EASTERN DIS. jury, that this defendant did assume the obligation to pay to March, 1833. GASQUET ET ALS vs. KOKERNOT ET ALS. the plaintiffs as alledged in this petition. The exception in favor of contracts between merchants, or in relation to mercantile dealings, made in the old Civil Code, by which such contracts above five hundred dollars, might In all cases of con- be proven by a single creditable witness, not having been above five hun- introduced in the Louisiana Code, is verbally repealed; and testimony of a sin- now in cases of contracts or promises, having for their object gle witness, with tracts or promises dred dollars, the out proof of cor- more than five hundred dollars, the testimony of one witness roborating cir. cumstances, is in alone does not suffice to establish such contracts without proof sufficient. In a suit on an alleged promise to of corroborating circumstances. Louisiana Code, art. 2257. In the present instance, proof of this kind was adduced, and as the jury were the proper judges of the weight of the testimony, perhaps their verdict and the judgment thereon rendered ought not to be disturbed, were it not for certain bills of exceptions found on the record, by which it appears that evidence offered on the part of the appellant to rebut any presumptions arising from the proof of these circumstances, was rejected. The testimony offered and rejected appears to have been pay the debt of an- intended to show that the defendant, previously and about other, the defen dant must show the period at which she is alleged to have promised to pay for that he has, seve ral times about the period of the the purchase, had refused absolutely to become surety for alleged promise, refused to him on other occasions, and to other persons. pay the other's debts sons, although the plaintiff in making out his case If the plaindue to other per- tiffs had offered testimony to prove the converse of this proposition, i. e. that she had been in the constant habit of behas not attempted coming surety for the individual who bought goods from them, in his contracts with other persons, no doubt could be entertained of the admissibility of evidence to this effect as showing circumstances corroborative of the testimony of the single witness. to prove the reverse. Proof arising from circumstantial evidence is essentially presumptive, and may properly be rebutted by the evidence of contradictory circumstances tending to oppose its truth. We are of opinion that the judge a quo erred in refusing to admit testimony to show that the appellant had refused on several occasions to become security for the engagements of March, 1833. the purchaser of the goods in the present instance to other EASTERN DIS. persons, or that she was in the habit of refusing to bind herself for him. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled; and it is further ordered that this cause be remanded to said court to be tried de novo, with instructions to the judge to admit the testimony as offered by the appellant, or similar testimony, if offered; the plaintiffs and appellees to pay the cost of this appeal. BANKS vs. DOW. BANKS vs. DOW. APPEAL FROM THE COURT OF THE FIRST DISTRICT. If the law and the facts of a case are free from doubt, damages will be allowed for a frivilous appeal. Preston, for appellant. Rost, contra. 1. The defendant admits his signature. The signature of the endorser, and the date of the transfer, are proved by the witness. 2. The account of the defendant is not proved, and if it was, cannot be allowed, against the plaintiff. 3. The appeal was taken for delay, and the judgment of the District Court ought to be affirmed with ten per cent. damages and costs. EASTERN DIS. BRABO vs. MARTIN. If the law and the facts of a case are free doubt, damages The facts of the case are stated in the opinion of the court, delivered by PORTER, J. This is an action on a promissory note, executed by the defendant, in favor of one John C. Dunliere. The petition avers that the payee endorsed and transferred this obligation to the plaintiff. The answer admits the execution of the note, but denies that Dunliere ever endorsed it. It further avers that the endorsement, if ever made, was subsequent to the time at which the obligation was due, and that it is subject in the hands of the petitioner to all the equity it would be open to, if suit was brought by the payee. It is proved that the payee did endorse the note previous to the time it fell due. The district judge gave judgment against the defendant for the amount claimed in the petition, and he appealed. The instrument sued on appears to be negotiable; we are from unable to see on what ground the defendant appealed. The will be allowed law and the facts of the case appear to us free from doubt, and we are compelled to accede to the prayer of the appellee, that the judgment below should be affirmed with damages. for a frivolous appeal. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, and ten per centum damages for the frivolous appeal. RIBAS ET AL vs BENNETT. APPEAL FROM THE COURT OF THE FIRST DISTRICT. The plea of prescription will not be sustained, if the party pleading it do not show that his civil possession has been exclusive. Of two claims to a tract of land under concessions when Louisiana formed a Spanish province, that will prevail, which has been regularly entered before the commissioners, and confirmed by the act of congress of 1820. The plaintiffs in this action, Mariano Ribas and Roman Colmenero, allege that Jacques Rigand in 1781, obtained from the Spanish government a concession of forty arpents in the Grand island or Barataria, which were located from the eastern extremity of the island. They allege that Cailler, in 1783, obtained a similar concession of forty arpents on the island, which were located at a distance of more than thirty arpents from Rigand's land; and that Anfray, alias Normand, in 1785, obtained a concession of all the vacant land between the tracts conceded to Rigand and Cailler, and in 1787, Dupene obtained a concession for the remainder of the land behind Cailler's concession. In 1801, as is alleged in the petition, Cailler's vendee, in a dispute about boundaries, admitted Anfray's title to thirty arpents, measuring from Rigand's boundary, and accordingly in the presence of parties, lines were drawn and ditches dug to serve as boundaries. In 1809, Anfray caused his land to be surveyed conformably to these bounds, and his title thereto was confirmed by the United States. The plaintiffs aver that Dupene's widow in 1809, by an ex parte survey caused stakes to be placed on ten arpents of Anfray's land. The plaintiffs are the present owners of the land conceded to Anfray, and twenty-three arpents of that conceded to Rigand; and pray that the metes and bounds placed on their land may be removed, and that possession may be restored with damages, &c. EASTERN DIS. RIBAS ET AL. vs. BENNETT. 5L 271 46 339 EASTERN DIS. RIBAS ET AL. vs. BENNETT. The defendant, who is the owner of the land conceded to Cailler, denied the principal allegations of the petition, tending to charge him with damages, averred the validity of his title, and impleaded in the suit as a party in interest the present owner of the tract of land conceded to Dufresne. He appeared, denied the principal allegations of the plaintiffs, and alleged that his title was valid to the land of Dupene's concession. On these pleadings the parties went to trial, and judgment was rendered for the plaintiffs, from which, after an unsuccessful attempt to obtain a new trial, the defendant, Bennett, appealed. L. C. Duncan, for appellants. 1. The order of survey, grant and titles, under which defendant holds, taken in connection with the evidence, support his claims, and show that the judgment of the District Court is erroneous. Morphy, for appellees. 1. The order of survey under which plaintiffs claim, having been recorded and confirmed, must prevail over defendant's title, which is incomplete and not recorded. Ingersoll's Digest, p. 508, 529. 2. The agreement of 1801, is binding on the assigns of Encalada, C. C. arts. 2239, 3522, sec. 5. Toullier, v. 8, art. 245, p. 373. MATHEWS, J. delivered the opinion of the court. This is an action of bornage. The plaintiffs in their petition, set forth the different grants or concessions of the neighboring proprietors in the island of Barataria, or Grand Isle, where the property in dispute is situated. These concessions were made by authority of the Spanish government, and appear not to have prevailed farther than |