The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-02-09


missed with costs.
BY ASSOCIATE JUSTICE b. K. HOWELL.
No. lS99-Bridget Grady, administrative, vs..
Louis Desobry ST., OF. als.-Appeal from the Dis
trict Court, parish of lberville. A. Talbot for
plaintiff and sppellee Barrow and Pope. w. D..
Robertson and Oscar Lauve for defendants and
appellants.
This lie . suit on joint contract between the de.
PENDANTS and plaintiffs husband, for the improve
ment Of the drainage Of Bayou Bourbeux. in the
parishes of Iberville and West Baton Rouge, and
in which the former parties bound themselves to
pay TO the latter the total sum Of $4,000 during
the progress and on the completion of said work,
which was to be performed according to the stip
ula,ions In said contract.
The psrties first cited excepted to the partition
on the ground that the contract sued on being q
joint contract. was not complete and binding, as
one of the contracting parties had not signed, aud
another signed conditionally. and the considers
ton was not accepted by the others. By an
amended petition accompanied by the original
contract, the party alleged not to have signed vas
made party to the suit upon the averment that
ne was party to said original contract which was
proved, and the only question on the exceptions is
whether or not the condition annexed TO the name
OF one ]. A. Levigue. In the following words "a
condition sue il sois egoutte," was accepted.
On the trial of these exceptions q contract be-
tween the State engineer and these defendants
was introduced, by which the latter had agreed
TO DO the work OF improving the Bayou Bourbieux
as authorized By act Of l-67, p. l62. and for
to be collected by the engineer from the owners
OF the land drained, and paid to defendants as the
work progressed. By the contract sued on this
same work was to be done by plaintiffs husband
for the defendants. The engineer testiies that at
the date OF giving his testimony he had not paid to
defendants in1uH the amount coming to them as
per contract between him and them that it was
not the main reason in entering into contract with
them that they bad an interest 10 the improve
menf OF the bayou. The main reason was that
tney were the toicest bidders to do the work that
the LAND OF Levigue was embraced 10 the survey
required 10 be made, and was drained by said
bayou. The above statute authorized the engi-
neer to let out said work by contract which should
De Dlnding on all the propretors of the lands the
same as If they had personally bound themselves
10 said contract. Under this state of facts and
the law we must infer the acceptance and fulfil |
ment Of the condition Of such acceptance was es.
sential. ,...,--..-. -. .-.-,-'''7
The defendants had bound themselves as con.
tractors with the State engineer to do the work,
benefit 10 their own lands. They had evidently |
received part of the price from the engineer;
and the land OF Leyigue was drained according
% the condition. We cannot see any legal objec- |
ION 70 the testimony OF the engineer as TO the |
benefit of Levigue's land. ..
The engineer had full control and supervision Of
he work as it progressed, and was by the law |
md the contracts the judge Of it's character and
completion, and be could testify on the subject. |
No objection II urged to the amounts found due |
By the judge quo. |
1t is, therefore. ordered that the Judgment ap. |
'ealed from be affirmed, with costs. |
BY ASSOCIATE JUSTICE HOWELL. |
No. l999-P. NJ. Lspice We. P. NJ Lapice OF ais /
appeal ffom the district court, parish of st. |
ames ll |
Fellows 4 Mills for appellees, L. Castera and
J. Hunt for appellant. |
Mrs. Longpr6 Fitzgerald, q third person, aIee-
ng that she is a mortgage creditor Of the defend
nus, and that che is aggrieved by the order of
q and xA1 twxt
herefrom, and the first question presented is has
ne such interest as to maintain this appeal. |
The only inquiry on such appeal Is whether or
OF the Judge had sufficient evidence before him
authorize his fat r. SO. II "A; and the
ppellant complains that there il no authentic
whence OF his special Inducements on the note
ED by plaintiff and he therefore Is without right |
D the same. She can avail herself of all that il
the record, which affects her rights, g R. 1862
ut II Is clear that the only interest which she can
ave IN this suit is. as to the existence or validity
plaintiffs mortgage, which cannot be injured |
ITO on this appeal Her mortgage right cannot
Effected by the question in whom the title 10
re note In suit legally exists
II is question which the defendants may waive
I'D therefore one of which she cannot avail her
III IN this form of proceeding. See N. g.. 676. |
II Is therefore ordered that the appeal herein be
smissed with costs.
BY ASSOCIATE JUSTICE HOWELL
No. 1888 Samuel Smith & Co. VS.. ]. III. Morri.
OF Point Coupee. Harrison Il Hunter ana z.
hillips for plaintiffs and appellees, Charles E. =
,hmidt for defendant and appellant. NaHII 4
IDS SUIT was brought as personal action on I
70 promissory notes, and afterwards an amended 3
tition was fled alleging that they were given Q
part Of the price of plantation, and asking | e
at special mortgage and vendors privilege, az Q
own by the annexed act Of sale and mortgage, y
red on default and confirmed for the amount e
the notes with mortgage and privilege "a '
lined.
The defendant has taken devorutye appeal. 4
q LIE ssslens as error that there is evidence !,
we'd. ID
The court. after giving reasons and citing an. Q
9riies, decides: E. s3 q
I is therefore ordered that the Judgment an. n
alec rom be reversed and the cause rsmanded
further proceedings according to law. Plain. p
to pay costa of appeal.
BY ASSOCIATE JUSTICE HOWE. Ii
No. 1563--succession OF Clement Wilkin. An. | 81
al from the Second Judicial District Court, m
rish of Jefferson.
This is an action to snnul the will OF the late N
'ment Wllkin. From a Judgment maintaining 4
, Will the heirs at law prosecute this appeal. "a
The instrument In question is q nuncupatiye will
pubic act, and is In the following words, (lhe b
position, which 1t is unnecessary to consider in
; case, being omitted:) - II
STATE OF LOUISIANA, PARISH OF JEFFERSON. Ii
Sc II known, that ]. p. E.. Davis notary public A
and for the parish Of Jefferson, on the 9th b
rch, 1860, repaired to the house OF Clement te
KID, an inhabitant OF said parish Of JeifersoD j
State Of Louisiana where, at his request and hl
his dIciation, the following instrument was hi
tten by said notary, and declared By said Cl to
kin to be his last viii and testament. FRI
hen follows the certificate and the three attest &C
Witnesses, together with the notary. Var,ous bt
unds OF nullity are urged, but in the view we br
e taken OF the case 1t is necessary to consider ca
, the following; W
II does not appear that the will was dictated tn
me testator, received by the notary, and by
latter written down in the presence of tie
Is well settled that since a uuncupatiye win
public act, makes full proof OF itself, il must OF
upon its face the evidence that all the formai err
required by law for its validity have been CON. mi
q with, inasmuch az the fulhlment OF these pu
naiities. when not apparent from the inst,a-