Z. Labauve, for the plaintiffs.

C. A. Johnson, for the defendants.

By Court, ROST, J. This was originally a suit for slander of title, which the adverse title set up by the defendants has changed into a petitory action. The plaintiffs pleaded prescrip tion against the title thus set up; and judgment having been rendered in their favor, the defendants appealed.

The material facts of the case may be briefly stated as follows: Olivier Blanchard was the owner of a tract of land fronting on the Mississippi river, and having a double concession. In 1810 he sold to his brother, Victor Blanchard, the lower half of the double concession. The purchaser did not take actual possession of the land; and in 1818 Olivier sold to Isidore Blanchard the front concession, according to his title and his pretensions. to the double concession. Isidore soon after died, leaving minor heirs; and in 1819 the whole land, as originally owned by Olivier Blanchard, was inventoried and appraised as belonging to his succession. This inventory was made in the presence of and signed by Victor Blanchard. The procés verbal of the deliberations of the family meeting, held to decide on the expediency of selling the property, was also signed by him. The family meeting having advised the sale, it took place accordingly, and the procés verbal made thereof, in which the land is described and adjudicated as it was inventoried, is also signed by Victor Blanchard.

The plaintiffs contend, that if there should be any doubt as to the extent of land conveyed by Olivier to Isidore, under the designation of "mes prétentions à la double concession," the acts of Victor Blanchard, in signing the proceedings alluded to, amount to a recognition of title in Isidore to the whole tract, and consequently of want of title himself to any portion of it. He relies in support of that position on the cases of Marsh v. Smith, 5 Rob. (La.) 518; McMasters v. Atchafalaya Bank, 1 La. Ann. 11; Richardson v. Hyams, Id. 287.

The defendants and warrantors, in reply, make the following points: 1. That in the cases cited, the parties who had induced the error were the ones who were seeking to gainsay their own deliberate acts; while, in the present case, innocent third parties are seeking to repel the consequences of acts much less significant in themselves, and for which they are in no manner responsible. 2. That at the probate sale of Isidore's succession, his widow, under whom the plaintiff's claim, became the purchaser

of the land, and that, having been in community with Isidore at the time it was acquired from Olivier, she was the owner of one half, and was bound to know the extent and defects of her title. 3. That Victor Blanchard, in signing the proceedings, was totally unconscious that any rights of his were involved in them. 4. That the effect of these acts is to be judged of by their tendency to mislead others, and that the question is not what would be the effect generally of such acts, but what effect had they upon the particular purchasers in this case.

The principle invoked by the plaintiffs, and recognized by the decisions to which he has referred us, is, that if a man stands by and is silent while his own property is being sold, and suffers another to become the purchaser, he is estopped from disputing the title thus acquired; or, in other words, that where one, by his words, his acts, or his conduct, willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.

Victor Blanchard, in this case, was present at the judicial sale, and was not only silent when the land now claimed was sold, but became a party to the procés verbal of adjudication without explanation or reservation of any kind. The eventual and residuary right which the wife of Isidore Blanchard had in the property of the community, was not sufficient to affect her with notice of the extent of the title given to her husband for any portion of it. But if it had been, Victor Blanchard would not have been dispensed thereby from opposing the sale and asserting his title. Had he done so, purchasers would have been put on their guard. His silence induced them to believe in the state of things presented by the inventory, and to act upon that belief by bidding for the whole land. It can not be doubted that this silence caused the purchasers to pay a higher price, and that Victor Blanchard himself would be estopped from averring a different state of things as having existed at the time. It is well settled, that if the party himself is estopped, his heirs and those claiming title under him are estopped likewise: 1 Greenl. Ev. 23, 24, and notes; Terrett v. Taylor, 9 Cranch, 52.

Moreover, the enunciation in the procés verbal, that the land Bold belonged to the succession of Isidore Blanchard, had a direct reference to the adjudication, and by an express provision of the code, that act forms against all the parties to it a

presumption juris et de jure of the truth of the enunciation. That presumption can not be affected by the capacity in which Victor Blanchard appeared in the act: La. Code, 2235.

The judgment is affirmed, with costs.

PERSON CAN NOT DO AN ACT which he is at liberty to abstain from, and by mere reservation screen himself from the legal consequences of the act: Sucession de Egana, 18 La. Ann. 59; Devall v. Watterston, Id. 136; Montague v. Weil Bros., 30 Id. 50.

RULE AS TO ESTOPPEL IN PAIS.-Estoppels in pais stand upon the broad grounds of public policy and good faith, and are interposed to prevent injustice and guard against fraud: Alexander v. Walter, 50 Am. Dec. 688; see also Frost v. Saratoga Mutual Insurance Co., 49 Id. 234, and authorities cited in note to same, page 238; see also Brown v. Wheeler, 44 Id. 550.

ESTOPPEL BY MORTGAGE.-Mortgagor is estopped from denying his title and setting up title in a third person in an action of ejectment brought against him on the mortgage: Wyckoff v. Gardner, 45 Am. Dec. 388, and note 392.

OWNER OF LAND ADVISING OR ACQUIESCING OR CONSENTING TO ITS SALE BY ANOTHER, without making known his title, is estopped from afterwards asserting it against the purchaser: Storrs v. Barker, 10 Am. Dec. 316; Kid v. Mitchell, 9 Id. 702; Henderson v. Overton, 24 Id. 492; Gray v. Bartlett, 32 Id. 208; Watkins v. Peck, 40 Id. 156; Thompson v. Sanborn, 35 Id. 490.

ROSELIUS v. DELACHAISE.

[5 LOUISIANA ANNUAL, 481.]

PRESUMPTION THAT ATTORNEY, who appeared as the attorney of record to a suit, was employed by the party to the suit, may be repelled by evidence.

ATTORNEY CAN NOT RECOVER FEE from another interested party to the same suit who has not employed him, no matter how valuable his services may have proved to that party.

APPEAL from the third district court of New Orleans. The facts are stated in the opinion.

G. Schmidt, for the plaintiff.

Bullard and Frost, for the defendant.

By Court, EUSTIS, C. J. The plaintiff sues the defendant, to recover the sum of two thousand seven hundred and fifty dollars, alleged to be due him for professional services, rendered her in the suit of Arnauld et al. v. Mme. Delachaise, 4 La. Ann. 109, in the court of the third district, and in this court on the appeal. The amount claimed by the plaintiff does not appear to be disputed, it being conceded, that if the defendant is bound at all to pay the plaintiff his fee, it ought

to be a liberal one. The defense is, that she never employed the plaintiff in her case, but that he was employed by others interested in having the title established which was in controversy in that suit, inasmuch as they held lots under it. The plaintiff recovered judgment for the amount sued for, and the defendant has taken this appeal.

The suit of Arnauld et al. v. Mme. Delachaise, reported in 4 La. Ann. 109, was instituted for the purpose of defeating the title under which the defendant and a number of other proprietors held a parcel of land in the parish of Jefferson, which they had divided among themselves; the largest portion of which was held by the defendant. Judge Bullard was her counsel in the court of the first instance, and tried the cause there. The cause was decided in favor of the plaintiffs, and on the motion for a new trial, the plaintiff in this suit joined the counsel for Mme. Delachaise in the application. On the appeal, both gentlemen argued the cause in this court; and the judgment of the district court was reversed, and the case decided in favor of Mme. Delachaise.

It appears that the plaintiff applied for the appeal, and filed the transcript of the record and became security for costs, and presented to the court an elaborate printed argument. Mme. Delachaise employed additional counsel in this court, Mr. Le Gardeur, who submitted a well-prepared argument in support of the title under which she claimed. It does not appear that the plaintiff had any direct communication with the defendant in relation to the suit, and the fact of her having employed him as her counsel is left on the presumptions arising from evidence which is circumstantial.

Under ordinary circumstances, the appearance of a member of the bar as the attorney of record in the place where the party resides would be evidence, as between the attorney and client, of his having been employed in a case in which the attorney had conducted the suit. But under the present circumstance this presumption is repelled by the fact of the defendant's having had her own lawyers to manage her cause, and that the plaintiff's professional services were secured by other parties in interest, who appear to have made common cause in the defense of their common title at issue in her suit.

On a careful examination of the testimony, we have come to the conclusion that the plaintiff was misled in supposing that he was employed by the defendant, and that the parties who engaged his services did so on their own account, and had no

authority to bind the defendant. However valuable the services of the plaintiff may have been, which do not appear to be underrated by the defendant herself, yet as she did not employ him or authorize any one else to employ him in her suit, the present action can not be sustained. It is therefore decreed, that the judgment of the district court be reversed, and that judgment be rendered for the defendant, with costs in both courts.

APPEARANCE OF ATTORNEY.-Entry of appearance by attorney is presumed to be done by authority: Henck v. Todhunter, 16 Am. Dec. 300; Welch v. Sykes, 44 Id. 689. Client may deny authority of attorney to appear: American Insurance Company v. Oakley, 38 Id. 561. Attorney may be required to show by what authority he appears: Tally v. Reynolds, 31 Id. 737. For unauthorized appearance of attorney, see McAlexander v. Wright, 16 Id. 93; Shumway v. Stillman, 15 Id. 378, and note.

STATE v. CHANDLER.

[5 LOUISIANA ANNUAL, 489.]

EVIDENCE THAT "THE DECEASED WAS A QUARRELSOME MAN, violent in temper, and dangerous when excited," rejected as inadmissible in a trial for murder.

STATUTE PROHIBITING CARRYING OF CONCEALED WEAPONS is constitutional. IN CHARGING JURY IN CRIMINAL TRIALS, the charge: a. Should be limited to a full explanation of the law of the case; b. All irrelevant matter found in the pleadings, evidence, or arguments of counsel should be stricken out; c. The evidence for the prosecution and defense should be clearly summed up; d. All strong expressions as to the guilt of the accused should be carefully avoided.

KILLING OF ASSAILANT WILL BE JUSTIFIABLE HOMICIDE in self-defense, if there be an actual physical attack of such a character as to afford reasonable ground to believe that the design is to destroy life or commit felony upon the party assaulted.

PRISONER INDICTED FOR MURDER and found guilty of the crime of manslaughter can not, upon a new trial, again be tried for the crime of murder.

INDICTMENT for murder. The opinion states the facts,

Isaac Johnson, attorney general, for the state.

R. Hunt, for the defendant.

By Court, PRESTON, J. The defendant was indicted for the murder of Patrick C. Daley, on the seventh of October, 1848; was tried and convicted of manslaughter, and has appealed to this court.

It appears by his first bill of exceptions, that he offered to prove that the deceased Daley was a quarrelsome man, of vio