Bushnell v. Brown's Heirs.

IV, N. S. 499.

Acts of limitation do not apply to matters which are presented as exceptions.

An injunction which has been granted unadvisedly, will not be dissolved if it appear from the evidence that it must be issued again.

THIRD District.

MARTIN, J., delivered the opinion of the court.

The plaintiff having obtained an injunction to an order of seizure and sale on the ground that the land sold him was deficient in quantity, and that he was disturbed in his possession of the premises by suit, and further that the sheriff levied without any previous notice to, or demand from him; the injunction was dissolved, the court being of opinion he had not supported his allegations.

This case is before us on two bills of exceptions.

The one was taken to the opinion of the court, in refusing the plaintiff an order of survey claimed, to establish the deficiency to the legal extent.

The other to the introduction of a record showing a suit brought after the injunction was obtained.

The order of survey was refused because the plaintiff suffered one year to elapse without complaining of this deficiency.

We think the district judge erred. It is true, the plaintiff could not have been heard on a suit against his vendors; but it does not follow that he could not use as a shield what he no longer could use as a weapon. Qua temporalia sunt ad agendam, perpetua sunt ad excipiendum.

Proceedings on injunctions are not carried on in the formal manner in which ordinary ones are conducted, but summarily, the strict rules of pleading are disregarded by the court. Semper ad eventum furtivat. It will take care that neither party be surprised or entrapped, but it disregards many obstacles to the attainment of justice. It will receive, as a ground of sustaining an injunction, that which would be sufficient to demand its instant restoration. It will not demolish to rebuild.

In the present case the plaintiff being sued had a right to resist the claim of his vendors; if he did so before suit, he was in the wrong, and ought to be mulcted into costs; but it would be vain to dissolve the injunction, for it must be enforced. Exnecios v. Weiss, 3, N. S.

480.

It is, therefore, ordered, adjudged and decreed, that the judgment

[Bushnell v. Brown's Heirs.]

of the district court be annulled, avoided and reversed; the injunction reinstated, and the judge directed to grant the order of survey, and admit as evidence the record of the suit against the plaintiff, the defendant and appellee paying costs in this court.

Watts and Lobdell, for the plaintiff.

EASTERN DISTRICT, JUNE TERM, 1826.

Ure et al. v. Currell. IV, N. S. 502.

FOURTH District.

An agent who acts without authority (as in this case, under a void. power, so become by the dissolution of the mandant firm, void at least in relation to those persons who were acquainted with that event) does not bind his principal even though the act was done with intent to benefit him.

Delassize v. Cenas et al. IV, N. S. 508.

COURT of Probates of New Orleans.

The sheriff having received 3000 dollars on an execution which plaintiff was entitled to, and the sheriff dying, his widow and executrix having been directed to pay it over, by the court, by an ex parte order, of which plaintiff had no notice: it was decided, that plaintiff was not bound by such order, under such circumstances, and the money was decreed to be paid to him.

Donaldson et al. v. Dorsey et al. IV, N. S. 509.

COURT of Probates of New Orleans.

The court of probates has jurisdictiou of all cases that relate to putting into provisional possession the heirs of the absentee, but it cannot try the question of title.

Parish of Orleans v. Kennedy. IV, N. S. 511.

FIRST District.

The fee of two dollars, imposed as a tax on suits in the Parish of Orleans by act of 1805, ceased to be demandable after the act of 1813.

Tallant v. Thompson & Musselman. IV, N. S. 514.

PARISH Court of New Orleans.

Held, an affidavit made before the mayor of Cincinnati does not authorise an attachment to issue on it in Louisiana. The Code of Practice, 216, 217, confines the power of taking affidavits for such objects to judges, or justices of peace of the place where the court is held, or the judge of any other place. The mayor of Cincinnati is not such judge.

VOL. III.-32

A defendant cannot amend his answer, so as to change the substance of the issue joined. An engagement to furnish security, that the affairs of a partnership will be liquidated, is not complied with by giving bond to pay the debts of it.

He who enters on an office without proper authority, subjects himself to all the responsi bilities of the situation he usurps, and cannot claim the benefits of it.

THIRD District.

PORTER, J., delivered the opinion of the court.

This case has been already before us, and was remanded.

644.

3 N. S.

The parties to this suit were partners, or rather owners in common of various objects, and particularly of a plantation situated in the parish of Lafourche. Difficulties arose in relation to the division of this property, and they terminated by a transaction, according to which it was agreed the plantation should be sold, on a credit of one, two and three years. A public sale took place in pursuance of this agreement, at which the petitioner became the purchaser of the plantation at that time in the possession of the defendant, but which, by the terms of the sale, he bound himself to deliver on the first day of January then next ensuing.

The petition states, that the defendant illegally and tortiously refused to deliver to the plaintiff the property which she had purchased; and that since the period of his refusal the buildings and improvements have been consumed by fire. She prays for a recession of the sale, and demands 8000 dollars, the damages sustained by her in consequence of the failure of the defendant to comply with his con

tract.

The defendant pleads:

1. That by the twenty-second article of the transaction referred to in the plaintiff's petition, the present cause, if any exist, ought to be inquired into and decided by arbitrators; and that the defendant has been always ready to answer before that tribunal, which alone has authority in the premises.

2. That the matters and things set forth in the petition, have been already decided against the respondent, in an action wherein he was plaintiff, and the petitioner defendant.

3. And lastly, that all the allegations in the petition are untrue. When the cause returned to the district court, the plaintiff moved and obtained leave of the court, to file a supplemental or amended petition; in which she stated, that by the transaction as well as the