
    
      WILLIAMS & AL. vs. SPENCER & AL.
    
    Appeal from the court of the third district.
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   Martin, J.

delivered the opinion of the court, This suit originated in the court of probates of East Feliciana, and the object oí it was the partition of the estate of Rebecca Horton, the aneestor of all the parties: But the petition states, that the estate, consisting of real and personal property, is claimed by the defen-clants, under a written conveyance, which the plaintiffs allege was entered into without any consideration.

The answer denies the jurisdiction of the court of probates, and avers title in the defendants.

The court of probates sustained the plea to its jurisdiction, and dismissed the petition. The plaintiffs appealed to the district court, which affirmed the judgment, and they appealed to this court.

Watts and Lobdell for the plaintiffs.

They rely on the act of the legislature of J820,jm. 92, and contend that after the affirming the judgment of the court of probates (if it was rightfully affirmed) the district court being seised of the case, ought to have passed on it, on the merits.

According to the plaintiffs’ own shewing, the question, on which this case turns, is the insufficiency of the title under which the defendants claim. The tilléis the thing in dispute. The case was not therefore, within the jurisdiction of the court of probates.

On the appeal, the district court was first to determine whether the judgment of the court of probates was correct, and if it appeared so to affirm.

V\e do not think that in any case the appellate court can give any other judgment than the judge a quo could and ought to have given.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  