The case is before us upon several bills of exception, from the first of which it appears, that the judge charged the jury, that when an equitable defense is set up, and fraud in the transfer, to deprive the defendant of his defense, if the note be payable to bearer, or transferred by blank indorsement, the proof of consideration given for the note, and that the plaintiff came fairly by it, devolves upon the plaintiff; but that the case is dif ferent when the transfer is a special one, and that in such cases the proof devolves upon the defendant, to show the fraud and want of consideration. In this part of the charge, we are of opinion the court erred in supposing that the form of the transfer makes any difference as to the burden of proof. It further appears, that the record of a suit of Dunn v. Munday, the original payee, was offered for the purpose of showing, that the property for which the note was given, was seized and sold, to satisfy a judgment against Munday, which was received only to prove rem ipsam, to wit, that such a judgment was recovered, but that it did not prove the facts stated in the record, or that a sale was made, as set forth in said judgment, and the jury was instructed that the record could be admitted to prove nothing else. It appears to us the jury may have been misled by this charge of the court, which to a certain extent is correct, but erroneous so far as it goes to tell the jury that the record did not prove the sale of the goods mentioned in it. It is true it does not prove that the same goods, said to have been purchased by the defendant, were sold as the property of Munday; but the constable's return is, perhaps, the exclusive evidence, that certain goods seized by him in that suit were sold. The identity of the goods was a distinct question. We think the court erred also, in admitting the bills of goods purchased in New Orleans. It is not evidence under oath, and the simple signature of the alleged vendor does not prove, as to the present defendant, that such goods really were bought.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be avoided and reversed; and it is further ordered, that the case be remanded for a new trial, with instructions to the judge to abstain from charging the jury as set forth in the bill of exceptions; and that the appellee pay the costs of the appeal.

HOLDER OF A PROMISSORY NOTE IS NOT BOUND TO PROVE that he came by the note fairly and for a valuable consideration, when the note is payable to bearer, unless some evidence is given to raise a suspicion that he did not come fairly by the note: Jones v. Westcott, 3 Am. Dec. 704. A note in the hands

of an indorsee is subject to any legal defense which might have been made against the payee, when the indorsee took the note under circumstances calculated to create a reasonable suspicion: Ayer v. Hutchins, Id. 232. The question of who is considered to be a bona fide holder is discussed in the note to this last case, and also at length in the note to Bay v. Coddington, 9 Id. 273. Where negotiable paper has been lost or stolen, or obtained by duress, or put in circulation by fraud, upon proof of these circumstances it is incumbent upon the plaintiff to show that he purchased the paper bona fide, and for a valuable consideration: Beltzhoover v. Blackstone, 27 Id. 330. The onus probandi of establishing fraud or failure of consideration, as a defense to a note, rests on the defendant: Towsey v. Shook, 25 Id. 108.

LAPICE V. SMITH.

[13 LOUISIANA, 91.]

INFORMALITY IN A CITATION DOES NOT AMOUNT TO a DiscontinuanCE, although defendant's exception for informality was sustained, and an order of court entered requiring a new citation.

STATUTE OF ANOTHER STATE MAY BE PROVED, by a copy thereof authenticated by the seal of the state of which it is the law, and the certificate of the secretary of state.

NOTE EXECUTED IN ONE STATE BUT PAYABLE IN ANOTHER, draws interest after maturity, according to the legal rate allowed in the state in which it is made payable.

APPEAL. Action upon two promissory notes, made in Louisiana, but payable in Mississippi. Judgment for plaintiff. Defendant appealed. The other facts are stated in the opinion.

Stevens, for the appellant.

Patterson, contra.

By Court, RosT, J. The plaintiff sues upon two promissory notes, subscribed by the defendant, and made payable and negotiable at the Planters' bank of Mississippi, at Natchez. He alleges that at their maturity a demand of payment was duly made at the place stipulated, and that payment was refused; he prays judgment for the amount of the notes, with interest at eight per cent. per annum, since they became due. The defendant first excepted to the citation, on account of informalities, and his exception being sustained by the court, a new citation issued.

The defendant filed an answer, which we deem it unnecessary to notice, because the grounds of defense which it contains are entirely unsupported by evidence. During the trial, two bills of exception were taken by the defendant's counsel; one to the opinion of the court, that the suit might be proceeded in, al

though the costs incurred on the first citation had not been wholly paid; the other, to the admission in evidence of a copy of a statute of the state of Mississippi, under the great seal of the state, and the certificate of the secretary of state. There is nothing in either of these objections. An informality in the citation can not be considered as a discontinuance, and a copy of the statute, bearing upon its face the great seal of the state of Mississippi, and the certificate of the secretary of state, who is by law the keeper of that seal, required no other authentication. Judgment was given in favor of the plaintiff in the court below, and we are of opinion it ought to be affirmed. The obligations sued on being payable in the state of Mississippi, the rate of interest accruing after their maturity must be regulated by the laws of that state. But as the defendant may have had doubts on the subject, on account of the notes having been subscribed in Louisiana, we will not allow damages for a frivolous appeal, as prayed for by the plaintiff.

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

LAWS OF A SISTER STATE MUST BE PROVED AS FACTS: Scott v. Coleman, 15 Am. Dec. 71; Boggs v. Reed, 12 Id. 482; Holley v. Holley, Id. 342; Mason v. Wash, Id. 138; and the mode of proof is by a copy duly authenticated by the seal of the state where it is in force: State v. Twitty, 11 Id. 779, in the note to which the subject is discussed and the authorities reviewed at length. RATE OF INTEREST IS GOVERNED BY THE LEX LOCI CONTRACTUS: Holley v. Holley, 12 Am. Dec. 342. The subject is examined, and cases cited, in the note to Selleck v. French, 6 Id. 192.

THOMPSON V. SCHLATER.

[13 LOUISIANA, 115.]

TITLE ACQUIRED BY REGULAR ENTRY AND PURCHASE to land offered at public sale, under the laws of the United States, irrevocably divests the right of the government in the soil.

ENTRY ON LAND Offered at PUBLIC SALE confers upon the person making it, a prior right and title under a purchase from the government, over another who acquired title to the same land by an entry made afterwards, under an act of congress giving to proprietors, whose lands bordered on watercourses, a preference in making entry and becoming purchasers of back land adjoining.

UNDER AN ACT PROVIDING THAT OWNERS OF LAND ON WATERCOURSES shall be preferred as purchasers of the back land adjoining their own tracts, provided that notice of the claim shall be entered previous to the time designated for the public sale of lands in the township where the claim is situated, and providing further that all claims not so entered shall be

liable to public sale, the preferred right of a proprietor entitled to the benefit of its provisions becomes extinct when the lands affected have been offered at public sale by proclamation of the president.

THE RIGHTS OF A PURCHASER OF LAND OFFERED AT PUBLIC SALE ARE VESTED, and can not be affected by subsequent legislation reviving the provisions of a former act conferring rights on particular persons as preferred purchasers, and extending the time within which such rights may be exercised.

ACTION for slander of title. Judgment for defendant. Plaintiff appealed. The case is stated in the opinion.

Labauve and Edwards, for the appellant.

A. N. Ogden and Robertson, contra.

By Court, ROST, J. This is an action for slander of title. The plaintiff alleges that he is the owner and proprietor of a tract of land fronting on the Mississippi river, having seventeen arpents front, with the depth thereto belonging, and also of one other tract of land, adjoining to and back of the former, which he acquired by purchase from the government of the United States, on the fourteenth day of June, 1836, the said plaintiff having at that time a pre-emption right to said back land by the laws of congress then in force. The petitioner further alleges, that notwithstanding the premises, the defendant has repeatedly slandered, and still continues to slander and defame his title, and bring it into disrepute, by pretending that said tract of land belongs to him, the said defendant, and not to the plaintiff; that the said defendant has entered upon the land, and has committed and still continues to commit waste, by cutting down, splitting, and carrying away timber. He prays that the defendant be enjoined for committing waste; that the timber now cut down and split on the land in controversy be sequestered; that he may be forever quieted in his title, against the claims and pretensions of the defendant; and that the said defendant be ad judged to pay him damages.

The defendant and his warrantors deny the plaintiff's allega tions, and set up title to the land claimed, under a purchase from the United States, made on the eighteenth of December, 1833; they also deny the locus in quo; pray for a survey; that the injunction and the sequestration be dissolved, and that the plaintiff be adjudged to pay them damages. In the trial below, the parties abandoned their claim for damages; judgment was given on the titles, in favor of the defendant, and after an unsuccessful attempt to obtain a new trial, the plaintiff appealed. The evidence shows, that one George Sharp, under whom the

defendant claims, purchased from the United States, at the time alleged, two tracts of vacant land, of which the land in controversy forms a part, and the chain of conveyance is admitted to be regular and complete; it is also admitted, that the title of the plaintiff to the front tract has been confirmed by the board of commissioners, and it is proved that he purchased the land which he claims, as stated in the petition. From the foregoing statement, it appears that the two parties to this suit have acquired, from the government of the United States, two adverse titles to the same tract of land, in apparent conformity with the dispositions of two acts of congress, and we are called upon to say which of said titles is to prevail. We know no other rule of right, where the sovereign is concerned, than that which would, under similar circumstances, govern the transactions of individuals; and we are of opinion that the sale to Sharp being the first in date, divested, irrevocably, the United States of their right of soil, unless the plaintiff has shown that he had a right of pre-emption to the land claimed, at the time of the defendant's purchase, and that it continued to exist until he acquired his title.

The act of congress to authorize the inhabitants of the state of Louisiana to enter their back lands, approved on the fifth of June, 1832, provides "that any person owning land in Louisiana, bordering on a watercourse, and not exceeding in depth forty arpents, French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to and back of his own tract, not exceeding forty arpents in depth, nor in quantity of land that which is contained in his own tract;" but that act also expressly provides, that "all notices of such claims shall be entered, and the money paid thereon, at least three weeks before such period as may be designated by the president of the United States for the public sale of the lands in the township in which such claims may be situated; and all claims not so entered shall be liable to be sold as other public lands." By an act approved on the twenty-fourth of February, 1835, the time given by the former act was extended one year without any change being made in its provisions, and under this last act, the plaintiff entered and purchased the land in controversy; but previous to the eighteenth of December, 1833, the period designated by the president of the United States, for the public sale of the lands in the township in which that claim is situated had passed, the land had been offered at