
    CULLIVER VS. GARRIC ET AL.
    APPEAL FROM TIIE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF EAST BATON ROUGE, THE JUDGE OF THE EIGHTH PRESIDING.
    Where the party failed to procure the necessary evidence to support his title, and the justice of the case seems to require it, the cause was remanded for a new trial.
    This case was before the court at a former term and a judgment of non-suit entered, because of the failure of the plaintiff to produce evidence of authority to the United States agent, (Capt. T. S. Rogers,) from the war department, to convey title to the lot of ground in question. 11 Louisiana Reports, 88.
    On the return of the cause to the District Court, it was again tried before the court and a jury.
    The plaintiff was only able to trace Capt. Roger’s authority to the quarter-master general’s department, when, by the provisions of the act of congress, which authorized the sale of this lot with other property of the like kind, the secretary at war is expressly required to cause such sales to be made. The authority of the war department was not shown on the second trial, and this link in the plaintiff’s chain of title is still wanting.
    The jury, under the instructions and a charge from the court, returned a verdict for the defendant in possession, and the plaintiff appealed.
    
      Elam, for the plaintiff and appellant.
    
      R. JV. and A. JY. Ogden, contra.
    
   Martin, J.,

delivered the opinion of the court.

This case was before us in May term, 1837, and remanded for a new trial. The defendant has had a verdict and judgment, from which the plaintiff is appellant. 11 L. R., 88.

The facts of the case are plainly stated in our former opinion; in which, judgment as in case of non-suit, was given, because the plaintiff had failed to produce the authority of the officer under whose conveyance he claimed. He has not been more successful after the return of the case to the District Court. The facts of the case show that he obtained the land by a contract of exchange, legal evidence of which he failed to administer. The justice of the case, when it was before us formerly, and now, appears to require that he should be afforded a further opportunity of obtaining from the secretary of war legal evidence of the contract, by which he transferred to the United States a tract of land in exchange for the one which it is his object in the present suit to obtain.

Where the party failed to procure the necessary evidence to support his title, and the justice of the case seemed to require it, the cause was remanded for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside and the case remanded for a new trial, the- appellee paying the costs of the appeal.  