Volume 1 — Louisiana Annual Reports

<p>The purchaser of a steamer who alleges that he has been evicted by order of a court of competent jurisdiction for debts secured by lien aud privilege contracted by his vendor previous to the sale, cannot claim restitution of the portion of the price paid by him, nor retain the balance, where he had at his disposal adequate proof to repel the claims on which the alleged eviction was effected, but which was not heard solely because the only judge present, who had authority to grant an injunction applied for by the purchaser, had been counsel for one of the parties and would not act on the application, and where tho vendor was not a party to the proceedings, nor notified of them. A vendor is not auswer* able, under his warranty, for a failure of justice resulting from such an accident. C. C. 3494.</p> <p>In an action by one who has been evicted by a judgment of a court of competent jurisdiction, against his vendor, who wss not a party to the suit, nor notified of it, the return made by tbe sheriff on they?, fa., under which the property was sold, is only primá facie evidence of the facts of which the sheriff could lawfully make return.</p> <p>Where a party does not produce the best evidence of which the nature of his case admits, nor accounts for its absence, it will be presumed that such evidence would not be favor* able to his claims.</p>

<p>Where in an action to recover the price of a slave, alleged to have died since the sale of an incurable disease which existed at the time of the sale to the knowledge of the vendor, it is shown that from the time when the slave was taken seriously ill he grew gradually worse till his death, no tender of the slave need he alleged or proved. • Per Cmiarn: No tender could he made during his illness, and it became impossible after his death.</p>

broker to sell certain real estate; that he found a purchaser, who offered 140,000 for the property, but that defendants would not, at that time, accept the offer; that, shortly after, they accepted the offer which had been originally obtained .through plaintiff’s exertions, and sold tire property to Mercer, the purchaser thus obtained, for the sum of 140,000, less the discount; that plaintiff’s services were well worth the amount claimed, to wit, .one per cent on the price;…

<p>Payment to a person, to whom it was understood by tbe vendor at the time of the sale that the price was to be paid, made before the authority of the agent is revoked, will discharge the purchaser.</p>

<p>One who has received money for the use of the commissioners of a bank in liquidation under the statute of 9 March, 1842, connot plead in compensation a debt due to him as a depositor by the bank before its failure.</p>

<p>from a judgment of the District Court of the First District, Buchanan, J.</p> <p>cited Code of Pract., art. 708. Laws of 1817, 31, p. 141; of 1843, pp. 52,105. Casanova v. Avegno, 3 La. 212. Pepper v. Dunlap, 16 La. 170. Hart v. Foley, 1 Robinson, 382.</p> <p>relied on the case of Gasquet v. Dimitry, 6 La. 454.</p>

from the District Court of the First District, Buchanan, J. cited Civ. Code, art. 2585. 1 Story’s Equity Jurisprudence, § 385, and note 4. Ibid, § 388. Benjamin and Micou, on the same side. contended that he was entitled to the property, citing Civil Code, arts. 2583, 2585, 2586, 2601. 2 La. 506. 5 La. 360. 6 La. 550. 2 Kent 424. 3 Term Rep. 148. Babington on Auctions, pp. 30, 90, 118. 6 Mart. N. S. 678. 7 Ib. N. S. 227.

<p>jLL P.PEAL from the Parish Court of New Orleans, Maurian, J.</p> <p>relied on tho case of FinTc v. Martin, 10 Robinson, 147.</p>

<p>from tho District Court of the First District, Buchanan, J.</p> <p>The liability of the bank is established by a series of decisions. See Durnford v. Patterson, 7 Mart. 463. Crawford v. Louisiana State Bank, 1 Mart. N. S. 216. Montilet v. Bank of the United States, Ibid. 367. Canonge v. Louisiana State Bank, 7 Mart. N. S. 585. Pritchard v. Louisiana State Bank, 2 La. 416. Miranda v. City Bank of New Orleans, 6 La. 741. In McCulloch v. The Commercial Bank, the plaintiff failed for want of proof of any contract of agency between himself and defendant. The case of Hyde v. The Planters' Bank (17 La. 560), and that of Frazier v. The Gas Bank (2 Robinson, 295), turned upon the laws of Mississippi. The case of Hum v. The Union Bank, was put upon the ground that the employment of a sub-agent was an act of necessity.</p>

<p>from the Parish Court of New Orleans, Maurian, J.</p> <p>relied on the cases of Fortier v. Slidell (7 Robinson, 398), and Lagourgue v. Summers (8 Ibid.), and on arts. 707, 708 of the Code of Pract. He Courmont on the same side.</p>

<p>Where, in answer to an action by the members of a partnership to recover possession of property retained by defendant after the expiration of his lease, the latter admits that he leased the premises of the plaintiffs, as set forth in their petition, it is a waiver of the right to take advantage of any variance between the names of the persons stated in the petition as composing the partnership, and those stated in the lease.</p> <p>Plaintiffs leased a shop to a commercial partnership for a twelve-month, granting to the latter the privilege of renewing the lease for another year. It was stipulated that the premises should not be sub-let without the consent of the lessors. The partnership having been dissolved before the expiration of the lease, defendant, one of the partners, occupied the shop uutil the end of the year, when he notified plaintiffs of his wish to renew the lease for the second year. The latter having refused to renew the lease,,sued defendant to recover possession of the premises. There was no proof of any transfer to defendant of the rights of his partners, or of the partnership, in the agreement to renew. Defendant having urged that the lease created a joint obligation, and that the other partner should have been made a party to the action: Held, that the lessees, being commercial partners, were bound m solido-, that, independently of this, it would have boon useless to join in the action one who had ceased to occupy the premises, and set up no claim to a renewal of the lease; that after the dissolution defendant could not renew the lease on account of the partnership; and that, assuming that one partner could, after the dissolution, transfer to the other his rights under the lease, so as to enable the latter to claim the renewal for his individual benefit, yet where no sach transfer is shown, neither partner can claim the renewal for his individual benefit.</p> <p>Where the lessor of a house tacitly permits his lessee to continue in possession for more than a week after the expiration of the year for which the original lease was made, the lease will be presumed to have been renewed for the current month; but the landlord may put an end to it, at the expiration of the month, by giving the notice of fifteen days prescribed by article 26o6 of the Civil Code.</p>

On the 13th of May, O. Be Flechier, styling himself one of the heirs of the deceased, presented a petition to the Probate Court alleging that Bo-mingon, the appellant, had been appointed administrator of the succession, on complying with the requirements of law; that Bomingon never complied with such requirements, and never gave the security required by law; that, about a month before, he was ordered by the Court of Probates to furnish the security required, but that he has…

<p>from the District Court of the First District, Buchanan, J.</p>

moved to dismiss the appeal on the ground that the judgment was one from which no appeal could lie, being interlocutory, and working no irreparable injury. contended that the appeal should be sustained, having been taken from a judgment declining to take jurisdiction of the case.

<p>Tho Dth sec. of the statute of SSthiMareh, 3840, which declares that no citizen of another State shall 1)0 arrested at tho suit of a non-resident creditor unless it be made to appear that tho debtor has absconded from his residence, authorizes an arrest only whore tho debtor has absconded from his last place of residence. A debtor alleged to have absconded from a State' in which he resided at the time tho debt was contracted, bat who is shown to have since resided lor several years in another State, cannot be arrested.</p> <p>Sec. 10 of tho statute of 28tli March, 1840, declaring certain acts presumptive evidence of fraud, applies only to debtors residing within tho State.</p>

<p>Proof of an offer "by-the purchaser to return a slavo “bought hy him, and that the offer was rejected hy the vendor, is sufficient evidence of a tender to entitle him to recover in a redhi„ hitory action. It is not necessary that the person of the slave should have been actually produced and tendered to the vendor.</p> <p>Where the vendor is ignorant of the vicos of the thing sold, he is only hound to restore the price, and reimburse the expenses occasioned by tbn sale and those incurred for the preservation of the thing. C. C. 2509. Jfuneral expenses, when tho slave has died, and the costs of suit and fees of counsel employed in the redhibitory action instituted by the purchaser, are not included among the charges to which tho vendor is, in such cases, subjected. It is only where the vendor knows the vico of the thing sold and omits to declare it, that he is answerable in damages. C- O- 2D23.</p>

<p>$7here in answer to an action to recover an amount agreed to be deducted from tlie price of land purchased by plaintiff on account of a deficiency in the quantity, defendant avers that there was no deficiency, the burden of proving that there was no deficiency is on him, he pleading it specially as matter of defence.</p> <p>Contracts or agreements relative to personal property, or for the payment of money, above five hundred dollars in value, must be proved by at least one credible witness, and other corroborating .circumstances. C. C. 2257.</p> <p>jA. purchaser of property entitled to a deduction from the price, will not lose his right to such deduction, by failing to assert liis claim at the time that an order of seizure and sale is taken out by the vendor. Per Curiam; The fact that he abstained from availing himself of the right inaformer suit, docs not preclude him from claiming the amount in another action. C. C. 2265.</p>

<p>Tlio syndics of the creditors of an insolvent by whom bank stock had boon pledged to secure the payment of aloan, cannot resist tho right of tho creditor to have the stock sold for the re-payment of the amount loaned, on tho ground that the salo could only be made at a great sacrifice. There is no alternative, but to redeem,,the stock by paying tho debt for which it was pledged, or to sell it.</p>

<p>Wliove the highest anil last hid, made at a judicial sale, is insufficient to discharge a mortgage existing on tho property entitled to a preference over the claim of tho judgment creditor, there can he no adjudication. C. P. 684.</p> <p>One to whom a slave, advertised for sale as in a state of unconditional slavery, is adjudicated nt a judicial sale, cannot he compelled to comply with his bid, if it turn out that' the slave is a statn-Ubei\</p>

<p>Tile return made by a sheriff on a fi. fa. is not conclusive against third persons. Parol evidence is admissible to explain circumstances connected with the proceedings mentioned in tlio return.</p> <p>A sheriff in whose hands a fi. fa. had been placed, levied it on certain twelve-month bonds belonging to the debtor, in the hands of another sheriff, who refused to deliver them on the ground that his costs in the action in which the bonds were taken, hadnot been paid. The creditor made no offer to advance the costs, nor propounded interrogatories to the officer in whose hands the bonds were, as a garnishee. In an action against the sheriff for damages, in consequence of his failure to advertise and sell the bonds: Held, that the officer in whose hands the bonds were seized, was entitled to retain them till his costs were paid; and that the facts show no want of diligence on the part of the defendant.</p>

<p>An answer praying for an amendment of tlie judgment "below, filed-on the day on which the case was fixed for trial, is too late. C. P. S90.</p> <p>A receipt given by an heir for a certain sum “in full payment of the principal and interest coming to him from a particular succession/' willbe considered, in the absence of any evidence of a contrary intention, as extending to all his claims as heir of the deceased. C. C. S6§„ 1940 § 4. 1942.</p> <p>The nullity of a receipt in full and discharge given to a tutor, executed by a minor after her emancipation, by notarial act, resulting from its not having been preceded by the rendering of a. full account and the delivery of vouchers by the tutor ten days previously, as required by art. 355 of the Civil Code, is a relative, not an absolute nullity; and the act must have its effect, even between the parties, until annulled in a direct action.</p> <p>'Compensation can take place only where the relation of debtor and creditor exists simultaneously.</p>

<p>Where the provisional syndic of an insolvent makes himself an inventory of the effects ear rendered, he will not be entitled to extra compensation for his services, though it may have' required several days to complete the inventoiy. His services must be considered as-compensated by his commissions.</p>

<p>from the Commercial Court of New Orleans, Watts, J.</p>

<p>To support the plea of res judicata the judgment must be between the same parties, and the cause of action the same.</p> <p>Creditors have a right to cause to be set aside all conveyances made by an insolvent, within the three months next preceding his failure, which give an unjust preference to one or more of his creditors. Whenever an action is commenced to set aside a conveyance alleged to have been made under such circumstances, it is for the defendant to show that the property was sold to him for a true and just consideration, by him delivered, bona fide, at the time of such sale or transfer. Stat. 20th February, 1817, s. 24.</p>

<p>from the Commercial Court of New Orleans, Watts, J.</p>

<p>Whore the right'fcfexact payment of anoto is made to depend upon a condition, prescription will not commence until the condition Iras been fulfilled. Prescription does not begin to run tmtU'aright'of action has accrued.</p>

APPEAL by the assignee of Walden, a bankrupt, from a judgment of the District Court of the First District, Buchanan, J., dismissing an opposition made by the assignee to the homologation of a monition sued out by plaintiffs.

<p>from the District Court of the First District, Buchanan, J.</p>

<p>PPEAL from the District Court of the First District, Buchanan, J. j£1l Plaintiffs allege that Preston W. Farrar and his wife, on the 19th April, 1838, in the State of Mississippi, acknowledged themselves to be jointly and severally indebted to them in tíre sum of $29,000, being for a loan of money made to them on that day by plaintiffs; which they promised to pay on tho 19th April, 1839, executing their joint and several bond for the amount, and mortgaging a plantation and slaves in the parish of Rapides, to secure the payment thereof. Plaintiffs allege that defendants have repaid but a small part of said loan, leaving a balance due of $27,472 53, with interest at nine per cent a year from the 19th April, 1840. The bond and mortgage were annexed to tho petition, and both recite that the debt was contracted for “a loan of money this day made to us by said corporation,” &c. The answer of Eliza J. Farrar, admitted that the bond and mortgage were signed by her; averred that, as to her separate property and her matrimonial claims upon the property of her husband, the bond and moitgago wore null and void; that one undivided half of the plantation and slaves so mortgaged, was her separate paraphernal property, inherited from her father; that, at the time of signing tho bond, she was in no manner indebted to the petitioners; that she has never, at any time, directly or indirectly, by payment to herself or to any agent, received any loan from them, nor any benefit from any such loan; that the bond and mortgage were not given to secure any loan or discount made by the petitioners to herself or to her husband, as is untruly stated therein, but to secure a debt due by her husband to Hermann, Briggs & Co., a commercial firm in New Orleans, who, being indebted to tho petitioners, transferred to them the debt due by her husband; that the said bond and mortgage were executed in violation of the petitioners’ charter, and of the settled policy of the State, which will not permit a wife to become the surety of her husband; that when she executed the mortgage, she was entirely ignorant and uninformed of its nature and effect upon her own- rights; that it was not read to her before she signed it; and that she was not informed by the judge, at any time or in any .manner, of the nature- of her legal rights, and- of the obligations and renunciations contained therein; and that she did not declare to the judge that she wished to avail herself of the act of 27th March, 1835, as is erroneously stated therein. She prays for judgment in her favor, and to be-dismissed with costs.</p> <p>llsley, a witness for the defence, stated that he was the- general agent and corresponding clerk of Hermann, Briggs & Co., and had the whole charge of their office; that the defendant, P. W. Farrar, had'an account with them, which was settled on the 26th May, 1838, when they gave him credit for $24,443 25, the proceeds of notes discounted for his benefit in the Bank of Louisiana; that P. W. Farrar obtained a loan from the Bank of Louisiana, the amount of which was transferred to Hermann, Briggs Sf Co., who, with the proceeds, paid a debt which they owed to the bank; that P. W. Farrar did not draw any portion of the proceeds of the loan from the bank; that Hermann, Briggs Sf Co., had failed; that the loan was obtained by a mortgage of real estate, executed by Farrar and his wife; that the bank delivered to Hermann, Briggs & Co., their notes for the amount of the loan to Farrar, with the exception of $818 83, which was-passed to the general account of Hermann, Briggs Sf Co.,- that when the settlement was made, and Hermann, Briggs Sf Co. gave P. W. Farrar credit for $24,443 25, there was a balance in his favor of $3,520 10, which was settled by their giving P. W. Farrar notes from their port-folio for the amount. A series of letters from Hermann, Briggs Sf Co. to P. W. Farrar, written shortly before the loan was negotiated, were offered in evidence, urging Farrar to obtain the loan from the bank, for the purpose of paying off the debt which he owed to them. This testimony of llsley was excepted to by plaintiffs as inadmissible to contradict the declarations of the defendants made by notarial act, but was admitted by the court.</p> <p>There was a judgment below against the defendants in solido, for $27,472 53, with interest at nine per cent a year from the 19th of April, 1840-, till paid, with a mortgage on the property described in the petition. The defendants appealed.</p> <p>The testimony of llsley was inadmissible. The defendant E. J. Farrar was authorized to bind herself. There is no evidence of any of her separate property having been mortgaged, nor of any peculiar arrangement with the Bank of Louisiana as to tho loan made in this case.</p> <p>1. By art. 2412 of the Civil Code, a wife cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.</p> <p>"When the law incapacitates persons from malting contracts of a particular kind, its provisions eannot be evaded by giving to those contracts a different form from that forbidden by law, where, in substanee, the contract is that prohibited. It will not permit that to be done indirectly, which it forbids to be done directly. 8 Mart. N. S. 693. 7 Ib. N. S. 251, 64, 341. 5 Ib. N. S. 431. 4 Robinson, 509.</p> <p>.2. It is said, that the 82d section of the charter of the bank furnishes an exception to the rule, that a wife cannot bind herself for her husband’s debts. Granted; but, being in derogation of the general policy of the State, this section must be construed strictly. This section declares that, “ In all hypothecary contracts or obligations entered into by any individual with or in favor of the said president, directors and company of the Bank of Louisiana, according to the true intent and meaning of this act, it shall be lawful for the wife of such individual to'bind herself jointly and in solido with him; and in such case the property and rights of the said wife, either dotal or of any other description, shall be affected by said contracts or obligations ; provided,” etc. ‘</p> <p>Upon’’this it is to be observed: 1st. That the property of the wife can only be affected by the hypothecary contract or obligation; and 2d. That the hypothe-cary contract must be entered into, “ according to the true intent and meaning of this act.”</p> <p>Now, in-order to determine this intent and meaning, and to give due effect to these words of the act, we must examine the other provisions of the charter. The 15th section of the charter lays down certain rules, whieh it declares “shall form and be fundamental articles of the said corporation.” The 13thrule under this section, is in the following words : “ Two millions of the capital stock of this bank, shall be appropriated to the sole purpose of being loaned upon notes or bond secured'by mortgages on immovable property,” etc. The hypothecary contracts entered'into with the bank, according to the true intent and meaning of its charter, as described in the 32d section, are, therefore, such contracts as are described in this rule; in other words, to use the language of the 13th rule itself, they are notes or bonds secured by mortgages on immovable property upon which money is loaned by the bank.</p> <p>The loan of money is essential to the validity of the contract. It must be a direct and bond fide loan — such a loan as the 13th rule of the 15th section specifies, and.none other. The'legislature has so .limited and restrained the exception in favor of the bank.</p> <p>3. Was there such a loan made by the bank to P. W. Farrar and his wife, as the charter of the bank contemplates ? There was not. The evidence shows that the bank had loaned a large amount to Hermann, Briggs & Co., and was anxious to secure the payment of it. Preston W. Farrar was indebted to Hermann, Briggs Sf.Co. on his separate, personal and individual account. The object and motive of the bank were to obtain a substitution of solvent persons for Hermann, Briggs Sf Co., who were under protest. Hermann, Briggs & Co. transferred the debt of Farrar to the bank; and the bank agreed .to aceept the same, upon the condition that Mrs\ Farrar's property should be mortgaged to secure the payment of her husband’s .separate and individual debt. The transaction was made to assume the form of a loan, or discount on a bond secured by mortgage of Mrs. Farrar's property. The discount, so far as the defendants were concerned, was merely nominal. Not one dollar was paid to Farrar or bis wife. A pr^ forma check was drawn to the order of Farrar and wife, and was endorsed by them; and tho bank transferred tho amount of the bond to the credit of Herman, Briggs Sf Co. on the books of tho bank. Tho amount of Farrar’s indebtedness to Hermann, Briggs Sf Co. was less than the amount of the bond discounted ; they, therefore, opened their portfolio, and gave him notes for the difference between tho bond discounted and his note to them.</p> <p>By these means, it was hoped that tho mortgago of Mrs. Farrar’s property, •would secure the ultimate payment of tho debt due by her husband to Hermann, Briggs Sf Co., which they had transferred to the bank; and that tho bank, by this species of novation or substitution, would receive tho amount duo by Her-mann, Briggs Sf Co., and render Mrs. Farrar liable in fact for her husband’s indebtedness.</p> <p>Will the court enforce this contract, and render her thus liable ? Is tho trans.action a bond fide loan on a hypothecary contract, according to the true intent and meaning of the charter of tho bank ? She calls upon the court to protect her, and not to suffer her to become the victim of this management on the part of the bank and its creditors; to preserve her rights, in conformity with the set•tled policy of the Stato; and not, by extending an exception beyond its express and reasonable limits, to overturn the genoral law of the land.</p> <p>1st. In the construction of statutes effect is to be given to every word, if possible. The expression, “according to the ■true intent and meaning of this act,” cannot be rejected as surplusage. Only bond fide loans to husband and wife, to bo reimbursed in five annual instalments, are embraced. In such cases, and to such extent only, is the incapacity of the .wife removed, or modified.</p> <p>2d. Laws made in derogation of prohibitory statutes are to be strictly construed as relates to disabilities, and will not be extended beyond the cases expressly embraced within them. See 11 Peters, 420. Suppose a minor engaged in commerce authorized to mortgage his estates for a loan of money, could he validly contract a mortgage as security, and to pay a pre-existing debt of his partner, due to the lender himself?</p> <p>3d. The charter authorises the wife to bind herself jointly, or jointly and severally, with her husband, for a loan, presumed to be for the joint benefit, to furnish means to be employed advantageously for the community.</p> <p>4th. The section of the charter which defines the powers and capacities of the bank, gives it generally a capacity to take security by mortgage. This is not a corporate franchise, but merely a capacity in common with natural persons of .full age, necessarily implying that such mortgages may be stipulated with persons capable, according to lawfor the time being, to mortgage their property.</p> <p>5th. The contract is not a loan within the true intent and meaning of the charter. The lender was the creditor of P. W. Farrar, and no money was paid. It was turned over to pay the pre-existing debt — a mere novation. The form only of a loan was given it, to disguise the payment and the husband’s debt, and to evade the prohibitory clause of the Code, art. 2412. The question is, to what extent has the charter modified the incapacity of married women ?</p> <p>6th. The law existing in 1824, and in force when the charter of the Bank of Louisiana was passed, to wit, the old Code, provided that a corporation might be repealed entirely by the legislature, if necessary or convenient for the public interest, provided that when such corporation imports a contract upon the faith of which individuals havo advanced monoy or engaged llioir property, provision is made to reimburse such advances, or for making full indemnity to such indi-victuals. Civil Code, art. 438. Tho bank was established on that condition.</p> <p>A privilege to raise monoy by lottery, unlimited as to time in the grant, may bo limited by the legislature, without violating a contract, or infringing upon any vested right. It did not form a part of the contract between tho State and the bank, that married women should always bo capablo of contracting, whatever mischiefs might result from such a capacity. 3 Story on the Const. 1386.</p> <p>See the Lottery caso in 2 Robinson, 273. 3 Howard, 550.</p> <p>7th. The new Civil Code has repealed the clause in the charter of the Bank of Louisiana. The Code was promulgated in 1825 ; tho charter in 1824.</p> <p>8th. Courts will look to the real character — the essence of contracts, and not stick at the external forms. Where a series of transactions between A. and B. began with a loan of money on mortgage, and ended with a vente d remiré, tho sale will still be regarded as nothing but a mortgage in disguise. Contratpig-noratif. Merlin, Questions do Droit, verbo Contrat Pignoratif, 278. Fa-culté de Rachat, 108. Patterson v. Bonner, 14 La. 215.</p> <p>9th. The bank has no vested interest in the capacity of any class of persons to enter into particular contracts with it. The capacity of particular classes of persons depends absolutely on the will of the legislature. The Code is not unconstitutional. The charter modified the previous law. The Codo declared a complete disability, and repealed tho charter quoad the capacity of married women to contract. See Hyde v. Planter’s Bank, 8 Robinson.</p> <p>10th. Renunciation before a notary public now essential to bind married women. B. and C.’s Digest 553.</p>

APPEAL by the defendants from a judgment of the District Court of the First District, Buchanan J., rendered in favor of the plaintiff for $309 57„ with interest from judicial demand.

<p>from the Parish Court of New Orleans, Maurian, J.</p>

<p>The insertion in a mortgage executed to secure a debt due by a third person, of a clause by which the mortgagor u confesses judgment for the amount of the debt, and agrees, in case of its non-payment as provided by the act, that the law, in such cases made and provided, may be strictly enforced and summarily put in execution/’ is not evidence that the mortgagor intended to bind himself personally for the payment of the debt. The clause was intended merely to give the remedy by executory process against the hypothecated property. It does not authorize the tailing out of a fi.fa. against other property of the mortgagor, nor the registry of the act so as to operate as a judicial mortgage. C. 0. 3263.</p> <p>The execution of a mortgage to secure the fulfilment of an obligation of a third person, gives no right of action against the mortgagor personally. C. C. 3264.- Whether the mortgagor intended to bind himself personally, is a question of intention, tobe determined by a just and reasonable construction of the whole instrument.</p> <p>Contracts of suretyship must be construed strictly. The law favors the surety.</p> <p>Suretyship cannot be presumed. C. C. 3008. Nor does it imply a mortgage on the property of the surety. No mortgage exists unless expressly stipulated. <3. C. 3010.</p> <p>Defendant obtained a loan from a bank prohibited by its charter from taking more than a certain rate of interest on any of its loans, on the condition of his executing a mortgage on cer. tain property to secure its repayment, with the highest rate of interest which the charter of the bank allowed, and of his granting a second mortgage, on the same property, to secure a debt due to the bank by a third person. In an action to enforce the mortgage executed to secure the debt due by such third person: Held, that by requiring the second mortgage, the bank stipulated for sometliing more than the payment of the highest rate of interest allowed hy its charter, that the stipulation was usurious and illegal, and that the mortgage to secure the debt due hy such third person cannot he enforced.</p>

<p>APPEAL from the Parish Court of New Orleans, Maurian, J.</p>

<p>A power to soli a slave must be in writing. O. 0. 2415, 2961, 2966.</p> <p>Where an agent empowered to sell a slave on certain terms, sells him on conditions less favorable to the principal, the latter will not be bound by his act, unless subsequently ratified* C. 0. 2979, 2980.</p> <p>A sale of a slave, accompanied by delivery, has effect, as to third persons, from the date of its registry. Such a sale, unaccompanied by delivery, is without date as against third persons* C. C. 2417.</p> <p>Where property has been placed in the hands of an agent for the purpose of being sold, and the principalis subsequently made a garnishee in an action against one of his creditors, and the facts warrant the presumption that the agent must have been aware that his principal had been made a garnishee, his authority to sell must be considered as suspended from service of notice on the garnishee.</p>

<p>from the District Court of the First District, Buchanan, L</p>

<p>APPEAL from the Court of Probates of New Orleans, Bermudez, J.</p>

<p>APPEAL from the Parish Court of Now Orleans, Mawrian, J.</p> <p>cited 16 La. 596. 3 Robinson, 243.</p> <p>There is a distinction between domicil and residence. B. & C.’s Digest, 286 — 7. The declaration made by defendant of his intention to preserve his original domicil, is conclusive. Civil Code, arts. 44, 45. The exception was properly sustained below.</p>

JJu PPEAL from the District Court of the First District, Buchanan, J. A seizure of property made by a creditor of the shipper, previously to the receipt of the bills of lading by the consignee, will be maintained. I Lá. 359. 12 La. 147. 13 La. 490. Bullard & Curry's Digest, 165. Civil Code, art. 3214. 5 Maul© and Selwyn, 349. 3 Durnf. and East. 119. 4 Espinasse, 82.

A loss by collision is a loss by the perils of the river, and is covered by the policy. Hughes on Ins. p. 216. 1 Phillips on Ins, p.. 636. Peters v.- Warren Ins. Co., 14 Peters 112. The general competency of the pilot of the Buckeye is established by the evidence; ,and negligence on his part is no defence against an action by the assured, unless it violate some of the implied warranties of the policy. Waters v. Merchant's Louisville Ins.

<p>A judgment, final as to tho matters embraced by it, pronounced in an action between tho same parties, in the same quality, the demand being the same, and founded on the same cause of action, is conclusive between them as to the object of tho judgment. C. C. 2265. Such a judgment, though rendered only on one item of an account, is conclusive as to that item.</p> <p>Where a judgment of the Supreme Court directs a judge of probates, in the settlement of the accounts of the curator of a succession, to allow the latter a credit on his account, on the day of his eviction from property sold to him by the deceased, for an amount awarded to him as damages for such eviction, “and to close the account and give judgment according to law,” but is silent as to interest, no interest can be allowed. The allowance of interest is not a necessary consequence of the entry of the credit at a particular date.</p> <p>Arts. 988,389j of the Code of Practice, cannot be considered as binding successions to pay interest, where, from tho nature of the debt, no interest is due. They place successions on the footing of ordinary debtors as to interest, by declaring that the payment of interest when duo, shall not be affeetodby the fact of the estate being under administration, and dispense with the necessity of a judicial demand.</p> <p>Where the words of a judgment are ambiguous, it must be construed with reference to the pleadings in the case, and to the, jurisdiction of the court by which it was pronounced.</p>

<p>jLI. PPEAL from the Commercial Court of New Orleans, Watts, J.</p>

APPEAL by the defendant and intervenor from a judgment of the Commercial Court of New Orleans, Watts, J., in favor of the plaintiffs. The plaintiffs were the owners of the bills at the time of instituting suit. Civ. Code, arts. 1793 to 1799, 2431, 2631. The plaintiffs were not creditors of defendant at the date of the attachment. Planters Bank v. Lanusse, 10 Mart. 690. Millaudon v. Foucher, 8 La. 582. Taylor v. Drane, 13 La. 64. Black v. Zacharie, 3 Howard, 501.

The petitioners allege, that they are the only lawful heirs and representatives of one Abraham Morehouse, who died in the parish of Ouachita, in the year 1813, intestate; that on the 21st June, 1796, the Baron de Carondelet, then Governor of Louisiana, made a concession of land to the Baron de Bas-trop, in the district of Ouachita, of twelve leagues square, which was duly located and surveyed; that them ancestor and one Charles Lynch, having become interested with the Baron…

<p>An act mortgaging certain slaves, signed by H. and C., recited that tlie slaves had been previously conveyed by H. to trustees to secure the payment of a note made in favor of plaintiff, on which note partial payments had been made, since the execution of the deed, leaving a certain balance yet due ; that 0. had since purchased the slaves, subject to the trust; and that H. and C., intending still further to secure the payment of said balance, thereby mortgaged the slaves for the purpose of securing the same. The act declared that, if the balance so ascertained shouldnot be paid by a certain time, plaintiff should be at liberty to seize and sell. An order of seizure and sale, taken out by plaintiff, having been enjoined 'by defendants, on the ground that there was no authentic evidence that defendants were indebted to plaintiff, or that the latter was the holder of the note mentioned in the mortgage, which was not filed with the petition: Held, that, as nothing in the notarial act, or in the petition for an injunction, or in the evidence, showed the note to have been a negotiable one, its negotiability cannot be presumed, that it can only be regarded as a mere written promise to pay a certain sum; that the notarial act, which states the exact balance and promises to pay it on a certain day, is as complete evidence of the liability to pay this balance to the plaintiff, as the note would he; if produced; and that, in the absence of any allegation or proof that the note had been assigned to a third person and notice thereof seasonably given, it was unnecessary to produce it on an application for executory process.</p> <p>No anterior agreement can affect the provisions contained in an authentic act; nor can any simultaneous agreement, unless in writing, have such effect.</p> <p>Though the execution of an order of seizure and sale, taken out against certain slaves, have been enjoined, the mortgagee may sequester the slaves, on showing, by his affidavit, probable cause to apprehend that defendants will remove the mortgaged property beyond his reach.</p>

<p>jGL PPEAL from the Commercial Court of New Orleans, Watts, J.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p> <p>cited Code of Pract. arts. 346, 360. 9 Mart. 459. 6 La. 457. 7 La. 178. 17 La. 84. 6iv. Code, arts. 1968, 1970, 1971, 1972.</p> <p>cited Civil Code, arts. 1965, 1967, 1972, 1973, 1989. 10 Mart. 605,.</p>

<p>APPEAL from the Parish Court of New Orleans, Maurian, J.</p> <p>cited Williams v. Bank of Louisiana, 378-384. 11 Robinson, 209. B. & C.’s Dig. p. 586, ss. 7, 8.</p>

<p>A partner hi commendam is responsible to tlie creditors of the partnership for the amount of the capital he was bound to contribute. Where his portion of the capital has been withdrawn, they may proceed against him by a direct action. 0. C. 2313.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, 3.</p>

PPEAL from tho Parish Court of New Orleans, Maurian, J. il The defendant appealed from a judgment rescinding the sale of a slave, and condemning her, on the delivery of the slave, to repay the price, with interest from judicial demand, and one hundred dollars as damages.

The writ of arrest is intended to oom-pel a disclosure of property. Code of Pract., arts. 212, 214. Article 210 of that Code must be construed with reference to the fact that, at the time of its insertion in the Code, a ca. sa. was authorized against the person of the debtor. The ca. sa. came in aid of the old writ of arrest.

<p>Where the charter of a company authorizes it to establish a railway along a public street to a particular point, aud to run a locomotive on the road, the company will be entitled to make a turn-out from the main traek to communicate with a depot erected by them near the terminus of the road, containing the machinery necessaiy for reversing the engine, &c., where no objection exists to the construction of a turn out at that particular point, Per Curiam: The right to establish such a dipót results necessarily ftom the-right to establish and maintain the road; but the communication with the main track must be subject to the police power of tho Municipality, and be so constructed and used as to interfere as little as possible with the free use of the public way.</p>

<p>An admission of the correctness of certain charges in the account of an executor, deliberately made, after an examination of the account by one of the heirs of the deceased who had peculiar means of knowledge, while the account of the executor was before arbitrators, will be conclusive against the heir on a subsequent opposition to the account.</p> <p>Where an executor is a legatee of the deceased, he will not be entitled to commissions on the property administered by him, unless the testator has formally declared his intention that he should have the legacy over and above liis commissions. C. C. 1679.</p>

Walter, one of ■the defendants, appealed from a judgment, rendered -on the verdict of a jury, in favor of the plaintiffs.

<p>APPEAL from the District Court of the First District, Bwckanan, J.</p>

<p>Whore no time is stipulated in the contract of partnership for the payment of the amount to he contributed by a partner in commendam, the latter will be responsible to the creditors of the partnership for interest on the amount unpaid only from judicial demand.</p> <p>After the dissolution of a partnership any one of the creditors may sue the succession of a doceasedpartnerm commendam, without mailing the other creditors parties, and may obtain judgment for the amount of his claim to be paid out of any balance due by the deceased oil account of the capital which he hound himself to furnish ; but where, in such a case, the petition admits file existence of other creditors, and the amounts due them, from which it appears that there will be a deficiency of assets, and an unconditional judgment in favor of plaintiff might do them irreparable injury, the court, in the absence of any provision of law for such a case, under the powers conferredliy art- 21 of the Civil Code, will resort to proceedings analogous to those by which the courts of other States have reached the equity oí such cases, and will order a general administration of the amount due by the deceased, for the benefit of the creditors of the partnership.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

APPEAL'from the Court of Probates of New Orleans, Bermudez, J. The deceased, by an olographic will, bequeathed one-half of his property i to his. wife, and the other half to his only child, the issue of the marriage. On an opposition by the under-tutor of the minor heir, the Court of Probates re-’‘tkrced the bequest in favor of the wife to one-tenth of the estate. From this judgment she appealed.

<p>Where the purchaser of property, sold by a sheriff under a fi. fa., claims to retain the price on the ground of a privilege entitling him to he paid in preference to the seizing creditor, the sheriff should not deliver the property, hut require the purchaser to file an opposition under art. 401 of the Code of Practice; or, in case of his refusal, institute himself a proceeding to compel the claimants to litigate their rights to the proceeds.</p> <p>Where a sheriff, on whom a rule has been taken to show cause why he should not pay over to the plaintiff the proceeds of a sale made by him under a ft. fa., makes no exception to the summary form of the proceeding, but answers to the merits, no objection to the form of the proceeding can be raised after appeal.</p>

<p>from the Commercial Court of New (Means, Watts, J.</p>

This was an action against the defendant as drawer and endorser of a bill of exchange, to recover the amount of the bill, with damages, interest, and costs of protest. The petition was in the usual form. The bill sued on was in the following words ; B L 29 May B 2106. Bill of lading of 344 B. cotton, per Provincialist First attached hereto.

<p>APPEAL from the Parish Court of New Orleans, Maurian, J.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p> <p>The act of 1805, incorporating the city of New Orleans, provided that, among other officiers of the city, there should be a recorder and fourteen aldermen, to be electod in the mode therein prescribed; that, the aldermen so chosen should form a council to be called “ the city council,” of which the recorder, for the time being, should ex officio be president, but that he should have no vote, except a casting voto; and that the said council should have power to govern the city and administer its affairs, and to make bye-laws and ordinances for the better government of its affairs, &c.</p> <p>It had often happened in the administration of the affairs of corporations, composed of an even number of voters, that salutary by-laws could not be made, and that the elections of necessary and proper officers could not be effected, in consequence of an equal division of voters. This had given rise to much confusion and various illegal devices, for the purpose of enabling corporations to act in such cases. See 6 Term Rep. f32, and the cases there cited. The legislature therefore provided in the charter of the city of New Orleans against sucha contingency. It made the recorder ex officio president of the council of fourteen aldermen; and vested in him the right, in case of an equal division among the aldermen, to give a casting vote.</p> <p>Before the division of the city into three municipalities, the recorder was an ■ officer of little importance. His chief duly was to preside over the council. In case of a vacancy in the office of recorder, or of his absence, or inability to discharge his duties, the council was authorized to choose one of their members as president pro tempore. No other provision was made to supply his place, or to impose his duties on a substitute; simply, because he had no other functions of importance to perform.</p> <p>In 1836, the city was divided into three municipalities: each municipality was vested with a government of its own. The number of aldermen was no longer fixed and limited; but it was made the duty of the several municipal councils to apportion the number of aldermen to which they might be respectively entitled, in the ratio of one alderman for every hundred voters residing therein. It was evident, therefore, that the number of aldermen would fluctuate from year to year, and no ono could say with certainty that the council of any ono of the municipalities, would consist of an even number; and the confusion attendant upon an equal division of votes among the aldermen not being likely to take place, there was no particular reason for continuing in the recorder the power of giving a casting vote only.</p> <p>In remodelling the charter of the city in 1836, the legislature deemed it expedient to make the recorder a component part of the municipal council. The 2d section of the act provides that each municipality shall be governed by a council composed of a recorder, and the aldermen elected by the wards within the limits thereof. The recorder was thus made a member of the council — a constituent, component part thereof, expressly authorized to participate equally with every other member in the government of the municipality and the administration of its affairs. The council can only govern the municipality and administer its affairs, by passing ordinances, making by-laws, electing officers, &c. These duties and powers can only be exercised by the council in the ordinary way' recognised by law, that is to say, by voting, so that the will of tho majority may be ascertained, for the “ lex majoris partis is the law of all councils, elections, &c., where not otherwise provided.” If, then, the recorder is to participate as a member of the council in passing by-laws and ordinances, in governing the municipality and administering its affairs, he must exercise the right to vote. The recorder and the aldermen derive the right to vote from tho same law. The right is conferred upon them, in the same section and in tho same words, as members of the “ council composed of a recorder and the aldermen.” It is admitted that the aldermen have a right to vote. It can not then be fairly denied that the recorder has also the right.</p> <p>But it is argued that, although the 2d section of the act, just quoted, makes the recorder apart of the council, another section of the same act establishes the contrary. The 5th sections declares that, each of said municipalities shall be governed and the affairs thereof administered, by a recorder and a counci¡ composed of aldermen. There is some difference in the language of the 2d and of the 5th section; but when properly understood, there is no opposition in the meaning of the two. The 2d section declares that the council shall be composed of a recorder and the aldermen. • The 5th section speaks of a recorder and a council composed of aldermen. But the latter, like the former section, provides that the municipality shall have its affairs administered by a recorder as well as by the aldermen. The recorder is made one of the governing officers, and one of those appointed to administer the affairs of the municipality by tho 5th, as well as by the 2d section.</p> <p>It is said that the recorder is not a member of tho council, because the act of 1840 (Bullard & Curry’s Dig. p. 132, s. 1,) says, “that the council of Municipality No; 2, of the city of New Orleans, shall in future be composed of twelve aldermen.” The most universal and effectual way of discovering the true meaning óf a law, is by considering the cause which induced the legislature to enact it. Prior to the passage of the act of 1840, referred to, the number of aider-men to which the council of the several municipalities were entitled, was apportioned in tho ratio of ono alderman for every hundred voters residing therein. Act of 1836, s. 6. In 1840 it was found that, from the immense increase of voters in New Orleans, this rule would make the council consist of a number of aldermen, quite too large for practical purposes. The legislature resolved, therefore, to abolish the rule, and accordingly enacted that the council of Municipality No. 2, should, iu futuro, be composed of twelve aldermon. Tho object of tlio law evidently was only to diminish and limit tho number of aldermen.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, J.</p>

<p>An action to annul a judgment must be instituted before tlie court which rendered it.</p>

<p>Where the certificate of the clerk does not show that the record contains all the evidence adduced on the trial, and there is no statement of facts, bill of exceptions, or assignment of errors apparent on the face of the record filed within the legal delay, the appeal must be dismissed.</p>

<p>APPEAL from the City Court of Lafayette, Elliot, J.</p>

<p>Where a slave belonging' to a succession is convicted in a prosecution on a criminal charge, and the .judgment orders the costs to be paid by the owner, the costs are a dehl clue by the succession, and must be presented to the executor for payment in duo course of administration, with the privilege established in favor of law charges. No fi. fa. can he legally issued from the court of ordinary jurisdiction by which the judgment was rendered. Should afi.fa- be issued and the slave be sold under it, the sale will be null; nor can it be rendered valid by the fact of the executor’s making no objection to the proceeding, and receiving the surplus of the price after payment of such law charges. An executor cannot give validity to a sale of the property of a succession, made without observing the forms of law.</p>

<p>APPEAL by the plaintiff from a judgment of the Parish Court of New Orleans. Maurian, J.</p>

<p>R otting on elections being, under the laws of this State, a criminal offenco, (stat. 10 Mavch( 1839,) no action will lie to recover from a stake-holder an amount deposited with him as a bet. Per Curiam.- A party will not be heard who asks the court to relievo him from the consequences of having violated the law.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, J.</p>

<p>Where the lessee of a building1 fails to pay the rent when due, he may be expelled in the summary manner authorized by arts. 2682, 2683 of the Civil Code. The lessor cannot be required to resort to a direct action, to annul the lease.</p>

<p>APPEAL from the Parish Court of New Orleans, Maurian, J.</p>

<p>Irregular successions must be administered like other successions. They may be accepted either with the bensfit of inventory, in which case they must be administered as other successions accepted in that manner, or purely and simply, when no administration is necessary, unless on the contingency provided for by art. 1005 of the Civil Code.</p> <p>An irregular succession is not necessarily a vacant succession.</p> <p>Heirs of age who accept a succession purely and simply, may take possession of it, pay its debts, and divide it among themselves, without the appointment of an adminisirator, or the intervention of the Court of Probates. The creditors may require an inventory and security from the heirs who have thus accepted, in the manner provided for by art. 1005 of the Civil Code, and, on the failure to furnish such security, may require that an administration be appointed.</p>

<p>A PRINTED petition for a re-hearing in the case of Grailhe v. .Hown, reported at p. 140 of this volume, having been presented by the plaintiff, an attorney at law, on the 8th of June, the court, per Smbeli., J., caused the following order to be entered on the minutes :</p> <p>“ A brief for re-hearing, signed by the plaintiff, an attorney and counsellor at law, 1ms been this day laid before ns in this case, in which the opinion was read last Monday by the Chief Justice, as the organ of the court. The language of this brief is extremely disrespectful, and the court cannot consistently with its duty receive a brief expressed in such language. By art. 486 of the Code of Practice it is declared that, “ advocates must plead their causes with propriety and decency. They must not indulge in personal remarks against the parties, nor lose sight of the respect due to the court,” &c.</p> <p>“ It is therefore ordered that, the clerk do take the said brief off the files of the court, and return it to the plaintiff.”</p> <p>On the 9th of June, the; court ordered an attachment to be issued against Alexander Grailhe, returnable the next day, directing him to be brought before the court “ to answer for a contempt of court committed by a petition for a re-hearing, presented by him to the court on the 8th inst., in the case of the said Grailhe v. John Hown, No. 5859.”</p> <p>The petition was in French. The following extracts will show the grounds for considering it a contempt:</p> <p>“ Lapétition en revision de 1’appelant expose trés respectueusement:</p> <p>“ Que le décret rendu par cette cour, dans ce procés, est une violation flagrante du texte formel de la loi, de l’esprit, du motif, et du but evident dulégislateur; que l’exposition des motifs qui sont la base de la décision, renferme contre 1’ap-pelant une imputation grave etblessante, qu’il est de son devoir et de son hon-neur de repousser, eomme essentiellement gratuito de la part de la cour.</p> <p>“Le raisonnement par lequel la cour est arrivée á l’adoption des-motifs et du jugement du premier juge, est sans force en principe et en droit. L’appelant ne fera point ü ce raisonnement l’honneur d’une refutation serí-ense ; parce qu’il ne contient pas une seule idée, une seule proposition, un seul argument qui n’ait été á l’avance prévu, examiné, réfuté et anéanti d’une maniére victorieuse, dans le mémoire imprimé, sounds ii la cour avant les jolaí-doiries. Tout esprit libre de préjugé reconnaítra, aprés un examen grave, qu'il est de la nature de la question soumise á Ja haute considération de la cour, de ne pouvoir étre traitée, que par l’un des procédés de logique et de raisonnement exposés dans ce mémoire. La cour olle-méme a sanctionné la vérité de cette assertion, puisqu’aím d’arriver ü son étrange conclusion, elle a été forcee de se créer une Iogique nouvelle, et d’admettre comme vrai, par une pétition de prin-cipe, le point le plus rebelle et le plus antipathique ála loi sur la matiére.</p> <p>“ La cour repousse d’abord ma demande, comme étant contraire á l’équité. J’ai done réclamé une chose injustement; j’ai done voulu m’approprier le bien demonvoisin! J’ai done commis une tentative immorale, que réprouvent et flétrissent également les lois de Phonneur et de la morale ? J’ai done tenté de rendre les tribunaux de mon pays, ettoute cette magistrature, d qui je désire conserver la premiére place dans l’ordre de mon estime et de mes respects, com-plice d’un cupide projet? S’il en était ainsi, oui je serais bien coupable ! Mais, si ce reproche, aussi grave qu’inexplicable, qui descend du haut d’une cour supréme sur un simple justiciable, n’était en réalité qu’une imputation ambitieuse, inveutée tout exprés par l’organe de la cour, pour la nécessité d’un raisonnement, n’aurai-je point le droit de dire á cette cour : Vous avez voulu, par un artífice déplorable, faire tomber sur moi votre injustice, que je puis subir, et un grave reproche qui ne peut point m’atteindro ! Vous avez done, par un seul jugeinent, prétendu troubler et méconnaítre tout ensemble, des principes certains de nos lois, et les bases étornelles des rapports du juste et de l’injuste ! Depuis quand, la simple invocation de la máxime qu’il faut rendre á chacun ce qui lui est dú, sera-t-elle qualifiée de demande contraire á l’équité ? Rendre á César ce qui appartient <\ César, et á Dieu ce qui est Dieu, ne s’est-il point toujours entendu de ce que la conscience exige, et de ce que la loi positive present? No s’agit-il point ici des préceptes de Dieu, et de la puissance qu’ici-bas il a investí de son autorité ? Depuis quand des juges auront-ils l’avougle témérité de qualifier de contraire á l’équité, une demande en rem-•boursement d’une avance, faite par 1’autorité, et sous la sanction de la loi ? Est-ce une avance dont je rédame le remboursement ? Voici le texte de la loi, que chacun decide, sans commentaires :</p> <p>“ ‘ Code civil, art. 672. Le voisin qui a méme refusé de contribuer á l’élévation de ce mur, conserve toujours le droit de le rendre mitoyen, en payant á colui qui en a fait Vavance, la moitié de ce qu’il en a coúté pour le faire bátir, suivant les régles ci-aprés établies.’ ”</p> <p>“ Ce reproche aussi téméraire qu’injuste, retombera done sur le législateur, auteur de cette loi que la cour a voulu méconnaítre, par je ne sais quelle fatale préoccupation d’esprit! Hé bien, décriez l’oauvre du législateur, contestez á ses vceux la prééminenco qui leur est due; substituez' vos vues étroites et re-streintes, comme celles de tout individu, auxsiennes, qui ont la portée etl’éten-due de celles de tout un peuple. Mettez á la place de sa sagesse et de ses lumiéres, grandes comme celles de tous les siécles et de tous les temps, votre propre sagesse, faible et fragüe comme votre nature. Remplacez l’équité du législateur, eonsacrée en earactéres ineffaqables dans le livre de ces lois, et qui ne peut étre que l’interpréte fidele des relations éternelles du juste et de l’injus-te entre toute chose, par vos notions d’óquité, incertaines, varillantes, mobües, comme toutes les opinions individuelles, et dites, oú' vous conduira ce fatal sys-téme, si ce n’est auplus déplorable désordre, á l’anarchie judiciaire la plus complete ?</p> <p>“La cour, disposée ¡i ne ne point appliquer auprocés l’art. 672 du Code Civil, quoiqu’il n’ait été fait que pour los cas de cette espéce, a dú reeourir dans son égarement, afin de trouver un point d’nppui quelconque á l’art. 680, qui n’a ni similitude ni analogie avec la question á juger; tandis que I’article 679 aurait forcé la cour d revenir sur ses pas, et ü reprendre la seule voie légale á suivre dans l’examen de ce procés. L’art. 679 est ainsi concu: ‘Le voisin qui n’a pas contribué sLl’exliaussement, peut en acquérir la mitoyenneté, en pay ant la moitié de la dépense qu’il en a coúté, et la valeur de la moitié du sol fourni pour l’excédent d’épaisseur, s’il y en a.”</p> <p>“D’aprés cet article, que la cour ignore probablement,quedevient l’insoutenable nécessité, de donner avis au voisin qu’on va construiré, afin de pouvoir exiger de lui la moitié du coút primitif du mur 7 Y a-t-il dans l’article 679 un seul mot qui vienne á l’appui du systéme de la cour 1 Ne résnlte-t-il pas forcément de la sainé interprétation de ses dispositions, que l’article 671 a été mal interprété, mal entendu 7 J’-ignore si, sur un examen plus approfondi, la cour se fera honneur de revenir de sa premiére erreur; mais je ne crains point d’avancer, qu’aucun article de notre Code n’a jamais été plus mal compris, ni plus maladroitement appliqué, quoique le motif et le but du législateur, soient d’une grande évidence pour tous les yeux.</p> <p>«fc íj? #</p> <p>“II est vrainment déplorable d’étre forcé de relever de pareilles erreurs, dans les motifs d’un jugement en dernier ressort.</p> <p>*• * ■* * *</p> <p>“ La cour dans une phrase lacédémonienne, dont on pourraitretrancher encore le premier mot, pour la rendre plus nette et plus digne du langage judiciaire, reconnait que le jugement dont est appel a violé la loi, en refusant d’accorder é. l’appelant les intéréts dus de plein droit, et formellement réclamés. Quel était done l’impérieux devoir de la cour! On croira peut-étre que c’était d’iníirmer le jugement. Non. C’est la marche trop simple de la justice vulgaire! II faut é la cour avec des-allures autocratiques, des distinctions et des subtilités dignes des meilleurs temps de la scolastique ! D’ailleurs le jugement du premier juge est si irréprochable, qu’il faut bien se garder d’y toucher, méme au risque de commettre un déni de justice, qui aprés tout n’est point le plus grand tort d’un juge ; car, miéux vaut encore le juge qui se tait et s’abstient, que le juge qui se trompe ; le jugement de celui-ci peut léser beaueoup d’intéréts, l’autre les laisse m statu quo. Le décret de la cour inférieure, quoique violant la loi, restera done confirmé. Voilá un spectacle bien édifiant, bien eneourageant pour les justiciables de la Louisiane! La Cour Suprime reconnait, proclame l’erreur du premier juge, et refuse de la réparer, en se fondant sur deux motifs, dont je vais examiner lá force et la validité, &c.</p> <p>*• * $ $ $ $</p> <p>“ Si done il est hors de doute que la demande en révision soit purement facul-tative, comment la cour aura-t-elle le courage de se refuser á l’infirmation d’un jugement qu’elle reconnait contenir une violation de la loi, parce que je n’ai point fait une chose qui n’est point obligatoire, et que la loi a abandonné á-mon jugement, et.á malibre faculte!</p> <p>“ La seconde conclusion est tout aussi insoutenable; le droit d’appel d’un jugement, sans l’intervention d’un juri, ne peut dépendre de la vaine et tres sou-vent oiseuse formalité d’une demande en revision. Rien dans nos lois ne peutautoriser unpareil sentiment. Dans l’affaire de Lambeth v. Burney, vap-portée dans le 3me volume du Recueil de Robinson, l’ancienne cour a décidé un point qui n’a aucune espéce d’analogie avec celui-ci; cependant il est évi-dent que, sans avoir pris le soin de l’examiner, la cour apris cette décision pour base de la sienne.</p> <p>* * ¡* » * *</p> <p>“ Quelrappoít, q'uelle analogie, je le demande, la cour a-t-elle pu trouver en-tre ce cas, et celui qu’elle était appelée á décider ? Et voilá pourtant h quelles regrettables erreurs, conduit cette vaine et fausse science des compilateurs de décisions judiciaires.</p> <p>“ Ma t&che est remplie avec conviction, avec indépendance; que la cour remplisse la sienne, dominée par les mémes sentiments. Quoi qu’il advienne, ma conscience et m'a raison me disent que, mieux vaut encore étre le perdant que le juge qui a prononcé.</p> <p>“ Par ces motifs, l’appelant concluí á ce qu’il plaise á la cour lui accorder une nouvelle audition de cause; et, á défaut d’icelle, óter et effacer du jugement rendu les termes ou expressions d’ou il résulte contre l’appelant, le reproche d’avoir porté devant les tribunaux une action, dont le but est contraire á l’équité.”</p> <p>On the next day Grailhe was brought into court, when he presented the following paper:</p> <p>“ The appearer coming into court, begs leave to file this his peremptory exception, in perpetual bar of the proceedings commenced against him :</p> <p>“1. The proceedings in this case are contrary to law, repugnant to the nature of the offence imputed to this appearer, and contrary to the uniform usages of the courts of justice of this State, in similar cases. '</p> <p>“2. He further says that, the charge brought against this appearer, by the Supreme Court, was an act of absolute impossibility at the moment the writ of attachment was issued against this defendant’s person; that at that time the petition alluded to was not legally before the court, in consequence of any act of this defendant.</p> <p>“ 3. That by virtue of an order and judgment enteredon the minutes of this court, on the 8th instant, at 10 o’clock, a. m., which judgment is in the following-words and figures : ‘ It is therefore ordered that the clerk do take the said brief off the files of the court, and return it to the plaintiff,’ the minutes and records of this court were instanter expunged of the exceptionable document; that no trace thereof could remain before the court, and that this appearer was sentenced to take back said petition.</p> <p>“4. That by such a proceeding and final judgment, this eourthas absolutely and forever divested itself of any further jurisdiction or consideration touching the nature and character of said document; that this appearer, has not, since the rendition of the decree above recited, by any means whatsoever, attempted to press upon the court the further consideration of said petition.</p> <p>“ 5. That the decree of the 8th. instant shows conclusively that the aforesaid petition was read, examined, construed, deliberated upon, and finally decreed by the Supreme Court.</p> <p>“ 6. That the summary proceedings in matters of prosecution for contempts of court, partake of a criminal action ; that their object and end is to inflict a corporeal and pecuniary punishment; that no one can be tided and sentenced twice for the same act, either real or imaginary; that the contempt, if any exist, complained of by the Supreme Court, has been tried once, and this appearer sentenced.</p> <p>“ 7. That a seconddecree or sentence of this court against this appearer, for the same act, would constitute an act of violence, and a monstrous abuse of the powers entrusted to this court.</p> <p>“ Therefore, this appearer prays that, the present peremptory exception be maintained as a perpetual bar against the present proceedings; that the writ of attachment issued in this case be dissolved, and that he be dismissed with costs.”</p> <p>Another paper .was also presented by the defendant on the same day, in the following words:</p> <p>“ In case the peremptory exceptions presented as a perpetual bar to the present prosecution should not be maintained by the Supreme Court, then this ap-pearer, for answer to the charge brought against him, says: 1. That he is tíre author of the petition in question.' 2. That he delivered the same to the clerk of this court, to be filed. 3. That said petition contains no insult against the Supreme Court; that in vain will be sought therein a single word or expression of abuse, vituperation, or contempt against the Supreme Court, or any of its members. 4. That the language reprobated by law is not to be found in the document in question; that said petition does not contain a single word which cannot properly be used before any of the highest courts of judicature of any country. 5. That this appearer has not exceeded the limits of his rights and privileges, and as for his feelings and thoughts, he is answerable to no earthly tribunal. Therefore he prays, that the writ of attachment be dissolved, and that he be hence dismissed with costs,” &c.</p> <p>The Attorney General appeared for the State.</p>

XL The sureties of Nolle, an auctioneer, appealed from a judgment against them, in an action to recover a balance due to Halsted, for goods sold by their principal.

<p>The stat. of 13tli February, 1816, imposing a penalty on the owners of any steamer or otliciwcs-sel for carrying any slave out of the State, without the consent of the master of such slave, does not require that his consent shall bo in writing. Such consent may be inferred from circumstances.</p>

<p>Services, proved to have been useful and laborious, rendered to a sick person, by a nurse, who visited him at his request, defraying herself the expenses of conveyance to his residence, will nothe presumed to have been gratuitous. Nemoprasv/mitm donare.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, J.</p>

<p>Though it bo slated in the advertisement of a judicial sale of the property of a succession, that an act of sale will be executed before the parish judge, the mere omission to execute such an act, there being no proof that its execution was demanded or refused, will not release a purchaser Who has been in possession oí the property since the date of the sale. The adjudication made and recorded by the judge, or clerk, gave a complete title to the purchaser. G. C. 2601.</p> <p>Where a purchaser takes possession of property, without mailing any objection to the title on account of a mortgage existing on it, or requiring that it should he raised, the existence of the mortgage will not authorize him to refuse to pay the price. He can demand nothing more than a bond of indemnity against future disturbance. C. C. 2535.</p> <p>Where a record has been offered in evidence to prove a particular fact, it cannot be used by the opposite party to establish another fact not alleged in the pleadings. To allow it, would be to expose the party by whom the record was Erst offered to surprize.</p> <p>A husband cannot be made liable personally for the price of property purchased by him in the name, and on account of his wife, where she is separated in property.</p> <p>Real estate belonging to a succession was adjudicated, at a judicial sale, to a person, for account of his wife, who was separated in property, for a price, payable partly in cash, and partly in notes secured by mortgage on the property. Subsequently, at the instance of the husband, the mortgagee took out an order of seizure and sale, and the property was adjudicated to him for a price much less than that for which it was sold on the first exposure. In an action by the administrator against the husband and wife, to recover a balance of the price due under the first sale: Held, that the husband, being cognizant of the first sale, of the vendor’s privilege, of the reservation of a mortgage by the terms of the adjudication, of his wife’s default, and having instigated the eviction by which tho title was transferred to him at a price greatly below the original cost, and all the circumstances of the case showing a want of good faith on the part of tho defendants, that the second sale, under a prior and superior incumbrance, which, if to an innocent third person, would have divested the plaintiff of all right, cannot shield tho property in the hands of tho husband; and that judgment should he rendered against the wife, with a privilege on the property.</p>

The hypothecary action is a real action, ■ and should be brought before the ordinary tribunals. O’Donogan v. Knox-, 11 La.'384. Code of Pract. arts. 41, 42, 61 to 74, 163, 733, 734, 744, 983. Civil Code, arts. 1370, 1382 to 1387, 3360, 3361. Whether the mortgaged property belong to a succession which has been accepted with benefit of inventory, or not, can malte no difference.

<p>A judgment lias no force or effect until signed by the judge. Consequently where a judgment, homologating an account presented by the curator of a succession and allowing certain sums to attorneys and appraiser's, was rendered before the adoption of the constitution of 1845, which prohibits such allowances (art. 71), but was signed afterwards, it must be reversed. The constitution of 1845 having gone into effect before the judgment was signed, tho judge had ceased to have any authority to make such allowances.</p> <p>Since the adoption of the constitution of 1845, no court or judge can make any allowance to an attorney employed by a curator, or to an attorney of absent heirs, or for the compensation of persons employed to appraise the property left by the deceased. Const, art. 71.</p>

<p>The privilege given to the Municipalities of New Orleans, by sect. 7 of the statute of 20th March, 1840, to secure the payment of taxes due to them, exists but two years after the taxes ave due; and, in the absence of any proof of the period at which a tax became due, or of the time the assessment roll was furnished to the treasurer of the municipality, it wil he presumed that the roll was returned by the day fixed by law as the latest period for its return, and the tax will be considered as having become due from that day. Stat. Efch March, 1840, ss. 1, 8.</p> <p>The rent reserved in a contract of rente fondero is a perpetual charge imposed on, and inherent in, the property itself, which follows it into whatever hands it may pass. C. C. 3757, 3758, 2763. The recourse of the owner of the rent, upon the property itself, for the payment of the rent, exists independently of the mortgage accorded to him by art. 2762 of the Civil Codo, and cannot be affected by his omitting to record, or to reinscribe, in the office of recorder of mortgages, the contract by which the rent was reserved.</p> <p>The action for arrearages of rent due under a contract of rente fonciere, is prescribed by three years. C. C. 3503.</p>

<p>Tinder a plea, in an action against the maker of a note, that the holders of the note prior to the plaintiff were aware of the failure of the consideration for which it was given, unaccompanied with any allegation that plaintiff received the note with notice, or under suspicious circumstances, evidence of notice to a former holder is inadmissible, as irrelevant; nor would proof of notice to the plaintiff be admissible, under the pleadings.</p>

<p>APPEAL from the Court of Probates of New Orleans, Bermudez, J.</p>

<p>The action of the creditors against the legatees of a succession, tp compel them to contribute out of the property received by them to the payment of the debts, is prescribed by three years, to be calculated from the opening of the succession. But where a legatee was also one of the executors of the deceased, the proscription must be considered as suspended while he acted as executor.</p> <p>No action can be maintained by the creditors against the legatees of a succession to compel them to contribute out of the property received by them to the payment of the debts, unless it bo shown that the effects of the succession, undisposed of by the deceased, are insufficient to discharge them.</p> <p>Executors are liable, jointly and severally, for the property subject to the executorship, unless the testator has divided their functions, and each has confined himself to those allotted to him. C. C. 1674.</p>

<p>APPEAL by the defendants from a judgment of the Parish Court of New Orleans, Maurian, J.</p>

<p>Where goods insured against fire are destroyed, the insurer is bound to pay their value at the time of the loss; if damaged only, he is bound for the difference between, their value in their sound and damaged condition. Where the goods are so much damaged as not to be saleable in the ordinary mode, a fair sale at auction made by the assured, after reasonable notice to the insurers, or with their knowledge, may^e considered by a jury in estimating the damage, and in ascertaining the amount of the indemnity; but the price for which such damaged goods were sold at auction by the assured, without notice to, or knowledge by, the insurers, of the sale, is not sufficient evidence of the value of the goods in their damaged condition.</p> <p>Where in an action on a policy of insurance containing the usual condition that, if there be any fraud or faljí swearing, all claim under the policy shall be forfeited, there is a difference between the amount of loss sworn to by the insured in his account presented to the insurers and that proved on the trial, such difference is not conclusive evidence of fraud and false swearing; but the burden of proving that the difference was the result of error, and not of an intention to defraud the insurers, is on the plaintiff, and, in the absence of any satisfactory explanation, it must be considered as imposing on the insured a forfeiture of all claim under the policy. ^ p</p> <p>Where, in an action against an insurer for loss by fire, the defence is that the assured himself set fire to the premises, the evidence for the defence is not required to be as full and conclusive, as would be necessary to support an indictment for arson.</p> <p>A court may, at the instance of a party, order a case to be tried before a jury, even after the trial had been commenced before the court alone*</p>

<p>Art. 3302 of the Civil Code, which declares that, “ to prove that mortgages exist on the property of atntor orcuratorof a minor, interdicted, or absent person, it shall suffice to record in the office of mortgages a certificate from the judge who appointed such tutor or curator, declaring the fact of appointment, and the amount of the appraisement by the inventory of of the property confided to his administration,” does not exclude any other mode of proving, or making public such a mortgage; the object of that article is to relieve the judge from the necessity of furnishing, and the recorder from that of requiring, the highest evidence of its existence. The inscription of the bond of a tutor or curator, reciting his appointment and the sum for which he is answerable to the minor, is sufficient; and the recorder will be responsible for any injury resulting from his omission to mention in any certificate of mortgages furnished by him, the mortgage existing on the property of the tutor or curator. 0. C. 3357.</p> <p>The inscription in the office of the recorder of mortgages of any act which conveys to third persons knowledge of a mortgage, fulfils the object of the law, which is to give notice of the incumbrances upon immovables. The notice is equally binding, whether the knowledge of the mortgage be derived from the inscription of the order appointing the tutor or curator, from the certificate of bis appointment, or from bis bond. C. C. 3315, 3316,</p> <p>The mortgages in favor of minors on the property of their tutors or curators, are expressly excepted by art. 3333, from the provision of the Civil Code which declares that, the effect of the registry of a mortgage ceases after ten years reckoning from their date, unless rein-scribed before the expiration of that period.</p> <p>Where a legal mortgage exists in favor of minors, on property of the tutor sold under execution, and the evidence shows that the tutor was insolvent and that judgments to a large amount had been obtained against him, the purchaser has such just reason to tear that a suit may be commenced against him in virtue of the general mortgage, as will authorize him to retain enough of the price to pay off the mortgage, unless the suing creditor prefer to give him security against it. C. P. 679, 683, 710. C. C. 2535.</p>

<p>Notes payable after date, received by syndics, or other administrators, in the settlement of insolvent estates, and in liquidating successions, can be discounted only under authority of the court. Per Curiam: Notes and money belonging to creditors in the hands of syndics, are in judicial deposit or sequestration; they are the exclusive property of the creditors, and subject entirely to their control, under the direction of the court by whose authority the syndiG was appointed, and under which he is bound to act. C. C. 2942, 2948.</p> <p>Where the word Syndic is appended to the name of the indorser of a note, it is notice that the note belongs to the estate in the hands of the syndic, and that it cannot be indorsed without an order of court 5 and the purchaser is bound, at his peril, to ascertain whether such an order exist. He can acquire no right under the note adverse to the party to whom it really belongs, and in whose interest the restrictive indorsement is made. The proceeds of the note when paid represent the instrument, and belong of right to the estate. The fact of the syndic having given security for the faithful performance of his duties, cannot affect the claims of the creditors for the conversion of their property by a third person.</p> <p>An indorsement is restrictive when it has words expressly making it so, or when it is. made in favor of a person who cannot make a transfer.</p> <p>The relative rights of the holder of a bill or note and the party beneficially interested in it, are by no means identical with those existing between the former, and the maker or other party. A payment may be well made to the holder of a bill, though he maybe bound to accountfor the proceeds to a third person to whom they belong.</p>

<p>Since the adoption of the constitution of 1845, a tablecm of distribution of the effects of a succession, which proposes to allow certain sums to the attorney of the succession and to the attorney for the absent heirs, cannot be homologated as to such allowances, the courts being without authority to make any allowance by way of fee or compensation, in any suit or proceeding, except for the payment of such fees to ministerial officers as may he established by law. Art. 71. Per Curiam: Where an administrator requires the aid of counsel he may legally pay for such services, as for those of any other agent; but the propriety of such pay- . ment, like any other made on account of the succession, may be contested by any creditor, or other person interested.</p>

<p>APPEAL from the District Court of St. Landry, Overton, J.</p>

<p>APPEAL from the District Court of St. Landry, Overton, J.</p>

<p>APPEAL from" the District Court of Vermillion, Boyce, J.</p>

<p>A lessor may sue for rent, whether due or not, and seize provisionally the effects subject to his lienfound upon the premises, where he has good reason to believe that the lessee will remove them, and that he may be thereby deprived of his lien, on making oath to those facts. C. R. 285. 287.</p> <p>Any doubt as to the interpretation of a contract, may be removed by the construction put upon it by the acts of the parties themselves.</p> <p>Where the rent of land leased for the cultivation of sugar is payable in a portion of the crop, it will be presumed, in the absence of any express stipulation, that it was intended that the sugar should be delivered in the usual manner, that is, in hogsheads or barrels ; and the lessee cannot claim any allowance for the cost of the hogsheads or barrels.</p>

<p>Though an order allowing an appeal be obtained in due time, if the bond be not filed within the time allowed for an appeal, tjio appeal must be dismissed.</p>

<p>Where the moaning of a contract is doubtful, the intention of the parties may bo inferred from the manner in which they have executed it. C. C. 1940,1951.</p>

<p>On the representation of a natural tutrix that, the house in which she resides with her minor children, is falling into lain for the want of necessary repairs, and that she has no pecuniary means to make them, the court, under the advice of a family meeting, may order unimproved property belonging to the tutrix and subject to a legal mortgage in favor of the minors, to be sold, free of such encumbrance, for the purpose of defraying the expenses of the necessary repairs to the house.</p>

<p>To ascertain whether any reduction is tohemade ofadonationon account of it's exceeding the disposable portion, the property belonging to the donor at the time of his death, must be estimated at its value at that timo. C. C. 1492.</p> <p>A donation inter vivos of moveables, or of incorporeal things, is null, unless executed by an act passed before a notary and two witnesses. C. C. 1523.</p>

<p>APPEAL from the District Court of St. Landry, Boyce, J.</p>

<p>Where a succession is small, and much in debt, it is the duty of the executor to provoke a sale of the property as soon as the inventory is made; and where, in such a case, more than a year is suffered to elapse before a sale is made, any expense occasioned by the delay, will be charged to the executor personally.</p>

<p>Where a debtor, in insolvent circumstances, executes to a third person a lease for a term of years of all his property, consisting of a plantation, slaves and moveables, on the condition of his paying certain debts of the lessor, and allowing him out of its revenues a certain amount for the support of his family, &c., the effect of the lease being to charge the appropriation which the law would make of the property, and to impede the legal recourse of the creditors of the lessor upon it, any creditor, not a party to it, may require that it bo annulled so far as he is affected by it.</p>

<p>APPEAL from tho District Court of Natchitoches, Campbell, J.</p>

<p>APPEAL from the Court of Probates of Concordia, Dunlap, J.</p>

<p>APPEAL from the District Court of Madison, Curry, J.</p>

<p>APPEAL from the District Court of Carroll, Curry, J.</p>

<p>APPEAL from the District Court of Madison, Willson, J. Stockton, pro se, cited Civil Code, art. 2417. Slat. 20th March, 1827, s. 5 (B. & C.’s Dig. 603). 2 Robinson, 75-8. 3 Rob. 078. Brassac v. Ducros, 4 Rob. 335. 3 Rob. 161. 1 Grenier, Hypoth. p. 100.</p> <p>cited 5 Mart. N. S. 147, 423, 696. 6‘ Ibid. N. S. 431, 796. 7 Ibid. N. S. 579. 7 La. 553. 2 Rob. 72.</p>

Art. 3014 of the Civil Code declares that where the surety is bound in solido with the debtor, the effects of his engagement are to be regulated by the principles established for debtors in solido. Art. 3032 applies only to ordinary sureties. A question similar to that presented by this case arose in the case of Aston v. Morgan, 2 Mart. 354, and the courtheld that the party was bound as a principal, and in solido.

from the District Court of Natchitoches, Campbell, J. In an action against a married woman it is sufficient if the husband and wife be cited. No special order authorizing her to defend the action is necessary, unless the husband be interdicted, or absent, or refuse to assist her.

<p>Where the maker of a note promises on its face to pay its amount “ without plea or offset,” he cannot refuse payment on the ground of failure of consideration to the knowledge of the holder, though ^entitled by the laws of the State where the note was executed to set up against subsequent holders any defence which'he might have opposed to the original payee.</p>

<p>Where a husband dies rich and without children, leaving his wife in necessitous circumstances, she may claim one-fourth of all the property left by him in this State, independently of her right, as surviving spouse, to any portion of the property left by him in another State,</p>

<p>APPEAL from the District Court of Madison, Curry, J.</p>

<p>APPEAL from the District Court of Caddo, Campbell, J.</p> <p>cited 3 Mart. N. S. 196. 3 La. 393. 6 La. 708-9. 4 Robinson, 493. 1 Yerger, 243,444. 71b. 545. 6 Wendell, 415. 2Maule&Sel-wyn, 632. Chitty on Bills, 9 Am. ed. pp. 109-10, and note 1; p, 111, note 3.</p>

<p>Notice of protest addressed to an endorser at the post-office nearest to his residence, is sufficient under the commercial law, or under the 2d sect, of the stat. of 13th March, 1SS7. Nothing more is necessary, though the party notified do not live in the place where the post-office is situated. No other designation of “ the domicil or usual place of residence” of the endorser is necessaiy; nor is the omission of the name of the parish in which the post-office is situated material, where the address is sufficient to ensure the transmission of the notice to the proper office.</p>

<p>In the absence of any decisions of the courts of Texas establishing the interpretation to be put upon the third paragraph of the tenth section of the general provisions of the constitution of the Republic of Texas, which declares certain acts of the legislature of Coahuila and Texas aud certain grants of land made under them, null and void, its operation camiot be extended, by implication, to other grants than those expressly described.</p>

<p>Where a note executed by the purchaser for the price of property, payable to the vendor, was signed, and endorsed by a third person, at the time of executing the act of sale, and subsequently endorsed by the payee, the first endorser will be bound as a surety. Amendments to pleadings should be allowed only in furtherance of justice.</p>

The Court of Probates was without jurisdiction, of the matter presented by the petition of intervention. Code of Pract. arts. 924 § 13, 983, 984, 986, 392, 389. Gill v. Phillips, 6 Mart. N. S. 304. Lawson v. Ripley, 17 La. 284. Copley v. Faulk, 3 Rob. 100. The question, as one of fraud, should be tried by a jury, before a court of ordinary jurisdiction. Casanova v. Acosta, 1 La. 183. Lessassier v. Lessassier, 15, La. 55. Curtis v. Curtis, 3 La. 519.

<p>APPEAL from the District Court of Rapides, King, J.</p>

<p>APPEAL from the District Court of Concordia, Curry, J.</p>

<p>APPEAL from the District Court of Madison, Gurry, J.</p>

<p>The sale of a thing belonging to another is null. C. C. 2427.</p>

The notarial act of 2d October, 1837, under which defendant holds, does not contain the essential requisites of a sale, or exchange, nor is it clothed with the indispensable formalities of a donation. No effect can be given to it, unless it be as raising a presumption of a previous transfer; it cannot, of itself, transfer a title. Civ. Code, arts. 2414, 2630, 1523. 12 La. 490.

The plaintiff alleges that, on the 19th February, 1841, “ the Marquis de Casa Calvo, then governor general of the province of Louisiana, by appointment of the King of Spain, granted to one Thomas Thompson,, then of the. parish of Concordia, the privilege of keeping a ferry at the post of Concordia in said parish, opposite to the town of Natchez, as a privilege to be attached to the plantation of said Thompson, for passing across the river Mississippi, carriages, horses, men,…

THE defendant appealed from a judgment of the District Court of Tensas, Curry, J., in favor of the plaintiff. The defendant, who was a purchaser without notice and for a fair price, from the original purchaser at the sheriff’s sale, is protected by the judgment, execution and return, and sheriff’s deed. He cannot be affected by the fraudB of others, nor by any irregularities in the sheriff’s sale. I Mart.

<p>Where property has been sold by a wife, with the concurrence of the husband, the sale cannot he annulled on the ground that the property belonged to the community. The husband having concurred in the sale, it must be regarded as their joint act, and binding on both.</p> <p>Where the purchaser of an immovable is in possession under a conveyance not void upon its face, in order to annul the sale for fraud, recourse must be had to a direct action. The question of fraud cannot he inquired into collaterally, in proceedings commenced by a seizure. But this rule does not apply to the sale of moveables. C. C. 2415.</p>

<p>Plaintiff's husband conveyed to her a plantation, slaves, andmovoables, appraised at a certain sum. The act recited that, it was made in order to replace an amount of paraphernal property converted by the husband to his own use, equal to about one-third of the estimated value of that conveyed to her; that the wife, being, for the amount of her paraphernal property, the oldest mortgage creditor ofher husband, accepted, with a reservation of her mortgage rights against the subsequent mortgage creditors of her husband, it being expressly stipulated that the conveyance should be regarded as null, if its effect should be to extinguish her rights as first mortgage creditor; and that the difference between the amount of her para-phernal claim and the appraised value of the property, is detained by her to discharge the other mortgages on the property. The act declares that the wife thereby assumes the administration of the property. A judgment creditor of the husband having seized a portion of the gathered crops made on the plantation by the wife, she enjoined the execution: Held, that the contsact was one of sale; that being between a husband and wife, and not included in any of the exceptions mentioned in art. 2421 of the Civil Code, it is, as to third persons, absolutely null; that the stipulation by the wife in relation to the amount to be applied to the discharge of the subsequent mortgages, whether she be considered as having thereby bound herself personally to discharge them, to the amount of the excess of the appraised value over her claim, as a part of the price, or not, would be separated from the rest of the contract, and being illegal, vitiates the whole; that if the wife be considered as having contracted a sale and bound herself personally to discharge the mortgages as a part of the price, the stipulation is prohibited by art. 2421 of Civil Code, which declares that a wife cannot bind herself for her husband, or conjointly with him, for debts contracted by him before or during the marriage; that if considered as not having relinquished her mortgage nor bound herself personally, the contract is illegal, as its effect would be to entitle her to receive the fruits and revenues of property of three times the value of her debt, and which would otherwise have been received by the husband as a fund for the payment of his creditors, while the whole capital of her claim would be reserved as an anterior incumbrance ¡ and that the sale, being absolutely null as to thirdjpersons, the property nevor ceased to be community property, and was liable to seizure by any creditor of the husband, without resorting to a direct action to annul the sale.</p>

<p>To entitle] a plaintiff to sequester mortgaged property, on the ground of his apprehension that it will be removed out of the State before he can have the benefit of his mortgage, he must make oath to the facts which induce his apprehension. C. P. 275, § 6. It is not sufficient to swear that he apprehends the removal. The stat. of 20 March, 1839, s. 6, has not dispensed with this requisite of the Code of Practice.</p> <p>The surety in a sequestration bond must reside within the jurisdiction of the court which grants the writ. Where the surety is a non-resident, plaintiff cannot cure the defect by substituting afterwards a sufficient surety.</p>

<p>Where a judgment for a separation of property, though susceptible of execution, remained unexecuted till the marriage was dissolved by the death of the wife, it must be considered as null, and the community as unaffected by it C. C. 2402. The judgment of separation is null, not only as to creditors, but between the parties themselves.</p>

<p>Where the value of property seized under a fi. fa. from a parish court, exceeds the amount to which its jurisdiction is limited, an injunction may be obtained, by one claiming to be owner of the property, from a District Court.</p>

<p>Xo appeal will lie from a judgment-on a claim for three hundred dollars, on which no interest had accrued before the commencement of suit. The fact of the plaintiff's claiming* interest from a prerions period, if the demand he manifestly Hctilious, will not entitle him to an appeal.</p>

APPEAL by the defendant Hamilton, from a judgment of the District Court of Ouachita, Curry, J. The interrogatories not having been served on plaintiff’s counsel, could not be taken for confessed. Stat. of 10th February, 1843. 12 La. 600. The waiver of protest should be construed in conformity with the provisions of the Civil Code, arts. 1940, 1941, 1945, 1946.

from the District Court of Catahoula, J. The remedy by attachment is harsh, and those who resort to it must comply strictly with the forms of the law. 8 La. 586. 3 Rob. 232. The affidavit is insufficient either under art. 243 of the Code of Practice, or under the 5th sect, of the act of 20th March, 1839, amending it. The letter of the law should not be disregarded under pretence of pursuing its spirit. Civ. Code, art. 13.

<p>The courts of this State have no jurisdiction of an action to dissolve a marriage contracted in another State, where the husband continues to reside, for causes originating there. The residence of the wife in this State will not give jurisdiction to its courts. 0. C. 48, 122. The stat, of 2 April, 1832, relative to divorces, does not apply to such a case.</p>

This case is not that of the purchase of a litigious right. The transfer of the judgment of Bingham v. Lambeth & Thompson, was talced in payment of a pre-existing debt, which is not illegal.

<p>APPEAL by Brigham from a judgment of the District Court of Ouachita, Gurry, J.</p>

<p>Where an application for a commission to take the testimony of a witness residing out of the State was not accompanied by an affidavit as to the materiality of the testimony, and no cross-interrogatorios were propounded, nor other act done waiving the required affidavit, the testimony will not he admissible. C. P. 436.</p> <p>The deposition of a witness taken under commission must he signed by him, or his mark must he affixed to it, at the time, to render it admissible in evidence. C. P. 433.</p> <p>Itisno objection to evidence taken under a commission, that a previous commission obtained by the same party, for the examination of the same witness, had not been returned. Per Cv/riam: Where a party has reason to believe that a commission has been lost, or will not be executed, he is bound, in the exercise of due diligence, to cause another to be issued.</p>

<p>Where the issue is, -whether there was ever such a person as A., under whom plaintiffs claim, it is enough for defendants to offer such evidence as, in the absence of counter-evidence, will afford ground to believe that no such person ever existed. If such a person ever existed plaintiff might have easily proved the fact.</p> <p>In an action by plaintiffs to recover possession, and to be quieted in their title to a tract of land, where defendants are not trespassers, plaintiffs must make out their title.</p> <p>A party cannot change, by his own act, the nature and origin of his possession. C. C. 3480.</p> <p>A compromise made in execution of a title which is null, unless the parties have expressly compromised as to the nullity, maybe rescinded. C. C. 3046, 3047.</p>

<p>Want of citation is cured by the appearance and pleading of the defendant, and his consent to go to trial upon the merits without any decision upon an exception on the ground of want of citation.</p> <p>An affidavit for an injunction which recites that, “ the facts and allegations set forth in the petition for an injunction are true, and that the facts, stated to he on his belief, he believes to he correct,” is sufficient.</p> <p>A mortgagee can proceed by seizure and sale only where the mortgage is by authentic act.</p> <p>A certificate by a notary, appended to an instrument to which the names of two persons are signed as parties and two others as witnesses, reciting that, " the above act was signed in my presence by both the above parties, and also the above signed witnesses, for the purposes therein contained, and I, the undersigned parish judge, have also signed the same, on this 26 day of February, 1841,” is not sufficient to render it authentic. C. C. 2231.</p>

<p>Article 326 of the Code of Practice, which declares that a11 defendant, whose signature shall have "been proved after his having denied the same, shall be barred from every other de-fence/’ do.es not apply to an administratrix, who, when sued on a note alleged to have been exeouted by the deceased, denies the signature to be genuine. The party by whom an instrument was signed, must be supposed to know his own signature; but the supposition does not apply to an administratrix who may never have seen him write. C. P. 324. C. C. 2240.</p> <p>Under art. 325 of the Code of Practice, which provides that, " where the defendant denies his signature, the plaintiff must prove its genuineness, either by witnesses who saw the defendant sign the act, or who declare that they lenow it to be his signature because they have frequently seen him write and sign his name,*’ it is sufficient that the witnesses swear that they have seen the defendant sign his name frequently, and that they believe the signa-tare to be his.</p> <p>Where in an action on a note, professing on its face to have been given for value received, the consideration is denied, defendant must show the want or failure of consideration.</p> <p>Under the law-merchant — the prevalence of which throughout the States of the Union, except so far as modified by statute, the court will judicially notice, a notarial protest is not required to be made in the presence of witnesses, or to be signed by them. The act of the notary, certified by his signature and notarial seal, is sufficient.</p> <p>Where anote is payable at a particular bank, notice of non-payment to the maker is unnecessary.</p> <p>The omission to present a note at the bank at which it was payable, at maturity, will not discharge the maker, where it is not shown that he had funds there at the maturity of the note, or that any loss or injury has been sustained by him in consequence of the delay in presenting it.</p> <p>Where a commission to take testimony, directed to a particular person, is signed by the judge himself, no objection can be made to it on the ground that no order of court had authorized it to be so directed. The signature of the judge is a sufficient order.</p> <p>Where a commission to take testimony is addressed to a resident of another State by name, and describes him as a justice of the peace, he becomes an officer of the court ad, hoc, and no proof is required of his being a justice, or of his authority to administer oaths, or of his signature.</p> <p>Where cross-interrogatories have been propounded to a witness examined under a commission, notice to the party by whom they were propounded of the time and place of taking the testimony, is unnecessary. Stat. 25th March, 1828, s. 9.</p> <p>Where a general order has been made to take testimony in a case, and a commission has been granted by the judge in pursuance thereof, and cross-interrogatorios have been propounded by the opposite party, the evidence taken under it cannot be excluded on the ground that there was no affidavit of the materiality of the testimony.</p> <p>Where the holder of a note omits to present it for payment at maturity, and there is no stipulation in it for the payment of interest, he canrecover interest only from the time when the debtor was put in default.</p>

<p>Where the owner removes with a slave into a State in which slavery is prohibited, with the intention of residing there, the slave will be thereby emancipated. Their subsequent return to this State cannot restore the relation of master and slave.</p>

APPEAL by Malard and Armistead,-, who had been subrogated to the rights of the plaintiff, from a judgment of the District Court of the First District, Buchanan, J., discharging a rule taken by them on John Green, and the recorder of mortgages of Jefferson. The renunciation of prescription made by a debtor, cannot affect rights previously acquired by third persons. Merlin, Repert, verbo Prescription, sec. 1, § 4, No. 2. Troplong, Prescrip. No. 100. Pothier, Oblig. No. 665.

<p>Plaintiffs, having contracted to do certain work on a steamer belonging’ to defendants, took her into their dock, where, inconsequence of the falling of the scaffolding, she was seriously injured. Several weeks were consumed in making the repairs rendered necessary by the accident. No time had been fixed during which the work originally undertaken was to be completed. There was no proof of any demand for the delivery of the steamer before the repairs were completed. On a claim in reconvention for damages for injury sustained by the owners, in consequence of the time consumed on the repairs rendered necessary by the fall: Held, tliatplaintiffs can be made liable only after having been put in default by a demand for the delivery of the boat, or by proof, on the part of defendants, that the condition of the boat after the accident, was such as to make any demand unnecessary.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p> <p>The judgment on the rule was a final one. Code of Pract. art. 539. It should have been signed. Code of Pract. arts. 546, 565. Cooley v. Seymour, 9 La. 275. Its execution was consequently illegal. Code of Pract. art. 624.</p> <p>The judgment on the rule did not require the signature of the judge. Van Winchle v. Flecheaux, 12 La. 148. Krceutler v. Bank of United States, 11 Rob. 160. It was not a final judgment, but a decision on a question arising in the execution of the final judgment.</p>

cited Civil Code, arts. 2294, 2299. Stat. 6th March, 1834, s. 10. Same v. Tourné, 9 La. 425. Brand v. Tourné, 10 La. 130. Eberv. Tourné, Ibid, 131. The ownership of the steamer is neither alleged nor proved. 1 Rob. 178. The defendants being joint trespassers are only jointly liable. Civil Code, art. 2304.

Frazer, for the appellant, contended that the sale was void, for uncertainty and insufficiency in the description of the property sold, citing Code Prac. arts. 679, 702. McFonogh v. Gravier, 9 La. 531. Williams v. Kelso, 7 La. 409. 1 La. 44, 491. 4 Peters, 362. Byrne, for the warrantors.

<p>Where the rights of the purchaser of a slave against her warrantor are sold under execution and purchased by the warrantor, and the original purchaser of the slave afterwards acquires the right to receive, and actually receives, the amount for which the right in warranty was sold, it will amount to a voluntary execution and ratification of the sheriff’s sale.</p>

<p>An appellee cannot have a judgment amended in his favor, unless he has prayed for it in his answer to the appeal. C. J?. 888.</p> <p>A debtor, by an act executed after several executions issued against him had been returned “ no property found,” pledged to his creditor a claim against a third person, then in suit. The pledgee did not intervene in the action, but permitted the pledgor to prosecute it. Held,, that as the act of pledge was executed under suspicious circumstances, and the evidence of debt not placed in possession of the pledgee, the pledge was void.</p> <p>A sale of the rights or credits of a debtor seized under execution will not be valid, unless the property has been previously appraised as required by law. The want of such appraisement cannot be supplied by any waiver made by the debtor, of in failing circumstances. A debtor, under such circumstances, cannot dispense with any of the formalities established by law for the sale of property under execution.</p>

Prescription was interrupted by the acknowledgments of the debt, made by the defendants from time to time in their own books. Civ. Code, art 3486. “ La prescription s’interrompt non-seulement par ces titres nouvels, mais ¡par quelque acte que ce soit, qui est récognitif de la dette-” Pothier, Cout. D’Orleans, tit. 14, no. 46. The acknowledgment of a debt on the Mian of an insolvent, interrupts prescription. 2 Troplong, Prescrip, p. 293, no. 719.

<p>A. pledgee is bound to take that care of the property pledged which a prudent person (dili-gens paterfamilias) would take of his own. He is not bound to use the utmost diligence.</p> <p>Where it becomes necessary for a pledgee, in the exercise of the diligence required of him, to employ an agent on account of his particular profession and skill, he will not be responsible for the neglect or misconduct of the latter, where reasonable care was shown in the • choice of the agent, as to his skill and ability.</p> <p>Where the pledgee of a note after obtaining a judgment on it, and taking out a Ji.fa. which was returned unsatisfied, omits to sue out a ca. sa. against the debtor, he will not, in the absence of any proof of injury from such omission, or of anyrequestby the pledgor to take out a ca. sa., be considered as having thereby made himself responsible for the amount of the note.</p> <p>Where a note deposited as a pledge is not accounted for, and it is shown that the maker was solvent for some time after its maturity, the pledgee will be responsible for its amount. The note must be presumed to have been paid, or its amount lost by the neglect of the pledgee.</p>

<p>Where a party has recourse to an injunction he must disclose all the facts of his case, or it will be presumed that those not disclosed would make against him, if known.</p>

The executor of Leverich represents that, his testator, at the time of his death, was in possession of 253 bales of cotton, worth $7155, to the possession of which he succeeded as executor; that, about the 1st of July, 1844, one Wm.

<p>A judgment creditor may seize property in the possession of a third person under a simulated transfer from his debtor, without resorting to a revocatory action.</p>

<p>Prescription is interrupted by a cessio bonorum made by the debtor.</p> <p>Where a creditor of an insolvent claims, adversely to the other creditors, that a payment made by a third person in discharge of a judgment on a bond in which the creditor was surety for the insolvent, was made by such third person as his agent, he must prove the fact; it will not be presumed.</p> <p>The syndic of an insolvent is entitled to commissions on an amount paid to an agent, employed to procure payment of a claim due to the estate.</p> <p>One who had made a cessio bonorum under the State law, and was afterwards discharged as bankrupt under the act of Congress of 19th August, 1841, is a competent witness to prove the correctness of the debts acknowledged by him in his hilan filed at the time of his cession, unless disqualified on account of his personal relationship to the creditor, or where the debt is due to his wife.</p> <p>Laws on the subject of the competency of witnesses, being purely remedial, take effect iii all cases from their enactment.</p> <p>A debt is not extinguished by the death or insolvency of the creditor.</p> <p>The omission to record the claim of a wife for dotal property as required by the stat. of 26th March, 1813, does not render it null and void. It will still subsist, as an ordinary debt between the husband and wife; and, in case of the insolvency of the husband, she will be entitled to payment with the rest of his creditors.</p>

<p>APPEAL from tlie Commercial Court of New Orleans, Walts, J.</p> <p>The endorsers of the bill, who were the only solvent parties thereto, were discharged by the fault of defendants, who are consequently liable for the injury resulting from this neglect. See 7 Rob. 57. The endorsers were discharged by illegal delay in sending notice, and by the illegal manner of sending it. As to the delay, see the judgment in the case in'7 Rob. 57. The manner of the notiee was illegal, in not having been sent to the office nearest to the residence of the endorsers; and in being put in the post-office not for the purpose of transmission by mail. Where parties receive their letters through the post-office of the place in which a bill is protested, 'notice of protest must be served personally. See Story on Promissory Notes, p. 374. 10 La. 490. Chitty on Bills, 9 Am. edit. p. 475, b. and cases cited. 5-Mart. N. S. 359. The law on this subject is not changed by the stat. of 13 March, 1827. 8 La. 171. 15 La. 54. 6 Rob. 500. 11 Ibid. 467. As to the liability of defendants, see 7 Mart. 464. 1 Ibid. N. S. 216, 365. 2 La. 416.</p> <p>Plaintiff does not allege that he did not receive notice of the dishonor of the bill, but that notiee was not given to the endorsers. It was his business to notify the endorsers, or others whom he wished to charge. Byles on Bills, p. 100.- 16 La. 568. The notices to the endorsers were in time. Bayley on Billls, p. 172. Story on Notes, § 326. Smith v. Mallet, 2 Camp. 208. 2 Hy. Blackstone, 565. The notices to the 'endorsers were properly directed, under their instructions to Hall. 6 Rob. 74. 'Mead v. Carnal, 6 Ibid, 268. Story’ on Notes, p. 419, § 344 and note. 8 M. :&W. 252. 7 Hals. 268.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

<p>The execution of a bond by a defendant for the release of property attached, will notpreclude him from moving to set aside the attachment on. the ground of the insufficiency of the attachment bond and oath; but, after the plea of the general issue, no such motion can bo made. C. P. 344.</p> <p>Where in a collision between steamers there was fault, or want of oare, on both sides, or no fault on either side, neither can recover damages of the other.</p> <p>In determining whether a collision on the Mississippi occurred in one or the other of two contiguous States of which it forms a boundary, the middle of the river must be taken as the boundary line.</p> <p>In the absence of any law, an established usage among those engaged navigating the Mississippi with steamers, must be considered, in determining question of fault or negligence in the management of the boats on that river.</p> <p>In an action for damages to plaintiff’s steamer occasioned by a collision with a boat of the defendants, evidence that the latter boat was racing at the time of the accident is not ir- ■ relevant.</p> <p>Where the purchasers of a steamer assume any liability for damages that may have resulted from a collision with another boat, the owners of the latter may avail themselves of the assumption, and recover from the purchasers damages for the injury sustained. C. C. 1884 1896. C. N 35.</p> <p>In case of the collision of two steamers, the actual injury sustained at the time and place of the injury, is the measure of damages. The damages must be confined to the immediate and direct consequences of the occurrences.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, J.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

<p>Defendant moved to set aside a writ of arrest, oil the ground that plaintiffs are non-residents. It was proved that they are commercial partners, doing business in this State under one name, and in an adjoining State under another ; that three of the partners reside in the latter State, and one in this; and that the note sued on was payable to plaintiffs under the name used by their firm, in such adjoining State: Held, that the fact of some of the partners being non-residents cannot deprive the resident partner, who has a community of interest in the entire debt, and is considered as the representative of the firm, of the right of resorting to a remedy by which he might enforce his individual rights. He is not within the prohibition of sect. 9 of the stat. of 28 March, 1840.</p> <p>Under tlie system of jurisprudence established in those States in which the common law prevails, a sheriff may seize, under an execution against a partner individually, all his interest in the partnership property, subject to the prior rights and liens of the other partners and of the creditors of the partnership. The creditor may, after the seizure and before the sale, institute proceedings against the other partners to ascertain the amount of the interest seized ; or he may cause a sale to be made, and leave it to the purchaser to ascertain it.</p> <p>Where in an action by apartnership to recover a debt due to the firm, defendant shows that ho had been previously made a gamisheein a suitinstituted in another State by a creditor of two of the partners, any judgment rendered against him must be subject to the condition that, no execution be taken out until the extent of his liability under the proceedings in such other State be ascertained.</p>

<p>The provision of the second article of the ordinance of the Council of the Third Municipality of New Orleans, of 19 May, 1846, imposing a fine on the owner of any animal found astray, is a legal exercise of the power vested in the Council.</p> <p>Art. 63 of the constitution gives the Supreme Court appellate jurisdiction in all cases where the constitutionality or legality of any fine, forfeiture, or penalty imposed by any municipal corporation is involved; but where the question is presented on an appeal from a judgment rendered by a justice of the peace, the facts of the case cannot be examined. The jurisdiction of the Supreme Court is the same, in cases involving the constitutionality or legality of any tax, toll, or impost.</p>

<p>APPEAL from a judgment rendered by Canonge, a Justice of the Peace in the of New Orleans.</p>

The statute is not inconsistent with art. 81 of the state constitution. By sect. 2 of art. 1 of the Constitution of the United States it is provided that, “ the House of Representatives shall be composed of members chosen every second year by the people of the several States.” Was it ever supposed that this general provision rendered illegal the election of members of Congress by districts ? The ordinance is inapplicable to the defendant.

PPEAL from the District Court of the First District, Buchanan, J. The jti. plaintiff alleges that he is a citizen of the republic of Texas; that he purchased from the defendant, a resident of New Orleans, a slave, about fourteen years of age, for the price of $400, which he paid; that the defendant warranted the slave “ against the vices and maladies prescribed by law,” as will appear from the notarial act of sale; that the boy was, at the time of the sale, affected by a…

<p>APPEAL from the Commercial Court of New Orleans, Watts, J.</p>

<p>Where merchandize is shipped to a factor, with directions to sell it, and apply the proceeds to the payment of a bill drawn by the owner in favor of the shipper for the repayment of an advance made by the latter, the factor who receives the consignment is bound to comply with the conditions upon which it was delivered to him. He cannot apply the proceeds to the payment of any debt due to himself by the owner.</p> <p>The commercial books and counting-house furniture of a merchant, and iron chests found in his counting-house, in which his books and papers are kept, are exempt from seizure. C. P. 644.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, J.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, J.</p> <p>moved to dismiss the appeal, on the ground that the citation of appeal could have been served on the attorney of the appellees, only in case of their absence from the State. Code Prac. arts. 582, 584. 4 Mart. N. S. 238. 5 Ibid. N. S. 427. 8 Ibid. N. S. 282. 14 La. 292. 15 La. 143.</p>

<p>In an action against the principals, on an unaccepted bill drawn on them by their agent, the latter is a competent witness for the plaintiff. Per Cwriam: The rule that a witness inter-estedmthe subject of a suit, or in tbe record, is incompetent to testify on the side of his interest, is not, under the commercial law, applicable to agents and factors offered to prove acts done within the scope of their employment.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, 3.</p>

<p>A party present at the time of trial may he required to answer instcmter interrogatories on facts and articles, though then propounded for the first time, where the questions require no recourse to books or papers, and the answering of them cannot delay the trial. The party „ interrogated may require the questions to he propounded in writing, hut cannot insist upon being sworn as an ordinary witness, subject to cross-examination.</p>

contended that the maxim, Contra non va-lentem &c., cannot apply to the plaintiff’s case, as he might have caused a curator ad hoc to be appointed and have sued. Civil Code, art. 57. C. P. art. 116. 12 La. 606. 6 Rob. 147, 534. 15 La. 145. 19 La. 262. 1 Peters, 360.

<p>Continuous servitudes only canbe considered as established by the disposition which an owner has made of one part of his property in favor of another. C. C. 763.</p> <p>The administrator of a succession sold at auction two lots, with the buildings thereon, described as having each thirty feet front, and as adjoining each other. One of the lots, the building on which covered the whole front, was farther described as sold, “ with the brick house uponit, and other dependencies.” The other lot, the building on which coveredbut a portion of the front, leaving a passageway, was described as sold “with the house and kitchen thereon.” Windows in the first house opened on this passage, and there was no access to its yard, but through the house itself, or this passage. Both houses were dwellings. No mention was made of any servitude, either in the advertisement of sale, or by the auctioneer. The tenements were purchased by different persons. Held, that the servitude of lights and way being apparent, and necessary for the occupation and use of one of the dwellings, the purchaser of the lot on which they are established, must have known of their existence, andis bound to take the lot subject thereto. Aliter. were the purchaser ignorant of the servitudes, and they such as to render it probable that the purchaser would not have bought the property, had he knpwn of their existence.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, J.</p> <p>There was no novation. Civ. Code, arts. 2185, 2186, 2188. Cainv. Robert, 3 Mart. N. S. 145. Markv. Bowers, 4 N. S. 95. 9 La. 223. Turpin v. Creditors, 9 Mart. 562. Nolté v. Creditors, 6 Mart. N. S. 176. Gleasons. Stevenson, 6 N. S. 568. 7 N. S. 178. Bairdv. Livingston, 1 Rob. 184. Howards. Thomas, 3 La. 112. Story on Notes, ss. 104-105, 438. 1 Wheaton’s Selwyn, ed. 1839, p. 74, note 23. The delivery of the bill, it being worthless, was not a payment. Stedman v. Gooch, 4 Espinasse, N. P. C. 5. 6 Term Rep. 52. 7 Term R. 64. 2 Campb. 515. Story on Notes, ss. 389, 502. Ontario Bank v. Lighibody, 11 Wend. 9. 139 Ibid. 101. Maride v. Hatfield, 2 Johns, 455. 2 Hill’s S. C. Rep. 509. 10 Vesey, 506.</p>

The words “ then present in the said Council,” in the 6th sec. of the stat. of 17 Feb. 1805, incorporating the city of New Orleans, refer only to the time of the final discussion of the objections of the may- or, and mean only that two-thirds of the members must then concur, to give an ordinance the force of law, notwithstanding the veto of the mayor.

<p>APPEAL from the First District Court of New Orleans, Preston, J.</p>

<p>An appeal will be dismissed only where the appellee shows himself clearly entitled to that relief. In cases of doubt, the interpretation will bo liberal in favor of the appellant.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

from the Commercial Court of New Orleans, Watts, J. The laws on the subject of the inspection of tobacco do not require that the inspectors shall make samples. Bullard & Curry’s Dig. 508-10. The amount claimed is not for services “ under color of office,” but for extra-labor rendered by the plaintiffs as individuals. See Hills v. Kernion, 7 Rob. 522. The services for which the extra-charge claimed by the plaintiffs was made, was part of the duty of inspection.

<p>APPEAL from the City Court of Lafayette, Burtfie, J.</p>

<p>Where an obligation is contracted on condition that an event shall happen within a limited time, the condition must he considered to have failed when the event has not occurred within the time. C. C. 2033.</p> <p>legal interest is due from judicial demand on a claim for the price ofa steamer.</p>

This was an action by the owner to recover the value of a slave, hired to the defendants as fireman on a steamer owned by them, and never returned. The answer denied all the allegations in the petition. A supplemental answer alleged that, if the slave was hired by the defendants, he was either lost overboard, or absconded from the boat.

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

<p>APPEAL from the Parish Court of New Orleans, Maurian, J.</p> <p>Under no circumstances can a wife become surety for her husband. Civ. Code, art. 2412. The form of the contract will be disregarded, if, in point of fact, she turns out to be a mere surety, when she was made to appear in the light of a principal. It is for those who treat with a married woman to be upon their guard, and to see that the obligation she contract, turns to her benefit and advantage. 4 Rob. 510. 7 Mart. 484,489. 2 Mart. N. S. 44. 5 Ibid. N. S. 431, 454, 528. 7 Ibid, N. S. 64, 252, 341. 8 Ibid, N. S. 692. 587-90. 10 La. 147, 163. Merlin, Repertoire, verbo Derogation. 1 Toul-lier, p. 87 et seq. Gomez, ad leges Tauri, 636. Pothier, Obligations, 1st vol. 304, no. 396. Ibid, p. 369. “It is not sufficient to prove thatthe wife received the money ; it must also be proved that it was for her separate advantage, or for something which the husband was not bound to furnish her.” 7 Mart. N. S. 64. 10 La. 147, 163. “ It is for the creditor claiming the performance of a contract with a married woman, to prove that the debt was converted to her benefit.” 7 Mart. 484, 489. 5 Ibid, N. S. 54, 57, 527. 7 Ibid. N. S. 64, 341. 10 La. 147. 10 La. 163. 4 Rob. 510, 513.</p>

APPEAL by the intervenors from a judgment of the District Court of the First District, Buchanan, J., in the favor of the plaintiffs. An assignment made in an Other-State to take effect here, if void by our laws, can have no effect against an attaching creditor. Civil Code, art. 10. Story, Confl. of Laws, § 280, 285. Kent’s Com. 393, 459. Boullenois, Quest. Cont. des Lois, p. 330. Whiston v. Stodder, 8 Mart. 132.

<p>A judgment creditor cannot treat a sale of a slave, made bona fide by Ids debtor and accom-ponied by possession, as null, and seize tbe slave in tbe bands of tbe purchaser. He must institute a direct action to annul the contract. Aliter, where the act is a mere simulation.</p> <p>Where an immovable is purchased by a commercial partnership, tbe partners become joint-owners, and none of them can alienate it without the consent of the rest. But where such property is sold by one of the partners, for a consideration which enured to the benefit of the partnership, and the other partner, though informed of the salo, makes no objection to it, ho will be considered as having ratified it.</p>

<p>APPEAL from the Third District Court of New Orleans, Kennedy, J'.</p> <p>A municipal corporation is a private corporation. Civil Code, arts. 421, 422. Judgment against a State may be executed by seizing taxes due to it. Const. U. S. art. 3, sec. 2. Bank of U. S. v. Hal-stead, 1 Wheaton, 50, 51, 66. The right to seize the taxes cannot defeat the object contemplated by the constitution in creating the corporation; the seizure of taxes cannot destroy the corporation — it can only create a necessity for additional taxation. Whenever a judgment orders the payment of a sum of money, the property, real and personal, and rights and credits of the debtor may be seized and sold to satisfy the same (Code of Pract. arts. 641, 642); and a third person may be cited to answer under oath what sum he owes the defendant, and be compelled to pay over the amount in satisfaction of the execution. •Statute 20th March, 1839.</p> <p>The Third Municipality of. New Orleans is a political corporation. Civil Code, art. 420. The taxes imposed by the Municipality are public imposts. The essential characteristics of a public impost are: 1st. Its being imposed by public authority. 2d. Its having for its exclusive object, the security and protection of the property and social rights of the community. “Les revenus de Vétat sont une portion que chaqué citoyen dome de son bien pour avoir la sureté de Vautre, on pour en jouir agréablement. Montesquieu, Espr. des Lois, b. 13, ch. 1. The municipal taxes cannot be seized under execution — they are inviolable. The product of such taxes is not susceptible of private ownership, having been consecrated .in advance to public uses. The legislature, in creating the Municipality, intended to secure to it the essential conditions of its existence. The power of taxation is the most essential of these conditions. The product of the taxes is the principle of life, indispensable to the existence of the municipal administration. The sovereign alone has authority to dissolve a political corporation. The revenues of the three Municipalities of New Orleans, are the pledge of the creditor’s of the former city corporation, and cannot, for this reason, be seized. Statute of 1836. Articles 642, 647 of the Code of Practice authorize only the seizure of civil rights — not rights of sovereignty. The provision of art. 647 authorizing the seizure of “ all sums of money which may be due to the debtor, in whatsoever right,” must be understood as confined to sums due in virtue of a civil contract, or in consequence of some fact giving rise to a civil obligation. The tax-payer is not the debtor of the Municipality, for he receives an equivalent for the tax Protection &c. afforded to him by the municipal government;' nor is the Municipality a creditor, since it receives the amount only to expend for the pub-jjc |jene(}(:) anij not £0 appropriate for its own use. The municipal authorities are but administrators of the public funds. The relation existing between the corporation and the tax-payer not being that of creditor and debtor, the sum representing the lax is not one subjected to seizure by art. 647 of the Code of Practice ; nor does the 13th sect, of the act of 1839 authorize its seizure. See the case of Claiborne v. Police Jury, 7 Martin, 4.</p>

<p>Where a purchaser at a judicial sale of the property of minors, fails to pay the price, the latter may sue for a dissolution of tlie sale. O. C. 2595, 2586, 2539.</p> <p>Actions to rescind sales on account of the non-payment of the price, are prescribed only by the lapse of ten years. Arts. 1989, 3446, 3453 of the Civil Code are not applicable to such actions.</p>

Art. 3126 of the Civil Code confers on cashiers of the banks of this State the powers of notaries in regard to acts of pledge. In the case of .Robinson v. Shelton, 2 Rob. 279, the court held that the authority given by law to cashiers of banks to execute acts of pledge, confers on them only the powers of a notary in relation to those contracts, and that none of the essential forms can be dispensed with.

The plaintiff sued the executors of Abijak Fis/c, to recover the sum of $7,500, bequeathed tohim'by the deceased, $5000 having been left to him by a will dated 27 Nov. 1843, and $2,500 by a… Held: that a legacy, “in consideration of long and faithful services renderod” by the legatee to testator, was a remunerative donation.

<p>itn express authority is necessary in order to bind another by the execution of a promissory note.</p> <p>A partnership may be contracted to take effect at a future time, or upon certain conditions.</p>

<p>APPEAL from the District Court of the First District, Buchanan, J.</p>

<p>Action against a partnership to recover the proceeds of merchandize shipped to one of its members, before its formation, for sale on account of tlie shipper.' It was alleged that the" partnership subsequently undertook to sell and account for the shipment; and on the trial plaintiff produced letters written in the name of the partnership acknowledging the receipt «f the merchandize. Defence that the letters- were written by the partner to whom the shipment was made; that the acknowledgments wore ftandalent and not binding on his co-partner, who was ignorant of them: Held that, after the production of the letters, the burden of proving fraud was on the defendants.</p>