as saying that he put them in the post-office addressed as in the heading of the letters. To suppose that the notary put them in the post-office without any address, is to suppose him to have first committed a gross omission of duty in a business he was employed to perform, and then to have disingenuously put his name to a certificate which would suggest-to an ordinary mind a state of facts different from what really existed. We take it to be a just rule of interpretation, in a matter of this sort, that where the instrument is susceptible’of two constructions, one consistent with official duty and a reasonable and businesslike pur-pose, and the other involving a gross omission of duty under circumstances clearly showing that such omission was not attributable to a lack of information on the part of the public officer as to the proper mode of accomplishing the purpose for which he was employed, the former interpretation should be adopte'd.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Zozine Audige, f. w. c. v. Manon Gaillard, f. m. c.
    Plaintiff, for months, left a loaded gun, resembling a walking cane, in her yard. It was taken up by a boy, about fourteen years old, belonging to defendant—in whose hands it went off and killed the plaintiff’s slave. Plaintiff sued for damages. Hdd: It was the'plaintiff’s negligence whioh was the occasion of the accident, and this is sufficient to prevent her recovery.
    from the Second District Court of New Orleans, Zea, J.

      Be Qa/rd-ner, for plaintiff and appellant.

      Dufour, for defendant.
   Rost, J.

We do not consider this a proper case for the allowance of the damages claimed. The servant of the defendant, a hoy about fourteen years old, had gone into the yard of the plaintiff, at the request of the plaintiff’s servant, and picked up from the ground whore it lay, what to all appearance seemed a walking cane, and in handling it, as a boy of his age would naturally do, it went off and killed the plaintiff’s slave. If there was any fault in the boy, there was greater fault in the plaintiff’s leaving a disguised and loaded gun in her yard for months, as it is shown she has done. It was her negligence which was the occasion of the accident, and this is sufficient to prevent her recovery.

The testimony leaves it doubtful whether the cane was an air gun or a fire arm; if, as argued for the plaintiff, the fact of its being a fire arm was material to her, she should have shown it affirmatively.

Judgment affirmed with costs.


text:
    Evariste Blanc v. T. Cousin.
    When, by the act of the defendant and the acquiescence of the plaintiff, an action of boundary is changed into a petitory action—the defendant in the original suit becomes the plaintiff in the petitory action.
    An appeal will not be entertained, in a case where there are warrantors, unless the warrantors, are made parties in the appellate Court.
    Appeal from the District Court, Eighth District, Parish of St. Tammany, Ba/ylie, J.

      Alfred Hennen, for plaintiff.
    Jones, for defendant and appellant.
   Rost, J.

The plaintiff originally instituted ah action of boundary against the defendant, who reconvened, alleging that he was the owner of the land which the plaintiff represented as belonging to him, and praying that he might be quieted in his possession and title, and also for damages. The plaintiff answcrod the demand in reconvention, joined issue on the question of title and called his immediate vendor in warranty. To this call in warranty no objection was made by the defendant, and the previous vendors were successively called in to defend the suit. Some of the warrantors answered to the merits and others filed exceptions. The question of title was tried by the District Court and decided in favor of the plaintiff. The defendant obtained an order of appeal in open Court and gave bond to the plaintiff alone, without mentioning the warrantors, or other parties in interest, either expressly or in general terms. The appellee has moved to dismiss the appeal, on the ground that the warrantors have not been made parties.

It is unquestionable that when by the act of the defendant, and the acquiescence of the plaintiff, the action was changed from an action of boundary to a petitory action, the defendant became plaintiff, as would have been the case if the original suit had been one for slander of title.

The original plaintiff having become the defendant, enjoyed all the privileges of defendants, and among others that of citing his vendors in warranty either to join in the defence, or to assume it at their exclusive expense. The case is therefore to be viewed as a petitory action instituted by the defendant.

The question presented by the motion to dismiss first came before the Supreme Court in the case of Guerin et al, v. Bagnæries, 9 L. R., 473. The Court then decided that warrantors have a direct interest to prevent the reversal of a judgment in favor of the party calling them in, and that the appellant was bound to bring them into Court, but the case being a new one, the Court granted time to cite the warrantor.

The same question came again before the Court, two years after, in the case of Cuny v. Robert et al, 12 L. R., 475; and the appeal was dismissed. Judge Martin, who was the organ of the Court, said: “ In the case of Guerin we refused the dismissal and gave time to cite the warrantor, because the question was new and the members of the bar entertained different opinions in relation to it. As that decision has been long published and is well known, we do not think ourselves authorized to grant the same indulgence.”

This decision was reaffirmed in the case of Oliver v. Williams, 12 R. R., 183, and it has been held, again and again, that an appeal will not be entertained unless all the parties having an interest in the maintenance of the judgment appealed from are made parties in the appellate Court.

The same question came before us lately in the case of Charlotte Williams and husband v. Courtney et als, and although the case appeared to us a hard one, we did not feel ourselves at liberty to change the settled jurisprudence of the Court, in a matter of practice.

That jurisprudence does not rest upon a mere technical ground. Its object is to speed the administration of justice, prevent a multiplicity of appeals, and secure the rights of the warrantors under all contingencies.

We are of opinion that the appeal be dismissed.

It is ordered that the appeal be dismissed with costs.


author: Dunbar, J.

text:
    Govy Hood v. Wm. L. Knox, Sheriff et al.
    No amendments can be made to the judgments of the District Courts, if the appellee does not aslc for them in the manner required by the Code of Practice.
    A judgment cannot be amended in favor of the appellee, and damages, at the same time, allowed him for a frivolous appeal.
    "When the judgment enjoins bears ten per cent, interest, no more interest can be allowed on the dissolution of the injunction,
    Appeal from the District Court, Tenth District, Parish of Carroll.

      Selby, for plaintiff and appellant.
    Ualdwell, for defendants.
   Dunbar, J.

In this case the District Judge dissolved the injunction with ten per cent, per annum interest on the amount of the judgment enjoined, from the 3d June, 1852, until paid, and the plaintiff has appealed.

The defendants have filed no answer to the appeal stating the points on which they think they have sustained wrong, and praying that the judgment be reversed with respect to thorn, and 'confirmed with costs on the rest, hut have contented themselves with a statement of these points in the Brief of their attorney, with a prayer for amendment and an affirmance of the judgment of the District Court, with damages for a frivolous appeal and ten per cent, special damages for Counsel fees.

We cannot make these amendments to the judgment of the District Court, because the appellees have not asked for them by an answer filed in conformity to the provisions of the Code of Practice, Art. 888, 907; 4 An’l, 150 ; 5 An’l, 146. Nor could we amend the judgment in favor of the appellee, and at the same time award him damages for a frivolous appeal. Desblieux v. Darbonneaux, 2 Martin, N. S., 217.

We are satisfied from the evidence that the District Judge did not err in dissolving the injunction, but he should not have given any interest, as the judgment injoined bore ten per cent, interest, and no other interest can be allowed on the dissolution of the injunction, Erwin v. Bank of Kentucky, 5 Annual, p. 5. However, as we believe that substantial justice has been done, and the interest allowed will not exceed or even equal the damages which should havo been given, we are not disposed to make any change in the judgment of the District Judge, which is affirmed with costs in both Courts.


text:
    J. Robatham, Tutor et al, v. François Amede Tete.
    Since the adoption of the Code of Practice, a judgment against the original debtor is no longer necessary to support an action of mortgage, even when the /oia executma is resorted -to. The only requisite in such case is an amicable demand from the debtor, or his heirs, thirty days before filing the petition.
    Appeal from the District Court, Fifth District, Parish of Assumption.

      Mailhot and Mills, for plaintiffs and appellants.

      J. 0. & A. Beattey, for defendants.
   Rost, J.

The plaintiffs proceeded ly the via ordinaria against the defendant, as third possessor of certain slaves formerly owned by the late Sarah Tong, their mother and tutrix, to subject them to their legal mortgage.

The defendant excepted to the petition on the ground that it does not clearly set forth the amount of the respective claims of the parties, and on the further ground that the plaintiffs have accepted the succession of their mother under benefit of an inventory, and can only maintain their action after the final settlement of her succession.

No action was had upon these exceptions, but the plaintiffs amended their petition, setting forth their claims with more precision, and the defendant then pleaded the general issue, and further that a tract of land belonging to Sarah Tong was sold at the probate sale of her succession, and that the plaintiffs cannot recover till they discuss the proceeds of the sale, or credit them on their claim. One of the exceptions was obviated by the amended petition, and the other must be considered as waived by the pleas to the merits. Those pleas, therefore, are alone to bo considered.

The general denial having put at issue the reality and amount of the plaintiffs’ claims, they adduced, to establish them, evidence which was-received without objection, and which stands unimpeached. We think it makes out a prima facia, case in their favor.

The District Judge dismissed the petition on the ground that there should have been a judgment against the tutrix before the action could be maintained. This objection was not raised by the defendant, and is, besides, untenable. Since the adoption of the Code of Practice, a judgment against the original debtor is no longer necessary to support an action of mortgage, even when the via executica is resorted to. The only requisite in such cases is an amicable demand from the debtor, or his heirs, thirty days before the filing of the petition. 0. P., 69. The plaintiffs themselves are the beneficiary heirs of Sarah Tong and cannot be required to make a demand from themselves. It is in proof that Sarah Tong died insolvent; that her property was sold, and that after paying the privileged debts, there remains only a balance of $300 to be applied to the plaintiffs’ claim. A demand from the administrator beyond that amount would have been useless, and the defendant does not insist upon it. He only asks that the balance, after payment of the privileges, be credited upon the plaintiffs’ claim. We are of opinion that he is entitled to relief to that extent.

It is, therefore, ordered that the judgment of the District Court be reversed.

It is further ordered that the plaintifffe do have judgment in their favor, and that the defendant pay to them the sum of two thousand and eighty-four dollars, ninety-three cents, with legal interest from 1st April, 1853, till paid, or that he surrender the slaves Louise, Adelle and Negrillon, described in the petition, to be sold under the legal mortgage existing in favor of the plaintiffs, to pay said sum and interest. The defendant to pay the costs in both Courts.


author: Slidell, J.

text:
    Jacques Gosserand v. Jean B. Lacour et al.
    Parole evidence is inadmissable to shew the declarations of a surety, made at the time of his signing the note, but out of (he presence of his co-surety—the object of which evidence was to show what the surety supposed was the nature of his obligation.
    A surety has a right to be subrogated to the principal’s rights against his solidary co-surety, to the extent of the co-surety’s liability; and if the principal grants time to the co-surety, that would defeat the surety’s right to the subrogation—the surety is discharged.
    APPEAL from the District Court, Ninth District. Fa/rrrn’, J.
    Suit on the following promissory note.
    $3,543. Pointe Coupee, ce 20 Juin, 1849.
    Dans tout Mars, mille huit cent cinquante, nous Jean B’te Lacour comme principal, et Madame V. Pierre Gondran, et Monsieur Jean B’te Decuir comme la caution, promettons de payer solidairement et l’un pour l’autre, á l’ordre de Monsieur Jacques Gosserand, la somme de trois mille cinq cent quarante-trois piastres pour valeur recue, avec interet á huit pour cent Fan depuis Fechéance iusqu’á parfait paiement. [Signed] JEAN B. LACOUR, JEAN B. DECUIR,
    OnAS. Hagan, temoin. V. P. GONDRAN^/
    The following is the substance of a Bill of Exceptions taken by one of the defendants.
    “Be it known that on the trial of this case, Ma/i'geruite Decuir, &a., offered a witness to prove that the principal on the note, Jean B’te Lacour, went to ask from Jeam, B’te Decuir to sign the note as the surety of Mad. Gond/ran; that the said Decuir stated that he would sign it, not as Lacour's security, but as that of Mad. Gondran, &o. &c. The object of Mad. Decuir being by that evidence to prove the intentions of her father, and the obligation he assumed when he signed the note.
    “ It was not pretended that the note was signed in blank, and afterwards filled up. Thus the testimony offered went to contradict by parol the written obligation itself, and the object of the evidence being to bind the defendant, Gondran, as principal in a written obligation in which she appeared to be a surety, by proving a verbal statement made by the other surety out of her presence, the Court considered the evidence illegal and rejected it accordingly.”

      Mahodeau, for plaintiff.

      Provosty for Lejeune, and Oooley for Gondran, defendants.

      Provosty cited 2 R., 380; 5 A., 503; 11 R., 23; 5 A., 12;'Saulet v. Tepaguder, 2 A., 429; -Troplong, Gautionnement, Nos. 553, 556.
   Slidell, J.

On the face of the note we consider Madame Gondran and J. B. Decuir hound as sureties in solido. /

Wo are of opinion that the District Judge did not err in excluding parole evidence of the declarations of Decuir, made at the time of his signing the note, but out of the presence of Madame Gondran, as to what he supposed was the nature of his obligation.

/k It is undisputed that Gosserand, the holder of the note, gave time to Madame Gondran; and the question arises .whether this agreement affected, and if so, io what extent, the liability of her co-surety Decuir, and his heir Mrs. Lejeune.

By the Article 3032 of the Code of 1825, it is said, the prolongation of the term granted to the principal debtor, without the consent of the surety, operates a 'discharge of the latter.

It is argued for the plaintiff that this article does not in terms cover the case of time given to a co-surety. This is true. But we consider its spirit applicable to the present question, especially when we revert to the pre-existing law, and the reasons suggested by the jurisconsults who prepared the amended Code, which is the law of this contract.

In the Code of 1808, under the head “Extinctions of Suretyship,” is the following Article. “ The simple prorogation of the term granted by the creditor to the principal debtor, does not exonerate the surety, who may in this case suo the said debtor, to compel him to make payment.”

In presenting the amendment which was adopted by Article 3032, above cited, the jurisconsults submitted to the legislature the following remarks.

“ This is an innovation on the principles acknowledged by authors, and an entire change of the provision as it existed before, in which it is declared that a mere prorogation of the term granted to the debtor should not discharge the surety. It is proper, therefore, that we should state the reasons which have induced us to propose this amendment.

“ JPothier, from whom principally the French Code has adopted a provision similar to that which we propose to abolish, gives as a reason for his opinion, that where the creditor accords the debtor a prorogation of the time, this does not prevent the surety from acting against the debtor, and providing for his indemnity, if he perceives that the fortune of the debtor is beginning to diminish.

Notwithstanding the respect due to an authority of such weight, we do not think that this doctrine is in accordance with general principles, as applicable to matters of suretyship, nor that it is just to drive the surety to this recourse. The obligation which the surety contracts is to pay at the time fixed by the contract, if the debtor himself does not. This security is given for a limited time. When the time of performing the obligation arrives, the surety should have the right of insisting on the execution of the contract, that he may be discharged, or at least that he may be informed of the amount which he has to pay. To prolong his obligation beyond the term fixed, is to force him beyond his undertaking; to subject him to conditions to which he did not mean to submit. In fine, it is changing his contract.” See Amendments, p. 119.

If we apply the spirit of these remarks and of the amendment to the case before us, how does the matter stand ?

Mrs. Decuvr had a right, as surety, to bo subrogated to the rights of the plaintiff, under the original contract, against her co-surety to the extent of then-share of liability, which inter se her co-surety was bound to have. For being bound as sureties in solido, either, on paying the whole debt had a right to resort to the co-surety to reimburse one half. But if the appellant had paid the plaintiff the whole claim, and demanded a subrogation of the rights of the plaintiff against Madame Gondran, the plaintiff could not have given it. By his agreement ho was estopped from present suit. Thus the co-surety’s right under the contract had been changed, to the co-surety’s detriment, by the act of the creditors; and therefore, in our opinion, the co-surety’s liability was pro tanto discharged.

We are of opinion, therefore, that the judgment against the appellant for the whole amount of the note and interest, was erroneous, and that the judgment should be reduced by one-half, being the amount of the share of the co-surety, Mrs. Gondran.

It is, therefore, decreed that the judgment of the Court below against Mrs. Marga/ret Decuvr, wife of Ovid Lejeune, be reversed, and that the said plaintiff ■recover-of the said Man'ga/ret Decuvr the sum of $1771 BO, with interest thereon from the 3d April, 1850, until paid, at the rate of eight per cent., per annum and costs of the suit against her in the Court below, the costs of the appeal to be paid by the plaintiff. /


author: Dünbab, J.

text:
    E. A. Bennet, Tutrix, v. Starnes, Sheriff and another.
    ■Where the Sheriff levies property in the possession of the judgment debtor, the party representing himself as the owner, who sues for damages for an illegal seizure, must make out his title fully and clearly before the Sheriff can be mulcted. The duties of the Sheriff are delicate and his responsibilities great, and unless Courts of justice are cautious in entertaining claims for damages against him, the efficiency of the law may be impaired.
    Appeal from tho District Court, Eighth District, Penn, J.

      Watterson, for plaintiff. .

      J. JR. Jones, for defendant (Sta/rnes) and appellant.
   Dünbab, J.

Under an execution issued on a judgment obtained by the defendant Stiles against JEliza Anne Bennett, the Sheriff seized certain slaves, which he found in her possession. Shortly afterwards the present suit was instituted by Mrs. Bennett, as tutrix of her daughter by a former marriage, Oetavine Williamson, averring that the title to the slaves seized was in her said ■daughter, and praying that the seizure be set aside, and that the defendants in solido be adjudged to pay her, for the use of her daughter, five hundred dollars damages and hire for the negroes during their detention. It appears from the Sheriff’s return that the slaves were restored to the plaintiff not long after their seizure, so that the suit resolved itself simply into an action for damages. 'The Court below gave judgment against the defendants for,in solido, the sum of two hundred dollars, from which Starnes, the Sheriff, has appealed. The other defendant is not before us. We have carefully examined the evidence adduced on the trial, and are by no means satisfied that the title of the plaintiff, Oetamine Williamson lias been established so fully and clearly as to authorize us to mulct the Sheriff' in damages for their seizure. Tho general principle is true, that the Sheriff who wrongfully seizes the property of another is a trespasser, and according to the circumstances of the case, is liable in damages as such, but he who sets up title as owner, ought to establish it clearly and satisfactorily.

We are not to be understood as deciding, in the present case, that Octavine Williamson is not the owner of the slaves which were seized, but that the evidence offered on her behalf is masked by circumstances which raise serious doubts^in our minds. The duties imposed b3r law upon a Sheriff, armed with a writ of execution, are frequently of a very delicate nature, and his responsibilities great. Unless, therefore, it is made manifest that ho has exceeded his powers, and stepped beyond the line of duty, Courts of justice may well be cautious in entertaining claims for damages against him, or tho efficiency of tho law will be arrested; particularly in cases where the debtor is in open and notorious possession and enjoyment of property, tho paper title to which may be in another.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court, so far as it regards the Sheriff, B. B. Starnes, be reversed and set aside, and judgment is rendered in his favor, the plaintiff and appellee paying costs in both Courts.


text:
    H. F. Bennet v. B. B. Starnes, Sheriff.
    [Same principle as K A. Bemiet, Tutrix, v. Sa/nie.]

    Appeal from District Court, Eighth District, Penn, J.

      Watterson, for plaintiff.
    Jones, for defendant.
   Dunbar, J.

This case does not materially differ from that just decided of E. A. Bennet, tutrix, v. the same defendants. The plaintiff, who is the husband of Eliza Ann Bennet, the original defendant in execution, sets up title and claims as his own, three of the slaves seized by the Sheriff, and prays damages against the defendant in solido for their illegal seizure. There was judgment in his favor for one hundred and fifty dollars, and the defendant, Starnes, has appealed. We do not consider that the plaintiff has established such a title as would authorize us to affirm the judgment of the Court below, and the opinion just expressed in the case of E. A. Bennet, tutrix, as regards the liability of Sheriffs, we reiterate here.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court, so far as it regards the defendant, B. B. Starnes, Sheriff, be reversed and set aside, and judgment is rendered in his favor, the plaintiff, appellee, paying costs in both Courts.


text:
    Peter O’Neal, Adm., v. Jane Oates.
    An administrator has no right to claim from an heir the delivery and possession of property of which the heir became an undivided proprietor with his co-heirs on the death of the common ancestor; without suggestion, or proof that such property is necessary for the payment of the debts of the succession.
    Appeal from the District Court, Sixth District, Robertson, J.

      Herron and Oil, for plaintiff and appellant.

      Bunn, for defendant.
   Dunbar, J.

This is an action instituted by Peter O'Heal, as administrator of the succession of Haney Oates, to recover from the defendant a negro woman and child, which he avers to be the property of the estate, and hire for their detention. The defendant pleads that she holds possession of these slaves as tutrix of her minor son, William Thomas Oates, issue of her marriage with Henry Oates, who was the son of Haney. That the said Haney had in her life time divided her negroes amongst her children, and that to her son Henry she gave the slaves in controversy by way of advancement. She specially denies the right of the administrator to take this property out of her possession. That there are no debts to be paid; that if there are, she is ready, on behalf of her child, to give security therefor, and that the heirs of Haney Oates alone, by an action of Partition, have any right to call in question her child’s title to the property. There was judgment in her favor, and the administrator has appealed. The original ownership of the slaves by Haney Oates is admitted, and the heir-ship of the minor child of the present defendant, by representation, is also conceded. No proof has been offered, nor indeed has any allegation been made that the succession of Haney Oates is in debt. Under the circumstances the appointment of an administrator seems to have been unnecessary. Admitting, however, that it was, this Court held in the case of Davis v. Demis, 5th Annual, 561, that the administrator of an estate has no right to sue an heir upon a debt due by him to the estate, and compel him to bring the money into Court, where there is neither suggestion nor proof that it is necessary for the payment of the debts of the succession. So in like manner, neither has an administrator the right to sue the heir for the delivery and possession of property, of which he became an undivided proprietor with his co-heirs upon the death of the common ancestor. O. C., 1214. It is a question to bo settled amongst the heirs themselves on a partition of the estate. From the evidence it would seem that Nancy Oates divided her negroes amongst her children in her lifetime, and that the present plaintiff, who was her son, received one. If there was any inequality it can be adjusted in the manner pointed out by law.

This view of the case renders it unnecessary for us to express any opinion on the Bill of Exceptions taken by plaintiff on the trial.

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


author: Dunbak, J.

text:
    State of Louisiana v. Henry A. Ridding et al.
    When the obligation of a bail bond is for the prisoner to appear and remain until discharged by due course of law, the sureties are bound, though the prisoner be indicted for an offence different from that for which he was committed.
    APPEAL from the District Court, Sixth District, Parish of East Baton Rouge, Burke, J.

      Jones, for the sureties.

       After judgment was rendered on the bond, an unsuccessful attempt was made to annul the judgment, before Robertson, J, who succeeded Burke, J.

   Dunbak, J.

This is an appeal from a judgment on a bail bond by the sureties of Bidding, who allege in their defence, that they cannot be held responsible for the appearance of their principal to answer a different and higher crime than the one recited jn their bond.

It appears that Bidding was committed to jail, in the parish of East Baton Rouge, by a magistrate, for the crime of shooting one Samuel Oldfield, with intent to kill, and was admitted to bail by order of the District Judge.

The bond recites: “ That whereas the above bounden Hen/ry A. Bidding is in the custody of the Sheriff of the parish of East Baton Rouge, by virtue of a commitment issued by John B. Dufroc, justice of the peace, in and for said parish, on a charge of shooting one Samuel Oldfield with intent to kill, now on file, and to be brought before the Grand Jury of said parish, at the next Jury term of the Sixth District Court, to be holden in and for said parish. Now if the said Henry A. Bidding shall well and truly make his personal appearance, in the Sixth District Court for said parish, on the second Monday of October next, 1851, at the Court House of said parish, to answer to such matter and and things as shall then and there be objected or exhibited against him, the said Henry A. Bidding, and shall there continue and remain, from day to day, and from term to term, until he be discharged by duo course of law, or surrender his body to the custody of said Court, then this obligation to be null and void, otherwise to remain in full force and virtue.”

On the 17th October, 1851, at a session of the District Court, for the parish of East Baton Rouge, the Grand Jury found a true bill, bn an indictment against Ridding, for shooting with intent to commit murder. Upon which day the said Ridding failing to appear, and his sureties also failing to produce him, on motion of the District Attorney, a judgment was entered up against him and his sureties, upon their bail bond.

It is clear to us that there has been a forfeiture of the bail bond.

“ If the sureties are bound by recognizance that a defendant shall appear in the King’s Bench, the first day of such a term, to answer to a particular information against him, and not to depart until he shall be discharged by the Court, and afterwards the Attorney General enters a nolle prosequi, as to that information, and exhibits another, on which the defendant is convicted, and refuses to appear in Court, after personal notice, the recognizance is forfeited by the default; for being express that the party shall not depart till he be discharged by the Court, it cannot be satisfied unless he be forthcoming, and ready to answer to any other information exhibited against him, before he receives his discharge, as much as that he was particularly bound to answer.” 1st Chitty’s Criminal Law, 105.

Here the obligation is the same—to appear and remain until the defendant be discharged by due course of law, or surrender his body to the custody of the Court.

The judgment of the District Court is, therefore, affirmed, with costs.


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    New Orleans and Carrollton Railroad Company v. Bosworth, Liles et al.
    The remedy of parties to a judgment alleging matters mpais, against onenot a party to the record, is by an action in the ordinary form, and not by rule; therefore, proceedings against the heirs by a judgment creditor of their deceased father, to make them liable for their father’s debts because they had taken possession of his succession, and made an informal distribution of it among them” selves, must be by an ordinary action, and not by rule.
    A judgment obtained against one who, though cited, dies before issue joined, is a nullity.
    Appeal from the District Court, Tenth District, Parish of Carroll.

      Copley, J. Snyder, for plaintiffs and-appellants.

      Selby, for defendants.
   Rost, J.

The plaintiffs, having obtained a judgment against Liles in 1840, have taken a rule upon his heirs, who were all minors at the time of his death, to show cause why said judgment should not be made exigible against them, on the ground that they have rendered themselves liable for the debts of their father by taking possession of his succession, and making an informal distribution of it among themselves.

In that aspect of the case it would not materially differ in principle from that of Reynolds et al. v. Horn et al., 4th Ann., 187, in which it was hold that the remedy of parties to a judgment alleging matters in pais, against one not a party to the record, was by an action in the ordinary form, and not by rule. But there is, in fact, no judgment against Liles that can be made exigible against his heirs; he died after being cited, but before issue joined, and judgment was entered against him through error and in ignorance of his death. That judgment is a nullity, and there is nothing for the rule to rest upon. It should, thcrefore, have been discharged, but the District Judge erred in rendering a final judgment for the defendants.

It is, therefore, ordered that the judgment be reversed, and the rule taken by the plaintiffs discharged.

It is further ordered that the costs of the District Court be paid by the plaintiffs, and those of the appeal by the defendants.


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    Benjamin Lee v. William Whitehead.
    Simulated sale annulled.
    The prescription of one year, established against certain real contracts, does not apply to those that are simulated,
    Appeal from the District Court, Fourth District, Parish of West Feliciana, Berldns, J.

      Stoclcton and Steele, for defendant.
   Rost, J.

The plaintiff has enjoined the sale of certain slaves, seized at the suit of the defendant against Nicholas Barnes, and claims title to them under judicial sales made in other suits against Bournes.

The defendant admits the existence of the title alleged, but avers that it is a simulation, devised by Lee and Bournes for the purpose of defeating the pursuit of the creditors of the latter, and that the name of Lee is merely used therein to cast a shadow upon the title of Barnes, which, in truth, has remained unchanged after the judicial sales. The District Court perpetuated the injunction, and the defendant has appealed.

Several questions have been raised in argument which it is not necessary to notice in detail. There is no legal evidence ■ that the exception taken by the plaintiff during the trial, was acted upon by the Court, or that he excepted to any of the testimony offered by the defendant in support of the issue of simulation, and it clearly results from the evidence which he himself introduced, and the admissions which he required the defendant to make, that the case was tried on that issue.

We deem it, also, unnecessary to take into consideration the informalities of the judicial sales, alleged as grounds of nullity by the defendant’s counsel. He avers in his answer that the sales were made not only with the consent of Barnes, but by his procurement; they must, therefore, bo considered as his acts, without regard to the form pursued and the informalities which, under a different state of facts, might perhaps affect their validity. •

Under three executions issued in suits against Bournes, the slaves in controversy, with others, and a large body of land, partly in cultivation, were seized and adjudged by the Sheriff to the plaintiff for the sum of two thousand five hundred dollars, subject to the mortgages mentioned in the certificate of the Recorder, read at the sale, which amounted to upwards of sixty thousand dollars. Two days after the sale, which took .place in the month of April, 1841,

Lee, the purchaser, gave Bournes a power of Attorney to manage and administer the property sold. Ba/rnes continued alone in possession until the fall of the year, when Lee came from the State of Mississippi with his family, and lived on the place during more than one year. Early in 1843 he gave another power of attorney to Barnes, authorizing him not only to administer, but also to sell and mortgage the property. He then returned to the State of Mississippi, and had nerver been seen on the place again until he made the affidavit on which the injunction in this case issued, in April, 1851.

The defendant admitted before the trial, for the purpose of avoiding a continuance, that if an absent witness for the plaintiff was present, ho would testify that Lee took possession of all the property purchased by him, and remained in actual possession thereof for more than a year, when he left on account of ill-health and the dissatisfaction of his family, and that during the time he was on the place he exercised all the rights of ownership over the property, and no other person exercised any rights of ownership during that time.

Two other witnesses, relatives of Lee and Barnes, also testified to the residence of Lee upon the place during more than one year, and that he exercised the rights of ownership during that time. It is proved that at least six months elapsed after the sale, before Lee came to live upon the plantation, and that Barnes continued to reside there after he came. Admitting the statement that Lee exercised the rights of ownership while he remained, to be true, it is insufficient to do away the presumption of simulation, resulting from the facts that the seller remained alone in possession during the six months which followed the sale, and that he has had sole control of the property since the departure of Lee. That presumption rests on motives of morality and public policy, and after it once attaches, it cannot be removed by so easy an expedient as the temporary residence of the purchaser on the promises sold. Hie parties must, in all such cases, produce proof that they are acting in good faith, and establish affirmatively the reality of the sale. O. 0. 2456 and 1915.

The Court is unanimously of opinion that the plaintiff has failed to make that proof, and that the judgment rendered in his favor is clearly contrary to evidence.

One of the facts admitted by the defendant to prevent a continuance, was that the absent witness of the plaintiff would, if present, testify that Lee had the means to pay the two thousand five hundred dollars, for which the property was adjudicated to him; but there is no proof that he made the payment out of those means, and it is shown on the other side that Barnes had at the time, in the hands of his factor in New Orleans, two thousand seven hundred dollars, of which no account is given. Suffering his lands and slaves to be sold when he had on hand a sum larger than the amount they brought, is a course of conduct so unusual and inexplicable, that we cannot bring our minds' to believe that ho would have resorted to it, if the sale had been intended to be serious. The only rational explanation of which it is susceptible is, that Ban'nes, finding himself hopelessly insolvent, attempted in that manner to defeat the claims of a portion of his creditors, by placing his property in the hands of a third person, who would hold it for his benefit, subject only to the mortgages anterior in date to those under which it was sold—presumptions of that kind are authorized in cases of insolvency.

It is urged that the mortgages to which the property was subject have since been paid by Lee; but there is no evidence that he had any means to pay them beyond the property which he purchased ; and no inference favorable to the good faith and reality of the transaction can be drawn from the fact that this property and its fruits have been applied to the payment of the mortgages, while, on the other hand, the unquestionable fact that some of those mortgages have been satisfied out of other means of Barnes, satisfactorily shows that the release of those incumbrances were to inure to his benefit. What interest had he otherwise to apply his own means to pay mortgages for which the property sold was bound in the hands of the purchaser, and how could he do so, in good conscience, when those means were the common pledge of his unprotected creditors Í

It has not escaped the attention of the Court that all those payments were made by Barnes, as agent of Lee, and while Lee resided in another State, at a distance of about two hundred miles. We must presume that ho ordered them to be made, or was at least duly advised of them by his agent; but he has not seen fit to lay before us a line or a word of the correspondence which must necessarily have passed between them, if the sale was real.

In 1844, Barnes, pretending to act as agent, exchanged a tract of land for another belonging to Mrs. Demos, who agreed to pay him $10,000, for the difference in value. Barnes not only acted without authority in making that exchange —the power of attorney only authorizing him to sell or mortgage—-but he forgot on that occasion the limits of the paper title of his principal, and sold as agent lands which were his own, and to which Lee had no claim.

In 1845 he pointed out to the U. S. Marshal, as his own, part of the Bushy bayou plantation, purchased by Lee. The land was seized and sold to satisfy a judgment against Barnes.

In 1847 the Legislature granted to Barnes, the agent of Lee, the privilege of keeping a ferry, which he has kept ever since.

These acts of the agent were all of such a nature as to require explanation; the pointing out the property of his principal as his own, and causing it to be sold, was a fraud with which no owner of property would put up; yet so far as the record shows, Lee never complained, and his confidence in his unfaithful agent has remained unabated to this day.

There are other facts in the record leading to the same conclusion, but we have said enough to show that the plaintiff has failed to establish his good faith and the reality of the sale, as under the facts of the case he was bound to do. Having come to the conclusion that the title of Barnes was not divested by the Sheriff’s sales, it is clear that prescription of one year cannot be invoked by the plaintiff. That prescription only applies to real contracts—this case Is hardly distinguishable from that of Erwin v. The Bank of Kentucky, 5 Ann., page 1.

The judgment of the defendant against Ba/rnes bearing interest at the rate of ten per cent, per annum, no further interest can be allowed on the dissolution of the injunction.

It is ordered thatthe judgment be reversed.

It is further ordered that the injunction be dissolved, and the defendant be allowed to proceed under his execution.

It is further ordered that the defendant recover from the plaintiff and Biehard Featherston, his surety on the injunction bond, in solido, the sum of two hundred and fifty dollars damages.

It is further ordered that plaintiffs pay costs in both Courts.


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    Charles Simon and Brother v. Wm. L. Burnett.
    When at the time of the institution of a suit to rescind the sale of a slave, the vendor resides in Baton Rouge, and the slave is in a dying condition in New Orleans, no tender need he made.
    It seems that when the vendor refuses peremptorily to rescind the sale of a slave, no legal tender is necessary.
    Appeal from the District Court, Sixth District, Robertson, J.

      Brunot, for plaintiffs and appellants.

      A. M. Dunn and J. IF Seymow, for defendant.
   Rost, J.

We are of opinion that the verdict and judgment, in this case, are contrary to evidence.

Samuel Weil, who took charge of the slave in controversy for the plaintiffs, on the day they purchased her from tho defendant, has testified that, two days after the sale, she was siok and unable to work; and that, after a few days, he wi'ote to them that she was worth nothing, and that he would not have her as a gift. After ten or twelve days, her health not improving, she was sent to the plaintiffs, in this city, and placed by them under the care of a skillful physician, who attended her until she died. He has testified that the disease was of long standing; that it had assumed tho chronic form, and become incurable when he first saw her, and that it progressed slowly, hut surely, till the final termination by death, about five months after the sale. Another physician, who also attended the patient and was called in consultation, fully corroborated this testimony. A post mortem examination would, no doubt, have been more satisfactory than the conjectural opinions of physicians as to the nature and consequences of the disease ; but those opinions, corroborated as they are by the testimony of Weil, are sufficient to make out a prima faoia case in favor of the plaintiffs, and the testimony of the defendant is not inconsistent with the truth of the facts sworn to by the plaintiffs’ witnesses. It has been urged in argument, that a tender of the slave had not been shown. At the time the suit was instituted, the slave was in a dying condition in this city, and could not he tendered to the defendant in Baton Rouge. One of the plaintiffs went there, and informed him of the situation of the slave, and asked him to rescind the sale, which he peremptorily refused to do. After that refusal, we are not prepared to say that a legal tender would have been necessary under any circumstances. Cottle v. Wilson, 1 Ann. p. 4; Fuentes v. Caballero, 1 Ann. p. 28; Bowman v. Ware, 18 L. R. 397. The disease is shown to have existed within the three days which followed the sale, and the presumption is that it existed before the sale; hut as there is nothing to show that the defendant was apprised of its existence, he must he held to have acted in good faith.

The slave having rendered no service to the plaintiffs, the defendant, besides refunding the price of $650, must re-imburse the expenses incurred during the prolonged illness of the slave, which we assess at $100. The expenses occasioned by the sale are not shown.

It is ordered that the judgment in this case be reversed.

It is further ordered that the plaintiffs recover from the defendant "seven hundred and fifty dollars.

It is further ordered that the defendant pay costs in both Courts.


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    Charles Dean, adm. v. Thomas H. Wade.
    Letters of administration malee full proof of the party’s capacity until they are revoked. They must have their effect, and the regularity of the proceedings on which; they issued cannot be examined collaterally.
    Note alleged to be given to plaintiff, as administrator, for the price of an improvement, or pre-emption on public land—-and that plaintiff contracted to make defendant a title thereto. Held: Such a contract could only bind plaintiff personally.
    Appeal from the District Court, Tenth District, Parish of Carroll, PerHns, Jr., J.

      Drew & Bonner, for plaintiff.

      Selby, for defendant and appellant.
   Dunbar, J.

This suit is brought on a promissory note for fifteen hundred and ten dollars, drawn by the defendant, payable to the legal representatives of Alfred Deem, deceased.

To this action the defendant filed several exceptions, only one of..which we consider it necessary to notice, in which he alleges that the plaintiff was appointed administrator by the clerk of the District Court of Carroll, out of Term time, after an opposition had been made to his appointment by Henry A. Burt, and, consequently, such an appointment conferred no power upon him.

By reference to the order making the appointment, we find it therein expressly stated, that the plaintiff, Charles Dean, was appointed after the lawful notice had been given, no opposition having been made, and his letters of administration are in the usual form. “Letters of administration make full proof of the party’s 'capacity, until they be revoked. They must have their effect, and the regularity of the proceedings on which they issued, cannot be examined collaterally.” Rils v. Viesti, 2d Louisiana, 249 ; 2 Annual, 538; Hogan, Curator, v. Thompson.

The defendant, after his exceptions were overruled, pleaded a general denial, and further alleged that the note sued on was given in part for the purchase of an improvement, or pre-emption on public land, and that plaintiff, as administrator, entered into a written contract with the defendant to make him a title thereto, which he has failed to do. Admitting that the plaintiff, as administrator of Alfred Dean, made such a contract with the defendant, it could only bind him personally, and not as administrator; because, in that capacity, he had no right to make any such contract, and the defendant must look to him individually for-its performance, or for damages for the breach of it.

• This view of the case will render it unnecessary to notice the several bills of exception, taken by the defendant.

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


author: Dunbab, J.

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    Margaret E. Woodward v. A. Ledoux & Co.
    The purchaser oí a tract of laud cannot refuse to pay, on the ground that the vendor’s title has not been confirmed by the United States.
    The purchaser is not entitled to a diminution of the price where the deficiency in the land does not exceed one-twentieth of the tract sold.
    Appeal from the District Court, Seventh District, Striding, 3.

      Batliff, for plaintiff and appellant.
    Cited C. C. 2427; 9 Rob. 283; 10 Rob, 425 ; 5 Rob., 193; 1 A., 284; 12 Rob., 626; 4 A., 458; Koey. Taylor, 11 Rob., 556; Toledano y. Desbam, 4 Rob., 330 ; 4 R., 315 ; 5 Rob., 75 ; 10 R., 5 ; 2 A., 135; 3 A., 192; 4 A., 109.

      Brewer & Collins and U. B. & E. Phillips, for defendant.
   Dunbab, J.

The defendants sold a “tract of land, situate in the parish of West Feliciana, on the waters of Thompson’s Oreek, adjoining and bounded by lands of Cyrus Ratliff, Riddle and others, containing about seventeen hundred and twenty arpens, be the same more or less,” to the plaintiff, for the sum of sixteen thousand dollars. A mortgage, to secure the payment of the price, was retained on the property, and the purchaser failing to pay the purchase money, as stipulated in the act of sale and mortgage, the vendors took out an order of seizure and sale, which was enjoined by the plaintiff in the present suit.

The District Judge sustained the injunction until the defendants should give security to indemnify the plaintiff against any damages she may suffer from being evicted from said land, or until defendants furnish her with a good and valid title, and upon defendants giving bond and security, as specified in the decree, it was ordered that the injunction be dissolved.

From this judgment the plaintiff has appealed.

The grounds of plaintiff, for resisting the payment of the purchase money, are,

First. That the vendors have no title out of the government of the United States, and, consequently, having no title, they cannot be permitted to give security and require payment, as the defect is incurable, and no lapse of time would cure the defect, as prescription does not run against the government of the United States.

Second. That the quantity of land is greatly deficient, and that other persons are in possession of a portion of said land and refuse to give it up.

Third. That there are judgments and mortgages, and suits brought, claiming a lien upon the land, which vendois are bound to remove, or quiet, before they can exact payment.

In support of the first ground of the defence, the plaintiff introduced the testimony of Amos Kent, Register of the United States, and B. W. Boyd, the United States Surveyor General for the State of Louisiana, who prove in substance, that they have been unable to find any confirmation by the United States Government of the land sold by the defendants to the plaintiff. This, however, is by no means conclusive as to the defectiveness of the title of defendants. Their title may have been complete under the French or Spanish government, and required no confirmation to give it validity under ours. If not complete and requiring confirmation, it does not follow that this confirmation will not be yet obtained. In the case of Guidry v. Green, 1st Martin, N. S., 475, it was held: “ That the purchaser of a tract of land of 1400 arpents cannot refuse payment on the ground, that the United States have only confirmed the title to 640.” In the case of Bessy v. Pintado et als, 3d La., 489, it was decided, “that the sale of land, under a Spanish grant, is not void, because the United States refused to confirm it, nor does that circumstance amount to an eviction.” See also the case of Pepper v. Dunlap, just decided by this Court. We have, therefore, concluded that this defence is untenable.

The next ground of defence—that the land is deficient in quantity, and that persons are in possession of a portion of it and refuse to give it up—we consider equally untenable. The evidence shows that the plaintiff has, within the boundaries of the tract as possessed by her, 1653 arpents of the 1720 sold ; and this deficiency would not entitle her to a diminution in price, as it does not exceed one-twentieth. Civil Code, Art. 2470.

The last objection of the plaintiff, of suits, liens and mortgages against the tract of land sold to her, has been removed by the judgment of the Court below, requiring the vendors to give security—which they allege they are willing to do. Civil Code, Art. 2535.

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

Rehearing refused.


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    Board of Selectmen v. Spalding & Rogers.
    The tax Imposed by the town of Baton Rouge upon public exhibitions is a mere police regulation, necessary to the order and the very existence of towns and cities, and not restrained by any provision of the Constitution of the United States.
    APPEAL from the Mayor’s Court, town of Baton Rouge, J. B. Bufrocg, Mayor.
    Defendants were proprietors of a steamboat on which they had Circus exhibitions. They claimed the right to give these exhibitions without the usual town license, on the ground that they had taken out a coasting license, under the act of Congress.
    Seymour, for plaintiffs.
    Brunot, for defendants and appellants.
   Rost, J.

We shall not attempt to decide whether Circus exhibitions are such a coasting trade as the license of the custom house could authorize the 'defendants to carry on, on board of the Floating Palace; for admitting that it can, and that the license is in proper form, the tax imposed by the town of Baton Rouge upon public exhibitions, is a mere police regulation, necessary to the order and the very existence of cities and towns, and neither surrendered nor restrained by any provision in the Constitution of the United States. The authority of the State, in such cases, is complete, and, as it has, in this instance, been delegated to the plaintiffs, they are entitled to recover.

Judgment affirmed, with costs.


author: Eustis, C. J.

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    E. M. Peacock, adm., v. Thos. Chapman.
    Surety discharged because of time granted to principal.
    Appeal from the District Court, Seventh District, Parish of East Feliciana, Stirling, J.

      Muse & Merrick, for plaintiff and appellant.
    Winter, for defendant.
   Eustis, C. J.

The plaintiffs are appellants from a judgment rendered against them in a suit against the defendant as a surety of William Sewell.

On the 7th day of February, 1839, Sewell became the purchaser of certain slaves for the sum of $2571, payable on a credit of one, two and three years, in equal instalments, bearing ten per cent, interest until final payment. It was agreed that the proces verbal of the sale should have the effect of a judgment and be recorded in the book of mortgages. The proces verbal, signed by Smell, and Chapman, his surety, was so recorded. The sale was under the authority of the Court, directing the sale of the property of the succession of the late Malaehi Weston.

The slaves were subsequently sold to John P. Gamey, who assumed the payment of the purchase money, and made on account a partial payment.

The plaintiffs sued Om'ney and had judgment against him, by which the slaves were directed to be sold, so as to meet the last instalment of the price due on the 7th Pebruary, 1842. On the 7th June, 1842, the plaintiffs consented that the sale should be made on a credit of twelve months, and they were so sold, and Carney became the purchaser again, and gave the plaintiffs his twelve months bond.

By thus extending the term of credit on the sale of the property mortgaged to the plaintiffs, equally for the benefit of the surety as for their own, the plaintiffs could no longer give the defendant the subrogation which he had a right to exact on paying the debt. This act of the creditor released the surety. Code, 8030. Lobdell v. Niphler, 4 Louisiana, 295.

The judgment of the District Court is, therefore, affirmed, with costs.


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    Jesse Kennedy v. R. J. Beaseley, administrator.
    When a sale is made in writing, which contains no receipt for the price, nor acknowledgment of . of payment—the presumption will be that the money was not paid.
    Appeal from the District Court, Tenth District, Parish of Carrol, Perjdns, jr., J.

      Ryam, for plaintiff.

      Selby, for defendant and appellant.
   Eustis, C. J.

This suit is for the sum of $1250, being the alleged price of two slaves sold by the plaintiff to Samuel Ganady, the administrator of whose succession the defendant is. The judgment was in favor of the plaintiff, and the defendant has appealed.

The defendant, in his answer, admitted the purchase by the deceased, and pleaded payment. It rested, therefore, with the defendant to establish his defence by proving his allegation of payment.

The sale was by an act under private signature. It recites that the plaintiff had sold Gcmady two negroes, for the sum of twelve hundred and fifty dollars. It contains no receipt for the money, nor acknowledgment of payment. According to the uniform practice in this State, when money is paid on a contract mention of the fact is made by an express acknowledgment, or some equivalent term. Sexnaider v. Fleming, 1 Martin, N. S., 257; Code, 2234. The act contains no such recognition, and we are satisfied from evidence aliunde, that the money was not paid.

No other issue having been made, except that of payment, there is no ground for reversing the judgment.

The judgment of the District Court is, therefore, affirmed, with costs.


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    State of Louisiana v. The Judge of the Third Judicial District Court, Parish of Jefferson.
    The proviso to the second section of the Act of 22d March, 1343, relative to appeals and notices of judgment, does not apply to the parish of Jefferson.
    IN <& the matter of an application for a Mandamus in the case of Baeh, Barnett Go. y. A. Leopold.

      Levy, Intervenor.
   Slidell, J.

This is the second application for the interposition of this Court, which has been made in this cause, and its decision turns upon the question of the plaintiffs’ right to a suspensive appeal, under the circumstances of the case.

It appears that upon an execution taken out by the plaintiffs against the defendant, certain goods were seized. Levy intervened and claimed the ownership ; he also asked damages. There was judgment in Levy's favor, ordering the restoration of the goods to him and awarding him damages. This judgment was signed on the 10th February, 1853. On the 21st February, 1853, the plaintiffs filed a petition, asking- an appeal from the judgment, in general terms, and not specifying whether they desired a suspensive, or devolutive appeal. On the 25th, the Court signed an order granting- an appeal, with a similar generality of language, and upon condition that the appellant should give bond, with good security, in the sum of $650. A rule was subsequently taken in the Court below by Levy, upon the plaintiffs, to show cause why execution should not issue, upon the ground that the bond was insufficient for a suspensive appeal, &c. The rule was made absolute, and in doing so the District Judge remarked:

“In this case the intervenor and third opponent, A. Levy, has ruled the plaintiff to show cause why an execution should not issue upon the judgment rendered in his favor, upon the ground, that the' amount of the appeal bond was insufficient. The judgment for the intervenor was for $400 damages, and the delivery of certain movable property, being merchandize. The lowest estimative value that, under the testimony of the case, can be put on the merchandize was $295. In taking a suspensive appeal, the party was bound to secure the sum of $695, by giving- bond in an amount exceeding that sum by one half, under articles 515, 516, O. P. According to this calculation, the bond should have been for $1000 and upwards. But the bond actually filed is only for $650. This falls far short of the rule prescribed by law, and, therefore, must be deemed insufficientdto the execution of the judgment.

“It is ordered, therefore, that the rule be made absolute, and the third opponent and intervenor be authorized to issue execution upon the judgment rendered in his favor against the plaintiff in this case, and a writ of possession according to law.”

An application was then made to this Court for a prohibition. The answer of the District Judge was.:

“Tour respondent ordered an execution to issue on the judgment rendered In favor of Levy, against Bach, Barnett & Co., for the reason, that the bond filed by the appellants, Bach, Barnett & Co., was insufficient in amount to sustain a suspensive appeal. He avers that the record of the case will show that judgment was rendered in favor of Levy for $400 damages, and for the ownership and possession of Merchandize, the lowest estimative value of which, according to the evidence on file, was $205. That the bond filed by the appellant was for $G50, which your respondent considered insufficient m amount to operate as a stay of execution on a judgment for movables and money, amounting to $605.

“ Your respondent refers to the copies of the record for the facts of the case to sustain the foregoing statement, and, submitting those his reasons, most respectfully prays to be hence dismissed.”

“J. OALVETT CLARK, Judge.”

For these reasons, and considering also the ruling in 4th An’l, p. 3, Byrn v. Riddell et al, and Marshall v. Grand Gulf Railroad Company, 5th An’l, p. 361, we dismissed the application. See ante, p.—

The present application is made on the ground that the plaintiff, on the 14th March, tendered a new bond, in the Court below, for $2500, and that they have a right to a suspensive appeal within 15 days after the adjournment of the Court, on the last day of the February term. They roly on the statute of 1843, p. 40, which provided as follows :

Section 2. That the articles, 5V5 and 624, of the Code of Practice, be so amended that whenever an answer has been filed in a suit in which the defendant has had personal service made upon him, to appear and file his answer, or when a judgment has been rendered in a case, after answer filed by the defendant, or by his counsel, the party cast in the suit shall be considered duly notified of the judgment, by the fact of its being signed by the Judge. Provided, that in the country parishes no execution shall issue in cases where an appeal lies until fifteen days after the adjournment of the Court, by which the judgment was rendered, within which delay a party may take a suspensive appeal, on filing petition and appeal bond, as now provided by law.”

The District Judge has refused to grant a suspensive appeal.

The subject is one involving the practice of the District Court of the parish of Jefferson, which is regulated, in many respects, by statutes specially framed with reference to that Court. Upon these statutes the learned Judge of the District Court has been acting for several years. We must suppose he has, necessarily, given them repeated and careful consideration; and his interpretation, under such circumstances, is entitled to great deference, and ought not to be disturbed by us, unless it should seem, upon a careful scrutiny, manifestly erroneous.

Those statutes are numerous. The multiplicity of legislation was, perhaps, the necessary consequence of the inherent difficulties which attended the organization of the now judiciary system under a newiconstitution; although it is certainly to be regretted (if such a course had been possible ) that all the legislation, touching that Court, had not been embraced in a single act. There are, in those statutes, if superficially examined, seeming inconsistencies of phraseology, and, perhaps, some occasional obscurity with regard to the intention of the lawgiver. But upon the w'hole, after carefully comparing the various acts, we have come to the conclusion adopted by the district Judge, to wit: that the intention of the legislature was to distinguish, in many respects, the practice of the District Court of Jefferson from what may bo termed the country Courts ; and to assimilate it to the practice of the city of New Orleans, of which the town of Lafayette then substantially formed a part, and with which city Lafayette has been subsequently incorporated.

It seems to us, therefore, that the District Judge did not err in refusing to apply to his Court the provisions of the Act of 1848. It would be unnecessary to cite in detail the language of the later statutes. We shall content ourselves with a reference to them.

See Acts of 1840, p. 45, 56, 63, 99, 110.

It is, therefore, ordered that the application be dismissed, and that the applicants pay costs.


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    L. A. Davis, adm’x, v. Chas. H. Davis.
    In a suit on an obligation by private writing, the plaintiff is not required to prove defendant’s signature, unless it be expressly denied: and if a judgment by default be taken, it is, in legal intendment, a joining of issue without a denial of the signature.
    When plaintiff prayed, in an amended petition, that defendant might be ordered to declare, on oath in open Court, on a day to be fixed, whether a certain account was not correct—a judgment by default cannot be confirmed on the day after the filing of such petition, without any day having been fixed for defendant to answer, and without answer to the interrogatories.
    Appeal from the District Court, Sixth District, Parish of East Baton Rouge, Burk, J.
    No Counsel appeared for the plaintiff.

      Ratliff, for defendant and appellant.
   Rost, J.

This is a suit upon three promissory notes of the defendant, and also upon an account for medicines furnished, and fifty dollars, money loaned. The plaintiff took a judgment by default, which was made final after the legal delays. The defendant has appealed, and alleges, as a ground of error in this Court, that no part of the plaintiff’s claim was proved, as required by article 312 of the Code of Practice.

The claim for money loaned was not allowed by the District Court. It is, therefore, unnecessary to consider it.

It is true that article 312 of the Code of Practice provides, that the plaintiff must prove his demand in all cases; but it is also true that under the dispositions of arts. 324 and 325 of the same Code, when the demand is founded upon an obligation under private signature, which is alleged to have been signed by the defendant, he is bound to declare, in his answer, whether or not ho acknowledges his signature, and that the plaintiff is only called upon to prove it when it is expressly denied. In legal intendment, the issue in this case was formed when the judgment by default was entered on the records of the Court, and as on such an issue, there is no express denial of the defendant’s signature, this Court has held, on a former occasion, and is still of opinion, that it need not be proved. See 7th Annual, p —

The plaintiff filed an amended petition, praying that the defendant might be ordered to declare on oath in open Court, on a day to be appointed by the Court, whether the account of medicines, annexed to the original petition, was not correct, and the day after the filing of this petition, without any time having been fixed, or any answer made to the interrogatories, the judgment by default was made final, and the amount to which they had reference, appears to have been allowed. This allowance was evidently premature, and the defendant is entitled to relief pro tanto.

It is ordered that the judgment be reversed.

It is further ordered that the judgment be rendered in favor of the plaintiff, in her capacity as administratrix, and against the defendant, Oharles U. Damis, for the sum of nine hundred and five dollars, twenty-eight cents, with 8 per cent, interest on six hundred and seventy dollars and fifty cents, from 1st January, 1851, until paid, and interest, at the same time, on one hundred and nineteen dollars and seventy-eight cents from the 15th May, 1851, and legal interest from judicial demand on one hundred and fifteen dollars.

It is further ordered, that for the sum of sixty-four dollars and seventy-two cents there be judgment against the plaintiff as of nonsuit.

It is further ordered that the defendant pay the costs of the District Court. Those of this appeal to be paid by the plaintiff and appellee.


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    Wm. J. Sharp v. Charles H. Davis.
   Rost, J.

The facts of this case are substantially the same as those in the case of L. A. Davis, adm'x. v. Charles H. Davis, just determined. The plaintiff sues upon a promissory note of the defendant, and claims also from him the hire of certain slaves. The defendant having failed to appear, a judgment by default was taken against him, and, after the legal delays, made final, without any proof of the plaintiff’s claim. For the reasons given in the case of Davis, the judgment, so far as it allows the hire of slaves, must be reversed.

It is ordered, that the judgment, in this case be reversed. It is further ordered, that the plaintiff recover from the defendant the sum of eight hundred dollars, with 8 per cent, interest, from the 1st Januaiy, 1850, till paid, subject to the following credits, to wit: $100, paid 17th February, 1851; $222 78, paid 23d August, 1851; $100, paid December 15th, 1851.

It is further ordered, that upon the claim for the hire of slaves, there be judgment against the plaintiff as of nonsuit.

It is further ordered, that the defendant pay the costs of the District Court, and the plaintiff those of this appeal.


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    The State v. The Judge of the Fourth District Court of New Orleans.
    No mandamus will be issued when the applicant has an adequate remedy by appeal.
    IN v. the matter of John Weisse, praying for a Mandamus, in the case of Weisse Magdaline Qinder, his wife.

      Upton, for the applicant.
   Slidell, J.

John Weisse has presented his petition for a mandamus, accompanied by an affidavit and transcripts of certain records. He alleges that the Judge of the Fourth District Court, of New Orleans, has committed, a denial of justice, in refusing to sign a judgment duly rendered in his Court, and that no adequate remedy is loft him except the writ of mandamus ; that the transcripts, which he flies, show the judgment in question was properly obtained, and that a subsequent ex parte judgment, rendered by the District Judge without lawful cause, should be set aside. Wherefore ho prays a rule upon the District Judge, to show cause why a peremptory mandamus should not issue, commanding him to sign the first mentioned judgment, and why the ex parte decree should not be annulled.

The circumstances exhibited by the evidence, which accompanies the application, are as follows: In January, 1853, a judgment was rendered by the District Court for Jefferson, by which Weisse was separated from bed and board, in his suit against Magdaline; the community was dissolved, and the custody of their children was awarded to her. This suit was founded upon charges of the wife’s misbehavior, her abandonment of the matrimonial domicil, &c.

On the Ith February, 1853, Weisse instituted, in the Fourth District Court of New Orleans, another suit against his wife. In his petition he alleges, that since several years, she had absented herself from his domicil, without lawful cause, &c.; and asks a decree of divorce. A judgment by default was taken, and on the 8th March, 1853, after hearing evidence, it was confirmed. It was decreed that the bonds of matrimony, between the plaintiff and his wife, be dissolved, and that she pay the costs of suit. Before this judgment had become final by the signature of the District Judge, the decree, rendered in the District Court of Jefferson, appears for the first time to have been brought to his notice; and on the 14th March, he, ex officio, caused to be entered an order, in which after reciting the decree in Jefferson, ho declares his opinion that the institution of the suit in his Court was improper, and orders the judgment of divorce, rendered on the 28th March, to be set aside, and that the suit be dismissed at the plaintiff’s costs.

Any present consideration of the merits of this controversy would be superfluous and premature. The sole question now before us is, whether a mandamus should issue as prayed for.

Considering the importance of the subject, and the frequency of such applications, we have taken pains, long since, to define the powers of this Court touching the writ of mandamus, and explain the circumstances under which it would be issued. It seems surprising then, at this late day, any misconstruction on the subject should exist. It is abundantly settled that this Court disclaims any general superintending control over the District Courts, and limits its summary actions to those cases where its interposition is necessary for the maintenance of its appellate jurisdiction. These principles were repeatedly recognized by our precedessors; and we considered them as resting upon a wise policy, and a sound exposition of the constitution under which our State has been governed. From those principles was naturally deduced the well settled rule that a mandamus will not bo issued where the applicant has an adequate remedy by appeal. See Succession of Macarty, 2 Annual, 980.

Applying this rule to the case before us, it is obvious that the writ of mandamus ought not to issue. The judgment of 8th March, 1853, being unsigned, was incomplete. It was open to revision by application for a new trial, which the judge might even command ex officio. Gale v. Kemper, 10 Louis’a, 209 ; Smith y. Delahoussay, 9 Rob., 50. His power also extends, not only to the setting aside an incomplete judgment, but to a dismissal of the cause. If this power be unduly exercised, the party who conceives himself injured has his remedy by appeal. It is not even suggested that the District Judge has refused to sign the judgment of dismissal, so as to put the plaintiff in a position to appeal; and this Court cannot presume ho would refuse to do so.

Any consideration of the correctness or incorrectness of the judgment of dismissal, at the present time, would be obviously premature.

It is clear that there is no ground for a mandamus, as prayed for. The application is, therefore, dismissed, and the applicant is to pay the costs of the application.


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    Robert M. Lea, tutor, v. George W. Richardson and wife.
    Though the mother be excluded from the tutorship of her minor children by contracting a second marriage, she does not thereby forfeit her maternal power; but still retains, paramount to the tutor, the right of rearing and educating them.
    Appeal from the District Court, Seventh District, Parish of West Feliciana, Stirling, J.

      Muse, for plaintiff and appellant'

      Ratliff, for defendants.
   Eustis, C. J.

This appeal is taken by the plaintiff Robert M. Lea, who is the tutor of Letitia E. Edwards, a minor under the age of ten years, from a judgment of the Court of the Seventh District, sitting in the parish of West Feliciana, by which the defendant, Lfarcissa J. Richa/rdson, wife, by second marriage, of George W. Richa/rdson, and the mother of the minor, was maintained in the custody and control of her child.

There ai'e several questions which have been urged before us on this appeal, but we only consider it material to determine that which relates to the right of the mother to be protected in the possession of her child.

Admitting that the mother, by contracting a second marriage without applying for a family meeting, forfeited the tutorship of the child, and that she has fonnally renounced all claim to it, and that the plaintiff has been duly appointed tutor in the place and stead of the mother, it by no means follows that the judgment of the District Court ought to be reversed.

By the Spanish law the widow retained the right of rearing and educating her minor child, if she was of good reputation; but, on her marrying, the child was immediately withdrawn frpm her power; for as “the antient sages have said, a woman is wont to love her new husband so much that she may not only give him the property of her children, but may consent to their death for the sake of pleasing him.” Partida 6th, tit. XVI, law 19 ; Institutes of the law of Spain, book 1, tit. 3.

This law is repealed, and its sinister spirit has no place in our morals. The article 211 of. the Code provides, that the mother who refuses the tutorship of the children, retains the superintendence of them, and the care of their education.

By the Roman law the mother and grandmother, by a second marriage, lost the right of tutorship of their children and grandchildren. But with regard to the custody and education of the children, the mother, by a second marriage, only forfeited the right of their being exclusively committed to her charge. Makeldey on the Roman law, § 536.

In the case of -Delia Webb, at the suit of Amos Webb, 7th Annual, page--, this Court held that, by the exclusion from the tutorship of the children on the part of the mother, by reason of a second marriage, she did not lose her maternal power, which was, in respect to the children, paramount to that of the tutor, and still retained the right of rearing and educating them.

There is not the slightest reproach on the conduct, or repute, of the mother, or her husband. It seems they have no establishment of their own, but board at the house of her sister. There is no suggestion of any danger of unsuitable association to which the minor would be exposed, and as the District Judge had the child and the mother before him, he had every opportunity of forming a correct opinion of the best means of promoting the welfare of the party in whose interest he was called upon to act.

It appears that the child had lived with the plaintiff, no doubt with the free consent of the mother, and, it is urged, she was seduced from his house by stratagem. Before we condemn the artifices of a mother in getting possession of her child, we should bear in mind that they have their origin in the intensity of natural affection, and when we find this love reciprocated, and the child pleading against being separated from the author of its being, we must admit that nothing human, at her age, can present stronger guarantees for her future well being. If the child lived with the plaintiff with the consent of the mother, that consent could be withdrawn; and we have nothing before us on which wo would be authorized in disturbing the judgment of the District Court.

The judgment is, therefore, affirmed, with costs.


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    Geo P. Saltenberry v. Richard Loucks et al.
    The Act of 1844, requiring bond to be given to the State by the Register and Receiver of the Land Office, does not provide for the transfer, or assignment of it to individuals aggrieved by the Register. And it is not seen how the obligation of the sureties to the State can be extended by implication, so as to inure to the benefit of third persons.
    The condition of the bond is, that Loucks shall well and faithfully do and perform all the duties required of him by law, in his capacity of Register of the Land Office. To receive the price of lands sold is not one of his official duties: -—that is expressly assigned to the Treasurer. The plaintiif deposited the price of the land bought by him with the Register. He made the Register his own agent, and the sureties have not warranted against the risks of this agency.
    APPEAL from the District Court, Sixth District, Parish of East Baton Rouge, Robertson, J.
   Rost, J.

The Act of 1844, under which the defendant Richard Loucks was appointed Receiver and Register of the Land Office, required that he should give good and sufficient security to the State for the faithful discharge of the duties of the office, and the bond sued upon was given in compliance therewith.

In 1851, the plaintiff made application to Loucks to purchase certain lands, and paid him the sum of $725; whereupon Loucks delivered to him a certificate showing that said sum had been paid by the plaintiff, as required by law, and that he was entitled to the land. The money paid to Loualcs was not paid over by him to the Treasurer, and he made no entry of the purchase on his books. The successor of Loualcs, for these and other reasons, refused to issue a patent for the land. The question raised by the issue is, whether the securities of Loualcs, on his bond, are liable to the plaintiff.

The Act of 1844, requiring the bond to be given, does not provide for the transfer or assignment of it to individuals aggrieved by the register. It is, on its face, in favor of the State alone, and we do not see how the obligation of the sureties can be extended, by implication,'so as to inure to the plaintiff’s benefit. But if it could be, the plaintiff’s case is not made out.

The condition of the bond is, that Loualcs shall well and faithfully do and perform all the duties required of him bjr law in his capacity of Register of the Land Office. To receive the price of the lands sold, is not one of the duties required of him by law—that duty is expressly assigned to the State Treasurer. The plaintiff, knowing this, deposited the money in the hands of Loualcs, thus constituting him his agent to make the payment. It is no part of the undertaking of the sureties to warrant against the risks of that agency.

The grounds that the land sold was not in the district of Loualcs, and did not belong to the State at the time of the sale, would only give the plaintiff the right to have the money refunded, if he had paid it into the Treasury. Land thus situated can no more be said to have been sold, in discharge of the duties of the office, than if it had been in Maine or California, and the maxim of caveat emptor would apply equally to either case.

Judgment affirmed, with costs.


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    Thomas Prendergast v. Margaret Cassidy and Alexander Shaw, her husband.
    When a married woman, not separated in property, is engaged in trade, she will be presumed to trade oh the funds of the community in the absence of proof to the contrary, and the assets in her hands will be liable for community debts.
    The profits of the labor of husband and wife belong to the community.
    Appeal from the District Court, Sixth District, Robertson, 3.

      J. W. Seymour and A. S. Herron, for plaintiff.

      Rlam, for defendants and appellants.
   Rost, J.

In 1846 John R. Hiahel and wife executed an act of donation of a certain piece of land in favor of Margccret Cassidy, who accepted the same, and made them at the same time a manual gift of the sum of eleven hundred dollars, which was the full value of the land.

The plaintiff, who is a judgment creditor of Alexandw' Slum, the husband of the defendant, seeks to subject that property to his judgment on the ground that the donation was a sale in disguise, made to the wife during the existence of the community to which the property sold belongs.

The only defence, besides the plea of the general issue, is that the petition fails to disclose any legal right which can divest the defendant of her title.

There was judgment below, decreeing the land in controversy to be the separate and paraphernal property of the defendant, M. Cassidy, purchased with her separate funds, and dismissing the plaintiff’s petition. Prom that dismissal the present appeal is taken.

It is conceded that the donation was, in truth, a sale. There is no plea in the answer that the price was paid with paraphernal funds, or that the defendant had any such funds; and no evidence in support' of either of these facts is found in the record.

It is shown that the defendant kept a milliner’s shop, and that she traded on her own account; but as the case is placed before us, we are under the necessity of presuming that she traded with the funds of the community; if she did, the entire assets in her hands were at all times liable for the community debts; if she did not, the profits out of which the purchase seems to have been made, would still be common under the disposition of the Code, which classes as community property the produce of the reciprocal industry and labor of both husband and wife. C. C. 2371. The only mode in which the defendant could evade that disposition of law, would have been to obtain a separation of property to which her industry, and the improvidence of her husband, would no doubt have entitled her.

This view of the case renders it unnecessary to determine whether the defendant, who holds under a simulated act, could, in any event, be considered as a ~bona fide purchaser in her own right, and if she could be, whether the evidence that she did so purchase should not be found in the act itself.

It is ordered that the judgment be reversed. It is further ordered that the property, described in the petition, bo, and it is hereby adjudged to belong to the community existing between the defendant and Alexander Sham, her husband, and liable as such to be seized under the judgment of the plaintiff against Alexander Slum, also described in the petition, and it is further ordered that the defendants pay costs in both Courts.


author: Dunbae, J.

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    New Orleans and Carrollton Railroad Company v. W. W. Chapman.
    A promise to the creditor to pay the debt of another is binding, and requires no consideration, or foundation, hut the original debt.
    Appeal from the District Court, Seventh District, Stirling, J.

      Brewster & Collins and Merrick, for plaintiff.

      Bowman & Be Lee, for defendant and appellant.
   Dunbae, J.

The defendant is appellant from a judgment rendered against him on two promissory notes, executed by himself, to his own order, and delivered to the plaintiffs. Various grounds of defence are set up in his answer, and two amended answers. In the original answer he admits the execution of the notes, and that he is bound thereon—that he gave them to take up a debt due by his father to the plaintiffs, his father being insolvent; but that the plaintiffs agreed to give him a reasonable time for their payment, and that if this is accorded, he is still willing to pay. In his amended answer he avers, that the debts of his father, for which he executed the two notes sued on, consisted of two drafts and a note, all drawn, by James Chapman, the father—that he has just discovered that his said father was not liable on the drafts, in consequence of the laches of the plaintiffs, and that he has reason to believe that one of the drafts ought to have been credited on the note—that, therefore, lio has erroneously given his obligations for a much larger amount than his father really owed, and that he is entitled to credit therefor, and that, m fact, making allowance for these errors, and crediting him with the amount of sundry collaterals placed in the hands of the attorney for the plaintiffs, he is entitled to a judgment in his favor for the excess,

In his second amended answer, defendant states that he was induced to give his notes, principally on the ground that the sureties, or accommodation endorsers of his father on the original drafts and note, were, as he supposed, liable for the same, and that, wishing to save them from loss, his father being insolvent, he took up the debt—that he has just ascertained that the said sureties were not liable at the time, having been discharged by the laches of the plaintiffs, and, on a portion of the debt, by prescription—that he, therefore, gave his own notes in error, and prays judgment accordingly.

The evidence establishes that James Ohapman originally owed the plaintiffs the sum of thirty-six. hundred dollars, for which they held his note, endorsed by J. Nettles—that at its maturity he executed a new note for $3,200, giving a draft at ten months upon his factors, in Ne-v Orleans, for the curtailment and interest, amounting to $674 45. This draft was endorsed by J. Nettles. When the note for $3,200 matured, a new one was given for $2,880, and a draft, in like manner, at ten months, given for curtailment and interest, amounting to $589 67, also endorsed by Nettles. Both drafts were protested for non-payment, as well also the note for $2,880. The latter matured on the 11th of February, 1844, and the drafts respectively on the 11th of December, 1842 and 1843. It is conceded that these thr’ee obligations formed the basis of the notes sued on, as well as one other note, which is not included in the present suit. W. D. Winter, a witness offered by defendant, states that the original claims were placed in his hands for settlement—and that, on receiving them, he addressed the defendant in x-eferenee to them—that defendant stated he was under no legal obligation to pay them, but that ho had settled many of his father’s debts since he became the purchaser of his property, and was anxious and desirous to settle them all, and would do so if the creditors would give him time. Witness also states, that an additional motive for settling was, that defendant did not wish his father’s endorser's sued, who were then very much involved. That the note and drafts were all exhibited to defendant, and no representation made as to the liability of the parties thex-eto, other than that which really existed. The claims seem to have been placed in witness’ hands for collection about the 21st June, 1840, and immediately thereafter the defendant promised to settle. The settlement was not, however, finally consummated till the 5th of February, 1848.

In the original answer of defendant, filed nearly six yeai'S after his first promise to pay, he acknowledges the validity of his obligations and simply asks for time.

We are satisfied, from the testimony, that James Ohapman, the fathei’, was indebted to the plaintiffs to the amount for which his son, the defendant, gave the promissory notes now sued on. To make a conti'act of this nature, a promise to pay the debt of another, valid, it is only requisite to show the pre-existence of the debt which one has promised to pay to him who is the creditor'. This is the pact constituía pecunias and reqxxii'es no further consideration or foundation than the original debt. Pothier, Tx'aité dos Obligations, 1st vol., p. 367, Du Pact Constituios Pecunias.

This view of the case renders it unnecessary to notice other questions argued .at much length in the brief of defendant’s counsel.

lt is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both Courts.