WESTERN Dist. M'INTIRE VS. WHITING. In April 1834, the plaintiff caused execution to issue on September, 1834. said judgment, which was levied on sundry articles in possession of the defendant, but which he alleges are not his property. He presented a written motion, by way of petition, to the District Court of St. Mary, in which he alleges the seizure is illegal on several grounds, viz: that he is not the owner of the articles seized; "and that no legal or judicial process can be had on the said judgment against his person or property, nor against any property in his possession." He prays that the seizure be annulled and set aside, and that a forthcoming bond in the sum of three hundred dollars, which he gave for a portion of the articles seized, be cancelled. The district judge gave judgment accordingly, from which the plaintiff appealed. Splane, for the plaintiff and appellant. Brownson, contra. Bullard J., delivered the opinion of the court. The commercial firm of which the appellee was a member, having made a surrender for the benefit of their creditors, and obtained a stay of proceedings, the appellant or judgment creditor caused an execution to issue against one of the ceding debtors. M'Intire, the appellant had appeared at the meeting of the creditors, and a syndic had been appointed. Samuel Whiting, one of the firm represented in writing to the court from which the execution issued, that the sheriff, in virtue of said execution, had seized certain property in his possession, but not belonging to him, which had been sent by Mr. H. Whiting, as a present to his wife and family residing in Texas, and of which goods he was only bailee or carrier. He therefore moved the court to quash the writ, and to order render and ap the bond given to the sheriff for the forthcoming of the pointment of syndics, has no property to be cancelled. It was accordingly done, and longer any capacity to appear in M'Intire appealed. The ceding debtor, after snr court in relation to the property surrendered. His counsel contends that he had a right to levy his execution on property acquired by the ceding debtor, after his surrender, and that the syndic alone has a right to inquire into WESTERN DIST. the regularity of the proceeding in this case. September, 1834. M'INTIRE V8. WHITING. But where a debtor has a qualified in goods, acquired carrier, which a It is true the future acquisitions of a ceding debtor, coming to better fortune, may be applied to the payment of his debts, unless a release has been given, but it by no means follows that execution may issue in the first instance, on the demand ceding of a judgment creditor. The ceding debtor after the surren- property der has been accepted, and a syndic appointed, has no longer after the surren any capacity to appear in court, in relation to the property der as bailee or surrendered, and if the execution in the present case had been are seized by a levied on property belonging to the firm, or either of the part- or, The bas judgment creditners, we should concur in opinion with the counsel for the right to move the court, and appellant, that the appellee had no right to interfere, and have the writ and ought not to have been listened to. The evidence does not and set aside. show to whom the property seized really belonged. If we Property be take the allegations of the plaintiff as true, he had only a ceding debtor at longing to the qualified property in the goods acquired after the surrender, the time of the and in that case he had a right to interfere. It was a mat- not be seized in execution by a ter which did not regard the mass of the creditors. If on the judgment creditother hand, the property belonged to the ceding debtor at or who was a the time of the surrender, the judgment creditor, who was party to the concurso, had clearly no right to proceed execution. On either supposition, the proceeding irregular. seizure annulled party to the con a curso. by Court, on mowas tion, by an in The District solvent debtor, has the right to tion which imquash an execuprovidently issued contrary to But it is further contended, that the court erred in quashing the writ and cancelling the bond on motion, that it could only be done by injunction regularly obtained, and the order staying proceedings. prosecuted. We think the court had a right to quash the The debtor, alexecution, which improvidently issued, contrary to the order though incapable of appearing in staying proceedings, and as the appellee was a party to the court in relation original suit, he might well make that motion, although, the property surwithout capacity to act in relation to the mass of property party to the orisurrendered. The bond in question was but an accessary, ginal suit, and might well make and necessarily ceased to have any legal effect as soon as the such a motion. execution was set aside. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. to the mass of rendered, was a APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE In this case the following principle is settled and decided. 6 Martin, N. S. 265. In a petitory action, where the defendants, their vendors and warrantors pleaded, 1st. The general issue; 2d. Prescription, by thirty years uninterrupted possession; 3d. Prescription, by more than ten years possession under a just title and in good faith; 4th. Silence of the plaintiffs for more than forty years in not asserting their title; and in support of these pleas, offered the testimony of witnesses to prove and make complete their chain of title, which was objected to by the plaintiffs; 1st. Because the defendants having admitted in their pleadings, that they had a written title, must produce it or account for its loss; 2d. Parole evidence cannot be received to prove title to land, or even its assessment for taxes; 3d. Because the object is to prove a reputation of title to land, which cannot be done, and being admitted: Held, that this evidence is illegal and inadmissible; and being admitted absolutely the District Court erred, because it is to judge of the admissibility of testimony and cannot discharge itself from this obligation by transferring it to the jury. It must be satisfied that the best evidence cannot be had before it admits inferior. This is a petitory action, which was commenced in 1819, to recover from the defendants a tract of land, containing sixty arpents of land in front, by forty-two in depth, on both sides of the Bayou Teche. The plaintiffs derive title in virtue of three Spanish grants of twenty arpents each, to C. & J. Dugat, and J. B. Labeauve, in the year 1777. The defendants claim under the same original title, and set up a chain of title derived therefrom, through several conveyances and possession of the land in contest. See statement of the facts of this case in 12 Martin, 445. It was argued in the Western District, at the September term, 1822-3, by Mr. Bullard for the plaintiffs, and by Moreau Lislet, and Mr. J. WESTERN DIST. S. Johnston for the defendants. See 12 Martin, 445, and 1 September, 1834. Martin, N. S. 650. DAVIS'S HEIRS At the September term, 1827, in Opelousas, an opinion PREVOST'S HEIRS. was pronounced, in which the judgment of the District Court was reversed, and judgment entered for the plaintiffs against Prevost's heirs; and in their favor against Macarty's heirs, who were called in warranty. Mazureau for Macarty's heirs, called in warranty, presented a petition for a re-hearing of this cause, at the September term, 1828. The re-hearing was granted. Brownson & Hennen for the plaintiffs, replied in writing to the petition for a re-hearing, which without further argument, was submitted to the court. Martin J., delivered the opinion of the court. At the request of the defendants, a re-hearing has been granted in this case. On a re-consideration of the opinion already pronounced, we are left under the impression that it ought not to be changed. It is, therefore, ordered, that the former judgment of this court be maintained, in the same manner, as if no re-hearing had been granted. WESTERN DIST. CHAIX vs. VILLEJOIN. CHAIX vs. VILLEJOIN. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE Where the evidence establishes, that the wife was in the habit, with the knowledge of her husband, and accustomed to make purchases for the use of the family, and he did not object thereto, but had often paid such bills, he will be still bound to pay the amount of such purchases. This is an action on a store account, annexed to the petition, in which the plaintiff claims from the defendant, the sum of three hundred and twenty-three dollars and sixtyfour cents, for goods and merchandise, sold and delivered to the latter in persoo, and to his wife. The defendant pleaded a general denial; and averred, that if the articles charged in the petition, were sold to any person, they were not sold or delivered with his knowledge and consent, nor were they sold and delivered to any person, with bis authority; that if said goods were purchased by his wife, he is not chargeable with them, as it was at a time when she abandoned his domicil, and was not under his control, &c., which facts were known to the plaintiff; and that he never authorised her to purchase goods. He prays, that the plaintiff's demand be rejected. The evidence showed, that the defendant purchased a few of the articles himself, and that the remainder were purchased by his wife, but with his knowledge, and without notifying the plaintiff not to sell to her. The defendant offered in evidence, a suit instituted by his wife, for a separation of bed and board, which suit was filed and dismissed, after the date when the last articles purchased, were delivered. The plaintiff produced a notice, published by the defendant, notifying all persons whatever, not to trust or give credit to his wife, on his account, as she had abandoned him. The |