FLORES

LEMEE, ADMINI-
STRATOR, &c.

amount of a donation propter nuptias made her by her hus- WESTERN DIST. band in the contract of marriage; and which sum is by said October, 1840. contract to be taken, at the dissolution of the community, out of the best and most available property of the succession. She prays for the payment of the said sum, and claims the benefit of a privilege and lien on the property of the succession, or if she cannot obtain this, that she be paid as an ordinary creditor. The lower court disallowed her pretensions, and she appealed.

are null and

The marriage took place in 1836, and the contract was A marriage passed before a justice of the peace; it is, therefore, not valid before a justice contract passed as a marriage contract. Louisiana Code, article 2308. Had of the peace, is null; and any the contract of marriage been a valid one, it is clear that a gifts or donadonation propter nuptias, by the husband to the wife, makes ions made in it, no part of the wife's dowry. Idem., article 2318; and as the void. A donation wife's mortgage on her husband's property, exists only for propter nuptias makes no part of the restitution of her dotal and paraphernal effects, plaintiff the wife's dowwould not be entitled to claim the right of privilege and lien ry, and she has no mortgage for on the property of the succession, as she prayed for in her its restitution. petition. But the act of donation, in this case, was made before a justice of the peace, and is, consequently, not better than of it had been made by an act under private signature, and the gift is void, if not made before a notary public and two witnesses. Idem., articles 1523, 1525. 8 Martin, N. S., 126. It was not a manual gift accompanied by the payment Every donaof the money, since the amount thereof was to be paid after tion inter vivos the dissolution of the community; and it is a well established band and wife. rule that every donation inter vivos, though made by marriage by marriage contract to the husband or wife, or made between married matrimonial greement, is persons by matrimonial agreement, is subject to the general subject to the rules prescribed for ordinary donations. Idem., articles 1727, general 1787. Our laws are imperative on this subject, and a dona- ordinary donation cannot validly be made in any other form but that point- cially in article ed out by articles 1523 et seq., under the penalty of nullity. We are of opinion the judge a quo did not err in rejecting plaintiff's claim.

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

between hus

contract or other

a

laws

tions, and espe

ing of the Lowisin Code, under the penalty of nullity.

1523 and follow

WESTERN DIST.

October, 1840.

TOMPKINS

vs.

STROUD ET AT.

TOMPKINS vs. STROUD ET AL.

APPEAL FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OF
CARROLL, JUDGE DAVIS PRESIDING.

The sheriff is not bound to give any notice previous to seizure, under a writ of fieri facias. Notice given on the day of seizure is sufficient, and three days afterwards the sheriff may advertise the property for sale.

This is an injunction suit. The plaintiff alleges that the sheriff has seized and advertised his land and improvements for sale, under an execution which issued on a judgment of the defendant against him, for five hundred dollars. He alleges that said proceeding is clearly illegal, as he has not been notified of said judgment according to law, or of the seizure, wherefore, he prays that all the proceedings be enjoined.

The defendant pleaded a general denial, and prayed the injunction be dissolved with damages.

From the evidence, it appeared that the notice of seizure under the execution was without date; but the deputy sheriff stated, that the service of the notice and seizure were both made on the same day, to wit; the 20th May, 1839. There was judgment sustaining the injunction, and the defendant appealed.

M'Guire, for the plaintiff, submitted the case.

Selby, for the defendant, contended that the plaintiff had failed to make out his case, and the injunction must therefore be dissolved with damages.

2. It appears that due notice was given by the sheriff, and the land advertised for sale according to law. Code of Practice, article 643 to 654, inclusive.

Bullard J., delivered the opinion of the court.

The plaintiff and appellee obtained an injunction to stay proceedings on a writ of fieri facias, issued against him, on a

judgment and twelve months' bond, in favor of the appellant, WESTERN Dist. on the ground, that the plaintiff never had ten days notice of October, 1840. seizure, nor two days notice, nor indeed any legal and suffi

cient notice thereof.

The answer denies that the petition sets forth any cause of action, and the defendant prays for the dissolution of the injunction, with damages against the plaintiff and his surety in the bond. The injunction was however maintained, and the

defendant appealed.

The statement of facts shows, that on the 20th of May, the writ was executed, by levying on a tract of land and improvements, and on the same day, a written notice of the seizure was given to the plaintiff, and the petition sets forth that on the 24th it was advertised for sale.

TOMPKINS

vs. STROUD ET AL.

not bound to

zure, under a

cias.

Notice

It is clear that the sheriff is not bound to give any notice previously to seizure under a writ of fieri facias. The Code is explicit on this point. It directs the sheriff as soon as he The sheriff is has received the writ, to execute it without any delay, by give any notice seizing the property of the debtor; Code of Practice, 643. previous to seiBut the petition is obscure; it leaves it doubtful whether writ of fieri fathe plaintiff meant to complain of a want of previous notice, given on the day of seizure is sufor of the notice required by article 654 of the Code of Practice, ficient, and three subsequent to the seizure. If the latter was intended, the days afterwards, the sheriff may evidence shows that such notice of the seizure was given on advertise the the same day. It is true the notice is without date, but it is shown to have been served on the same day upon which the levy was made. This we think was sufficient, and the court erred in maintaining the injunction.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, that the injunction be dissolved, and that the defendant recover of the plaintiff F. Y. Tompkins, as damages, twenty per cent. on the amount of the judgment of Stroud against him, with costs in both courts; reserving to the appellent his right of action upon the injunction bond against the surety.

property

sale.

for

WESTERN DIST.
October, 1840.

MAURIN & Co.

vs. PEROT.

MAURIN & CO. vs. PEROT.

APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF
NATCHITOCHES, THE JUDGE OF THE FIFTH PRESIDING.

A note payable at plaintiffs' domicil, need not be formally presented for payment, especially when it is shown the defendant had no funds there.

This is a suit against the maker of a promissory note.
The signature was admitted, and a general denial pleaded.

The note was payable at the plaintiffs' domicil, and it was
proved the defendant had no funds there to make payment.
There was judgment against him, and he appealed.
The case was submitted to the court.

Martin J., delivered the opinion of the court.

The defendant is appellant from a judgment against him, on his promissory note, payable at the plaintiffs' domicil in New-Orleans. The answer admits his signature, but denies that the plaintiffs have shown any cause of action.

The plaintiffs state in their petition, that on the maturity of the note, they examined their books, and ascertained that the defendant had no funds to his credit.

The defendant failed to answer interrogatories propounded to him, requiring him to state, whether he had any funds in the hands of the plaintiffs at the maturity of the note or not, and they were taken for confessed.

Judgment was, in our opinion, properly rendered against the defendant, and damages are asked.

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

WESTERN DIST.

KIRKBY'S HEIRS vs. FOGLEMAN.

October, 1840.

APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF KIRKBY'S HEIRS AVOYELLES, THE JUDGE OF THE SEVENTH DISTRICT PRESIDING.

The penalty for failing to pay the different instalments to the United States, for the purchase and entry of lands under the credit system, was absolute forfeiture, and the reversion of the land to government.

According to the act of congress, passed the 2d March, 1821. after the change from the credit to the cash system, which extended the credit on lands already purchased but not paid for, or allowed a discount to those preferring to pay in cash, the penalty for failing to comply with these requisitions, was absolute forfeiture and reversion to the government. The entry and purchase of lands, under the act of the 4th July, 1827, previously forfeited, divested the United States of all title which had been acquired by the previous forfeitures and reversions.

The registers and receivers being authorized by the laws of congress, to carry into effect the various laws allowing pre-emption rights, and also to make sale of the public lands, this court is bound to give effect to the titles they confer, unless the adverse party produces a better.

So, where the register and receiver's certificate granted a pre-emption right to the plaintiff's ancestor, as assignee, on payment of the price, and there is no evidence of the assignment but this certificate: Held, that they must recover the land, as against the defendant who claims under a prior entry, but his title was forfeited to the United States.

This is a petitory action, to recover two quarter sections of land, containing three hundred and six acres, more or less, which the plaintiffs allege their ancestor, John Kirkby, purchased or acquired right thereto, from one Henry Slaughter, but that the defendant has taken possession of the greater part of the same, and continues to hold it and claims to be the owner thereof. They pray that they be restored to the possession and quieted in their title to all of said land.

The defendant denied that the plaintiffs had any title to the land in question; and averred that he was the true owner, especially to one of the quarter sections; that be purchased from one J. Phillips, who resides in Kentucky, and whom he prays may be called in warranty, and a curator ad

v8.

FOGLEMAN.