EASTERN DIST. it appears she was not in a situation to work or earn wages. January, 1841. This sum must therefore be deducted.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled; and proceeding to give such a judgment, as.ought, in our opinion, to have been rendered in the court below, it is ordered, adjudged and decreed, that the plaintiff do recover the sum of one thousand dollars from the defendant Botts, with a privilege on the crop sequestered on the plantation, together with his costs in the District Court; those of the appeal to be paid by the plaintiff and appellee.
1. The allegation of ownership is necessary in a possessory action, in
order to show the capacity in which the party claims possession of the pro-
perty........
.........Kemper's Heirs vs. Hulick. 44
2. Where the prayer of the petition shows it to be exclusively a posses-
sory action, the defendant by setting up title, cannot turn it into a petitory
3. If the debt is in existence, and has accrued, although it be not due at
the time of a judgment obtained or contract made in fraud of creditors, it
will authorize the complaining creditors to institute the revocatory action to
annul and set aside such contract or judgment......Stein vs. Gibbons & Irby, 103
4. The attacking creditor, who seeks to annul a judgment or contract
made in fraud of creditors, must bring his action within one year from the
date of his judgment.........
1. Discrepancies in a notarial act of sale and of protest, which appear to
be mere clerical errors, and are immaterial to the decisions of the case, do
not affect the validity of such acts.................................. .Pepper et al. vs. Dunlap, 163
1. Opponents of a deceased administratrix's account cannot blend what
may have taken place by her administrator, subsequently, in relation to her
estate, with her account filed of her administration of another person's
estate.................. ..Filhiol's Heirs vs. Humpkin Administrator, &c. 326
2. The administration of the estate of a deceased administratrix is sep-
arate from her account of her administration. In the latter, her administra-
tor represents her judicially, and in the former he renders his own account,
which must be homologated contradictorily with all the creditors of her
estate..........
1. An affidavit for an injunction, which states, "that the facts contained
in the petition are true," is sufficient, if sufficient facts are set out in the
petition itself.......
..........Stein vs. Gibbons & Irby, 103
2. An affidavit for a trial by jury in an action on a monied obligation,
where a plea of compensation and reconvention is set up, is insufficient
under the act of 20th March, 1839, "amending the Code of Practice" when
the facts stated, do not clearly show they would affect the plaintiff's right
of recovery.......
.........Amado vs. Breda, 257
3. The defendant disproved the facts stated in the affidavit for the attach-
ment, so far as to throw the burden of proof of their verity on the plaintiff';
and this not being shown by disinterested witnesses, the attachment was
dissolved.........
.Brumgard vs. Anderson, 341
1. Where the appellant fails to cause, citation to issue he will not be enti-
tled to relief under the 19th section of the act of March 20, 1839, amending
the Code of Practice; but in such cases the appeal will be dismissed.
Walker et al. vs. Martolo, 50
2. All persons appealing and seeking to reverse a judgment, must bring
before this court every party who has an interest in having it sustained.
Cox vs. Rees et al., 109
3. So, where a rule was taken on the clerk to compel him to issue an
execution in a particular form, and he refused, no appeal lies against
him alone from a judgment sustaining his course and discharging the rule.
The clerk has no interest in sustaining such a judgment.........
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4. Either party may have the testimony offered in court taken down by
the clerk. The judge has no authority to do this,even at the request of the par-
ties, when the court has a clerk, except in a case where the party intending to
appeal, fails in getting the opposite party to make a statement of facts,
then the testimony taken down by him in writing will serve as a statement
of facts...........
...........Le Blanc vs. Broussard's Heirs, 137
5. A statement of facts must be procured by the party intending to
appeal, necessarily, before the appeal is granted.......
6. An appellant neglecting to have a statement of facts made out, when
the testimony is not taken down by the clerk before the appeal is granted,
cannot claim any relief from this court.......Le Blanc vs. Broussard's Heirs, 137
7. In courts of general jurisdiction, the party intending to appeal must
have the testimony taken down in writing by the clerk, so that the record
contains all the evidence adduced on the trial, or the appeal will be dis-
missed.............
.......................Tompkins et ux. vs. Benjamin, Tutor, 197
8. The judge of the Court of Probates is required by the article 1042 of
the Code of Practice, to take down the testimony of witnesses in writing
and annex it to the record, together with a list of the documents produced
by the parties, that they may be read on the appeal...........
9. So, where the judge of Probates failed or neglected to take down the
testimony of the witnesses on the trial, and the appeal brought up without
it, the cause will be remanded for a new trial............
10. A statement of facts must be procured by the party intending to
appeal, and it is sufficient if it be made out at any time before granting the
appeal..............
................Union Bank vs. Williams et al., 236
11. Where a statement of facts was so imperfect as to preclude an examin-
ation of the case on its merits, the appeal was dismissed..
12. Appeal dismissed for want of proper parties.
Lynch et al. vs. Brewer, 247
13. Appeal frivolous and for delay, and judgment affirmed with the max-
imum of damages....................
14. When the appeal is for delay, damages will be allowed.
Coleman et al. vs. Flint, 250
...........Manice vs. Long, 263
15. Judgment affirmed, with the maximum of damages, as for a frivo-
lous appeal..............
16. A show of defence will not alone protect the appellant from damages
as for a frivolous appeal............ ............Delininico & Co. vs. Terry, 269
17. There being no bills of exception or statement of facts, and the re-
cord not containing all the evidence, the appeal was dismissed.
State of Louisiana vs. Cook, 287
18. Where the appeal is not brought up in such a manner as to enable
the court to examine the case on any point, it will be dismissed.
19. Judgment, bearing ten per cent. interest, affirmed with five per cent.
damages, as a delay case...........
.........Gollain vs. Jamet, 565
20. Where the defendant waives delay and submits the case readily for
decision, the damages for a frivolous appeal will be mitigated and reduced.
Opdyke vs. Corles, 569
1. A power to sell must be express and special. No particular form of
expression is necessary, but it must distinctly express the intention of the
seller, so as not to admit of equivocation or serious doubt.
Cuny vs. Robert et al., 175
2. It is not indispensably necessary that the word “sell” be used in a power
or letter of attorney to sell a slave, but there should be something expressed
which is equivalent, or has the same meaning.........................
3. A request to the judge to charge the jury that "a power to sell a slave
must be express and special, and should not be inferred from circumstan-
ces," but on the other hand to tell the jury if it appeared to have been
"fairly the intention of the party to authorize a sale," and that they might
"consider the sense in which the power was meant to be used, taken with
the contract," is too loose and indefinite...................
1. Where an attorney at law appears for and represents an absentee in all
the proceedings in a suit, he will be presumed to have acted throughout
with full authority from his client...................Hempkin vs. Bowmar et al. 363
2. An attorney at law is competent to make the affidavit necessary, (in
the absence of his client,) on which to obtain an attachment.
Clark et al. vs. Morse, 575
3. Where the party, whose witnesses fail to attend, is necessarily absent
from the state, the affidavit of his attorney, for a continuance, may suffice;
although his knowledge of the facts sworn to, is derivative.
Lizardi et al. vs. Arthur & Fulton, 577
4. In an application for a new trial, on the ground of newly discovered
evidence, in the absence of the party, the attorney at law, conducting the suit
is competent to make the necessary affidavit, when the facts are within his
knowledge.....................
Williams vs. Brashear, 77
1. The party objecting to the report of auditors ought to state all the
objections at once; a contrary practice of filing several successive opposi-
tions is inconvenient and embarrasses rather than facilitates the administra-
tion of the law............
Harrison et al. vs. Faulk, 358
2. Auditors should state in their report the articles in the accounts, de-
tailing the steps by which they arrived at the result...........
3. The report of auditors should be signed by all of them before it is
made in court. They are functus officio after their report has been made. ib.
4. The court may receive evidence on the trial of an opposition to the
report of auditors, independently of their proceedings and report, on which,
if sufficient to justify it, a judgment may be rendered, disregarding the
report altogether..........
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