
    
      ARPINE'S HEIRS, vs. HARRISON & WIFE.
    
    Appeal from the court of the seventh district,
    The pos. lessor of land prescript^ forms'6 thPeer* imposed on acTunder6 which heen-te red.
   Matthews, J.

delivered the opinion of the court. This suit is brought to recover from the defendants, a tract of land, which the plaintiffs claim as a part ot the succession oi their ancestor. The cause was submitted to a jury in the ; court below, who* under a chaise from the fudge, found a verdict in favour of the plaintiffs, J ° ’ _ and judgment having been pronounced, in suance of said verdict, the defendants appealed.

. The charge of the judge was excepted to by the counsel of the appellees, as having been given contrary to the provisions of the code of practice, by interfering improperly with the facts of the case. We have considered this charge attentively, and are of opinion that it relates to questions of law which would arise out of the facts, according as the jury should find them.

After verdict and judgment, the defendants moved for a new trial on the ground of newly discovered evidence. Affidavits of discovery are frequently made in desperation, and ought to be received under great restrictions. The witnesses must be designated, and a certain and clear knowledge of what they will prove, should be laid before the court, in such a manner as to shew that the testimony expected will be admissible on the pleadings, and pertinent the issue. In the present case, one of the defendants states in his affidavit, for the purpose of procuring a new trial, that he hopes to prove, by the newly discovered witnesses, that Barney, under whom they claim, had fiilfilled his obligation, arising out of a contract of exchange, which forms the basis of the plaintiff’s action; all he professes to know on the subject -g ¿erjve(j5 not from tjje witnesses, but from other persons whom he does not name. This affidavit is made, too, for the purpose of procuring proof in direct opposition to the stipulations of the written contract, which recognizes but one mode by which the person, from whom the defendants derive title, could discharge the obligation directly imposed on him by it. We therefore think the judge a quo was correct in refusing a new trial.

The answer contains a plea of prescription, founded on a possession of 20 years, the plaintiffs being non-residents of the state. The testimony shows that they have only arrived at the age of majority, one of them nine years since, and the other about five; and during the minority, prescription could not legally run against them, neither could it run against the ancestor until the possessor performed the conditions imposed on him, by the act of sale, which he has not done. The evidence of the case does not support this plea.

The merits of the case depend, principally on die act of exchange between the ancestor of the plaintiffs and Barney, under whom the de-r ^ fendants claim; and the latter having failed entirely to comply with the conditions of that contract, on their part; and it being shewn by the _ evidence that it is now impossible that they ever can, we are of opinion that the verdict and judgment of the court below are correct; by which the contract of exchange was annulled, and the property in dispute, decreed to the plaintiffs.

Downs for the plaintiff, Scott for the defendant.

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

Thomas, for the plaintiff, Boyce Sf Oakley for the defendants.  