
    
      DELAHOUSSAYE vs. JUDICE.
    
    Appeal from the court of probates of the . parish of St Martin. A
    noStmgwe to the plaintiff the piea m judicalce,*a? to claim < f the ^nthl ⅜* ⅛⅛⅞⅛⅜ thejudgment, when (he claim was not ⅞
    ¡nEwhkh “⅞ ⅛ r.»e«, ⅛ not necessarily a on alien
   Matthews, J.

delivered the opinion of the court The object of the present action is to recover sums of money, which the plaintiff ^ 1 claims as a creditor of the succession of her late husband. The petition contains an allegation, that a certain instrument, made by the plain- ' tiff, under private signature, and purporting to be a donation of $901, is absolutely void in law, &c.

The judge of the court below, after liquidation of the accounts of the parties to the suit, rendered judgment in favor of the plaintiff for $552, from which the defendant appealed.

The pleadings and evidence of the cause shew, that a suit had existed in the district court, commenced by the present defendant, against the plaintiff, which was prosecuted to final judgment; in which, the counsel for the defendant in this action insists, that all the matters now in dispute, were finally settled, the ground on which they rely for this plea rei judicatae is, that, the cause of action now set forth existed at the time of the former suit. It does not appear that they were pleaded in compensation or in any other manner; the defendant in the former suit might have thus pleaded, and had he done so, the judgment pronounced by the district court, would probably have precluded the present pursuit. But as they were not taken into consideration in that judgment, it creates no bar to this demand.

The nullity of the act, purporting to be a donation to the pupil and daughter of the appellant, is strenuously contended for; and in support of his positions, the counsel refers us confidently, to the text of the law on the subject of donations, and several commentators. These authorities, it is believed, would maintain the plaintiff in his pretentions, were the instrument to be considered absolutely as a donation: although the word donation is used in the act, yet taken according to the evident intentions of of the party, as reciprocally expressed by the whole context of the instrument, we are of opinion that it evidences a compromise of difficulties, and mutual releases. The judge a quo in deciding the cause, properly recognised the validity of this act.

Simon for the plaintiff, Baker for the defendant,

It is therefore ordered, &c. that the judgment of the court of probates be affirmed, with costs.  