The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-03-30
Supreme Court of Louisiana.
Condensed Decisions-NEw ORLEANS, March &c, 10

plication of party without opposition from the
Other and nether party has made reservations the
survey being the bsss of the PARTITION it will not be
disturbed
JOHN T. MOORE Us. B. McKIERNAN. No.
1891. Appeal from the Tenth Judicial District
Court, Parish Of Madison. .RosT, ]. :. Per Gu
ram Plaintiff appealed from judgment setting
aside partition made by the notary appointed by
the Court for that purpose. The property divided
is tract of land of which the plaintiff owns one
undivided fourth and the defendant the remaining
three-fourths.
The grounds of the opposition to the homooga.
ton OF the PARTITION which prevailed in the Court
below, and on which the appellee relies, are as fol-
lows: LIST. The notary should have divided the
land In four equal parts as to value and set apart
the share of each party, so that the three lots of
the defendant should adjoin one another. I'd. The
testimony shows that lot No. is equal to one fourth
insists that the notary should have assigned that
lot to the plaintiff Sd. The partition as made has
injured the value of the three lots assigned to the
defendant at least five dollars per acre.
The land was divided into four lots of equal d.
mansions and having an equal portion of front on
the Mississippi River, IN strict conformity with the
order of survey granted by the Judge on the appli
cation of the plaintiff and without opposition from
the defendant Under that order the surveyor had
nothing to do with the value of the lots. The in
tentlon of the parties was that the survey made
should be taken as the basis of the PARTITION and
that the value should be ascertained by the experts
This was done in presence of the agents of both
parties, and without any opposition from them.
Under the facts of the case, the notary could not.
have acted otherwise than he did Without an
express agreement of the parties, made in writing
and notified 10 the notary, authorizing that officer
not to draw lots, he could not dispense with that
ormality, and if it be true that the partition made
has injured the value of the three lots assigned to
the defendant, it is risk which he took when he
consented to a partition in kind, without making
proper reservations.
The partition is legal and binding, and no reason
has been or can be given for setting it aside 1t is
therefore ordered that the Judgment in this case be
reversed. 1t is further ordered that the partition
made between the plaintiff and defendant, before
Malcolm Wallace, notary public, on the Doth
March, l84S, be homOlogated and made the judg-
ment Of the Court. 1t is further ordered that the
defendant pay the costs of this appeal those of the
Court below to be paid provided by the act of
partition.
sheriff will be allowed his charges for keeping property
under seizure when he incurs labor trouble or ex.
pense and no keeper appointed the property having
by consent Of parties been placed in possession of of
them. Immediately after the seizure.
A. LEDoUx & Co. Us. JAMES RUcKER, EFT AL.
On RULE OF S. H. SURTz, SHERIFF, Us. A. LE-
DoUx, d Co... No. 1861. Appedl from the
Seventh Judicial District Court, Parish Of West
Eslc'ana. KING, J.. In this case the Sheriff
claimed from Ledoux & Co. $2947 50, for nearly
four years keeping Of eighteen slaves. It appears
the slaves were seized under an order of seizure
and sale, obtained by Ledoux & Co., which was
suspended all that time by an injunction. The
Sheriff took rule on Ledoux & Co., claiming the
above amount for the safe-keeping of the slaves
while under seizure, being at the rate of 12a cents
per day for each slave. The judgment below was
reversed, and judgment rendered for Ledoux & Co.,
plaintiff to pay costs in both Courts, it appearing
that the slaves had been brought temporarily into
the Parish of West Felicana and, after the seizure,
nf Aofon ina iftal
to return them tn his plantation, in an adjoining
parish, where they have since remained No keeper
had been appointed, and the sheriff never had the
custody Of them, nor performed any services, after
their seizure, and not subjected to trouble or
expense of any kind. -
OLIVER B. COBB svs. BRuNER, MORGAN AND
MARKHAM. No. 1881. Appeal from the Tenth
Judicial District Court, Parish of Madison. RosT,
J. The judgment in this case was amended so as
to allow the defendants to recover of the plaintiff
and Robert Garland, his surety, in solido, the sum
of $l2O damages instead of $50 "a !; and the jndg.
ment as amended was affirmed.
THOMPSON J. BIRD u.s. W. w. PATE, ADMINS
TRAITOR, w. D. BAKER, APPELLANT. Appeal
from the Sixth Judicial District Court, Parish Of
East Baton Rouge; .Rosr, j.. The only points
of law decided in this case were that notes given
by tutor to minors, whose estate he administers,
not transferable by endorsement or delivery as
long as the minority lasts and that creditors of an
estate can plead no prescription which could not
avail the debtor, if pleaded by himself. The plain
tiff was recognized as creditor, in several sums,
of the succession of David Pate, to be classed in
the general settlement of the succession, reserving
to plaintiff his rights to the proceeds of the property
alleged to have been mortgaged to him, the success
sion to pay costs in both Courts.
WARREN M. BENTON Us. JAMES ROBERTS, ct al.
No. 1857. Appeal from the Tenth Judicial Dis
trict Court, Parish of Carroll. .SLIDELL j..
In this case it was held that the mere joint owner
ship of real estate does not confer upon the owners
the authority to bind each other IN solido by the
signature of promissory notes, and that to enable
commercial partners to bind each other, in rela
ton to land owned by them jointly an express au-
thoFization, or at least one clearly to be implied
from the course of business of the firm, would be
necessary. In the absence of such express or i'm
piled authority, it would be incumbent on the
payee to prove that the amount of the note had
enured to the benefit Of the partnership, thus en-
forcing liability against the partnership rather by
reason of the circumstances Of the case than by
force Of the note ITSELF
WILFRED WILLIAMS Us. VIM DENNIS. APP
peal from the Eighth Judicial District Court, Par
ish of st. Helena. .RosT J. :. The judgment in
this case was reversed and Judgment rendered
for plaintiff for $500, for money loaned, and the
further Of SlS4 o. with interest at the rate of
10 per cent per annum from Feb 6, 1874, till paid,
appeal to be paid by the plaintiff and appellee.
SUCCESSION OF E. L. WRITTEN, MILDRED BEN
TON Ell al. appellants, and ANToINgTTE JOHNSON,
tutrix, appellee. .SLIDELL, j.. The judgment
in this case was reversed and the case remanded
for further proceedings.
MURRAY M. THOMPSON ps. WIN. c. MYLNE,
HEIRs OF d. URouHART, intervenors. No 749.
Appeal from the Fifth District Court Of New Or
leans. .RosT, j.. This case has already been
before the Supreme Court, and is reported in II
Rob. 349. The only point flaw decided was that
after final judgment, in the Supreme Court, it is
too late to intervene. C. P. 3S9, 1874. The inter-
vention of Alex Dennistoun was therefore dismissed
Where party claims heavy damages in proportion to the
value of the property alleged to have been Iega seized
under AFT fa. and the claim is unsupported BY evidence
and is evidently fictitious. the Supreme Court will not
entertain Jurisdiction Of the case and the appeal will
be dismissed.
MARIE M. VoGEL, wife of Louis Picket, Us. y.
RETAUD and Francis MoUNEY IN soi,do.. No
1909. Appeal from the Second District Court Of NeU
Orleans. KING, j. Plaintiff alleges, that under