Volume 10 — Louisiana Annual Reports

<p>case was tried by a jury before Reynolds, Judge of the Fourth District Court of New Orleans.</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

<p>ÍPhe liability of a surety on a sequestration bond, is only for Buch expenses as are incident to the sequestration and release. It does not extend to the entire costs of the litigation, subsequent to the bonding of the thing sequestered, except so far as the litigation is the necessary result of the bonding.</p>

<p>PPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>PPEAL from the District Court of the Parish of Jefferson, Olark, J.</p>

<p>A vendor who gives oüt his storage receipt to the purchaser for property stored in. his own warehouse loses thereby all possession in his own right, and becomes a mere bailee, holding in trust for the real owner; and the sale of the property by the vendee, with an endorsement of the storage receipt, will pass to the purchaser a complete title.</p> <p>O. 0. 8194, 8184, No. T.</p>

<p>It is not competent for a party to an action to discredit his own witness, unless, at least, an opportunity has been offered to the witness to explain anything which he may have said inconsistent with his testimony.</p>

<p>from the Fifth District Court of New Orleans, Buchanan, J.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>A judgment will be set aside where there is no eonteetatio UMs between the parties to it.</p>

<p>from the Fourth District Oourt of New Orleans, Reynolds, J.</p>

<p>In an action by a corporation, if its existence be put at issue, it must be proved.</p>

<p>Plaintiff charged defendants with selling to them, through a broker, a note drawn and endorsed by M., and with causing M. to be alleged as solvent, when it was known to defendants that he was insolvent, and prayed judgment against the defendants for the amount of the note. Held : The plaintiff’s proper remedy was in action to avoid the contract transferring the note.</p>

<p>PPEAL from the Second District Court of Now Orleans, Lea, J.</p>

<p>PPEAL from the First District Court of New Orleans, Bobertson, J.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

<p>Simulated assignment. The case presents a question of fact only.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>The answers of the garnishees must be taken as full proof against the seizing creditor until they are contradicted by other evidence.</p> <p>A surety can not compensate his contingent liability as such, against a deposit, unless the deposit has been made expressly to guarantee the depositary against such contingent liability.</p>

HIS case was tried by a jury, before the First District Court of New Or-JL leans, Larue, J. Butterfield v. Forrester, 11 East, 60. The plaintiff was riding along a road, at a furious rate, and fell against an obstruction, negligently left upon the road by the defendant. Lord Ellenborough said: “ Two things must concur to support this action.

<p>The employment of a printer by counsel to print their briefs at the expense of the clients, is a power implied from the relation of client and counsel. C. 0. 2969. But the client will not be bound to pay for a greater number of copies than the rules of court require to be filed.</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>PPEAL from the Fifth District Court of Now Orleans, Augustin, J.</p>

<p>Simulated Sale. — At a Sheriff’s sale of property, the brother of the defendant became the purchaser. Under the facts of the case, the purchase was regarded as a family arrangement, to screen the property of the true owner from the pursuit of his creditors.</p>

<p>A cause will not be remanded for a new trial, at the instance of defendant, to enable him to have his call in warranty acted on by the Judge. He should have asked for a finding on the issues between himself and warrantor, before the Terdict was recorded, and the jury discharged.</p>

<p>Where the citation to answer interrogatories issued to the firm alone, the answer by one member of it will be sufficient, notwithstanding the prayer of the petition was that the individual members of it should answer.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

<p>The tax imposed upon keepers of livery stables by the city ordinance of November 15th, 1849, is constitutional and legal. ••</p>

<p>Municipality No. Two had authority to impose a portion of the cost for the removal of a dilapidated and insufficient pavement and making a new and sufficient one in its stead, on the proprietor of property, fronting the street so improved.</p> <p>The Municipality had no power by the then existing laws to compel a contribution, by the owners of lots, to the cost of making the second pavement to replace the one to which the contribution had already been made. Ogden, dissenting. Buchanan, J., concurring in the dissenting opinion.</p>

<p>Plaintiff sued on a quantum merxuit, and afterwards amended his petition and set up a written contract. Defendant excepted to the amendment on the ground, that it changed the nature of the action Jffeld: The proceedings which took place from the joinder of issue to the filing of the amendment and exception, amounted to a waiver or abandonment of any objection which the defendants would have had to the form of the action. If defendants wished to avail themselves of the written agreement as a bar to the action on the quantum memiit, it should have been specially pleaded for that purpose.</p> <p>The appointment of experts by the court, esparte and without notice to the parties, is null. 0. P* 446</p> <p>Experts cannot act at the request of one party, without giving notice to the adverse party. C. P 450.</p>

<p>from the Fourth District Court of Now Orleans, Reynolds, J.</p>

<p>The delivery of goods shipped on a steamer to the master of a wharfboat at the port of delivery, is bad, unless there is a special authority vested in the wharfmaster by the consignee to receive the goods, or a ratification of the receipt of them, express or implied.</p> <p>The authority of a wharfmaster to receive goods on behalf of the consignee, may be inferred, from, the payment by the consignee of money advanced by the wharfmaster for the freight.</p>

<p>The judgment of a court, having jurisdiction over the person of the minor, and of the subject-matter of his application, and rendered upon due nolice of the suit to the tutor — unreversed by appeal or action of nullity — cannot be questioned collaterally, on the ground of the alleged informality, anticedent to the decree, and arising after the jurisdiction of the court had attached.</p>

<p>1 PPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>PPEAL from the District Court of the Parish of Assumption, Cole, J.</p>

<p>The well settled rule that courts will not lend their aid to establish a demand founded upon a violation of law, will not be extended to close the door of justice against an honest principal, on account of a fraud committed by his agent.</p> <p>A factor can not pledge the goods of his principal for his own debts, and where the pledge is cognizant of the ownership, he can not, in an action by che owner, avail himself of the defence that he has been misled by any act or omission of such owner.</p>

<p>Where taxes, illegally assessed, have been paid through error, they may be recovered back.</p>

<p>Where the appellant gives an appeal bond in favor of the warrantor, the warrantor is thereby made a party to the appeal and may move for its dismissal.</p> <p>Wnere the Clerk is unable to make out the transcript in season the Supreme Court, upon proper proof, will allow further time. O. P., 8S3.</p> <p>The failure of the appellee to move for the dismissal of the appeal within three days after the filing of the transcript, does not bar him from making such motion* afterwards.</p>

<p>THIS case was tried by a jury, before the District Court of the Parish of Iberville.</p>

<p>Where the actions as well as the judgments in favor of several plaintiffs are distinct, it is the separate, and not the collective, amounts claimed in each, which must determine the question of appellate jurisdiction.</p>

<p>from the District Court of the Parish of Lafourche Interior, Cole, J.</p>

<p>TV. TV. JPuffh, who was the tutor of the minor heirs of A. Pomponea^ was also executor of her last will. The succession, when opened, was indebted to an amount nearly equal to the inventory. Held: That the executor is entitled to two and one-half per cent, commission on the inventory, and the additional sum of ten per cent/ on the proceeds of the annual crops, as commission for his services as tutor to the minor heirs.</p>

<p>PPEAL from the District Court of the Parish of Lafourche, Oole, J.</p>

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

<p>PPEAL from the Fifth District Court of New Orleans, Buchanan, J.</p>

<p>PPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>Where a creditor charges that the judgment of the wife against her husband was obtained through fraud and collusion, the burthen of proving that such judgment had a legal foundation, is upon the wife.</p>

<p>Plaintiff sued for damages for an injury resulting from a collision of defendants’ car with another car. Hd&: The Judge correctly charged the jury, that if they believed there was gross neglect or carelessness, or want of skill on the part of the servants of the company, then it was for them to assess the damage, for such an amount as they might deem the circumstance of the case justified.</p> <p>The discretion left to a jury in assessing damages, is not arbitrary and unlimited, but is to be guided by sound legal principles applicable to the case before them; and it is the duty of the Judge to give them sugIi directions as will draw their thoughts to the proper points of inquiry, and exclude irrevelant considerations. Therefore, the Judge should have charged, as requested by defendant’s counsel, that if the jury believed from the evidence there was no wilful fault on the part of the company or its officers, they could not give damages with the view to punish defendant Gr to make an example, but must only consider and assess the damage sustained by plaintiff. Spqffordy J., dissenting.</p> <p>O. O. 192S. O. P. 516.</p>

<p>A judgment of the probate court, ordering that “ letters of executorship be delivered to petitioner on his being sworn and complying with the requisites of law,” does not impose upon the heirs the necessity of prosecuting an appeal from such judgment or of rescinding it by action of nullity, before bringing a direct suit to remove the executor, on the ground that he has not complied with the legal requisites.</p> <p>Where the declaration of an intention to change his domicil is contradicted by the acts of the applicant, it shall not avail him to evade the law.</p>

<p>from the District Oourt of the parish of Assumption, Oole, J.</p>

<p>The Code of Practice, Art. 875, as amended by tlie statute of 1889, declares: “That where the plaintiff resides out of the State, the defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with or incidental to the main cause of action/’</p>

<p>Simulated Sale. — The case presents only questions of facts.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

<p>The consent of a defendant in an action of attachment to the plaintiffs’ discontinuance, does not preclude the defendant from bringing a subsequent suit for damages for the wrongful attachment. A reconventional demand need not be put at issue by answer or judgment by default.</p>

<p>Where a party to a cause takes a rule on his adversary to show cause why depositions should not be read in evidence, and the rule is served and regularly made absolute, it will be too late to object on the trial of the case to their introduction in evidence, on the ground of the incompetency of the officer who executed the commission.</p>

<p>from the Sixth District Court of Now Orleans, Ootton, J.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>from the Sixth District Court of New Orleans, Cotton, J.</p>

<p>from the Eifth District Court of New Orleans, Augustin, J.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

<p>PPEAL from the Third District Court of New Orleans, Kennedy, J.</p>

<p>from the District Court of the parish of Jefferson, Burihe, J.</p>

<p>PPEAL from the Third District Court of New Orleans, Kennedy, J.</p>

<p>PPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>from, the Fourth District Court of Now Orleans, Reynolds, J.</p>

<p>from the District Court of the Parish of Terrebonne, Oole, J.</p>

<p>from the District Court of the Parish of Terrebonne, Gole, J.</p>

<p>The case of the ¡State v. Thomas, 12th Rob. Rep. 48, deciding’ that the act of 21st December, 1814, entitled “ an Act concerning the police of slaves in certain cases and for other purposes,” did not create an indictable offence, but was a regulation of police, and prescribed a civil proceeding for a civil penalty, affirmed.</p> <p>The interpretation of a statute becomes, as it were, a part of the statute, and it should not be changed but for the most cogent reasons.</p> <p>In a civil proceeding the son is an incompetentwitness for the father. C. 0. 2260. In a criminal proceeding he is-corupetent.</p>

from the District Court of the Parish of Assumption, Gole, J. It is a general rule of law, that in whatever manner a man may deem it fit to bind himself so shall ho bo bound. This rule like all others has its limitations and exceptions. ¥e will examine first the extent of, and second the exception to the rule as applied to the contract of suretyship. It is found in the Roman law Fidejussor aeeipi potest quoties est aliqua ob-ligatio cirilis rel natumlis, cui applieeiur.

<p>A parly to an authentic act will not be permitted to establish its simulation by parol, and to contradict not only the act itself, but the contemporaneous writing, and that without any allegation of fraud.</p>

<p>Vagueness in an injunction affords a good ground for its dissolution.</p>

<p>The slave was sold on the 13fch December, 1851, and died on the 21st of September, 1852. Plaintiff sued to recover the purchase money, and alleged that a few days after the xmrehase, he discovered that the slave was af&cted with serious redhibitory vices, &c. Held: Plaintiff should not have kept the slave for months without making at least an effort to procure an amicable rescission of the</p>

<p>The Sheriff must offer a valid excuse, or else, under the Act of 1S26, he will be bound for his failure to execute or return a writ within the legal delay.</p>

<p>A PPEAL from the District Court of the Parish of Lafourche Interior, Ban-j-JL (Loll, J.</p>

<p>The oblig.ation of a borrower from the Union Bank of Louisiana, to pay ten per cent, interest on loans made on stock, after maturity, was recognized in Bermudez v. Union- B avile ^ 7 An. 62. That decision is correct.</p> <p>The following mode of calculation of interest is in conformity to Art. 2160 O. O.: The principal and interest due at the time of payment, were calculated; and when the amount paid was less than the interest accrued at the time, no deduction was made from the gross amount of principal and interest, until by another payment, the amount received was made equal at least to the accrued interest. The principal and interest, up to that time, were then added together, and from the total, was deducted the aggreate of the several payments made since the last deduction of the interest.</p> <p>Defendant cannot set up a claim in reconvention, which he has already made the subject of a direct action.</p>

<p>from a tribunal composed of a Justice of tho Peace and ton freeholders of tho Parish of Lafourche.</p>

<p>from the District Court of the parish of Point Coupee, Cooley, J.</p>

<p>Congress passed a lair on the 4tli September, ISlt, granting upon certain conditions- land to the-States therein specified, and among them Louisiana, for the purposes of internal improvement. The legislature of Louisiana, in 1844, provided for the sale of warrants for the location of the land, and also that patents should issue on proof that the warrants had been properly located. Plaintiff being the holder of such a warrant located it on the land in controversy. The location having been approved by the Secretary of the Interior, and a certificate to that effect having been-granted by the Register, the Governor of Louisiana issued a patent to the plaintiff, bearing date1 12th November, 1852. The opposing titles of defendant are derived, first from MlUor whose entry was cancelled as having been obtained by fraud, and second by purchase, from- the State of Louisiana, in April, 1853j under the provisions of an Act of Congress, passed 2nd of March, I84ff, and of acts of the legislature of Louisiana, passed in 1850,1852 and 1858, to carry that act into effect. Defendant contended that the Secretary of the Interior had, under the authority of the act of 1841, in April, 1858, revoked his approval to the State of the lands in controversy, which defeated the plaintiff’s claim under the act of the legislature of 1844. By the Court. — The construction of the act of 1849 by the Secretary of the Interior may be strictly correct, and yet it does-not follow that the location of a warrant under the Internal Improvement law of 1841, which had been approved by the proper department of the government, and for which a patent had subsequently issued by the State, could be revoked so as to destroy the title conferred by the patent. As both the acts of 1841 and 1849 were grants of land to the State, the courts cannot go behind the patent which the State has granted. The patent can only be attacked on the ground of error and fraud,</p> <p>The Commissioner General of the Land Office has the right to vacate illegal entries prior to the issuing of the patent.</p>

1'he probate proceedings in relation to the public sale of the succession of XJrsin Hebert, imparted full legal warranty. See Arts. 2477, 2602 L. C. 7 La. 123. £ Rob. 188. Held: that the partial execution of a contract is as much a confirmation of it, as if the execution had been entire. Vide 2 R. 1; 4 R. 127; 6 R. 443; 0. 0. 2252; Toullier, vol. 8, Nos. 510, 511, 519 and 520.

<p>from the District Court of tho Parish of Tensas, Snyder, J.</p>

<p>The fifth section of the Act supplementary to the Act for punishing crimes and misdemeanors, (B. & 0. p.270) approved 7th February, 1829, must be construed according to tho English text:</p> <p>After the evidence had been concluded, and after tho argument had closed, the counsel for the accused asked that the District Attorney should bo compelled to choose between two counts in the indictment, and select on which of the two he would ask the verdict of the jury. The court refused to compel the District Attorney to make the selection. ZTeld: The charges are not so distinct us in any manner to confound the prisoner or to distract the attention of the jury. The application should have been made before pleading to the indictment. The refusal of the District Court was correct.</p> <p>Where the signification of the French and English text of the law is difierent, the Judge cannot charge the jury thatneither text can have the effect of the law.</p> <p>The District Court did not err in refusing to charge the jury that an ordinary pocket knife was not a dangerous weapon, within the meaning of the fifth section of the Act of February 7th, 1849, entitled “ An Act supplementary to an Act entitled an Act for the punishment of crimes and misdemeanors.” Nor did the court err in refusing to instruct thejury under that statute that, to justify the verdict of guilty againrt the accused, the evidence must show that the wound was inflicted with a coucealel weapm, or if not, thejury must be satisfied, that if death had resulted, the defendant would have been guilty of murder.</p>

<p>A purchaser oí land who, for his better security, buys up an out standing title to the same land, can - not, in the absence of any proof of fraud, or of an entire failure of the title derived from the first vendor, resistthe payment of the price to him.</p>

from the District Court of the Parish of J.* The mere reference to a deed, for the description of property, will not bind third parties. O. C. 3273, 3272, 3274. 5 An. 123. C. 0. 3275, 3275. A mortgagee who seeks to enforce his mortgage against third persons, must show that his mortgage has been duly recorded. 2 R. R. 17. 6 R. R. 333.

<p>PPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>from the District Court of the Parish of Carroll, PerJcins, J.</p>

<p>from the Second District Court of New Orleans, Zea, J.</p>

<p>from the District Court of Point Coupée, Cooley, J.</p>

The court decided that the jury in estimating the value of the land expropriated could not take into consideration the benefit derived by the owner from the contemplated improvement, but they could take the benefit derived by the owner from the improvement into consideration in assessing the damages, if any, the owner would have sustained. Is the law correctly stated in this instruction? We maintain the affirma-ative.

<p>"Where several attorneys in fact are employed, they are bound jointly for acts jointly done, and moneys jointly received. O. 0. 2983.</p> <p>If a subscribing witness to a paper when called on to prove his handwriting, deny it, experts may be appointed to establish it, by comparing the signature to the paper with the admitted signature of the witness. This is an exception to the general rule that a party cannot contradict his own witness.</p>

<p>from the District Court of the Parish of Concordia,-J.*</p>

<p>la a proceeding for a divorce, a vinculo 'matrimonii, based on a decree of separation from bed and board, obtained six years before, and on a continued abandonment, the absent spouse may be cited through a curator ad hoc.</p> <p>O. 0. 143.</p>

<p>A plea of partial payment after maturity, made by the drawer of a bill, witlibdt further qualification, creates, in the absence of other evidence, the presumption that the bill had been presented,, and notice of non-payment given to the drawer, or that he had no funds in the hands of the drawee. ¡</p>

<p>from the District Court of the Parish of Carroll, Perkins, J.</p>

<p>from the District Court of the Parish of West Baton Rouge, Robertson, J.</p>

<p>To maintain a petitory action against tlie defendant, who is not a mere trespasser, but holds under deeds on their face, translative of property, the plaintiff must make out a better title as owner.</p> <p>Plaintiff claims the land in controversy, under an instrument in these words: “Be it known and remembered, that on this, the 23d day of September, 3847, that I, Don JF. Sims, agent of John IT Overton, of Opelousas parish, have this day agreed to sell, as agent aforesaid, to William It. Decía, the following described tract of land, [the land is here described] on the following terms [which are stated in the instrument.] Pone and signed in the presence of Wir. Amonett.’ D 3?. Sims, Agent. I hereby accept the foregoing sale and am ready to comply on my part as soon as possession is given. “William It. Peck.”</p> <p>At the time, and for many months previous, to the knowledge of Pede, the defendant was in possession and engaged in preparing the land for cultivation.”</p> <p>.In construing this instrument the court held: This is a promise of sale which did not make Pede, the owner of the land. It gave him. only the right of-becoming so at a future time. It created in .his favor an obligation binding upon Overton, and by which, if he refused voluntarily to complyj he could be judicially constrained to a specific performance, or subjected, if he had put it out of his own power to comply, to an action of damages. Until a voluntary or forced execution of the promise, the ownership did not pass to Pedo.</p> <p>«0. C. 2437.</p>

<p>from the District Court of the Parish of Point Coupée, Oooly, J.</p>

<p>The mother, as natural tutrix of her minor children, is entitled to the seizin of an estate bequeathed to them as universal legatees of their grandfather, notwithstanding the will under which they derive appoints another person to the tutorship.</p> <p>The nomination by the grandfather in his will of a tutor to his grandchildren, to the prejudice of their surviving parent, is illegal, and the disposition null, and conside ed as not written. C. C. 1506.</p> <p>The nomination of tutor by last .will, can only be made by the surviving father or mother. C. C. 275.</p>

<p>from the Sixth District Court of New Orleans, Cotton, J.</p>

<p>A tacit consent to the erection of a wharf in front of the property of the builder on the banks of the Mississippi river, within the limits of the town of Baton Rouge, doe3 not give to the owner the exclusive use of the bank of the river covered by the wharf.</p> <p>The banks of the river are public property, subject to be used by the public at large. O. 0.446.</p> <p>An Act of the municipal council extending the public landing so as to-include a wharf erected by . an individual, and allowing the lessee of the right of establishing and. keeping a wharfboat, at the steamboat landing to remove his boat to the end of that wharf, does not render the Town Council liable to a claim for damages or for the value of the whaatf thus erected by an1 individual for his own use.</p>

<p>from the District Court of East Baton Rouge, Burle, J.</p>

from the District Court of the parish of Madison, Perkins, J. cited Act 7th, April 182(5, p. 17; 2 An. 408, 411; 8 An. 77. If property belongs to the defendant in execution, and the Sheriff, knowing this, fails or refuses to seize it, he is liable to the plaintiff for all damages that he may suffer from such refusal or neglect. 5 Louisiana Reports, p. 344, Bottom. v. Breed. Second.

<p>in real actions, petitory or possessory, a definite description of the property claimed should be given in the petition.</p> <p>The designation of “a tractofland in a given parish” is insufficient; public metes and bounds by section lines, by Surveyors’ marks, by natural limits, or adjoining properties, whose boundaries are registered, should be given when the ownership or possession of a rural estate is claimed in a court</p> <p>The proceedings and judgments taken together should disclose the thing adjudged.</p>

<p>A supplemental answer averring an inability to do, by reason of the act of the plaintiff, what the original answer had declared to have been done in fulfillment of a contract, changed the issue, and an exception thereto should have been sustained.</p>

<p>A certificate that the record contains “all the testimony on file and of record adduced on the trial,” is not sufficient to enable the appellate court to reverse the judgment, in the absence of a statement of facts, bill of exceptions, or assignment of errors apparent on the face of the record.</p> <p>The Judge cannot be required to make a statement of facts at a subsequent term of the court when his recollection no longer enables him to do it.</p>

from the Fourth District Court of the Parish of New Orleans, The ac.t was not signed by Tinsley Jeter. The power of attorney to John T. Jeter was not an authentic act. See Livingston v. Rich, 1 An. R. 823; C. C, 2217. In the case of Livingston v. JDiah, the act of mortgage was signed by the parties and by two witnesses, in the presence of the Notary, and yet the court held that it was not authentic. It was signed like this is.

<p>The general rule that nothing passes a perfect title to public lands but a patent is not without exceptions.</p> <p>Where an equitable right which originated before the date of the patent, whether by the first entry or otherwise, is asserted, it may be examined.</p> <p>A clerical error by the register of the land office in the location of a claim to pre-emption, under the Act of 25th February, 184T, will not defeat the* pre-emption claim, otherwise good, in favor of a patent issued to a third party \ a fortiori if that party knew of the pre-emption ciaim at the time of effecting his entry.</p> <p>The rule, 18 Peters 486, that “ when the title to the public land has passed out of the United States by conflicting patents, there can be no ohjection to the practice adopted by the courts of a State to give effect to the better right,” applied and affirmed as applicable to patents eminating from the State.</p>

PPEAL from the District Court of the parish of Assumption, Gole, J.' The mere fact of 'plaintiffs going to a free State with the consent of their owner, entitled them to their freedom, 7 L. R. 170 ; 2 Martin N. S. 401; 9 L. R. 473 ; 13 L. R. 444; 1 Ann. 473; 2 Ann. ISO, and numerous other cases.

<p>When, a deceit is practiced on a vendee, whether he gains by or loses the subsequent sale of the thing, his right to the action quwiUmwioris remains perfectly the same.</p>

<p>A vendee is deemed to have purchased at his own risk, who buys a slave with an apparent defect; there being no misrepresentation or concealment of the truth on the part of the vendor.</p> <p>A vendee, seeking rescission of the sale of a slave suffering at the time of sale from a flesh wound, should show that he had taken due pains to heal it, or prevent its producing permanent lameness, working the slave in an employment- calculated to aggravate the wound, shows a want of proper care.</p> <p>O. C. 2497-8.</p>

from the District Court of the Parish of Carroll, Snyder, J. The exception by plaintiff was properly sustained by the court a quo. The defendant, himself, in his answer claiming the marital portion, shows that the succession of his deceased wife, has not been liquidated. 8 An. 488. 9 R. R. 101. 17 L. R. 374. O. C. 2369. The defendant’s rule (p. 16) was filed after the judgment in the cause had . been signed and was final.

<p>The charge of “ inflicting a wound less than mayhem,” is not necessarily included in a charge shooting with a dangerous weapon, with intent to kill and murder.</p> <p>In an indictment upon a statute, it is necessary that the defendant should be brought within all the material words of the statute, and nothing can be taken by intendment.</p> <p>The offence should be charged either in the language of the statute, or in language of equivalent import; and a verdict not responsive to the charge, will not authorize a judgment.</p>

<p>from the District Court of West Feliciana. Sterling, J.</p> <p>cited 0. P. 558, Nichols v. Alsop, 10 La. 409. Holmes v. Steamer Ghieftain, 1 An., 136. Union Bank v. Roberts, 9 R. R. 177. loen v. Sullivan, 2 Ann. 292. Wilkins v. East Baton Rouge, 10 R. R. 57.</p>

<p>from the District Court of the parish of Assumption. Gole, J.</p>

<p>The doctrine that the malice aforethought must be specially charged in the conclusion of an indictment for murder, has been well settled in the Common Law of England, and has been adopted in the criminal jurisprudence of this State by the Act of the Territorial Legislature, in 1805.</p> <p>The words “ of his malice aforethought,” in the conclusion of an indictment; for murder, is not an “ unnecessary prolixity ” of the Common Law, referred to in the Act of May 4th, 1805, Sec. 83, and this though the words “ feloniously, wilfully( and of his malice aforethought,” are thrice repeated in the body of the bill of indictment.</p> <p>The verdict must be responsive to the charge, or else the judgment will be reversed.</p> <p>Where the indictment was technically defective as an indictment for murder, in consequence of which the judgment was arrested; yet, where the verdict of the jury clearly indicated that the jurors believed the prisoner guilty of murder, the Supreme Court ordered him to be detained in close custody until the next session of the grand jury for the parish, in which he had been tried.</p>

<p>A judgment will not be amended for the relief of appellee, unless demanded in answer to the appeal. 1'he asking of relief in argument will not avail</p>

<p>PPEAL from the District Court of the Parish of Pointe Coupee, Cooley, J.</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>PPEAL from the District Court of East Baton Rouge, Robertson, J.</p>

<p>A curator ad 7ioc appointed by the court to represent the interest of minors, who were legatees under a will, which the executor and the other heirs at law had sued to set aside, cannot be paid his fees out of the legacy to the minors, which, by the terms of the will, was specifically appropriafed to certain designated purposes for their benefit.</p>

<p>A mandamus will not be awarded to compel a judge of the District Court to allow a premptory exception to be filed, or to compel him to grant an appeal from the refusal to permit the exception to be filed. The proper practice is to reserve a bill of exceptions to the refusal of the judge, to allow the premptory exception to be filed, in order to bring the matter to the notice of this court, upon an appeal which the party might be entitled to at a subsequent stage.</p> <p>The mere refusal to allow the filing of a plea is not, of itself, such a judgment as entitles the party offering the plea to remove the case at once from the court of the first instance by appeal.</p>

PPEAL from the District Court of East Baton Rouge. 1lobertson, J. 1st. The Statute of 1829 contemplates the offence of shooting with intent to hill as necessarily personal. 2d. The Statute makes no provision as to aiders or abetters, or accessories, before the fact, and applies only to the person making the assault. 3d. There must be a description of the offence in the words of the Statute creating it. Art. 52, State v. M. Lavahan. 4th.

<p>A married woman, though a public merchant, cannot be proceeded against by suit in the absence of her husband, without an authorization of the Judge before whom the suit is brought. C. P. 118 i G. 0. 12S.</p> <p>The rule given in Dxupwy v. Ilimt, 2 An. 564, as to citation of absentee? ^by service upon a curator ad hoc reaffirmed.</p>

<p>from the District Court of the parish of East Baton Rouge. Bob. ertson, J.</p>

<p>A donation above the disposable portion, which is by the terms of the will remunerative and. not beyond the value of the services will be sustained.</p> <p>A nuncupative will by public act, should show on its face the fulfillment of those essential formalities, of which the Code requires express mention. Therefore the statement in the will that the same having been read in an audible voice by J. Hone, of the subscribing witnesses, and by me, Notary, in the *c presence of the testatrix” does not necessarily imply that it was read in presence of the witnesses, and in a will by public act that ingredient cannot be supplied by testimony.</p> <p>An instrument although invalid as a nuncupative will by public act, may be good as a nuncupative will under private signature. All the requisites of a will of the latter class are specified in 0. 0.1574 and 1575. Express mention of the fulfillment of these requisites is not demanded. Proof aliunde maybe received. Oral proof is admissible that a testament of the latter class was “ read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator,” and this is sufficient without its being so stated in the testament.</p>

<p>PPEAL from the District Court of the Parish of Terrebonne. Cole, J.</p>

<p>The Citizens’ Bank having seized and sold the property of the defendant on a credit of twelve months, and it having produced a larger sum than the debt, a bond for the balance was given to the sheriff, which, in his return upon the writ under which he sold, he states he holds subject to the further order of the court in the present suit. This suit is a revocatory action to annul judgments and to impeach a tutor’s account for fraud ; it is coupled with a prayer for an interlocutory order to the sheriff to retain in his hands the surplus proceeds of the reputed sale in the Citizens’ Bank suit, which order was granted by the District Judge ex-pcM'te. The defendants filed an answer, denying the frauds charged, and setting up their claims. Subsequently, a consent was entered as follows : “ Continued with understanding that the twelve months’ bond is to remain unexecuted until decision.”</p> <p>Held: 1. That an entry of record by the counsel, u Continued with understanding that the twelve months’ bond is to remain unexecuted,” is an agreement not to issue execution on the twelve months’ bond.</p> <p>2. That after the cause has been at issue on the merits for more than two years, an exception, that summary proceedings to obtain payment by preference out of funds of a judicial sale are improperly coupled with a revocatory action, is filed too late to be entertained.</p> <p>3. The answering to the merits upon the charge of fraud, coupled with the agreement regarding the bond, is a waiver of technical objections.</p> <p>4. The answer i? a waiver of objections as to misjoinder of parties and improper cumulation of various matters in the petition.</p>

<p>from the District Court of the parish of East Feliciana, Sterling, J.</p>

<p>The rule, “ Quce temporalia sunt ad agendum perpetua ad excipiendum,” applied in answer to the plea of prescription setup by co-proprietors.</p>

<p>from the District Court of the Parish of Carroll, Snyder, J.</p>

<p>Service of citation on defendant’s overseer and at his plantation, is sufficient.</p> <p>It is the settled rule that a creditor «nay enforce the payment of his claim against a succession, either by direct action, or by way of opposition to the account of the executor.</p> <p>An under-tutor of minors is not a necessary party, where their natural tutor is a party and has no interest adverse to that of the minors.</p>

<p>Plaintiff and Appellant, Miahel S Gillmore.</p> <p>cited 7 Oowen, 585; 12 Pick. 184; 15 Wend. 397; 4 M. 10; 8 Paige; 9 Wend. 571; 7 Bacon’s Abridg. verbo nuisance, O.</p>

<p>An indictment charging embezzlement of a “lot of lumber,” or a “ certain lot of furniture,” &e., “ certain tools,” &c., is bad for uncertainty of description of the articles embezzled.</p>

<p>In an action of slander, if defendant pleads a general denial, he will be precluded from setting up a justification.</p> <p>The fact that the slanderous words were used in a public assembly, e. g., at a session of the Grand Division of the Sons of Temperance, is entitled to no consideration in mitigation of damages, where the defendant does not appear to have uttered the words in public debate, or in the discharge of any official duty imposed upon him.</p>

<p>In a redhibitory action when defendant cites his vendor in warranty, and there is judgment for the defendants generally, plaintiff must include the warrantor in his appeal bond or the appeal will be dismissed.</p> <p>Citation of the warrantor to answer the appeal, without an appeal bond in his favor, is not sufficient.</p> <p>All parties interested in maintaining the judgment appealed from must be included in tire appeal bond.</p>

<p>PPExlL from the Fourth District Court of New Orleans, Reynolds, J.</p> <p>cited: O. C., Arts. 2181, 2, 8,4, 6; Palfrey v. Sis Creditors, 8 R., 278; Citizens' Bank v. Buckler, 8 R., 443.</p>

<p>A party who obtains an ord ex* for a devolutive appeal and fails to furnish bond as required, and to file the transcript in the Appellate Oourt during the term at which the appeal was returnable, will beheld to have abandoned his appeal, and should not be allowed to renew it at a subsequent term.</p>

<p>“ This is to certify, that I have this day made a full and final settlement with W. JI. Gaulden, which is in full of all and every demand up to this date. (Signed,) Jolm Jeter.”</p> <p>Such an instrument, unexplained, held to be insufficient evidence of the payment of a debt due by Gamlden at the date of theinstrument, to an estate of which Jeter was administrator.</p>

<p>A purchase of real estate of a succession, made under an order of sale obtained ex-parte, and without notice to the curatrix or to creditors, is invalid and will be set aside.</p> <p>A third opponent who claims title to the property against which a mortgage creditor is proceeding, and whose title has been declared null, is without interest to litigate the correctness of the judgment as between the plaintiff and defendant.</p>

<p>PPEAL from the District Court of St. Tammany, Watterston, J.</p>

from the Eourth District Court of New Orleans, Reynolds, J. cited. Davis v. Davis 8 An; — Griffith v. Oaldwell, 1 Rob; Mechanics'1 Bunk v. Walden, 7 Rob ; Lopez v. Bos-mell, 7 L., and made the following points: The confirmation of the judgment by default was irregular, because, 1. There was no proof-of signature. 2. Neither the notes nor mortgage were filed in evidence. 8. There are no reasons for judgment. 4.

<p>from the Second District Court of Now Orleans. Lea, J.</p> <p>cited Chitty on Contracts 113; 8d Ala. 698; 7 Ann. 372: C. 0. 2452 ; 13th Pickering, 182.</p>

PPEAL from the Fifth District Court of New Orleans. The additional stipulations we copy verbatim from the agreement on file, p. 42 : “ The estate of Gordon is to be credited with the full amount received, or that may be received, by said Dunlop, Moneure & Go. for the one-third of the entire crops, or anything else arising from or out of said plantation, slaves, &c., by sale or otherwise.

<p>PPEAL from the Seventh District Court of East Feliciana, Sterling, J.</p>

<p>from the District Court of the parish of Iberville, Robertson, J.</p>

PPEAL from the Third District Court of New Orleans, Kennedy, J. The evidence offered to. sustain plaintiff’s demand consists, 1st. Of the extract from the schedule in the case of O. T. JDunbar v. Ris Creditors, filed 27th of March, 1840, which is as follows, to wit: To John Glenn, of Baltimore, for balance of his acceptance of my draft for $2750, receipted and paid by him for my accommodation (about) $2000; and, 2d. Of the letter of G. T. Dunbar, dated December 17, 1849,…

from the Second District Court of Plaquemines. Rousseau, J. But the Court finds another objection to the proceeding, as it was a partnership between the parties, and to be settled as such; and one partner cannot sue another for any specific claim in relation to it, but there must be a general settlement of all partnership accounts.

<p>from the Second District Court of New Orleans, Lea, J.</p>

<p>A purchaser of land, who has been evicted, is not entitled to recover from his wam^tor,. as- dhm-ages, the increased value of the land at the time of eviction.</p> <p>0. 0. 2482.</p>

<p>from the District Court of East Feliciana, Sterling, J.</p>

<p>PPEAL from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>from the Fourth District Court of New Orleans. Reynolds, J.</p>

<p>from the Eirst District Court of New Orleans, Robertson, J.</p>

<p>from the First District Court Of New Orleans, Robertson, J.</p>

<p>PPEAL from the District Court of Lafourche Interior, Oole, J.</p>

<p>from the District Court of East Feliciana, Merrielc, J.</p>

<p>from Eifth District Court of New Orleans, Augustin, J.</p>

<p>from the District Court of the parish of West Feliciana, Merriele, J.</p>

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

<p>from the District Court of the parish of Madison, Snyder, J.</p>

<p>1. The endorser of a note secured by mortgage is not entitled to executory process, without authentic evidence of the transfer to him both of the note and mortgage.</p> <p>2. To entitle attorneys in fact to orders of seizure and sale, authentic evidence of their authority must be produced.</p> <p>3. And where the obligation is prima facie, prescribed, there must be authentic evidence of the interruption of prescription.</p>

<p>PPEAL from the Second District Court of New Orleans, Lea, J.</p>

<p>The court; iu this case refuser^to enforce a claim which was stale, and which had the appearance of being “ trumped up ” against a dead man’s estate.</p>

<p>PPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>Where there is no bill of exceptions in the record, and no assignment of error apparent on the face of the record, the judgment oí the District Court will be affirmed.</p>

<p>An association u to relieve the wants, comfort the suffering, and promote the happiness of their fellow-creatures,” is a charitable society, and exempt from taxation.</p>

<p>Where plaintiff claims $800 and ten per cent, damages, but alleges no ground on which damages are claimed, and offers no proof in support of the damages, the claim for damages will be regarded as nominal, and the Supreme Court is without jurisdiction in such case.</p>

<p>The Register of Conveyances is not responsible in damages, to a purchaser at Sheriff’s sale, on account of his false certificate, that the title to the land sold was in the defendant in execution, when the purchaser ought not to have been misled by the certificate, and when his own chain of title afforded him the means of knowing, that he held previously, a title good as against the one sold.</p>

<p>A specific return of “ IfoiUa'bon-a” on execution against th<5 defendant is not necessary to fix the liability of the surety on appeal bond.</p> <p>Where there has been a change in the condition of the defendant, so that the creditor cannot take out execution, or make a levy under execution, the liability of the surety on the appeal bond, is at once fixed.</p>

<p>A verdict of a jury for plaintiff in accordance with a former judgment of the District Oourt in the same case, upon a doubtful question of fact; held to be sufficient to authorize an affirmance by the Supreme Court of a second judgment based upon the verdict, though the plaintiff failed to present clear and indisputable proof of a right to recover.</p>

<p>from the Third District Court of New Orleans. Kennedy, J.</p>

from the Parish Court of West Feliciana, Weems, J. The record does not disclose by what counsel defendant was represented in the Supreme Court.

<p>*l'he beneficiary heir is entitled to the administration of a succession, in preference to a creditor though the former be not a resident of the State.</p> <p>It suffices that the heir be actually present, when the application for the administration is made. 0.1035,1037,1088.</p>

Muse argued: In this case the appellee, S. Bloom, moves the court, for a re» hearing upon the following grounds, viz: 1st. In the opinion the court delivered in this case, there is, in the humble opinion of the appellee’s counsel, the following error of law, viz: The court have cited, in support of the opinion delivered, the Acts of 1843, chap. 145, p, 97 — tutors of minors, residing and qualified in other States, are expressly authorized to exercise their functions of…

from the Second District Court of New Orleans, Lea, J. 1.Proceedings to annul the acts of the wife for want of authority, can be instituted by the hushand. Art. 131 O. C. All donations made between married persons, during marriage, are always revocable.

<p>An action will lie against the incumbent of an office, for the fees and emoluments of the office received by him, after his successor has been duly qualified to act, and after demand made for the surrender of the office.</p>

<p>from the First District Court of New Orleans, Robertson, J.</p> <p>cited Rex v. Oxford,, S. 0. T. R. 525 ; Art. 0. P. p. 11, et seq.; 1 Hale, P. C. p. 33; TJ. 8. v. McGhee, 1st Curtis U. S. 0. R.</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p> <p>cited: Koch, & MaOall v. Slatter, 5 An. 739. 2 An. 67. Harvey v. Kendall, 2 An. 748. 6 An. 396. C. C. 2496, 2504.</p>

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

from the Sixth District Court of East Baton Rouge, Robertson, J. Kelly, Gonynghwm & Go., now represented by the plaintiffs in this suit, having obtained a judgment, on account of a community debt, against the defendant, Charles H. Davis, for $8,484 43, and interest, brought the present action against both the husband and the wile. The grounds for such action, as set forth in the petition, are four-fold : 1.

<p>A sheriff who had a plantation under seizure by fi. fa. was enjoined from selling. Pending the injunction he shipped the crop to defendants for sale, and subsequently died. If&d: that the administrator of the deceased sheriff is not entitled to recover of defendants the proceeds of llie sale of the crop, without the assent of the deceased sheriff’s successor in office, and of the parties to the injunction suit and others in interest. All official trusts pass by the death of the sheriff to his successor in office and not to his personal representative.</p>

<p>In proceedings for the opening of streets, under the Act of 3d of April, 1832, the city of New Orleans is not barred, by the 6th section of said Act, from appealing from the judgment of the District Court affirming the report of the Commissioners of Assessment after the lapse of two calender months from the date of the Judgment.</p> <p>An appeal will not be dismissed on the ground that it was rendered on motion of apper "t, when it appears that it was rendered on motion of one who acted as attorney for the appellant and appellee.</p>

<p>The assessment directed by the 3d section of the Act of 1832, in reference to the opening and improvement of streets, applies exclusively to the property to be expropriated. The Commissioners are not authorized to include in such assessment their own fees and otner expenses.</p>

<p>from the District Oourt of Concordia, Cooley, J.</p>

<p>An unofficial copy of a power of attorney may be given in evidence, where the party offering it, cannot procure the original.</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>In an order of court granting a suspensive appeal it is not necessary to fix the sum for which the bond is to be given; the law fixes the amount. Article 574 O. V. refers entirely to devol/ulvo e appeals.</p> <p>The description in the petition of appeal of “final judgment” is sufficient. This description identifies the judgment mentioned in the appeal bond, of which judgment the date is blank in the bond.</p> <p>This court will not enquire into the sufficiency of the security offered for the appeal. It is the province of the court of the first instance.</p>

from the Sixth District Court of New Orleans, Cotton, J. As to the attempted distinction in relation to absentees, where both parties reside out of the State, it is sufficient to say that this court has repeatedly held that all persons who are out of the State, and may never have been in the same, are considered and declared to be absentees. 15 L. R., 85; 2 An., 636; 14 L. R., 447; Civil Code, Art. 3522, No. 3.

<p>This is a question of fact. Defendant contended that he was a capitalist who advanced money to plaintiff at an agreed rate of discount, upon the bills delivered to him, as plaintiff wanted money from time to time. Plaintiff, on the other hand, contended thathe dealt with defendant as a broker, that the bills were entrusted to him in that capacity, with authority to get them discounted, etc.</p>

from the Fifth District Court of New Orleans, Augustin, J. An expression of the opinion of your honors upon the following points, raised, by the issue between the parties, would not only decide this cabe, but many others turning upon the same questions, and would avert much litigation. I. The ordinance violates Article 123 of the- Constitution of the State, and the laws of the State incorporating the city, requiring taxation to be “ equal and uniform.

<p>The remedy by attachment does not embrace cases of prospective conditional and contingent liability ; it must be confined to cases where, in addition to the other requisite circumstances, there is an ewisUng debt) although the period of its payment has not arrived. Therefore an attachment will not be maintained against the property ot the drawer of a bill of exchange until its maturity, although he may have suspended payment before the attachment j for, until maturity, the drawer is not the unconditional debtor of the holder.</p> <p>The expression “ acceptance waived” in a bill of exchange dees not strip the instrument of the character of a bill of exchange, or deprive its signer of the character and rights of a drawer.</p> <p>Article 2049 of the Code, whereby “ debts due by the insolvent shall be deemed to be due, although contracted to be paid at a time not yet arrived,” does not reach conditional obligations.</p>

from Ninth District Court of Concordia, Frn'rar, Eirs.t. — That an intestate estate is not vacated for want of acceptance, but for want of some one known who can accept. Second. — That there can be no such' thing as a vacant estate, where there are forced heirs known, present'or represented.

<p>PPEAL from the Sixth Judicial District Court, parish of East Baton Rouge,</p>

<p>Where the recital in an attachment bond, showed the suit to have been brought in the Commercial Court, which court was not in existence at the date of the bond. Held,: That the error is fatal.</p> <p>A party’s appearance by attorney to move for the dismissal of an attachment and to except to the jurisdiction of the court over him, cannot be construed into a submission to the jurisdiction.</p>

from the First District Court of New Orleans, Robertson, J. The surety on a recognizance in a criminal case, after the forfeiture of the recognizance has no right to surrender the principal in order to exonerate himself from liability. Johnson, 3 Oush. 454.

PPEAL from the Sixth District Court of New Orleans, Colton, J. The case of M. M, Miller, as presented by his petition, is simply this: Mandeville Marigny, acting in his capacity of Sheriff of the parish of Orleans, seized property belonging to M. M. Miller under a writ of execution issued in favor of A. Rebates, alias Revados, v. M. M. Miller from the Second District Court of New Orleans. The amount set forth in the execution was $387 61.

<p>A telegraphic dispatch, by a factor to his consignor, in the TCords “ ive trill honor your sight check for $2,000, being excess of remittances to meet acceptance” is an unconditional obligation to honor the sight check of the consignors for that amount, and a third person Who purchases such check will be entitled to recover of the factors, although an attachment may have been levied in their hands by a creditor of the consignors.</p>

<p>If a deposit be made of money, not sealed up in a package, but counted out and extended on the pass book in the form of an open account, and credited as cash to the depositor, and the face of the account shows that there was not a deposit of bills, or coin or packages to be restored identically5 the deposit is at the risk of the depositary, and it cannot be regarded as a real deposit. Such a deposit creates between the parties the relation of a debtor and creditor, and gives to the deposi-taries the right to use the money in the course of their business.</p>

<p>The course of business establishes the relation of debtor and creditor, between the banker and the owner of irregular deposits. The right of the depositary to use the money thus deposited, is a part of the contract between him and the depositor. Whereas, he who collects or receives or takes a deposit of money in the sense of the 10th Section of the Act of 28th March, 1810, has not the right to use it.</p>

<p>There are certain cases where the provisions of Art. 575 of C. P., which require that the appeal bond to be given for a suspensive appeal shall exceed by one-half the amount of the judgment appealed from, is inapplicable.</p> <p>The expressions of that Article simply imply that the judgment to necessitate such a bond must be one which the appellant has been condemned to pay, and do not seem applicable to the case of a . judgment where the appellant is condemned to pay nothing.</p>

<p>The term “ money deposited,” used in the 10th Section of the Act of the 28th March, 1840, does not include money deposited with an understanding that the person receiving it shall receive no com. mission for its care, — may mix it with his general funds, and employ it in his business, — but with the understanding that he shall give credit in account for its amount, and be ready to pay on de_ mand.</p>

<p>from the District Oourt of East Baton Rouge, Robertson, J.</p>

<p>APPEAL from the Fourth District Court of New Orleans, Waterman & Co., intervenors, Reynolds, J.</p>

<p>An appellant cannot be heard upon a point of cost3 here, when he has neglected to call the attention of the court of the first instance to it.</p>

<p>An attaching creditor can have no higher or better right to the property attached than his debtor, and, where Floyd, the drawer of a bill of exchange, executed a mortgage and pledge of property in Kentucky, in favor of and to secure his accommodation endorsers to the bill, and there delivered possession of the property to them, by whom it was shipped to New Orleans, with instructions to the consignees to realize from the sale the amount of the bill and appropriate the sum to its payment ; and the amount was realized by the sale, and with the consent of Floyd, information was given by the consignees of their intention to appropriate a sufficient amount of the proceeds of the sale to pay the bill, as instructed, and the Bank of Kentucky having discounted the bill, was held to be entitled to be paid in preference to an attaching creditor of Floyd.</p>

<p>The expressed will of a testator roay be restricted by reputing as not written impossible conditions and conditions contrary to the laws; but the will cannot be enlarged by giving to a legatee a higher title than the testator intended to give.</p> <p>A clause in a testament authorizing a le gatee to spend for her own private use all the balance of the testator’s estate, b®th real and personal, does not confer the right of disposing of the property by testament.</p> <p>Effect must be given to the will of the testator according to his intentions, so far as those intentions can be legally carried out.</p> <p>A testator has clearly a right to provide that the usufruct of the wife might be established for her greater benefit on the proceeds of the sale of his property, rather than on the property itself— but this usufruct must be one in the legal sense.</p> <p>Where the usufructuary under the will has a right to the usufruct of the property itself, or to require that it be sold and her usufruct established on its proceeds and prefers the latter, the sale should be made at public auction, to the highest bidder, and after public notices by advertisement.</p>

from the Fifth District Court, Parish of Lafourche, Randall, J. The following printed arguments were filed : “ The plea of error presents itself next.” “We hold to the ground assumed in the Bill of exceptions. If this moans of defence could not avail Marcháis, no more can it avail the sureties. This seems to follow from what is inherent in the very nature of the contract of suretyship.

rUHE following argument for a re-hearing was filed by C. A. Johnson and JL George Eustis : The assets sold amounted to some $80,000. The deficiency proved, according to the opinion of the District Judge, amounted to upwards of $23,000.

from the Second District Court of New Orleans, Lea, J. who intervenes in the suit: INTERVENTION OF A. ROGER, FRENCH CONSUL IN NEW ORLEANS. The French Consul in Now Orleans founds his right to intervene in this case, upon the 4th Article of the Consular Convention between his Majesty, the Emperor of the French and the President of the United States, dated Washington City, the 23d of February, 1853.

<p>An accused, when admitted to bail, is in lega^contemplation delivered over to the custody of his surety. The surety becomes his jailor, and has a right to take and surrender him in discharge of his liability, at any time before the forfeiture of the bond.</p> <p>The better opinion is, that a warrant is unnecessary to protect the bail in arresting his principal. At common law, the bail may command the assistance of the Sheriff and his officers.</p> <p>It is unnecessary that the description of an indictable offence charged in a bail bond, should be as accurate and as technical as in an indictment.</p> <p>It doe3 not affect the validity of a bail bond, that an indictment was actually found against the accused for an offence of a higher grade,but which included the offence described in the bond.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>Where a note was dated at New Orleans, and there was no proof that the holder at maturity knew that the residence of the maker was elsewhere — Held: That a protest in New Orleans was sufficient.</p>

<p>PPEAL from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>Article 2512 of the Civil Code, must J»e construed in connection with the Articles 3516, 3484 and the term of limitation imposed by it, upon actions of this class, may therefore be interrupted by a judicial demand.</p> <p>The vendor’s obligation of warranty as to the quality of the thing sold is a debt, in the sense of that term, as used in the English text of Article 3516 of the Code.</p>

from the Second District Court of New Orleans, Lea, J. The Act of the Legislature of 1853, to be found at page 287 of the Acts of that… Held: the following doctrine, p. 528. “It is very true that a corporation can have no legal existence out of the State boundaries of the sovereignty by which it was created.” “ But although it must live and have its being in that State only, yet it does not by any means follow that its existence will not be recognized in other places.” “…

<p>^^PPEAL from the Second District Court of New Orleans, Lea, J.</p>

<p>A corporation is liable for damage occasioned by the employee of their stewards.</p>

PPEAL from the District Court of Lafourche, Sterling, J. The proceedings against Marcháis were based on Sec. 48, B. & C., Dig. page 490, which gives to creditors, in case their debtor absconds, the right of sequestrating his effects and putting themselves into possession. This is the sole object of the law, it merely affords to creditors a relief, and points out the way by which they can bo paid.

<p>A friend of Mrs. Toby, whose husband was in embarrassed circumstances, advanced money to invest for her benefit. Some portion of the money thus advanced was appropriated to the purchase of the property which has given rise to this suit, some of it was appropriated to its improvement. The title to the property was taken in the name of Lockett, but for many years Mrs. Toby and her family resided on it, and she, to all appearances, was the owner. Lockett, set up a claim against Mrs. Toby for rent, she disputed the claim and he denied her title, which was, at once made the subject of litigation between them. '1 he Court sustained Mrs. Toby. The present plaintiffs, having recovered a judgment against Lockett, and having recorded it, before the decree in favor of Mrs. Toby in the suit for the property was rendered, brought the present action against Mrs. Toby, alleging that they had, by virtue of their recorded judgment, while the title stood in Lockettname, a mortgage to secure the payment of their debt. But it appearing that plaintiffs were always aware of the true situation of the parties in relation to the ownership of the property, and as it did not appear that plaintiffs credited Lockett upon the strength of his apparent ownership \ it was held that Mrs. Toby's title was not affected by the mortgage of the plaintiffs against Lockett,</p>

<p>The Courts of Louisiana will not give effect to a marriage or to a marriage contract, entered into in France, between a free white person with a person of color.</p> <p>C. C. 95,152.</p>

<p>In a suit by wife to annul a judgment against her, it is not sufficient to show matters which might have been a good defence to the action. It must be alleged and proved that the judgment was obtained by fraudulent or improper means.</p> <p>Suit was brought on an obligation made by the wife with her husband’s authorization; both husband and wife were cited; a judgment by default was rendered and afterwards confirmed. Held,: The effect of the default was to create a tacit joinder of issue as to both husband and wife, and to justify a final judgment against the wife.</p> <p>0. P. 605, 118.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

from the Fourth District Court of New Orleans, Reynolds, J. The only point in this case appears to be that by the laws of the State of Alabama the testator could not thus emancipate his slave. This question has been so ably argued and discussed in the case of Ross el al. v. Verlner el al., in 5 Howard’s Miss. Rep., 805, and in the case of Alwood's Heirs v. Beck's Administrator, 21 Ala. Rep., 590, that I will not trouble the court with multiplying authorities.

<p>^^PPLIOATION for a mandamus to the Sixth District Court of New Orleans.</p>

from the First District Court of New Orleans. We beg leave further to observe, that by the provisions of Art. 519, C. P., the jury possess the right of giving a general verdict determining both the facts and the law of the case; but this is a general verdict, which does not condemn Goeler, the security, to pay any thing.

<p>Under the Consolidation Act of 1852, writs of quo wcM'rcmto may issue at any time, and at the instance of any citizen, to try the right of any Mayor, Recorder, or other officer of the city of New Orleans, to the office which he holds.</p> <p>A resolution of the late Board of Assistant Aldermen was adopted, declaring “ that Clement Homos, Recorder of the Second District of this city be, and he is hereby presented to the Board of Aldermen for impeachment, upon the following charges,” &c. — which were specified. Held: .That from the time of the adoption of the resolution an impeachment was pendi/ng in the sense of the law.</p> <p>The Act of Consolidation which confers upon the Board of Aldermen the sole power to try all impeachments, is not unconstitutional.</p>

<p>an application for a mandamus to the Second District Court of New Orleans,</p>

<p>from the District Court of the parish of West Baton Rouge.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

N an application for a mandamus. In support of the application for a mandamus in (he above entitled case, the court are referred to the following authorities, to wit: 1st. Martin’s Reports, by Morgan, marginal page 217. 2d. Hale’s Pleas of the Crown, pp. 148-129. Blaclcstone’s Commentaries by Chitty, vol. 2, pp. marginal, 298-9. 7th An. LongwortJipraying for a writ of habeas corpus, pp. 247-3 -9.

<p>by Westmore from the First District Court of New Orleans, Robertson, J.</p>

<p>A PPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>PPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p>

from the District Court of the Parish of Plaquemines, Rousseau, J. 1. It is an attempt to change the proceedings via exeautiva into via ordi-naria, without plaintiff’s assent, either expressed or implied. 2 An. 488. 2. The proceedings are not in conformity to the mode prescribed by law. The only remedy, authorized by the facts of the case, is that subsequently-resorted to, viz : an injunction. O. P. 738 et al. 4 Rob. 492. 2 Rob. 90.

<p>A broker sold bills of exchange which were not paid at maturity. He afterwards assisted the accexifcors in effecting an arrangement to secure their payment by mortgage. Held, that in the latter transaction he acted as an attorney in fact, and not as broker, and therefore, he could not recover a broker’s commission for the service. 0. C.1986, 2960, 2986.</p>

from the District Court of Tensas, Snyder, J, The petitioner, a citizen of the United States, and widow of Henry L. Connor, deceased, of the State of Mississippi, sues for community in “ Arcóle Plantation,” an estate in parish of Tensas, of the succession of said H. L. Conner, deceased.

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

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>The Supreme Court can not pass upou points not reserved by bills of exception, and which can not be assigned as error.</p> <p>Wh re the prisoner had pleaded to an indictment for murder on a former trial — held, there was no necessity for a new arraignment.</p> <p>Where an indictment for murder alleges in one count the death of the party killed to be by beating, , and in another count by drowning, and each count lead to the same conclusion, the State will not be compelled to elect between the counts — the mode of killing not being material to the constitution of the offence.</p> <p>Evidence of tacit admissions of a prisoner should be received with the greatest caution. This sort of evidence should not be received unless it consists of direct declarations of that kind, which naturally call for contradiction, and which, by his silence, the party acquiesces in.</p>

<p>The charge of the Court to the jury should not be excepted to generally. The objectionable parts should alone be noted.</p> <p>The accused asked for instructions to the effect that a person believing his life to be assailed and in immediate danger from another, is excusable in law in resisting and killing a third person who interferes to disarm him forcibly with a view to bring about a fight without weapons, between accused and another, after being warned to stand off, Held: the instructions make the party’s justification depend upon a mere belief of imminent danger, without stating that there should be reasonable grounds of belief; nor do they present the case of a third person confederating with the first as. sailant, or aiding him to make a dangerous assault upon the accused, which would be necessary to sustain his plea of self-defence. The refusal to give the instructions was proper.</p> <p>The wrong doing of a third person who interferes in a fight between two, not to prevent, but to encourage it, will not excuse either of the combatants for killing him.</p>

<p>from the District Court of Jefferson. Burtfie, J.</p>

<p>Challenges for cause must be made before the juryman is sworn.</p> <p>On the trial of a slave, under the Act of 1846, it is competent for the jury to decree that he should “ be sentenced to perpetual wn^risormmt, and it is to be inferred from such a decree that the jury intended the convict to be sentenced to hard labor for life in the State Penitentiary. The sentence by the magistrate of the convict to the Penitentiary for life is authorized by such a verdict.</p>

PPEAL from the Eourth District Court of New Orleans, Reynolds, J. If parties agree to leave a case to be decided to persons whose report shall be the judgment of the court, no formalities nor oath required ; Taloott v. Ma-Ribben, 2 Martin, R. 804. Though that case was decided under the old code, yet its provisions were the same as in the new code ; see old Code, page 442, Articles 12 and 13, -which required oath from amicable compounders.

<p>Where a wife by her will has limited the usufruct of her separate estate to her husband until his second marriage, the limitation is not unlawful or void as being in restraint of marriage.</p> <p>Devises in restraint of second marriages are not opposed to the policy of our law, nor are they contrary to good morals.</p>

PPEAL from the District Court of the parish of Assumption, Cole, J. On the 19th of September, 1830, the Lite Joseph L. De Billisle and Marie Azile Dulion, then widow Augustin Le Blanc, entered into a marriage contract, by which, after enumerating the property respectively belonging to each, the said Joseph made to the said Marie, the following donations: “ En consideration du futur mariage lefulur époux declare faire entre vifs pure et simple et irrévocable a la future…

<p>from the Fourth District Court of New Orleans, Strawbridge, J.</p>

<p>ElUs was the creditor of Fisher^ Burgess & Co. The firm of King <& Fisher was the creditor of ElMs. The firms of Fisher, Burges* <& Co. and King <& Fisher, are in legal contemplation two distinct ideal persons. Up to the date of the plea of compensation, there was no assignment by K. & F. to F., 13. & Oo., or other act by which the ownership of the debt due by ElMs was divested out of the firm of Kmg <& Fisher, and became vested in F., B. & Oo. Compensation did not take place by mere operation of law. By issuing executions on their respective judgments, the parties considered the debts as not compensated, by mere operation of law.</p> <p>Should it be conceded that King & Fisher assented that • Fisher, Burgess <& Co., of which firm ' they were partners, should treat the claim as their own, such assignment, resting only upon implication from the plea, must take date from the filing of the plea.</p> <p>The notification of the assignment of the judgment by Filis to Milbanh & Co. having taking place before the filing of the plea, Fisher, Burgess & Co. have no right to plead in compensation against MübaAih <fb Co., a claim against Ellis, acquired after ElUs made his assignment.</p> <p>The assignment to MUba/iih c& Co., although made with the understanding that they should credit ElUs, the transferer, with whatever they could collect, is not unlawful.</p> <p>Milbanh <& Co. having previous to the assignment seized the judgment obtained by ElUs v. F. B. & Co., and having caused it to be advertised for sale, the amicable transfer to prevent a sacrifice, does not constitute an unjust preference.</p> <p>The mere factthat.E$& confessed judgment in favor of Milbanh & Co., is not conclusive, though it might be considered, with other circumstances, as an indication of fraud.</p> <p>Wheeler was a member of the firm of Wheeler & ElUs, and was called on as a witness by Stone and F., B. & Oo. to establish that the judgment due by Wheeler SElUs had been extinguished, by a payment by Ellis, his partner. Reid: That on the score of interest, he was not a competent witness.</p>

<p>The legal interruption of prescription spoken of in Articles 8484 and 8516 of the Civil Code takes place only when the debtor has been cited.</p> <p>An exception that all the joint co-obligors were not joined must be plead in TAmme UUs.</p> <p>Where the obligation is nominally joint, but the evidence shows that one party is surety to the other, there is no necessity to make them both pavties to the suit.</p> <p>The objection that the security to an appeal bond is a non-resident of the parish must be made in the lower court. A cause will not be remanded that evidence may be taken as to the sufficiency of the security where no effort was made in the court of the first instance to test the sufficiency.</p>

from the District Court of Bienville, Jones, J. The vendees, the defendants, buying up a better title than that of the vendor, and the vendor being guilty of no fraud, he can only be compelled to refund to the vendee the amount of money he paid for the better title. Equity treats the purchaser as a trustee for the vendor, and acts done to perfect the title by the vendees in possession, -inure to the benefit of the vendor. 5 An.

PPEAL'from the District Ceurt of Claiborne, Jones, J. The general rule is that parole evidence cannot be admitted against or beyond what is contained in the written act, nor on what may have been said before or at the time of making it, or since: C. C. 2256.

<p>“ Errors in fact in the motive and in the law,” in signing a bond, must be put at issue by pleas which indicate that this defence is relied on, otherwise the Supreme Court will not take notice of an argument urged on those grounds.</p> <p>Parties cannot, in the Supreme Court, raise the objection to testimony on the ground that it was secondary, when that reason had not been assigned for its rejection by the District Court.</p> <p>The securities on a State Tax Collector’s bond are, as it was held in the case of Gopeley v. DirCk-grawe, each bound to the full amount for which they have obligated themselves.</p> <p>The payment of interest, at the rate of two per cent, per month after defalcation, is part of the Tax Collector’s obligation for which the sureties must respond'.</p> <p>Interest can only be exacted of the securities on a Tax Collector’s bond from the time that they were put in default.'</p>

<p>In an action by the holder against the endorser of a note, the maker is not a competent witness to prove that the endorsement was for his accommodation.</p>

<p>A person who gives his note under circumstances which imply 'a waiver of pre-existing claims against the payee, cannot, when sued on the note by the payee, set up such claim as the basis of a reconventional demand.</p>

<p>PPEAL from the District Court of Ouachita, JR. W. JRichardson, J.</p>

<p>from the District Court of Ouachita, BichardsonfJ. ’</p>

<p>from the District Court of Bossier, Bullarcl, J.</p> <p>cited Wharton, 897; 1 Chitty, Criminal Law, 666, note e.</p> <p>cited State v. Crosby, 4 An. 434; State v. O' Connor, 6 An. 398.</p>

<p>The assignee of a petitioner to the Federal Court of Mississippi for the benefit of the bankrupt Act of l$il,may, under the orders and directions of that Court, sell lands situated in Louisiana.</p> <p>The registry of sales and mortgages will give public notice, although the proof on which the recorder admits the registry, be informal.</p>

<p>from the District Court of Ouachita, JR. W. Meha/rdson, J.</p>

<p>from the District Court of Monroe, B. W. Bichardson, J.</p> <p>The following testimony was given as to the demand of payment of the note sued on :</p> <p>“Payment of the notes was demanded at maturity,, and notice was given to the endorsers, demand was made on the widow of the drawer at his domicil by my deputy, &c., &c.</p> <p>Felix Percy, the administrator of John Finio, was the person of whom the demand should have-been made and not the widow, and the following elementary authorities and decisions are relied upon: Bailey on Bills, 219 ; Chilty on Bills 889 ; Story on Bills, p. 279, § 346; Story on Promissory Notes, p. 286, § 241, 263 ; 3 Peters, 87; 7 Peters, 287 ; 7 Martin, 366 ; 7 L. 496, Toby v. Maurian.</p> <p>It is true that this Court has onee decided that “ where the maker of the note is dead on the day it is due and payable, and an administrator is appointed, it is unnecessary to make a demand on him, in order to charge the endorser, because he is not authorized to pay any claim against the estate until after the expiration of a certain time,” 10 L. 466. This decision is based upon a decision of the Supreme Court of Massachusetts, Hall v. Burr, 12 M. R. 86. That Court held that when the legal representative of an estate is prohibited by law from paying any claim against it until after the expiration of a twelve-month, no demand need be made on him in order to charge the endorser. A reference to that case will convince us that there were some collateral facts connected with it, which might excuse the proof of demand on the administrator, as it was shown that his agent frequently visited the counting-room of the maker, and was generally informed of the condition of the estate. The 'decision was made in 1816, and the Court express some doubt whether the principles which govern bills of exchange are applicable to promissory notes ; those doubts have long since become certainties.</p> <p>Judge Story, in his work on promissory notes, after stating the substance of the decision of the Massachusetts case, remarks: “But, quere, if this be a satisfactory reason- — -in the first place, the executor or administrator might, if he had ample assets, pay the note to avoid the running of interest, and, in the next place, the contract of the endorser is conditional, that he will pay the note, if duly presented and not paid at its maturity. The fact, that it may not, or will not be paid by the maker at its maturity, does not, in other cases dispense with the obligation implied by law, on the part of the holder, to make due presentment. Why should it, in the case of the death of the party? The French law is against the Massachusetts decision, Pothier de Charge. N. 146.” Story on Promissory Notes, p. 298, note 4 to § 253. The same observations are applicable to the Landry case: 10 L. 486. We think that the collaterate facts had great weight with the Court in the formations of the opinion in each case, and that neither of them can be maintained on principal. The French and English laws are coincident upon the necessity of a due presentment and demand of payment, in case of the death of the maker, and in such a case, the protest for non-payment must still be made: Story on Promissory Notes, p. 298-9.</p>

<p>An .appeal will lie from an interlocutory order which works an irreparable injury,</p> <p>l'lie defendant in a possessory action cannot call his vendor in warranty.</p>

<p>The Act of March 17th, 1852, u To provide a homestead for the wid ow and children of deceased persons,” does not protect the property of the succession from creditors, whose claims existed prior to the passage of the act.</p>

<p>from the District Court of Caddo, Brew, J.</p>

<p>The election of a Secretary pro tem. anda resolution that “he shall receive the same salary as is now allowed the Secretary, and shall remain in office until further proceedings,” and a resolution also, “ that the salary of the (former) Secretary be and is suspended from the present time, until the further order of the Board of Directors,” amount to a removal of the Secretary.</p> <p>The authority given by the charter to the "Vicksburg, Texas and Shreveport Railroad Company to remove their Secretary at their discretion, is the law between the Company and their Secretary. The tenure of the Secretary’s office is at the discretion of the Company — his employers — and his case is taken out of the general law in relation to the hiring of labor or industry.</p> <p>It is a sufficient advertisement of calls for stock, under the 8d Sect, of the Charter of the Vicksburg, Texas and Shreveport Railroad Company, if it be published in the town where the subscriber reside.</p> <p>Calls for stock under the Charter, payable respectively, the 1st March, 1854, the 1st December, 1854, and the 1st March, 1855, make but two calls within twelve months. The term of twelve successive months, commencing the 1st March, 1854, was completed on the 28th of February, 1855.</p>

<p>A patent issued in the name of Jewries Bell¡ in 1814, and was forwarded to the Land Office at Natch - itoches, where it remained until 1819. It was then delivered to one R. T. N.'by whom it was forwarded to Jolm Bell, at Washington Oity. It was then cancelled, and a patent for the same land issued in the name of Jolm Bell. Held,: that under the evidence, the patent of Jomes Bell, under whom the defendants hold, must prevail against John Bell. Held: also, that the plaintiff by his own act,having putit beyond thepowerof the defendants to produce the patent, parol evidence was admissible to sustain the defendant’s pretensions under the patent of James Bell.</p> <p>The moment that a patent has passed the great seal, it is beyond the power of the General Government. It may be avoidedand annulled for mistake or fraud, but the question, so far as it concerns a citizen of the State, must be solved by our Courts.</p>

<p>In authenticating a record, under the Act of Congress of 26th May, 1790, the judge stated “that full faith and credit are due to his acts as such clerk.” Held: This did not satisfy the statute» which required the judge to certify “ that the attestation of the clerk is in due form.”</p>

<p>To maintain the possessory action, the plaintiff himself or his vendors must have had actual possession of the land as owner for twelve months previous to the disturbance, unless he had been ejected by force and arms. A civil possession at the time of disturbance is sufficient when it has been preceded by an actual possession by the plaintiff or his vendors for one year.</p> <p>The legal title to the public lands isvested in the United States Government, and the c-iml possession, of lands accompanies the title. The United States Government has no such actual possession of the public domain as will enable the vendee of the Government to maintain a possessory action for a disturbance of possession, subsequent to the vendee’s purchase.</p> <p>Corporeal possession of lands is a residence on or occupation of or cultivation of the same</p> <p>To maintain the possessory action, length of time of the possession is immaterial, when the party in possession was evicted by force or fraud.</p> <p>Taking possession of land in the absence of the party already in possession, by fencing it in, is not a taking 'oi et armis ; but such taking is perhaps a fraud..</p> <p>Force or fraud in taking possession of land is a question of fact to be determined by the evidence adduced.</p>

<p>from the District Court of Ouachita, R. W. Richardson, S.</p>

<p>from the District Court of Ouachita, R W. Richardson, J.</p>

<p>The servitude given to the public upon the banks of navigable rivers or streams by article 446 of the Civil Code, is not necessarily confined- to the definition of “ banks,” as given in article 448 of the Oode.</p> <p>A cotton shed on the bank of a river, ■which prevented the public from depositing their goods upon the bank in the usual stage of high water, when the principal business of this kind was done, was held, therefore, to be an obstruction to the use of the bank by the public.</p>

<p>The securities on a bail bond¡resisted payment on tlie ground that the bond did not state the party principal was bound to appear and defend any legal charge against him. The recital and condition of the bond showed that tlie principal had been arrested and was then in actual custody on a charge of the murder of John Jirya/nt. It recited that the principal had been “committed for trial by A. JP. Thompson, Esq.,'1 and that on a writ of habeas corpus he was brought before “ his honor, JR. W. IHchardson, Judge of the 12th Judicial District, who rendered the decree written on the other side of tlie sheet.” The bond concluded with the condition: “Now, therefore, if the said Gilbert shall .well and truly be and appear, in his own proper person, at the court-house in Monroe, on the 1st Monday of May next, being the next term of the 12th Judicial District Court in and for the .parish of Ouachita, and there continue tobe and appear, from day to day and term to tei'm, or to be and appear at any other time and place, as contemplated in the decree of court, when ordered by the court, and continue to appear until discharged by the court,” etc., etc. Held: that it was sufficiently clear that tlie principal had been bound over for trial upon the charge of the murder of John Bi'ya/nt.</p> <p>Interlineations made before the bond had been signed does not vitiate it.</p> <p>Where it appears that the Sheriff was the only Sheriff defacto, under color of title, his acts must be held good in controversies between third parties.</p> <p>When the Judge has determined to admit a prisoner to bail, and fixed the amount of the bond to be given, he may delegate to the Sheriff the power to accept such sureties as are, in his opinion, sufficient. Should any one be aggrieved by his refusal to accept the security tendered, he can then apply to the Judge who is empowered to hear evidence upon the subject.</p> <p>The power of the Sheriff to release a .prisoner, upon his giving the proper securities, may be gathered from the order of the.courtand the context.</p> <p>Filing a.bailbond in open court, and the order of the Judge to call tlie parties thereto, may becon-sidered.as n-n approval of the bond by the court.</p>

<p>In tliis case the judgment creditor sued the Sheriff for misfeasance in office, in counselling the judgment debtor to remove his property to avoid a seizure. The debtor was called to testify on behalf of the Sheriff, and on his voire dire stated: “ I believe I have an interest in this case. I feel just this way; I never did owe Dams (the plaintiff) the debt, and he never can collect it of me. If Col. Bw-Jiam (the Sheriff) has it to pay, I shall feel in honor bound lo. help him. I should only feel legally bound to pay Col. Ba/rham the debt and interest in case of Dct/ois v. Myself.” Meld: that the witness was incompetent.</p>

<p>from .the District Court of the parish of Jackson, •-, J.</p>

<p>Where a party to a suit is required to answer interrogatories in open court, the questions should be read severally to him in open court, on the day fixed for the purpose by the order of the court; he should dictate his answer to the Clerk, that they may be put of record, in the presence of the Judge and of the opposite party.</p> <p>Therefore, where the answers were written by the counsel of the party interrogated, out of court, and brought into court, and sworn to in open court, and leave obtained to file them without being read to the court, and without the knowledge of the opposing counsel, Held: that they were not admissible in evidence.</p> <p>C. C., 487, 2481, 2487.</p>

<p>from the District Court of Bossier, —--, J.</p>

<p>PPEAL from the District Court of Dossier, Drew, J.</p>

<p>from the District Oourt of Franklin, Barry, J.</p>

<p>PPEAL from the District Court of Caddo, Land, J.</p>

<p>PPEAL frem the District Court of Catahoula, if. W. Richardson, J.</p>

<p>It is sufficient to sustain a petitory action against a mere possessor, for the plaintiff to show a title translative of the property sued for, together with the Receiver’s certificate showing that the land was located by the person making the title.</p>

<p>An administrator cannot in a new answer, set up other matters of defence, some of which are inconsistent with the allegations of the first answer.</p> <p>Where it is in proof that defendant had acknowledged he held the land sued for under the plaintiff, he is precluded from disputing plaintiff’s title, or availing himself of any formal defects in it.</p> <p>C. 0., 3409, 8480.</p>

from the District Court of Caddo, Spofford, J. The issue in this case, and the only issue, is: Has Mary Wells exhausted all legal remedies against the succession of J. W. Hardwick? If she has not, she cannot for the present, pursue the defendant, Watson. See Act, 16th March, 181-2, p. 300. Canal Bank v. Brown, 4 A. R. 545. Kemper, et al. v. Splam&, 4 A. R. 846. Boss v. Chambiss, 5 A. R. 158. Wilson v. Murrel, 6 R. R. 68; and the authorities cited.

from the District Court of Ouachita, R. W. Richardson, J. Plaintiffs propounded interrogatories to several persons — -one of whom, John T. Ludeling, was asked whether at the time of the service thereof, or since, he had in his possession or under his control, individually or otherwise, “ a note executed by John T. Simmons, William A. Simmons, Francis Hassen and Elizabeth Gilbert, dated about the 17th December, 1853, for four thousand dollars, and due March 1st, 1854, drawing…

<p>Ifc cannot be urged in the Supreme Court that the Judge erroneously overruled an application for continuance, when the point had not been reserved by a bill of exceptions to the ruling of the</p> <p>Curators, administrators, tutors and testamentary executors who absent themselves from the State for a time, will lose their administrations unless tbey appoint an attorney and deposit an authentic copy of the power of attorney in the manner pointed out by the Act of 24th April, 18 4T,</p> <p>C. 0. 1145.</p>

<p>The neglect of the Clerk to file the appeal bond, which he has certified as a part of the record in the case, cannot be imputed to the appellant, and affords no grounds for the dismissal of the appeal.</p> <p>Under the common law, as it prevails in Georgia, the husband by the fact of marriage becomes entitled to the slaves and other personal property of his wife, although he may not have reduced the slaves to his exclusive possession. And where the spouses afterwards remove to Louisiana, the value of the property thus acquired cannot be made the basis of an action by the wife against the husband. It is otherwise with respect to sums of money received by the husband from the sale of his wife’s real estate, and with respect also to dioses in action not reduced to possession by the husband, but collected after the removal of the spouses to this State.</p> <p>Where there is nothing to show fraud and collusion on the part of the husband and wife, in an action for the separation of properly, an error in the amount for which the judgment has ' been rendered, should not avoid its effects upon after-acquired property.</p> <p>The tenor of the petition and a prayer for general reliei may justify a decree for separation of property without an express prayer to that effect.</p>

<p>The order of the court to admit the prisoner to hail, should so be entered of record as to leave no reasonable doubt of its meaning. Therefore, the sureties on the bond of one admitted to bail, on an order which did not designate for whom, or for whose cause it was intended, will not b e bound.</p>

<p>In admitting a prisoner to bail, the proper practice is for the Judge to fix the arnouht of a bond, and deputise a person to receive and approve, in each case, as it is presented by the grand jury.</p>

<p>from the District Court of Monroe, R. W. Richardson, J.</p>

<p>Where plaintiff makes out a clear case of inability to sue by reason of some act or hindrance interposed by the debtor, a plea of prescription set up by the debtor will not be sustained.</p>

<p>Where the plaintiff brings his action against both husband and wife, and they appear and defend it, the authorization of the husband to his wife to take an appeal by motion will be inferred.</p> <p>The statement of facts contemplated by articles 602 and 60S of the Code of Practice, must be made before the appeal is granted.</p> <p>The wife is not bound for a proportion of the marriage charges under Articles 2366,2409 of the Civil Code, unless she has reserved to herself the management of her paraphernal property, or unless there has been judgment of separation of property between herself andhusband.</p>

<p>APPEAL from the District Court of the parish of Monroe, R. W. Richardson, J.</p>

<p>from the District Court of Caldwell, Barry, J.</p>

<p>Locwson contracted to furnish, the parish of Bossier with a court-house. Brown built the courthouse under a contract with Lcmson, and plaintiff was a mechanic working under Brown. Held: That until the builcling was received by the parish, Lcmson should be considered in the light of a proprietor and hound, attested accounts having been seasonably served upon him, to reserve, out. of the funds coming to Brown enough to pay the plaintiff’s claim.</p>

from the District Court of Union, JR. W. Richm'dson, J. The testimony and the pleadings show that the defendant was a mere tress-passer ; to recover against him, therefore, it was unnecessary that the plaintiff should have exhibited a title perfect in all respects; one apparently good was sufficient. Bailio v. Burney, 3 R., 317; Fanehonette v. Grange, 5 R., 510 ; Bonis v. James, 7 R., 149 ; ¡Stephenson v. Goff, 10 R., 99.

<p>PPBAL from the District Court of Ouachita, Richardson, J.</p>

<p>from the District Court of Jackson, Bichardson, J.</p>

<p>PPEAL from the District Court of Catahoula, Barry, J.</p>

<p>At the time of their marriage, in Alabama, the spouses intended to fix their matrimonial domicil in Mississippi, which they accordingly did do. The right of the husband to slaves owned by his wife at the time of the marriage, must be determined, by the laws of Mississippi and not of Alabama.</p>

<p>A vendor who warrants the title “ against himself, his heirs and assigns, but only such as he now holds under the said Baron de Bastrop, and intermediate vendors, forever,” is bound by a limited warranty only.</p> <p>A buyer cannot withhold payment until security be given, when the source from which he apprehends eviction has been excluded by the terms of the warranty.</p> <p>O. O. 24TT, 2585.</p>

<p>The chapter of the Code regulating the revocatory action is not applicable to cases of simulation, and in those cases creditors may seize, notwithstanding the apparent transfer; and if enjoined, may plead and show the simulation on the trial of the injunction.</p>

<p>S. R. M., by a conveyance executed in Alabama, in consideration of tbe sum of $600, the receipt of which was acknowledged, bargained, sold and delivered to W. 0. certain negroes, “ under the further agreement and condition that, after the death of the said W. 0., the said negroes should revert to D. W. M. and his heirs.; but should the said D. W. M. die before the said W. C., then and in that event the said TF. 0. shall and may appoint and nominate any other person he may think proper to take charge of and control the raising and employment of the said children above mentioned, and should the said W. C. desire it, at his death, and it should become practicable, their freedom shall be obtained.” Melé:</p> <p>1st. The instrument under our laws contains a substitution. 0. 0., 1507.</p> <p>2d. Even at common law so complicated a limitation of personal chattels could not be maintained. Notwithstanding the limitation, the absolute title to the slaves vested in W. 0.</p>

<p>from the District Court of Union, R. W. Richardson, J.</p>

<p>from the District Court of Franklin, Barry, J.</p>

from the District Court of Caddo, Land, J. Fee simple must be vested in some person. If in the wife, upon the execution of the act, it could not be in the husband until actual possession. The wife died leaving plaintiff heir of her body in 1836. The husband could do no act either as husband or as administrator until 1846, in order to vest title in him.

<p>The statute of Alabama concerning frauds and fraudulent conveyances, (Clays’ Ala. Dig. p. 254, s. 2,) was intended to protect creditors of, and purchasers from, tlie party in possession. As to them only, a loan or conveyance with the reservation of the use, is to be taken as fraudulent and the absolute property to be with the possession.</p> <p>The title of one who holds a slave under a loan, and who is liable to deliver it up when called for, is precarious, and insufficient to form the basis of a plea of prescription.</p>

<p>from the District Court of Caddo, Spofford,, J.</p>

<p>An action npon a judgment rendered out of the State is a personal action.</p> <p>The correct construction of Art. 8508 of the Civil Code is, that the long term (twenty years) under that Article, does not apply to the cases where the creditor and debtor are both absent from the State and residents of the same place out of this State.</p>

<p>from the District Court of Claiborne, Drew, J.</p>

from the District Court of Caddo, Spofford, J. The defendant had no right after bonding the property to say that it was not his own. After taking judicially his position as owner, his bond was a judicial confession of ownership, which could not be denied, by either himself or his sureties. Apart from this position, it is not shown that the property attached was not liable to attachment on account of Logwood having no interest in it.

<p>The appointment of the paternal uncle to the tutorship of the minor children of his deceased brother, can only be made after due notice, and upon the advice of a family meeting; nor can the appointment of a person standing in that relationship to minors, without such notice and advice, form the basis of the plea of res jud icata to an action brought to set it aside.</p>

<p>PPEAL from the District Court of Caddo, Land, J.</p>

<p>Where a Tax Collector’s bonl, given under the statutes of 1849, is so defective in form as to deprive it of an authentic character, it cannot be enforced by summary process, and a sale made under such process will not divest the title to the property.</p>

PEAL from the District Court of Ouachita, Sharp, J. I. — Plaintiffs contend that their mortgage was so recorded and reinscribed as to give it effect against third persons as required by law. 1st. The original mortgage to the bank was recorded on the 24th June, 1829, p. 13. 2d. After the death of Ferdinand, Morgan, in an act of partition between his heirs and the widow, on the 6th December, 1831, the land mortgaged to plaintiff was sold to or taken by Mrs. Hannah S. Morgan,…

<p>from the District Court of Caddo, Land, J.</p>

<p>The drawer cannot dispute the plaintiff’s ownership of the bill sued on,, where he is permitted to plead all the equities that he has against any of the successive holders, and where it is neither alleged nor shown that the plaintiff came unfairly by the bill, or that any other party contests his right to it.</p> <p>An amendment to a petition may be allowed when the relief prayed for, is additional only, and where it does not change the cause of action.</p> <p>All the circumstances in evidence must be considered, in testing the liability of the drawer of a bill, who pleads his discharge, by reason of Iho laches of the payee or subsequent holder in presenting it to the drawee.</p>

<p>from the District Court of Ouachita, R. W. Richardson, J.</p>

<p>from the District Court of Morehouse, B. W. Bichardson, J.</p>

<p>from the District Court of Franklin, Barry, J.</p>

<p>The defendant held the land in controversy under a deed from Jolvn MeGaughlin, executed on the 13th of September, 1843, which was duly recorded. The plaintiff’s assignees claim the same land under a sews seing privé, from John MeGaughlin, dated March 27,1334. The main question in the case was, whether the latter title was duly recorded. It was proved that While had, before purchasing the land, made diligent inquiry to ascertain whether there was any other conveyance from MeGaughlirn on record, and no such conveyance could be found. Subsequent to this purchase, the recorder found in his office, when searching the records of his office for other purposes, a book, which was endorsed, “ Extracts from the Notaries in the Country, from 1827 to 1839.’* Among the extracts was the following: “February 4, 1834, John MeGcmgJdm to Charles Myers, (from whom plaintiff claims,) sale of land containing 640 acres, situated,” «fee. The land described was that in controversy.</p> <p>The book also contained the following certificate: “ I, the undersigned Notary Public, do hereby certify the above and foregoing to be extracts explanatory of all acts passed and acknowledged before me up to the first day of March instant. Given under my hand and private seal of office this 1st of March, 1884. Signed, J1. Williams, Notary Public.”</p> <p>It also appeared from this book that the sous semg privé had been proved by a subscribing witness, and recorded by F. Williams, Notary Public, on the 4th February, 1834.</p> <p>Under this state of facts, it was held that the conveyance from MeGamghUn to Charles Myers was not sufficiently apparent on the public records to affect third persons. The fact of the Notary’s books being found in the recorder’s office could no.thave that effect.</p>

<p>Defendant-cannot crave oyer of the unmatured mortgage notes which are not described in the petition, and on which no-judgment is asked, merely because the petition prayed that the property mortgaged might be sold on terms o'f credit corresponding to the maturity of the several notes,</p> <p>A contract which is not in itself usurious, cannot be made so by the prayer of the plaintiff for usurious interest, when he seeks to enforce it.</p> <p>The charter of the Consolidated Association makes no provision for interest on the stock contributions.</p> <p>The fifth section of the Act of 1845, entitled “ An Act amendatory of the several laws relative to the Citizens’ Bank,” etc., etc., which allows five per-cent, interest <up on arrearages-of‘interest, applies to the Citizens’ Bank.</p>

<p>The Judge is not incompetent to try a case on the ground that he had been at one time counsel in it, where the party whom he represented is no longer before the Court.</p> <p>Opinion of the Court on the validity of the bond, expressed in 4th Annual, 546, Qa/nal Banlc v. Brown, affirmed.</p>

from the District Court of Ouachita, R. W. Richardson, J. A sale of property belonging to minors without the forms of law, although said to be null, is only relatively null, and may be ratified expressly or tacitly by prescription. Vaughan v. Christine, 3 An. 329 ; 6 R. 473 ; 9 R. 84. By suffering four years to elapse after majority their right of action is prescribed.

<p>PPEAL from the District Court of Ouachita, Ba/rry, J. 1</p>

^^PPEAL from the District Court of the parish of Bossier, Jones, J. The following extract from the deed shows the precise character of the “… Held: An assignment made in good faith by the laws of another State in favor of creditors domiciliated in that State, by a party also domiciliated there, willbe enforced on the property of the debtor in Louisiana which has been actually transferred to tho assignee ; provided, no injury arises to our own citizens, and not otherwise.

^^PPEAL from the District Court of Morehouse. The following copy of a judgment was among the Monroe records. There is an endorsement in pencil on the judgment. “ Transcript, with Clerk of Supreme Court, New Orleans.” But that Clerk informs the reporter that he has no such record; he cannot, therefore, state authoritively, by what District Judge the case was tried; what lawyer appeared in it, or which of the Judges rendered the judgment in the appellate Court.' — [Rep.]

^PPEAL from the District Court of the Parish of Caddo, Zand, J. The following statement of facts is from the judgment of the District Judge. —[Rep.] The facts of this case are as follows, to-wit: Peter Nicholson, late of the Parish of Caddo, sold to Thomas Gcmblin, a track of land, and to secure the payment of the purchase money, took from him his promissory notes, payable at different dates, and secured by special mortgage on the land sold.

<p>from the District Court of the parish of Claiborne, Spofford, J.</p>

PPEAL from the District Court of the parish of Union, Richardson, J. The following answer was filed by defendants: — [Rep.] The defendants in the above entitled cause, for answer, deny all and singular the allegations in plaintiff’s petition contained, and aver that the note sued upon does not belong to the plaintiff, but to the late firm of Levison, Traylor & Co., composed of Abraham Levison, John Traylor and Samuel Traylor, doing a commercial business in said parish up to…

<p>The lessee cannot make repairs at the lessor’s expense, unless he complies with the Art. 266é of the Civil Code, and puts the landlord in default.</p> <p>The lessee can convey no greater rights to the under tenant, than he himself possesses.</p> <p>C. C. 2668, 2664, 26DT.</p>

<p>The rule for the measure of damages for the inexecution of contracts, is found in Art. 1928 C. 0.</p> <p>The rules of the civil and the common law, as to the measure of damages for breach of contracts, do not differ materially.</p> <p>The principles of the cases of Lóbdéll v. Parker^ 3 L. R., 832, and Rugety v. Goodloe, 7 An. R., reaffirmed. '</p> <p>One who has sustained loss and damage by the defective manner in which a contract for the erection of a sugar mill and engine has been executed, is entitled to a privilege on the mill and engine erected for the reimbursement of his losses.</p>

<p>from the District Court of St. Landry.</p>

<p>from the District Court of St. Landry.</p>

<p>A defendant cannot be allowed to object on appeal, that a supplemental petition was inadmissible, because it changed the character of the original demand, when no exception was taken in the Court a quo.</p> <p>An objection to the admissibility of testimony will not be noticed in the Supreme Court, when no exception was taken in the District Court.</p>

<p>W. W. made a donation to B. W., a legitimate son, of the disposable portion of his estate ; and the latter, by a contemporaneous act, made his notes, to the amount donated, payable to 0., who stipulated to pay the principal and interest of said notes, when collected, to the illegitimate children of the donor. ITeld: That the act of donation and the making of the notes being parts of the same act, and B. TV. and 0. being persons interposed for the purpose of carrying into effect an illegal donation, the notes were null under Art. 14T8 0. 0.</p>

<p>Where it would seem from a receipt, that the owner of a building has paid his contractor for repairs in anticipation of the time when due, the burden of proof is on him, when sued by a furnisher of materials on an attested account, to show that at the time of the service of the attested account upon him, he had not really paid in anticipation, and that he did not then owe the contractors.</p>

<p>from the District Court of St. Mary.</p>

<p>The fact that a plaintiff in a judgment, is not shown by evidence to be authorized to stand in judgment, is not a ground for the action of nullity. The proper remedy is by appeal.</p> <p>Where the first day of a term of court as fixed by law, is a holiday, the court should be opened on a succeeding day. The term does not lapse.</p>

<p>Defendant made a partial payment on an account, and gave his note, payable to plaintiff, to the agent of the latter for the balance. The note was endorsed by the agent, professing to act for the plaintiff; and was subsequently paid by defendant. jB&d: That, in the absence of proof of the agent’s authority to endorse the note, or that the payment made was received by the plaintiff, the defendant is not discharged.</p>

<p>The act of the Legislature of 28th April, 1853, authorizing trials before a member of the bar, in certain cases where the judge recuses himself, is unconstitutional, and judicial proceedings taken under and by virtue of said act, are null.</p> <p>The nullity of a judgment, apparent on the face of the record, may be decreed by the Supreme Court, on appeal from such judgment. C. P., 608-9.</p>

<p>The prolongation of the terra of payment of a note, made without the consent of the surety, discharges his liability.</p> <p>The consent of the surety will not be inferred from his declaration that he would agree to any arrangement made for him by the principal debtor, in the absence of proof that the principal pro-« fessed to act also as agent of the surety in making the new terms.</p>

<p>from the District Court of St. Mary.</p>

<p>from the District Court of St. Landry.</p>

<p>from the District Court of St. Landry.</p>

<p>IVhere the petition oí appeal does not contain a prayer for citation, and the appellee has not been cited, the appeal ttill.be dismissed.</p>

<p>from the District Court of St. Martin.</p>

<p>PPEAL from the District Court of St. Martin.</p>

<p>from the District Court of St. Mary.</p>

<p>from the District Court of St. Landry.</p>

<p>A bill of exceptions which does not set forth the grounds upon which testimony was ruled out, will not be noticed. And so, with a bill which does not show the inateriality of the testimony of a witness offered and rejected as incompetent.</p> <p>An action against a tutor is prescribed by four years from the majprity of the ward.</p> <p>The proper mode of recovering property held under a simulated title, is by the action of revendi-cation.</p>

<p>PPEAL from the District Court of St. Martin,</p>

<p>A judgment creditor of the husband will be enjoined from seizing the paraphernal property of the wife, when she retains the administration thereof.</p> <p>The filing a petition by the wife, to enjoin her husband from disposing of her property, is sufficient evidence that she retains the sole control thereof.</p>

<p>A donation, propter imtpUas, not duly registered until after a third party has acquired a judicial mortgage upon the property donated, is not valid as against the creditor, who has previously recorded his judgment.</p> <p>Such a donation, when made by one who is insolvent to the knowledge of the donee, and when it embraces the whole of the donor’s property, is not valid as against creditors.</p>

<p>The holder of a negotiable note made by the husband, and acquired before maturity and without notice, is entitled to enforce the same against the community property, after the death of the husband, notwithstanding the note was given for the individual debt of the husband. The holder will not be compelled to proceed against the separate estate of the husband.</p>

<p>PPEAL from the District Court of St. Martin.</p>

<p>If no fraud or deception bq practised upon a surety, the obligation is valid as to him, if it be valid as against the principal.</p> <p>An administrator, who purchases property of the succession, and gives his note for the price, cannot plead .the nullity of ithe sale and resist payment of his note, without tendering back the property purchased.</p> <p>A note payable to the agent of the maker for the use of the succession of which the maker was administrator, is valid. The real obligees are the creditors and heirs of the succession.</p> <p>Payment of a note will not be presumed, from the fact of its having matured, whilst in the hands of an administrator, who was also the maker, when it is found uncancelled in the hands of a sub, sequent administrator. In such a case, the burden of proving payment is thrown on the obligor.</p> <p>"Where the term of payment has not been prolonged in favor of the principal, and no act has been done by the holder of a note, which would prevent the surety, on payment, being subrogated to all the rights of the holder,against.the, principal, the holder will not be considered guilty of ladies, such as to discharge the surety.</p>

<p>from the District Court of St. Mary, Voorhies, J.'</p>

<p>PPEAL from the District Court of St. Landry, Dupre, J.</p>

<p>The service of citation by one who is Sheriff defacto, and with color of office, is good.</p> <p>A party litigant cannot collaterally except to such a service, on the ground that the acting Sheriff is not Sheriff de jwre.</p>

<p>from the District Court of Vermillion, Overton, J.</p>

<p>The purchaser of land sold for taxes who does not show that the sale was made according to the requirements of law, has not such a title as can form the basis of the prescription of ten years.</p> <p>The purchaser at Sheriff’s sale who does not show a description of the land sold, cannot maintain the plea of prescription of five years, under the Act of 1834.</p>

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

<p>PPEAL from the District Court of St. Landry, Dupre, J.</p>

<p>from the District Court of St. Martin, Dapré, J.</p>

<p>The term “landed estate,” on which Police Juries are authorized by the Act of the Legislature to levy taxes for works of internal improvement, embraces, also, all houses, fixtures and improvements thereon, and neat cattle, horses and mules when attached to, and used on a plantation.</p> <p>The last assessment roll for State taxes is the proper basis of the levy of the parish tax for inter-ternal improvements.</p>

<p>A surviving spouse who has inherited an interest of one fourth of the estate of a predeceased child of the first marriage, forfeits the right of property in sueh estate by a second marriage, and becomes entitled Only to a usufruct therein.</p> <p>Article 1T46, O. 0. embraces as well, property cast by law to the surviving parent, as that which may have been donated or bequeathed.</p> <p>Article 1746,0. 0., constitutes an exception to Arts. 899-900, under the title of successions.</p> <p>A judgment against a party suing in one capacity, does not operate as res jucHeata against him, when suing, in another capacity.</p>

<p>from the District Court of Vermillion, Yoorhies, J.</p>

<p>from the District Court of St Mary, VoorMes, J</p>

<p>from the District Court of St. Martin, Voorhies, J</p> <p>Cited C. C. 1588, 1640, Gaude-v. Baudoin, 6 L. R. 725; 16 L. R. 80; 12 Rob. 85; 10 L. R. 538; 5 Ann. 265 ; ib. 612.</p> <p>Cited 1 N. S. 73; 3 N. S. 368. Toullier, vol. 5, Nos. 429-30. State v. Martin, 2 Ann. 715; 3 Ann. 329 ; ib. 522.</p>

<p>Plaintiff sued for an amount less than $800. Defendant claimed $1200 in reconvention. Betel: That the Supreme Court is without jurisdiction as to the judgment on the original demand.</p> <p>One who undertakes the superintendence of a work which is defectively executed, is responsible, in the absence of proof that the failure in his undertaking was owing to an unforeseen accident or uncontrolable event, for any direct loss or injury resulting from his negligence or want of skill.</p>

<p>The wife is without legal eapacity to alienate or hypothecate the community property.</p> <p>A mortgage made by the wife, during the existence of the community, though made with the authorization of the husband,cannotbe opposed to the creditors of the latter as his act.</p>

<p>A judgment of separation, in favor of the wife, rendered on the 14th of November, and followed by an execution issued on the 80th of March ensuing, under which all the property of the husband was sold in satisfaction of the judgment, is a sufficient execution of the judgment within the meaning of Art. 2402 0. 0., to make the judgment valid.</p> <p>Where, after such a separation, slaves are bought by the wife, who takes title in her own name, and it is proved that she inherited, while separated, money sufficient to pay for the slaves, and no evidence is adduced to impeach the good faith of the purchaser, the court will restrain by injunction the sale of the slaves, as belonging to the succession of the husband, though inventoried as part thereof.</p>

<p>The servitude of drain belonging to a front proprietor .'will not authorize him to drain his plantation by artificial ditches upon a plantation in rear, when the natural drainage of the front plantation is lateral.</p>

<p>from the District Court of St. Mary, Voorhies., J.</p> <p>Cited C. C., 1980,1976, 1979,1984, 2628 ; 2 N. S., 61; 2 L. R., 16; 6 lb., 588 ; 7 lb., 16 ; 4 lb., 254; 6 An. R, 646.</p> <p>Cited C. C., 1905, 1973,1974; Bauduc v. His Creditors, 4 L. R., 254; Syndic of McManus v. Jewett, 6 L. R., 538; 16 L. R., 150 ; 9 L. R., 171.</p>

<p>A transfer of the title to slaves, accompanied by the delivery of the counter-letter, in which th$ vendee engages to resell to his vendor the slaves, on the payment, by the latter, of the expenses, of the keeping and maintenance of the slaves, and other claims against him, and where the vendee,, by acts and declarations, represents himself as the agent of the vendor, and renders accounts, annually of the hire of the slaves, etc., Held: not to be a vente d réméré, but a simulation.</p> <p>In a vente d réméré, the real title passes, subject to a defeasance within a limited term. The vendee-is entitled to the fruits, and is responsible for the expenses of the property.</p>

<p>from the District Court of Yermillion, Voorhies, J.</p>

<p>J. advanced to F. a sum of money, the latter assigning to J. all her interest in a succession and authorizing him to reimburse himself, the amount loaned, out of the first assets received from . the succession. Held: that this assignment was a mere collateral security, and that the lender had the right to coerce payment of the loan without waiting the settlement of the succession.</p>

<p>from the District Court of St. Mary, Dupre, J.</p>

<p>A party is liable for damages occasioned by his gross neglect, in handling his gun, though it is dis. charged accidently.</p> <p>In the assessment of damages in such cases, much discretion is left to the jury. 0. 0. 1928.</p>

<p>PPEAL from the District Court for the Parish of St. Martin, Dupre, J.</p> <p>on the question as to the competency of the maker, as a witness, cited: Gox v. Williams, 5 N. S. 142. Waters v. JPetrovie, &e., 5 L. 589. Johnson v. Marshall, 4 Rob. 157; 7 Rob. 244; ib. 3C0; 5 Ann. 188. As to the admissibility of parol testimony, to show that the defendant -who had expressly bound himself in solido, was merely a surety, defendant’s counsel cited: Robertson v. Hott, 2 N. S. 124; 8 N. S. 268; Dioight v. Linton, 8 Rob. '57; 3 Ann. 235; 4 Ann. 540.</p>

<p>from the District Court of St. Mary, Voorhies, J.</p>

<p>An error as to parties, made in entering up judgment, and which is apparent on the face of the record, will he corrected on appeal.</p>

<p>A PPEAL from the District Court of St. Landry, Dupre, J.</p>

<p>After issue joined, upon a principal and reconven tional demand, a judgment dismissing the suit on motion of plaintiff, without reserving defendant’s right to prosecute the reconventional demand, is erroneous.</p> <p>It does not prejudice defendant’s right of appeal from such a judgment, that no objection to the dismissal of the suit, was made in the District Court.</p>

<p>from the District Court of St. Martin, Voorhies, J.</p> <p>Cited : Delacroix v Prevost, 6 M. R. 276 ; Gox v. Michel, 7 L. R. 523; Badon v. Badon, 4 L. R. 169 ; 3 Rob. 452; Forest v. Shores, 11 L. R. 418; Hewlett v. Henderson, 9 Rob. 379; Succession of Thomas, 12 Rob. 219; Bach v. Hall, 3 L. R. 118; Haydell v. Betts, 6 Rob. 438; Bauduc v. Oonrey, 10 Rob. 466; 4 An. 103.</p> <p>Cited: O. C. 2233, 2235 ; C. P. 354; 3 Rob. 441; 7 An. 95.</p>

<p>Plaintiff sued for a trespass in cutting wood on his land, Defendants pleaded in justification, a servitude of cutting wood on plaintiff’s land, in favor of land owned by him. Piaintiff replied that the servitude was extinct by non-usage. Held: That quoad the question of servitude, the defendants are the real plaintiffs; and that the plaintiff in this action might well setup the prescription of non-usage as against the alleged servitude; and that plaintiff might have availed himself of the prescription of non-usage without having specially pleaded it.</p> <p>In such a case, the objection that prescription is a means of defence, and not a ground of action, is not well taken.</p> <p>Where the prescription of non-usage is pleaded, the onus of proving the exercise of the right of servitude within the time of prescription, is thrown on the party claiming the right.</p> <p>The erroneous reservation in the prooes verbal of the sale at which plaintiff acquired title of a community of wood,” held not to be a renunciation of the prescription of the servitude, already acquired by the authors of plaintiff’s title.</p> <p>A right of community of wood is a very different thing from a servitude of cutting wood.</p>

<p>The recital in a noncupatiye will, by public act, that the testator “ has revoked and does by this act revoke,” a certain former will by him made, is not an interpolation of an act inter vivos, and a turning aside to other matters within the meaning of Art. 1571 C. 0., such as to vitiate the will.</p>

<p>A deposit of money, by a third party, in the hands of an execution creditor, on the condition that the depositor is to be credited by the amount thereof, if he shall purchase property about to be sold under execution, may be recovered back immediately. The depositor is not bound to await the sale or bid for the property.</p>

<p>from the District Court of Jefferson, Clarke, J.</p>

<p>The clause of Art. 2675 of the Oivil Code, which confers the lessor’s privilege, is absolute and unambiguous ; the words “ movable effects,” “ effets mobiliers,” being too comprehensive to admit of doubt or discussion with reference to their application. The concluding clause of the article appears to be rather illustrative than restrictive in its character; therefore, Held: the assets of a banker, so far as they are susceptible of being pledged, should he subjected to the same right of pledge as the merchandize in a store. Both the merchant and the banker, for the purpose of transacting their respective branches of business, are compelled to occupy a building in which their movable effects are sheltered and protected.</p>

<p>from the Third District Court of Jefferson, J. Olarhe, J.</p>

<p>A person against whom judgment lias been rendered, cannot enjoin it, for the purpose of pleading compensation by way of exception, unless he acquired the claims he wishes to plead, after the judgment against him was rendered.</p>

<p>"When it does not appear that any ground existed on which the appellant could base any reasonable hope for the reversal of the judgment, damages for a frivolous appeal will be allowed.</p>

<p>from the Second District Court of New Orleans, Lea, J.</p>

<p>X. A. Searle, clerk of the house of X. X. ScJimidt & Co., of which defendant was a member, drew the note sued on, as agent for the house, and signed ifcX. X. Sdhnvi&t <& Co., p. pro. X. A. SeaHe. When the note was first shown to the defendant, a few days after it was made, he said that it was all right and he would have it to pay. He also took the note and corrected its date. Held : That this was a ratification of the making of the note and an acknowledgment of the liability of defen -</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>from the Fourth District Court of New Orleans, Reynolds J.</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>from the Sixth District Court of New Orleans, Ootton, J.</p>

<p>s. was allowed the privilege of lessor for the sura of $2800 14, that being the sum. demanded in her petition. The lease annexed to and made part of the petition showed that $3850 14 were due her* The funds were not yet distributed, and there was a general prayer for relief. Held : That it would seem, under the precedents cited, 15 L. 116, 5 A. 666, that the judgment should be reformed in her favor.</p> <p>Legal interests are allowed upon the monthly installments for rent past due, and a discount at the rate of five per cent, only on the installments payable in future, according to the terms of the lease.</p> <p>.The District Judge afterwards allowed opponent a privilege upon the proceeds of the sale of the unexpired term of the lease. Held: That the sum thus realized must be credited upon the judgment.</p> <p>"Where the sale between the parties was, in New York, executory merely, with the intention that it should be consummated in New Orleans, and it was so consummated, the contract must be considered as completed in New Orleans, and the vendor’s privilege may be exercised according to the laws of Louisiana.</p>

<p>PPEAL from the Fifth District Court of New Orleans, Augustin J.</p>

<p>Under Article 2156, § 2, of the Civil Code, both the loan and the receipt must be established by notarial act, in order to create in favor of the lender the subrogation granted by that article.</p>

<p>The principle of this case was settled by the judgment in the case of City of New Orleans v. J. 0. De St. Homes, 9 An., 573.</p>

<p>from the fourth District Court of New Orleans, Reynolds, J.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>A foreign Insurance Company, doing business in New Orleans, through an agent, cannot be permitted to frustrate a claim in Louisiana upon a contract made with it, by revoking the power of its agenton the eve of the institution of a suit for a loss, of which it has been notified.</p> <p>Insurers are estopped from denying payment of the premium where there is an acknowledgment in the policy, unless they can show that the acknowledgment was made in error, by fraud or du-</p> <p>Where insurers plead non-payment of the premium as a bar to recovery on a policy, and in a sup. plemental answer alleged misrepresentation aud concealment, the first is waived.</p> <p>When premises insured against loss by fire have been thoroughly examined by the agent of the insurers, itis conclusive upon the insurers as to whatsoever is apparent.</p>

<p>Mad. F. eonveyed her interest in certain property to a married son, in consideration of a life annuity. By the Court: It is evident that the transaction which took place between the parties was , not intended, as understood by them, to bean onerous donation, but as it purports to be, a contract of annuity for life — rente armuelle 'Qiagére. As this property was acquired during the marriage, it belonged to the community, and the community was, consequently, liable for the payment of the annuity — or rente constit/uée.</p> <p>The admission by the widow of the son, that the property conveyed was the separate property of her deceased husband, may possibly, be binding on her, but it is clear that such admission cannot, in any manner, affect the rights of her minor children, considering that the ownership of the property, burthened as it is with the obligation of this life annuity, may turn out to be more onerous than advantageous to them.</p>

<p>The exclusive privilege, vested in the plaintiffs, by the Act of 1830, to construct a railroad, within certain limits, must be construed with reference to the extent of the city of New Orleans, at the time of the passage of the Act.</p> <p>In the year 1830, Jackson street, now in the Fourth District, was within the limits, in which the Pontchartrain Railroad Company had the exclusive right for twenty-five years, of constructing a railroad to Lake Pontchartrain.</p> <p>The construction of a railroad by defendants, in Jackson street, within twenty-five years from the 26th of January, 1880, is an infringement of the rights of the plaintiffs and therefore unlawful.</p>

<p>,<5ne of the counts of indictment charged that the prisoner, “under the color and pretence of fighting a duel, with the deceased, but in violation of the agreement and rules ” assaulted and murdered him. Held: That a homicide committed under such circumstances is indictable as murder,</p> <p>defendants accepted the jurors who passed upon their case, without the objection that a proper lis i hadnot been served upon them. Held: that it was too late for them to raise such objections after verdict.</p> <p>En the refusal of the Judge to allow the prisoner’s counsel to state new points and propositions in the hearing of the jury, when they came in and asked for further instructions from the court, there is not such error as would authorize a reversal of the judgment. In such a matter, much must be entrusted to the discretion of the District Judge.</p>

<p>Plaintiff issued execution upon a judgment in February, 1858. This execution has never been returned; and in January, 1855, a rule was taken upon the Sheriff, (who in the meantime had gone out of office) to render him liable for the amount of the judgment, under the Act of 1826. On the trial of the rule, it was admitted that a witness summoned for the Sheriff, would prove, if present, that the counsel of plaintiff was informed and knew that the only property of defendant found, was incumbered to such an extent, that nothing could be made on the execution. A certificate of mortgages was also given in evidence, to prove the same facts. Held: that upon this proof the Sheriff is not liable under the statute.</p>

<p>A retroactive statute which has no relation to crimes and penalties, is not an ex post facto law.</p> <p>Retrospective laws, in civil matters, do not violate the constitution, unless they tend to divest vested rights or to impair the obligation of contracts.</p> <p>Parol evidence is admissible to correct a mistake in the date of a receipt produced by the defendants.</p> <p>The power of expounding the law, which includes the great and responsible duty of declaring whether the legislative assemblies, State and municipal, have transcended in their past action the limits of their powers as defined by the Constitution and the laws, belongs to the judiciary alone. Bucka/ficm^ X, dissenting.</p> <p>The Legislature does not, in the Act of Tth February» I860, declare in so many words that the city ordinances in existence and which imposed taxes on capital for 1848 and 1849, were legal; but it has done the same thing in a different manner, by authorizing the Municipal Councils to re-enact those ordinances, and by giving the ordinances thus re-enacted a retroactive effect, so as in facj. to render the former ordinances legal, with a new date. This was clearly an interference by the legislative, with the judicial department of the government. BuclLO/ncm, J.</p> <p>It is a general principle of constitutional law, that the law can only provide for the future. Buch-cma/n, J.</p>

<p>A receipt is not conclusive against the party signing it, but it is to be deemzd prima fade evidence of the fact it asserts, and the intention it purports to express; the burden is on the party who desires to contradict or escape from it, to make out a clear case of error or fraud.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>Plaintiffs were holders of two drafts accepted by Lowe <& Pattison, who enjoined plaintiffs from selling the acceptances. The injunction was dissolved, and plaintiffs sought to make the sureties on the injunction bonds liable. It was in evidence, that the plaintiffs instituted suit upon the drafts and recovered judgment for the amount thereof, against Lowe & Pattison. One of the parties, W. IT. Pattison, made a cession of his property to his creditors, on January 5th, 1853. It was proved that at the time of the issuing of the injunction a sale of the paper held by the plaintiffs might have been made and would have been made at a discount of 2yz per cent, per month if the injunction had not restrained the sale of it. Held: That the amount recoverable upon the obligation less the discount of 2>¿ per month, is the sum of which the plaintiffs have been deprived by the issuing of this injunction.</p> <p>There was no evidence to show that the other parties were insolvent, or that the drafts have become worthless in consequence of the injunction. Held: That as the obligation in this case does not arise from a quasi offence, it is clear that in the assessment of damages, the law leaves no discretion to the Judge, who must be governed by the rules laid down in the Civil Code. Art. 1928. Voorhies, J., with whom concurred Buchanan, J., dissenting.</p> <p>The Act of 1831, authorizes the Court, upon the dissolution of injunctions to condemn the plaintiffs and suretyjointly and severally to pay 10 per cent, interest on the amount of the judgment enjoined, and not more than 20 per cent, as damages, unless damages to a greater amount be proved. Held: It is true this applies to cases where judgments are enjoined, but it can hardly be contended that other cases are entitled to be placed on a more favorable footing, and I am unable, to conceive with the Judge a, quo, that the sureties on the injunction bonds, should be held liable for the amount of the drafts, as the measure of damages. Vooriiies, J., with whom concurred Buchanan, J., dissenting.</p> <p>Judicial sureties cannot (except in cases specially provided fox1) claim the benefit of a discussion ofi the principal debtor, before recourse is had against them. C. C. 3038, 8035; 2 An. 880.</p> <p>A party is entitled to be placed in the condition in which he would have been, had no injunction, been issued.</p>

<p>from the Fifth District Court of New Orleans. D. Augustin, J.</p> <p>Partnership property must be applied to the payment of partnership debts, in preference to those of the individual partners.” C. C., 2794; 12 L., 870; 13 L., 279; 2 R., 458; 11 R., 130; 2 A., 87 and 810; 3 A., 189 and 319.</p>

<p>It is well settled, both by the Civil and Common Law, that a judgment gives rise to an action to enforce it. Whenever this action is brought, it is subject to the law of the forum, and the prescription of the forum alone will bar such action.</p> <p>Anypaymentof a debt made by one who administers an estate both as Tutor and Curator, interrupts prescription of the debt, whether the payment be made in one capacity or the other.</p> <p>A statute of Mississippi provides, that “judgment in any court of record of this State shall not be revived by scire facias; nor shall mvy action of debt be vnsMtuted thereon after the cxpwaMon of seven yecui'S next after the date of such judgment f etc. Voorhies, J., andBucnAUAN, J., (dissenting,) were of opinion that, under this statute, a judgment that could not be enforced in Mississippi, could not be enforced in this State. “ An action to enforce the payment of a judgment is undoubtedly the remedy given to the creditor by the law of the forum, but the faith, credit and effect to be given to such judgment must be considered as pertaining to or inherent to the right.”</p>

<p>from the Sixth District Court of New Orleans, Cotton, J.</p>

<p>PPEAL from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>Defendant was sued for the city tax of 1858, and was cited under the 85th section of the Consolidation 4ct of 1852, which substitutes, in lieu of the petition and citation, the constructive service, by advertisement, of the tax-bill in the official newspaper of the city. Held: that such proceedings, in the absence of petition and citation, are not unconstitusional.</p>

<p>PPEAL from the Second District Court of New Orleans, Lea, J.</p>

<p>As regards collection of revenue, mode of citation is within the control of the Legislature.</p> <p>Appellant mustsee that the transcript is complete, and can derive no benefit from omission.</p> <p>A clerical error in a judgment, by which the husband’s and not the wife’s name is inserted, where tax bills are in her name, not regarded.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p> <p>Cited: C. 0. 2044-5-8 ; C. P. 404.</p> <p>Cited: C. 0. 1907 ; 3 L. 382; 14 ib. 34; 4 R. 161; 2 An. 306; 4 L. 40.</p>

<p>Two of several proprietors may be joined in an action brought against them by their co*proprietors, . for a contribution to an expense incurred under the agreement of and intended for the benefit nf all.</p>

<p>PPEAL from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>PPEAL from the Second District Court of New Orleans, Lea, J.</p> <p>Personal property and debts are universally treated as having no situs, or locality, and they follow the domicil of the owner in point of right; that is to say, they are deemed to bo in the place, and are disposed of by the law of the domicil of the owner, wherever in point of fact they may be situate. Story’s Conflict of Laws, p. 299, No. 3C2; p. 308, No. 376; p. 811, No. 379 ; p. 3T2, No. 380. “ It is a clear proposition,” says Lord Loughborough, as quoted by Story, “ not only of the law of England, but of every country in the world, where the law has the semblance of science, that personal property has no locality; it follows the law of the person. The owner in any country may dispose of his personal property; if he dies it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession.” The third paragraph of Art. 10 of our Civil Code, is a necessary consequence of the truth of this proposition, and may be regarded as a legislative recognition pf it. The general principle is, that the law is obligatory upon all the inhabitants of a country indiscriminately; the foreigner, while residing in it, and his property within its limits, are subject to it. Art. 9 O. C. And for this reason immovable property cannot be disposed of by contract or by testament, in any manner not permitted by the law of the country where it is situated ; no matter where the owner may reside, the property belongs to the country and is subject to its laws. It is otherwise with movables; they are attached, as it were, to the owner, and when he has his domicil in another country, although they exist here in point of fact, we expressly admit by the paragraph alluded to, that the owner is not, in the disposal of them by his last will, subject to the operation of our law. The same reason which exempts it from the operation of our iaw with respect to dispositions causa mortis, must subject it to the laws of the domicil of the owner, when they affect and determine rights. In the present instance, Anna Barabino, at the time the succession of Joseph Bambino was opened, was do-miciliated at Gibralter, “ a seaport town,” as stated by Bertoli, in his petition making application for the curatorship of her succession, “ belonging to Great Britain,” where she intermarried with the plaintiff, who was also domiciled there, after the opening of the succession, and where she also died. Of course the questions arising in the controversy are to be decided by the law prevailing there, which is the common law.</p> <p>It is a general rule of the common law that a married woman cannot possess personal property, and that everything of this kind to which she is entitled at the time of her marriage, and which accrues during its continuance, is vested solely in the husband. Clancy’s Rights of Married Women, p. 1; 3 Coke, 309, note 0.</p> <p>Personal property, to which a woman may be entitled at the time of marriage, or during its continuance, consists of three kinds: 1st, personal chattels; 2d, chosesin action; and 3d, chattels real; all of which the law vests in the husband. Clancy’s Rights of Married Women, 2, 11, 12. There is a remarkable difference between personal chattels and the other two kinds of personal property. Personal chattels vest at once in the husband, in such a manner that they not only belong to him but they are actually in his possession. The other kinds are of such a nature that he has only the right of property in them, but no possession until the right has been enforced; and from this difference various consequences follow.</p> <p>If the wife survives the husband, the personal chattels which she brought to him would be lost to her, but the ohoses in action and chattels real, which had not been reduced to possession by him in his life-time, would be taken by her. Clancy, p. 3 ; 3 Coke, 309, noteO.</p> <p>If the husband survive the wife, the ohoses in action and chattels real, as the right of property vests in him, may be recovered by him and reduced to possession ; but he takes them subject to administration and as administrator. Clancy, 3, 4, and cases cited. 2 Kent, 135, 136 ; 3 Coke, 309, note 0.</p> <p>The only difference, in point of fact, between chattels personal and ohoses in notion, is this: The husband is responsible for the debts of the wife, as husband, and if he is not sued for them during coverture, though he received a large estate by her, he is not bound after her death. If the personal estate were reduced to possession before her death, he would enjoy it, and not be compellable to pay her debts, though the property he then possessed, derived from her, far exceeded the debts. 2 Kent, 144, 145. What was not reduced to possession he would bo entitled to, but only after administration in virtue of the right derived from her. So that it would be subject to the payment of her debts in the course of administration. 2 Kent, 135 ; 3 Coke, 809, note 0. That is, he could not take the advantages resulting from his marriage, under such circumstances, without submitting to the burthens it imposed on him.</p> <p>The surviving husband has the right to become administrator. 2 Jacob’s Law Diet. 505, 512. But if he failed to administer, and her heirs administered, the right of property being vested in the husband, his title would not be affected, and he would be entitled to recover it from them. They would be regarded as trustees for the benefit of the husband, Clancy, 11, 12; 3 Thomas Coke, 305, 309, note O.; 2 Kent, 135; 7 Johnson Chan. Rep. 243; Johnson Rep. 117, 118. And in the event of his death his heirs would be entitled to recover.</p> <p>The question then presents itself, whether movable property in Louisiana is subject to the dominion of the common law of England, simply because the owner was domiciled and died in Gibraltar ? This question involves an inquiry into the doctrine of real and personal statutes, about which so much has been written, and yet is so imperfectly understood.</p> <p>A statute is real, when it mainly and essentially acts, or rather operates, upon the property itself; when the principal object it seeks to accomplish is with reference to things, and when it speaks of persons only incidentally and in relation to property; when it operates on persons only as a means, (if I may be permitted so to express myself,) to attain the final end which it proposes to itself with regard to property, for the purpose of regulating its division, transmission, &c.</p> <p>A statute is personal, on the contrary, wheri its special and essential object is the person, that is to say, his general and absolute state and capacity ; and when it refers to property only incidentally, as a means to accomplish the final end which it has in view with regard to the person, whose state and capacity is to be regulated and fixed; or, in other words, when it regulates directly and principally the general and absolute capacity of persons.</p> <p>In the case of Lea v. Eis Creditors, 2 An. R. p. 603, Mr. Chief Justice Eustis, with his characteristic terseness and vigor, says: “A nation within whose territory personal property is found, has as entire jurisdiction over it while there as it has over immovable property. Its exercise for all purposes is a question of policy, and may be co-extensive with its authority over the latter. C. C., Art. 9 ; Story’s Conflict of Laws, § 550; Penny v. Christmas, 7 Rob., 499 ; Harper v. Stansborough, 2 A. R., 377.”</p> <p>Real statutes are held to have no extra-territorial force or obligation. Erom this it would seem to follow that real statutes must necessarily operate on all the property located within the territorial limits of the State by which they have been enacted. But a fiction has been introduced, the purport of which is, that movable property has no situs — no locality; or in the quaint language of the schools, mobilia ossibus persona, inhaerent; and from this strange fiction the conclusion is drawn, that the rights to, and disposition of movables, is to be governed by the law of the domicil of the owner, and not by the law of their local situation.</p> <p>That the weight of authority is in favor of the distinction here taken, as to the effect of real statutes on immovable and movable property must be admitted ; but that it is founded on any sound principle it would be difficult to establish. Oan the laws of China or Persia exercise their dominion over property, whether movable or immovable, within the State of Louisiana ? As has just been remarked, it is universally conceded, as a general principle, that, with the exception of personal statutes, no law can have an extra-territorial effect. On what legal ground then can it be pretended that movable property can be subject to the control of a foreign jurisdiction ? Judge Story, after referring to the vague and unsatisfactory grounds on which this doctrine is sought to be supported by various authors, says: “ the probability is, that the doctrine itself had not its origin in any distinction between real laws, or personal laws, or in any other fictitious annexation of them (the movables) to the person of the owner, or in their incapacity to have a fixed situs, but in an enlarged policy growing out of their transitory nature and the general convenience of nations.” I must confess that this reason does not strike my mind as of a very convincing character. If the great facility of transportation of movable property from one State to another, is a sufficient ground to make its disposition subject to a foreign law, why may we not go a step farther, and establish the rule that the police or criminal law applicable to a stranger is that of his domicil, because of the rapidity of the transition of the individual from one place to another, especially in this age of steam speed!! The whole doctrine seems to have no other foundation than the contemptible quibble already referred to, that movables are attached to the bones of the owner, and are therefore subject to the operation of the personal statute which governs his person. However preposterous such a proposition may appear when stated in its true point of view, still it has received the sanction of nearly all the great jurists who have written on the science of jurisprudence. Among the foremost of its supporters are the great names of Story, Kent, Toullier and a host of others.</p> <p>But of late years the rule has been subjected to the test of an independent scrutiny. In the case of Smith, administrator, v. The Union Banle of Georgetown, 5 Peters, 218, the question was much debated, whether the movable property, belonging to the succession of Samuel Robertson, should be distributed among his creditors, according to the lex loci domicilii; or the lex rei sitae ? Robertson, at the time of his death, was domiciliated at Norfolk, in the State of Virginia, and the property was found in the District of Columbia. It was insisted that personal effects have no situs, and follow the person; and that this principle is founded on the law and practice of nations, &c. In delivering the opinion of the Supreme Court of the United States, Mr. Justice Johnson, says:</p> <p>“That personal property has no situs, seems rather a metaphysical position than a practical and legal truth. We are now considering the subject with regard to subjecting such property to the payment of debts, through the medium of letters of administration. And here there is much reason for maintaining, that even the common law has given it a situs, by reference to any circumstances which mark its locality with discrimination and precision.</p> <p>“Thus, in the case of Byron v. Byron, I-Iil. 88, Elizab. Cro. 472, Anderson, Chief Justice, says: “The debt is where the bond is, being upon a specialty, but debt upon contract follows the person of the debtor; and this difference has been ofoen-times agreed.” So G-odolphin lays down the same distinction as established by law. Orphan’s Legacy, 70. And Swinburn lays down the same rule with still greater precision, as well against the effect of domicil as of the place of contract. For he says: “ debt shall be accounted goods, as to the granting of administration, where the bond was at his (creditor’s) death, not where it was made.” And, again: “debts due to the testator will make bona notabilia as well as goods in possession, but there is a difference between bonds and specialties, and debts due on simple contracts; for bond debts make bona notabilia, where the bond and other specialties, are at the time of the death of him whose they are, and not where he dwelt or died. But debts on simple contracts are bona notabilia in that country where the debtor dwells. Part. 6, Oh. 11. And so of judgments, locality is given them by the siPus of the Court where they are entered. Carthew, 149; 8 Mod. 324; 1 Salk, 40; Dyer, 308 ; 1 Roll. Air. 908; 1 Plow. 25; Oharthow, 373 ; Comb, 392 — are cited for these distinctions.</p> <p>To my humble understanding the argument of Mr. Marcado appears conclusive and unanswerable.</p> <p>Miihlenbruch, in his Doctrina Pandeetarum, is equally explicit in repudiating the distinction between movable and immovable property, in the application of the real statutes.</p> <p>“ De legum, quae in diversis territoriis obtinent, conflictu.</p> <p>'‘Jura, quge proxime rebus sunt scripta, velut eaquse ad dominii causam spectant, vel ad vectigalium tributorumque onus, vel ad pignorum in judicati exsecutionem et capiendorum et distrahendorum, turn etiam rerum apud judi-cem petendarum persequendarumve rationem, et quae sunt reliqua ex hoc genere, estimantur ex ejus loci legibus, ubi res, de quibus agitur, sitae sunt ac collocatse, nullo rerum immobilium et mobilium habito discrimine.” — Book I, sec. 72.</p> <p>Miihlenbruch refers to Meier, Meissner, Tittmann, Eichhorn and Wachter, as supporting his view of the subject; but admits that the great majority of authors maintain the opposite doctrine.</p> <p>Be this, however, as it may, it is admitted on all hands, that the extra-territorial operation of a foreign law, has no other foundation than the comity of nations, and that it is optional with every State to decide whether it will give effect to this comity or not. There can be no question then, that a foreign law can have no operation, when a Government has declared by a legislative enactment, that the property of foreigners (without distinguishing between movables and immovables) shall be subject to its laws.</p>

<p>from the Sixth District Court of New Orleans, Cotton, J.</p>

<p>The curator of a succession, appointed in 18881, is not liable to the penalties imposed by the Act of 1887, for his failure to deposit the money of the succession in a bank.</p>

<p>PPEAL from the Second District Court of New Orleans, Lea, J.</p>

<p>Plaintiff was the holder of a note dated in New Orleans, drawn by a person, who at the time transacted commercial business in this city, as a partner of the firm of B. F. Nichols & Co., which was dissolved in the summer or fall of 1854, and who continued to visit frequently their place of business after the dissolution, and until within a month or six weeks prior to the maturity of the note. Plaintiff did not know that the maker resided in another parish, and there was nothing to put him upon an inquiry with reference to the maker’s residence. The note was placed in the hands of a notary for protest, on the 4th of January, 1855, within banking hours, who called a t four, or half past four o’clock, at the store or office of B. F. Nichols db Co., and was then informed for the first time, that the maker resided in the parish of Jefferson, some distance above Carroll-ton. Nelcl:</p> <p>1. That had the holder known before the maturity of the note, that the maker resided in another parish, it would have been his duty to make a demand of payment at his domicil, he having no fixed place of business.</p> <p>2. That the holder had aright to presume that the maker resided here, and that if he was under a false impression with reference to the maker’s domicil, it was one which naturally resulted from the circumstances under which the endorser himself had placed the note in circulation.</p> <p>3. That the distance of the maker’s residence, considering the lateness of the hour and the season of the year, furnishes a reasonable excuse for a want of due presentment for payment.</p>

<p>i PPEAL from the Sixth District Court of New Orleans, Gotton, J.</p>

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

<p>from the Sixth District Court of New Orleans, Cotton, J.</p>

<p>from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>from the Fifth District Court of New Orleans, Augustin, J.</p>

<p>Fact: Proof of agency.</p>

<p>from the Third District Court of New Orleans, Augustin, J.</p>

from the Fifth District Court of New Orleans, Augustin, J. cited, Bathbone v. Weal, 4 An. 566, 567. Plaintiffs’ counsel cites 4.An. 566-7, in reply to so much of the judgment of the District Court as decides against plaintiffs, because they sold the damaged goods at public auction, without notifying the captain of the ship or her agents, that plaintiffs intended so to do. But Bathbone v. Weal, does not apply to damaged goods, hut to delay in delivery of goods.

<p>■When parties are present, or presumed to be present, at the trial of a cause, and written instruments are offered and received in evidence without objection, the signatures of all persons properly parties to such instruments, are considered as admitted. This well settled rule of evidence applies to bills and notes as well as to other instruments.</p>

<p>It is always proper for the Judge to elucidate the law, even by supposing a state of facts for the purposes of illustration ; it is proper that he should inculcate upon the minds of jurors a sense of their high responsibility to the public as well as to the accused; this, however, should be done by remarks of a general character, not by observations tending‘directly to induce the jury to find a particular verdict in the cause before them.</p> <p>The Judge instructed the jury that it was their duty to find an unqualified verdict, if the case was clear. Held: That there was error in the Judge’s instruction, for, if the case was not clear, beyond a reasonable doubt, they could not find the prisoner guilty at all, and the charge amounted to an instruction that if a person was found guilty of arson, he should always be punished with death; overlooking the Act of May 27th, 1846, which declares that: “ in all cases where the punishment denounced by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto, without capital punishment.”</p>

from the Fourth District Court of New Orleans, Beynolds, J. Defendants in a previous shipment from the same plaintiff, through the same agents, of goods of the same kind, and without instruction to insure, charged premium for fire insurance, and rendered their account to the owners, which was not objected to. This mode of doing business being ratified, it becomeg the basis of transactions between the parties, and the parties were bound to insure.

<p>By a statute of the Legislature, passed in 3850, the Second Municipality was authorized to lay off streets through a portion of its batture, acquired by donations under a notarial act made by the donors, in September, 1820; and in case of an agreement being made with the original parties to that act, for the sale of the batture, the corporation was authorized and required to lay off the same into lots, to sell said lots, and to' divide the proceeds according to the terms of such agreement ; provided, one third of the net proceeds of sale should be reserved for the liquidation of the debts of the old corporation of New Orleans. Under the provisions of the statute, a notarial act of agreement was passed on the 80th June, 1351, between the representatives of the parties who. signed the act of donation of 20th September, 1820, (among them the heirs of Grower — the defendants,) and the Second Municipality of New Orleans, by which it was agreed that streets should be laid off and the squares between ‘the streets sold, the net proceeds to be divided, one third to. the general sinking fund, or old corporation of New Orleans; one third to Municipality No. 2, and the remaining third “ to the original parties to the contract of 20th September, 1820, or to the-heirs or legal representatives thereof, whose assent is given to the present agreement, each one.respectively to receive in proportion to the front of the lots or portions of ground originally-owned by him, as shown by the said contract.” The sale was made, and D&nis, one of the defen» dants, as agent of the heirs of Grrnier, received one third of the proceeds of certain lots, being those lying opposite the frontage, assigned to the heirs of Qrowier, in the contract of the 20thk September, 1820. The heirs of Jotwclcm brought this suit to recover of the defendants, the heirs* of Gro/oier, the proceeds of lots sold under the contract of the 80th of June, 1851, which were-situated opposite to the ground assigned to their ancestor by a “ transaction” between him and, the heirs on the 21st of February, 1821. Held,: The question presented, correctly considered, is. purely a question of fact: Have the heirs of Grwoier acknowledged the title of Jourdan, the* ancestor of plaintiffs to the batture, outside of Hew Zevee street, in front of the lower half of his lot on Tchoupitoulas street, in the notarial act of February 21st, 3821 ? JBy the Cow't: the plaintiffs claim a portion of the proceeds of the sale of the batture, as belonging to them under the notarial act of 21st of February, 1821, and as having been received by a party who had concluded himself' by that act, from disputing their right of ownership in a portion of the batture outside of New»Levee street, and they insist that the money so received by defendants, is to be deemed, as received for the account of them, the plaintiffs. But the court held that the plaintiffs were not en* titled to recover.</p> <p>Note. — The cases of Jerome Tov/ené and Widow Poycto'as de LaUa/nde, against the same defendants turned on the same point and are therefore not reported.</p>

<p>A special plea to that effect, is necessary to put the plaintiff upon proof of his interest in the life in-</p> <p>The agent of a foreign insurance company received the premium upon a life insurance, and gave his receipt, which, it was agreed, should be exchanged for a policy, within thirty days, if the insurance was not rejected by the parent office. Keld: The “ temporary policy ” did not terminate at the expiration of thirty days. That time was fixed as the period within which the policy was to be exchanged for one from the parent office. It was the duty of that office to forward the rejection of the contract, made by their agent, to the office at New Orleans, (where the “ temporary policy” was entered into,) immediately on receiving notice of the contract made on their behalf by their agent. The insurance office could not therefore relieve itself from liability by rejecting the insurance, when, after the lapse of thirty days, it received notice of the death of the person insured.</p> <p>Kennedy had an insurable ^interest in the life of Mathews to the extent only of one half of the amount due by Mathews to K&mtedy & Foster, — Lea, J.</p>