
    
      BREED vs. REPSHER & AL.
    
    Appeal from the third district.
    When process is ordered by the judge of an adjoining district, it will be presumed that the case was one in which he is authorised to act.
    By appealing the appellant admits that the judgment is final.
    The petition stated that the plaintiff and Chandler Lindsay gathered a quantity of tan bark, which they stacked and covered on the banks of the Tickfaw, and the petitioner contracted for the delivery of one hundred cords of it at ten dollars per cord, but the defendant violently and illegally took and carried away a considerable part of the said bark, and that the petitioner was apprehensive they would take the remainder. Besides a prayer for damages, a provisional sequestration was desired and was granted by the judge of the seventh district.
    East’n. District.
    March 1816.
    Besides the general issue the defendants pleaded that the plaintiff was not entitled to his action, as it appeared from his own shewing that the bark in question was, at the time of bringing the suit, and is still, the property of Chandler Lindsay as well as of the petitioner, and therefore the said Chandler ought to have been made a party.
    The plaintiff recovered $350, and the defendants appealed.
    The statement of facts, made by the district judge, shews that the plaintiff and Lindsay collected about eighty cords of bark, on the land adjoining that of Jacob Repsher, one of the defendants, deposited it on the bank of the river and covered it, so as to protect it from the weather. While they were gathering it, Jacob informed them they were trespassing on his land; and they agreed that a certain bayou, which was between their respective tracts, should be considered as their limits, and that the plaintiff and Lindsay should not gather bark on the side of the bayou next to Jacob’s land. Ten or fifteen trees had, before this agreement, been stripped by them on that side. Lindsay afterwards died, and the plaintiff purchased the part of the bark which belonged to his estate. The defendants came up the river in a schooner, which they commenced to load with the bark. The plaintiff came with his rifle to prevent them, the de-defendants seized him, took off the rifle and declared their determination to carry away the bark. On this, he procured a warrant, on which Jacob was arrested, and he told the constable, on his way to the justice, that one half of the bark had belonged to Chandler, now dead without heirs, and he thought he had as good a right to it, as any other person, particularly as the plaintiff and deceased had injured some of his fruit trees with their waggons. The defendants took away about fifty cords of bark, and in doing so exposed the remainder, and it was afterwards entirely spoiled. At this time bark was worth ten dollars a cord, in New-Orleans, and plaintiff had contracted for 100 cords to be delivered there, at that price. The freight of the bark from the Tickfaw to New-Orleans was from four to five dollars a cord.
   Martin, J.

delivered the opinion of the court. The defendants allege, as grounds of reversal of the judgment given against them, 1. That a writ of sequestration was issued in this suit by the judge of the seventh district. 2. That the judgment was signed on the day on which it was rendered. 3. That Chandler Lindsay, a person who appears to have a joint interest with the plaintiff in the suit is not a party therein.

I. The third and seventh are adjoining districts, and as the judge of either may act in lieu of the other, in certain cases, we must presume that the writ issued in one of those cases: besides the writ of sequestration, not being the original process, no error on issuing it can affect a case tried on the merits.

II. The day on which judgment was signed, cannot be ascertained from the record, nor from the statement of facts. It was said, in the argument, that the judgment was given on the day on which the court adjourned, and must consequently have been signed on that day—but this does not appear. If it did, it would also appear that no advantage was thereby lost to the appellants, as they could not have moved for a new trial at the succeeding term. They were not prevented, by the supposed hurry of the judge, from obtaining a statement of facts, and by appealing, they have admitted the judgment to be a final one; which it could not be, if not properly signed.

Turner for the plaintiff, defendants. Carleton for the defendants.

III. The petition states that the plaintiff and Chandler Lindsay, now dead, gathered together a quantity of bark, which is the object of the present suit, and the defendants, well knowing it to be the, property of the petitioner, forcibly took it away. The statement of facts shews that the plaintiff had purchased Lindsay’s share before this trespass was committed. This court is of opinion that the averment of property in the plaintiff sufficiently repelled the presumption of joint property arising from the joint gathering: it would therefore have been error to have made Lindsay or his representative a party in the suit.

The judgment of the district court is affirmed and as it does not appear that there was the least room for a hope of its reversal, we adjudge to the plaintiff seventeen dollars and fifty cents (being five per cent, on the judgment affirmed) as the compensation for the loss and injury he has sustained by the appeal, in addition to the interest and costs.

GENERAL RULE.

It is ordered that, when a cause shall have been set down for hearing, if the appellant shall fail to attend by himself, or his counsel, the appeal shall be dismissed, unless the apellee shall appear and argue the case ex parte: and, if the appellee shall fail to attend, the appellant shall proceed to argue the case ex parte.

But the case shall he reinstated, if the party thus failing to attend shall, within ten days, shew that his absence was occasioned by some cause not within his control.  