Volume 10 — Robinson's Louisiana Reports

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

<p>A vendor is bound to explain himself clearly as to the extent of his obligations ; and the exhibition of a sample implies a warranty, that the thing sold by it shall, in general, conform thereto. C. C. 2449. Any secret or hidden defects must be declared, or he who conceals them will be bound to indemnify the party imposed on by such concealment. So the vendor will be bound to indemnify the purchaser, though the inferiority of the thing sold result from the acts of his agent, without his knowledge or consent; and the measure of damages is the difference between the price given, and that which would have been given, had there been no deception. But where both the vendors, and the purchasers, or their agents, whose knowledge is binding on them, know what the probable hidden defects are, the former are not bound to indemnify the latter; as where cotton brought from certain sections of country, is known not to be of uniform quality throughout the bale, and the notoriety of the fact lowers the price which it commands in the market, the mere fact that the quality was not equal throughout, unaccompanied with any proof of fraud will not render the vendors liable to the purchaser.</p>

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

<p>Appeal from the Court of Probates of East Feliciana, Saunders, J.</p>

<p>Appeal from the District Court of Point Coupée, Deblieux, J.</p> <p>The motion to dismiss this appeal comes too late. The record was filed on the 5th of November, 1845, and the motion to dismiss on the 27th of January, 1845, the day on which the appellees fixed the case for trial. The motion should have been made at least three days before that on which the case was fixed for trial. 7 Mart., N. S., 265, 271, 2 La., 301.</p> <p>The appeal should be dismissed, on the grounds: 1st. That the record was not filed on the return day, nor within three judicial days thereafter; 2d. That the defendants have not been cited to answer.</p>

The second' marriage, though any ground should exist to annul it, must be held valid until the nullity is established by a judgment of a competent court, in a direct action. The validity of a marriage is to be determined by the law of the place where it was celebrated. If valid there, it is valid every where.

<p>Appeal from the District Court of St. Helena, Jones, J.</p>

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

<p>Appeal- from the District Court of East Baton Rouge, Johnson, J.</p>

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

Helena, Jones, J. The judgment below should be affirmed. The bond not corresponding with the judgment, the sale was null. Code of Practice, art. 681. Rice v. Schmidt. 11 La., 71. The price paid was not a serious one. Pothier, Vente, p. 10, No. 19.

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

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

<p>Defendant having pleaded in reconvention that the plaintiff was indebted to him in a certain sum, as the price of a house and lot, -which he had, at her instance, purchased for her, offered the testimony of witnesses to establish those allegations. Held, that the evidence being parol, and tending to establish an agency to purchase real estate, was inadmissible.</p>

<p>Appeal from the District Court of West Feliciana, Johnson, J.</p> <p>cited Bull. & Curry’s Dig., p. 41, § 5 ; p. 43, § I and II. 5 La. 265. 16 La. 20, 283, 310.</p>

<p>Section 3 of the act of 25 March, 1831, and section 3 of the act of29 March, 183$, do not authorize the court, on the dissolution bf an injunction, to increase the interest, where the original judgment bears interest at ten per cent a year. This principle applies with greater force, Where the party enjoining is not the debtor. Whatever else it may be proper to allow, must be in the form of damages.</p>

Appeal by the plaintiffs, from a judgment against them as in case of a non suit, rendered by the District Court of East Feliciana, Johnson, J. cited 13 La. 368. Chitty on Bills, 373. Ed. 1836. The burden of proving that the defendant knew of his discharge at the time he asked for indulgence, is upon the plaintiffs. 12 La. 465. 13 La. 421, 2 Rob, 158. Story on Bills, No; 320. cited 8 Mart. 147. 11 La, 17.

<p>Appeal from the District Court of East Baton Rouge, Johnson, J,</p>

<p>The cashier of the branch of a bank, may, as an act of administration, accept the surrender of a debtor of the bank, and vote for a syndic; but without an express and special authority from the directors, he cannot discharge the insolvent. The granting of such a discharge is an act of ownership, and not of administration. C. C. 2965, 2966.</p> <p>The discharge of an insolvent who has made a cessio bonorum,, granted by the creditors, is not an absolute remission of the debt; It rather releases the person of the debtor, than extinguishes the debt itself, which will continue to exist for any 1 balance not paid out of the assets surrendered.</p>

<p>Appeal from the District Court of St. Tammany, Jones, J.</p>

<p>Appeal from the Court of Probates of West Feliciana, Weems, J.</p>

<p>Appeal from the District Court of West Feliciana, Johnson, J.</p>

<p>Payments made by one who owes a debt bearing interest, cannot, without the consent of the creditor, be imputed to the reduction of the capital, while any interest is due. C. C. 2160.</p>

<p>Prescription runs against a note payable on demand, from its date, not from that of the demand. Per Curiam: Prescription attaches to a right from the moment that it can be exercised.</p> <p>Defendant sued on a note without date, but bearing interest from a certain day, pleaded prescription, and the court, assuming that the note was made on the day from which it boro interest, gave judgment in his favor. Held, that the court erred in assuming that the note was made on the day from which it bore interest; and that defendant was bound to prove the facts from which relief was sought under the plea of prescription.</p>

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

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

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

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

<p>Appeal from tbe District Court of East Feliciana, Johnson, J.</p> <p>A promise by a drawer to pay, after a knowledge of bis release, is binding. Chitty on Bills, 372, 373, 523, 536. 12 La. 465. 13 La. 368. 18 La. 333.</p>

A mortgage on slaves must be recorded in every parish into which the mortgagor may remove his residence, with the property. Civ. Code, arts. 3814, 3315, 3317, 3318, 3328, 3329. Act of 26 March, 1813, Bullard & Curry’s Digest, 596.

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

<p>Where the plaintiff, in a petition to enjoin an order of seizure and sale obtained on a mortgage to secure a note, alleges the illegality of the note as the ground of enjoining the sale, the injunction cannot be dissolved on the faco of the pleadings. An injunction may be had, whenever it is necessary to preserve the property in dispute pending the suit.</p> <p>Wherever it is shown that the consideration of the obligation of a marriad woman, contracted jointly with her husband, enured to her use and benefit, and was not a thing which her husband was bound to furnish her with, she will be bound thereby, She cannot, in such a case, be considered as having bound herself as security for her husband, or conjointly with him for a debt in which he alone is interested. As where a sum of money, for the repayment of which a note was executed jointly by the husband and wife, was applied to the extinguishment of a debt due by the husband to a minor, which was secured by a general legal mortgage existing on certain property of the husband’s at the time of its purchase by the wife. Per Curiam: The consideration of the obligation may be viewed as a part of the price of the property purchased by her.</p> <p>To entitle an inferior mortgagee to be paid, under art; 403 of the Code of Practice, out of the property seized, in preference to one having only a general or legal mortgage, he must prove that the debtor has other property of sufficient value to satisfy the anterior general or legal mortgage.</p>

<p>Appeal from the District Court of East BatonRouge, Johnson, J.</p> <p>A marriage contract creates no mortgage. 2 La. 538. 4 La. 556, 559, 562. 11 La. 23,28. 16 La. 272.</p> <p>The action is prescribed. Civ.. Code, art. 1989. Rivas v. Gil, 8 Mart. N. S. 674.</p>

<p>Appeal from the District Court of St. Helena, Jones, J.</p>

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

<p>A purchaser at a sheriff’s sale, made on twelve months’ credit, under an execution in the name of the liquidating commissioners of an insolvent corporation, against one of its debtors, cannot tender to the sheriff in payment or compensation of his bid, an obligation of the company. If he refuse to pay the price, or to offer the proper sureties, the sheriff must expose the thing seized to a second sale. C. P* 689.</p>

<p>Appeal from the Court of Probates of East Baton Rouge, Tessier, J.</p>

<p>Appeal from the District Court of West Feliciana, Johnson, J.</p>

<p>Appeal from the District Court of St. Helena, Jones, J.</p>

<p>Where it is shown that the boundary lines of the land claimed by one holding un der a confirmation by the United States and a survey made by a government sur veyor, were run as near as possible to a bar, the whole of which was subject to bo overflowed at high water, and the greater part of it to an annual overflow, so as to include all the high land susceptible of ownership, the proprietor will bo entitled to the alluvion, or batlurc, subsequently formed on the site of the bar.</p> <p>A mere trespasser cannot defend himself, by alleging imperfections in the title of a plaintiff, which is apparently good.</p>

<p>Appeal from tbe District Court of East Baton Rouge, Johnson, J.</p>

<p>The plaintiff appealed from a judgment of the District Court of East Feliciana, Johnson, J., in favor of the defendant.</p>

<p>The first section of the act of Congress of 19th August, 1841 r establishing a uniform system of bankruptcy, having declared that the benefit of the act shall not be extended to any one owing debts in consequence of a defalcation as a guardian, a tutor, against whom a judgment has been rendered for an amount due to the minors under his care, and who subsequently applied to be declared a bankrupt and was discharged as such, not being protected by the proceedings in bankruptcy, may afterwards appeal from the judgment rendered against him. His assignee should not be made a party to the appeal.</p>

<p>Where a Ji. fa. and the sheriff’s return are produced as evidence of a judicial sale, without opposition, it will be sufficient to prove the sale.</p> <p>Property claimed by a plaintiff cannot be alienated pending the action, so as to prejudice his rights. If judgment be rendered in his favor, the sale will be considered as the sale of another’s property, and will no.t prevent his being put in possession by virtue of the judgment. C. C. 2428,</p>

<p>One discharged as a bankrupt under the act of Congress of 19 August, 1841, who subsequently promises to pay a debt from which he was released by the bankrupt proceedings, will be liable on his promise.</p>

<p>Where a rule of court requires, that the suhpcEua for a witness shall be given to the ' sheriff, at the latest, on the day preceding that on which the case is fixed for trial, a party will not be entitled to a continuance on account of the absence of a witness, for whom a subpoena was not delivered to the sheriff in compliance with the rule.</p>

<p>Appeal from the Court of Probates of Ascension, Duffel, J.</p>

<p>A reconventional demand interrupts prescription; and the interruption necessarily continues until the termination of the action.</p> <p>A citation headed as issued from “ the District Court of the Fourth Judicial District for the parish of P. C.” reciting that the action is pending before the said District Court, witnessed by the judge, and signed by the clerk of that District Court, and requiring the defendant to file his answer “ in the office of the clerk of the court of the parish first aforesaid, at the court house,” &e. is sufficient. Per Curiam: The defendant could not be mistaken as to the court before which he was called on to answer.</p> <p>Though a writ of arrest may have been illegally obtained, the clerk who issued it, and the sheriff who executed it in obedience to the mandates of a competent Iri- ■ bunal, cannot be viewed as co-trespassers with the plaintiff in the suit, who alone is responsible for the consequences of the proceeding.</p> <p>Whore the affidavit of a party, stating the facts which he intends to establish by a witness, is offered to obtain a continuance on account of the absence of the latter, and his opponent, for the purpose of trying the case, admits that the witness, if present, would swear to the facts stated in the affidavit, and the case is afterwards continued on other grounds, the affidavit and admission cannot be used at any subsequent term.</p> <p>In an action for damages for a malicious arrest, evidence is admissible to prove the condition of the apartment in the jail in which plaintiff was confined.</p> <p>Where one sued for damages for a malicious arrest, is not shown to have acted through malice, but to have had reasonable grounds to believe that he would succeed in his action, and no attempt was made to disprove the affidavit upon which the arrest was obtained, the case will be remanded for a new trial, where the damages allowed by the jury appear excessive.</p>

<p>Appeal from tho District Court of East Baton Rouge, Johnson, J.</p>

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

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p> <p>Prescription does not apply in this case. Contra non valontem fyc. 5 Mart. 425. 7 lb. N. S. 481. 11 Mart. 06.</p> <p>There was no sufficient offer to return the slave. Code of Practice, arts. 404 to 418. Janin v. Franklin, 4 La. 198. The cases in 18 La. 109, 1 Robinson 167, and 3 lb. 357, are inapplicable. The action was prescribed. Civil Code, art. 2512. 11 Mart. 11. 6lb. N. S. 129. 3 Ib. N. S. 688. 7 La. 176. And plaintiff’s remedy is against the clerk, through whose fault his action is barred.</p>

<p>These appeals were brought up from the District Court of the First District, Buchanan, J.</p>

<p>Appeal from the District Court of West Feliciana, Morgan, J.</p>

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

<p>Persons who have lived in open concubinage, and have not subsequently married, cannot make to each other any donation inter vivos or mortis causa of moveables, ' exceeding one-tenth of the donor’s estate, after deducting the debts and charges against it.</p>

<p>A defendant owes no costs until the final determination of the action, and then only in ease judgment he rendered against him. C. P. 549. Otherwise, as to plaintiffs.</p> <p>A defendant whose property has been sequestered, pending the suit, at the instance of the plaintiff, has a right to have the sequestration set aside, on executing a bond in favor of the plaintiff with the security required by law. C. P. 279. His" right to claim possession of the property, is subject to no other condition than that of giving the bond. The sheriff has no right to require from him payment of any of the expenses of the sequestration, before restoring the property. The defendant will be liable therefor, only in case judgment be rendered against him-C. C. 2949. C. P. 283.</p> <p>Where a plaintiff who has obtained a judgment below, in a case depending before the Supreme Court on a suspensive appeal, represents that his judgment has been recorded in the Mortgage office, and swears that he apprehends that the defendant will conceal, or dispose of pending the appeal, a slave, on whom he has a mortgage resulting from the recording of the judgment, he may obtain a sequestration from the lower court. C. P. 275. Act 7 April, 1826, § 9. The appellee is not confined to his recourse on the surety in the appeal bond.</p> <p>As a general rule, the jurisdiction of the appellate court attaches as soon as the appeal bond is filed, and the lower court has no longer authority to take any steps but such as may be necessary to transmit the record to the Supreme Court, or, by a provisional and conservatory order, to secure the ultimate execution of the judgment of the appellate court.</p>

<p>The wife’s mortgage for the reimbursement of her paraphernal property, attaches ' only from the date of the actual receipt of the price by her husband.</p> <p>An undertaker who has recovered a judgment for work and labor on a building, but whose contract was never recorded, and who neither prayed for, nor was allowed ' any privilege by the judgment, acquires no lien on the property or its proceeds.</p> <p>The only property of a debtor having been sold under a Ji. fa, the purchaser, after assuming the payment of certain claims, gave a twelve months’ bond for the balance coming to the debtor. The conditions of the sale not having been complied with, the property was re-sold. The purchaser at the first sale having subsequently obtained a judgment against the debtor, seized in the hands of the sheriff the bond given by him to the debtor, claiming its amount out of the proceeds of the second sale. The bond was not sold but handed over to him. On a rule taken by the wife of the debtor, under art. 301 of the Code of Practice, to show cause why the proceeds of the sale should not be brought into court, and distributed among the creditors of the defendant in execution, according to their privileges and mortgages : Held, that the purchaser at the first sale acquired no title to the bond by its delivery to him ; that it remained the property of the defendant in execution, representing the portion of the price supposed to be coming to him; anc^ that neither he, nor the party who pretends to have acquired his rights, can claim its proceeds in opposition to the mortgage creditors of the latter, the defendant in the execution.</p> <p>A twelve months’ bond is not a payment of the debt on which the execution was issued. It operates no novation, but leaves the original obligation in force against the debtor; and its proceeds, when brought into court under art, 301 of the Code of Practice, are subject to the rights which the creditors originally had on the property.</p> <p>A wife holding the first mortgage on the property of her husband, cannot, by re nouneing in favor of others, injure a subsequent mortgagee, by placing before him a larger amount of mortgages than originally existed. Subsequent mortgagees in' whose favor she may .renounce, transferring to them all her rights, will take her place to the extent of her mortgage, and she will retain her priority over other and inferior mortgagees only for the surplus of her claim, after deducting tho claims of those in whose favor she renounced.</p> <p>Where a suspensive appeal, taken from a judgment recovered in a lower court and recorded in the mortgage ofiice, leaves the judgment unreversed, the plaintiff will be bound to urge any right he may have acquired on the property of the debtor by the recording of his mortgage, before resorting to the surety on the appeal bond! C. P.579.</p>

<p>In an action on a policy of insurance against fire, evidence is inadmissible to prove that the loss occurred through the negligence of an agent of the plaintiff. The evidence is irrelevant. Per Cur. The underwriters are answerable for any loss occasioned by the negligence of those in charge of the property insured. Such is the law both of marine and fire insurance. But the negligence must be unaffected by any fraud or design on the part of the insured.</p> <p>In an action on a policy of insurance, effected on account of the plaintiffs by an agent, testimony to prove that the latter, who had a policy for his own benefit on goods in the same building, designedly set fire to the building, is inadmissible, where it is neither alleged nor proved that they were in any way privy to the act The act can no more affect the plaintiffs than if done by a stranger. A principal is liable civilly for the frauds or misrepresentations of his agent, made in (he course of his employment, though he neither authorized, justified, nor participated in his misconduct, nor even knew of it; but the misconduct, or misrepresentation on the part of the agent, must be while acting as such, within the scope of his agency. Nor will the record of a suit between the agent and the defendants, on his own policy, be admissible to prove fraud and false swearing on the part of the plaintiff in the latter suit, or to show what portion of the property insured belonged to the plaintiffs in the action in which it is offered in evidence. The fraud and false swearing on the pait of the agent, being in his own case and for his own purposes, was irrelevant; and the principals not being a party to the suit, the matter was res inter alios acta, and cannot be used against them.</p> <p>When an agent, by whom insurance had been affected, he being named as agent in the policy, swears to the loss as his, the oath will be considered as referring to the character in which he was recognized and acted when he affected it, and not as proof of perjury.</p> <p>The allegation in an answer that a third person is the real plaintiff in the action, is not sufficient to exclude his testimony.</p> <p>Where defendants, sued on a policy of fire insurance underwritten by them, are shown to have consented that the property damaged by the fire should be sold at auction, the price at which it was sold is a proper criterion by which to estimate the-damage of the insured.</p>

<p>N. having obtained an injunction from a District Court to arrest the execution of a writ of possession, issued from a Probate Court, on the ground that no judgment had been rendered under which the writ could be issued, B., by whom the writ had been obtained, moved to dissolve the injunction for reasons apparent on its face. The motion' was overruled, and B. answered, pleading the general issue, and averring that a judgment had been rendered under which the writ of possession was issued. While these proceedings were pending, B. applied to the Supreme Court for a writ of prohibition to the judge of the District Court, on the ground that he had exceeded his jurisdiction. Held, that no prohibition could be issued, when the very matter for which it is sought to be obtained is denied, and is the main point in litigation, yet untried in the lower court. Per Cur. To grant a prohibition, would be to try the case on its merits, before an appeal. The want of jurisdiction in the District Court does not appear on the face of the petition; and it is not shown that tho inferior judge has refused, after being made aware of the existence of a judgment of the Court of Probates, to declare his want of jurisdiction, which depends on the existence of such a judgment.</p> <p>The writ of prohibition is an extraordinary one, and should be issued only in cases of great necessity, clearly shown, and where the party has applied, in vain, to the inferior tribunals for relief.</p>

<p>The action by one who has attained majority, against his tutor, for an account of his tutorship, is prescribed by four years, commencing from the day of majority. C.C. 356.</p>

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

This was an action by the purchaser against the vendor of certain lots in the city of Lafayette, to recover from the latter, on the ground of eviction, a part of the price, which had been paid, the value of the improvements put upon the property, &c. There was a judgment in favor of the plaintiff for the part of the price of the property paid by him. As to the rest of the claim, there was a judgment for the defendant.

<p>Defendants having sold certain lots of ground to the plaintiff and another person, the latter gave their notes for the price, payable at future periods. The notes were identified with the act of sale, and secured by mortgage on the property. The other purchaser having subsequently sold his interest to the plaintiff by an act of sale in which the defendants intervened for the purpose of correcting an error in the description of the property, the notes first given were cancelled, and others were executed by the last purchaser, payable to the defendants, or bearer, for the same amounts and maturing at the same periods as the first. These notes were certified by the parish judge to have been given to secure the purchase money of the property; but no mortgage was reserved to secure their payment. Two of the notes last given having been protested for non payment at maturity, the defendants took out an order of seizure and sale under the act in which a mortgage was reserved in their favor, annexing to their petition therefor the protested notes. On a motion to dissolve : Held, that to entitle a party to executory process, as the owner of an act importing a confession of judgment, containing a privilege or mortgage in his favor, it must appear from the act itself, that the debtor has declared or acknowledged therein the debt for which the privilege or mortgage was given; that the order of seizure and sale having been applied for under an act containing no declaration, on the part of the plaintiff, of his being indebted to defendants in the amount sued for, and the notes annexed to the petition not being mentioned in the act, no executory process could be legally issued thereon; that no such process could be issued uijder the first sale, as the notes given under it are admitted to have been cancelled ; nor under the second, the defendants not being recognized, nor alluded to therein as the creditors of the plaintiff,</p> <p>Parol evidence is inadmissible, on an application for an order of seizure and sale, to strengthen or add to the stipulations in the act of mortgage, or to supply the omission of any stipulation. The evidence must appear on the face of the act itself— not aliunde.</p>

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

<p>The provision of the 10th section of the act of 1st March, 1836, amending the charter of the New Orleans and Carrollton Rail Road Company, which, in consideration of a bonus, exempts the company, for a certain period, from any liability to be taxed on the part of the State, does not exempt real estate held by the company, in the Second Municipality of New Orleans, from liability for taxes imposed by the municipal authorities.</p>

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

<p>Defendants offered to file a supplemental answer, to which was annexed an affidavit of one of them, detailing the circumstances of a transaction relative to which they desired to interrogate the plaintiff, accompanied with interrogatories requiring him to say whether the facts mentioned in the affidavit were true, and, if not, to state the facts as they occurred. Plaintiff objected to the filing of the answer, on the ground that the interrogatories were not properly propounded : Held, that the application to file the answer was correctly rejected, and that the court did not err in requiring the plaintiff to propound separate interrogatories as to the distinct facts, relative to which he intended to question the plaintiff.</p>

<p>Appeal from the City Court of New Orleans, Collins, J,</p>

<p>Appeal from the Court of Probates of Plaquemines, Leonard, J.</p>

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

<p>Where a policy of insurance recites that the “ insurers shall not be liable for mutiny,” the mutiny is but an excepted risk. So, where the language of the policy is “warranted free from insurrection,” it does not create a technical warranty, but only exempts the insurers from liability on account of losses which may be sustained in consequence of an insurrection or mutiny. In common parlance, there is little or no difference between mutiny and insurrection; and the word warranted is often used where there 4s no warranty in fact.</p> <p>A vessel on the high seag, in time of peace, engaged in a lawful voyage, is under the exclusive jurisdiction of the State to which her flag belongs ; as much so, as if constituting a part of its own domain. If forced by any unavoidable cause into a port of a friendly power, she loses none of the rights appertaining to her on the high seas, but herself and cargo, and the persons on board, with their property and all the rights incident to their personal relations, as established by the laws of the State to which they belong, are placed under the protection which the laws of nations extend to the unfortunate under such circumstances. Although the jurisdiction of the nation over the vessel belonging to it is not wholly exclusive; . and though, for any unlawful acts committed, while in such a situation, by the master, crew, or owners, she and they may be responsible to the laws of the place, yet the local law does not supersede the laws of the country to which the vessel belongs, so far as relates to the rights, duties and obligations of those on board.</p> <p>Where slaves shipped from one port of the United States to another, rise upon the officers of the vessel, and take her into a British port, they will be considered still as slaves, though in a state of insurrection. Per Curiam: They did not cease to be the property of their owners, though in a state of insurrection, and though the right of property could not be asserted in a British court, nor enjoyed within the exclusive influence of British laws. '</p> <p>The Zasi cause of a loss is not necessarily the proximate cause.</p> <p>All the consequences naturally flowing from a peril insured against, or incident thereto, are properly attributable to the peril itself.</p> <p>Where the insurers of a cargo of slaves are exempted, by the policy, from the risk of insurrection, and the slaves take possession of the vessel by force, turn.her from her course, and enter a British port, where they escape, the insurrection must be considered as the cause of the breaking up of the voyage, and the 'insurers will not be liable.</p> <p>In principle there is no difference between a successful insurrection of slaves, who form themselves the subject of the insurance, and a capture by an enemy, which, prima facie, amounts to a total loss.</p>

<p>Where insurance has been effected on slaves shipped from one port to another, the insurers will not be liable where the usual and necessary precaution in providing irons, and in maintaining security, or in the relative numbers of the whites and slaves have not been observed. In such case, the party is left to his recourse against the owners of the vessel.</p> <p>The seaworthiness of a vessel on whose cargo insurance has been effected, is a condition precedent; and, if not seaworthy at the time of sailing, the policy will not be considered as having ever attached.</p> <p>An insurance of slaves protects the insured against any loss arising from their mutiny and insurrection, unless that peril be expressly excepted or warranted against. The articles of the Civil Code rendering the owners of slaves liable for their of-fences and quasi-offences (C. C. 2300, &e.), do not apply to such a case, which is governed wholly by the commercial law.</p> <p>Where insurance'was made on the cargo of a vessel from one port to another, tho the policy will attach though the cargo was put on board at another place than that named as the port from which the vessel was to sail, where it is the usage for vessels sailing from the port named, to take in their cargoes at the place at which it was actually received on board.</p>

This was an action to recover $10,000, the insurance upon fifteen slaves, valued equally, at and from Richmond to New Orleans, shipped on the brig Creole, on the same voyage as those insured in the case of Me Cargo v. The New Orleans Insurance Company, ante p. 202.

The court has recognized the principle that, under a policy on slaves, the assured will be answerable for a loss by insurrection ; but an unexpected exception has taken our case out of the general rule. It is alleged as the main ground for not applying the principles “ which the court has recognized as not unreasonable” and which might well be adopted as the proper rule, that there is a difference between our coasting slave trade and the foreign slave trade.

<p>Appeal by the plaintiff from a judgment of the District Court of the First District, Buchanan, J.</p>

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

The plaintiff appealed from a judgment of the District Court of the First District, Buchanan, J., sustaining an exception of res judicata, and dismissing an action instituted by him against the defendants for damages, in consequence of an illegal attachment of his property, in an action against certain debtors of the latter, in which the plaintiff had intervened and recovered the property. The first mentioned suit was tried before the Commercial Court of New Orleans.

<p>A purchaser of property sold under a fi. fa. having applied for a monition under the act of 10 March, 1834, the judgment creditor opposed the homologation of the sale, on the ground that the property had been incorrectly described both in the execution and the advertisement. The property was described as bounded on one side by Clement street, instead of Chestnut street, the real boundary. There was no such street as Clement street; and the description was, in other respects, accurate. Held, that the description being in other respects sufficiently accurate to indicate the extent and location of the property, the error, which was clearly a mistake made by the sheriff in copying the description, was immaterial, and could neither invalidate the sheriff’s sale, nor support an opposition to its homologation under a monition taken out in pursuance of the act of 1834.</p>

<p>Appeal from the District Court of Iberville, Nicholls, J.</p>

<p>Appeal from the Court of Probates of Iberville, Dutton, J.</p>

<p>A judge before whom a cause is being tried, is a competent witness for either party. The act of the 25 March, 1828, sec. 6, provides in what manner he shall be sworn, and how his testimony shall be reduced to writing, if required by either party.</p> <p>Art. 2377 of the Civil Code, which provides that when the hereditary property of either of the spouses has been increased or improved during the marriage, the other shall be entitled to one half of the value of such increase or amelioration if proved to have been the result of the common labor or expense, does not contemplate that to ascerain the value of such increase or improvement, every item of improvement shall be estimated separately, and the aggregate amount added to the estimation of the land. This would often be unjust, as the increased value of the property would, in many cases, be far from equal to to the original cost of such improvements.</p>

<p>Error or want of consideration must be clearly shown to release a party from an obligation, in which he has, under his s ignature, acknowledged the debt, and admitted a consideration.</p> <p>A mortgage for money which the mortgagee contracts to advance at a future time, is valid. C.C. 3259, 3260.</p>

<p>A party who offers the records of other suits in evidence on the trial in the lower court, is bound to file transcripts of them, at least on being apprized of an appeal, or on being reijuired to do so. Where such transcripts, not having been filed below, could not be included in the record of appeal, the appellant will be entitled to a certiorari; and, in case the appellee should not file them after the writ has issued, the case will be remanded for a new irial.</p> <p>Where a curator ad hoc, appointed by the court to represent an absent defendant in in a revocatory action, omits to except in the lower court to the action on the ground of the want of proper parties, the failure to make such parties will be ■ noticed in the appellate.court as if it had been specially pleaded below. Per ' Curiam: A curator ad hoc cannot be permitted to waive any of the legal rights of the party he represents.</p> <p>Plaintiffs, judgment creditors of the former owner of certain real property, instituted a revocatory action against a vendee in possession, praying that the several acts of sale by which the property had been transmitted from their debtor, through successive purchasers, to the defendant, might be annulled as fraudulent, and the pro- • perty declared to belong to their debtor, and subject to be seized and sold to sat- . isfy their judgments. Held, that the object of the action being to annul all the conveyances as fraudulent, the intermediate vendees of the property, should have been made parties to the suit, which cannot be maintained against the defendant alone; and that to succeed in annulling the sale, plaintiffs must show fraud in the original transaction, as well as in the successive sales, including -that to the de- . fendant.</p>

<p>Where a formal decree of a court of Probates, recognizing the necessity of selling the properly inherited by minors, for the payment of the debts of the succession, was rendered after giving an opportunity to the attorney of the absent heirs to show that no such necessity existed, a purchaser of the property will not be bound to look beyond the decroe.</p> <p>Where the sale of the property of a succession is made for the payment of debts, it may be sold for less than the appraised value.</p> <p>Want of sufficient time for advertising between the date of the judgment of a court of Probates ordering the sale of the property of a succession and the sale, is a de. feet cured by tho lapse of five years. It is such an irregularity as the act of 10 March, 1834, relative to advertisements, was made expressly to remedy. See sect. 4. The act applies to proceedings and sales previous to its passage ; but the prescription of five years runs only from the date of the act, as to anterior defects and informalities.</p>

<p>To maintain a revocatory action to annul a contract for fraud or simulation, it is necessary to make the original debtor a party to the suit, only where the debt has not been previously liquidated by a judgment. C. C. 1970.</p> <p>In an action by a judgment creditor to rescind a sale of property made by his debtor as fraudulent or simulated, the vendee, when not a party to the judgment, may contest the plaintiff’s demand in the same manner as the debtor might have done before judgment. C. C. 1971.</p> <p>Where a judgment has been rendered in favor of the plaintiffs, in a revocatory action to rescind a sale on the ground of fraud and simulation, and the vendor alone appeals from the decision, the vendee must be cited as an appellee, or the correctness of the judgment cannot be inquired into, and the appeal must be dismissed. So the latter should be made an appellee, whore the judgment having been against the plaintiffs, the latter appealed.</p>

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

<p>Appeal from the Commercial Court of New Orleans, Watts, J. This was an action to recover the amount paid by the plaintiff for a treasury note of the United States, purchased of the defendants, money brokers; payment of the note having been refused, on the ground that it had been cancelled by the government, and put into circulation by persons who had stolen it. The defendants answered by a general denial. The purchase of the note, as alleged by the plaintiff, was established. It was also proved that one of the defendants had acknowledged that the note had been cancelled.</p> <p>testified, that he was in their employment as a clerk, at the time of the transaction; that the plaintiff had previously purchased two or three other notes from the defendants; that on being asked by the plaintiff, at the time of his previous purchases, whether they would endorse or guaranty the notes, defendants invariably refused, stating that they assumed no responsibility on any of their sales, but merely sold for a brokerage. That, on the morning of the day on which the purchase was made, plaintiff called on the defendants to know whether they had any more treasury notes, and was informed that they had none then, but would have some during the day. That at a later hour, while a person was standing at defendants’ counter, offering to sell them a treasury note at two per cent discount, and while they were hesitating whether to purchase at so small a discount, plaintiff came in. That the note was taken by one of the defendants from the person offering it, who stood at one end of the counter, and handed to the plaintiff at the other, who, on being asked, agreed to take it at per cent discount. That the amount, deducting that discount, was taken from the plaintiff, and handed to the person who offered the note for sale. That defendants only made a half per cent by the transaction; and that a better rate of discount was allowed to the person who offered the note, because defendants had a purchaser for it.</p> <p>There was a judgment below in favor of the plaintiff. The defendants appealed.</p>

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

<p>Appeal from tbe City Court of New Orleans, Collens, J.</p>

As to plaintiff’s right of action to relieve his property from the mortgage existing on it, see Flower v. Hagan, 2 La. 223. The surety is discharged by any extension of time granted to the principal debtor, without his assent, notwithstanding any reservation made by the creditors. 7 Toullicr, No. 314. Calliham v. Tanner, 3 Rob. 299. Louisiana Bank v. Dubreuil, 5 Mart. 410. Abat v. Holmes, 3 La. 352. Lobdell v. Nephler, 4 La. 295. 9 Wheaton, 680. Civil Code, arts. 3030, 3032.

<p>This was an application for a mandamus to Buchanan, judge of the District Court of the First District.</p> <p>cited act 20th March, 1839, § 19 (B. & C.’s Dig. 181). Hesorme's Heirs v. Desorme's Curator, 15 La. 15. 17 La. 111. Winchester v. Ort/s Syndics, 15 La. 104.</p>

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

<p>One who claims to be the owner of property seized and in the hands of an officer of the court, must apply, by opposition as a third person, to the court from which the order of seizure was issued, directing his proceedings against the party at whose suit the seizure was made, and not against the sheriff, who is a mere stake-holder. C. P. 397, 398.</p>

This is the actio ex empto of the Roman law. Dig. lib.19, tit. 1, law 3, § 1; lawII, § 5,13;. law 13, § 21. Pothier, Vente, part 2, ch. 1, art. 5, nos. 61 — 74. Byford v. Valentine, 3 Mart. N. S. 71. This is not a suit to annul a contract, but to enforce it; consequently, the prescription of five years, under art. 350? of the Civil Code, is inapplicable.

<p>Plaintiff having instituted an action for arrears of rent against L— Co., citation was served only on one of the parties composing the firm, which was not alleged to have been a commercial one. j[Held, that the action could not be maintained against one of the members alone, as in every suit on a joint contract all the obligors must be made defendants, and no judgment can be obtained against any, unless it be proved that all joined in the obligation, or are presumed to have done so (C. C. 2080); that the action being against a partnership, it must be inferred that there are several defendants; that it is enough to show that all the defendants named in the petition were not cited, to entitle those cited to require a dismissal of the action; that the omission to join the proper parties, is not amatter of form, but a matter of law on which the rights of the parties depend; and that the plaintiff could not amend his petition, by substituting the name of the party cited for that of the firm, and proceed with his action.</p> <p>A misnomer of the defendants in the petition and affidavit, will be cured by the execution of a bond for the release of the property provisionally seized, by the defendants in their real names.</p>

<p>Where the master receipts for articles to be shipped on his vessel, as in good order, the vessel will be responsible for any damage subsequently discovered, unless clearly proved to have occurred before the delivery. And where he gives a receipt for goods left on the levée, they are as much at the risk of the ship, as if actually on board.</p> <p>Where the goods left on the levée to be shipped,.are exposed to rain,, and- the shipper subsequently proposes to the master to ascertain the damage from, the exposure, before the voyage, and the latter declines to do so, the vessel will be responsible for any increase of damage, resulting from the voyage,, and the delay to which the goods are necessarily exposed in the foreign port before they could'be examined.</p>

This was an action on a protested hill of exchange, for $150, date 15 April, 1843, drawn by one G. Campbell, and accepted by T. A. Bartlette* The latter answered that he had accepted the bill sued on, with another of the same date and axount, payable on the 1st, of October, 1844, but that he received no consideration therefor 4 that the consideration for which they were given, was an illegal and immoral one, as between the plaintiff and the drawer, to wit, the hire of a…

He stated further, that he had never sold, nor otherwise disposed of the said shares, and that he had paid but $26 or $27 per share. The plaintiff thereupon took a'rule on the garnishee, to show cause why judgment should not be -rendered against him, for the-amount of the balance due on his shares. The sheriff returned,. that the tule could not be served on the garnishee, in consequence of his absence from the State. There was a judgment against him, and he appealed.

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

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

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

<p>An allegation in a petition, that a note was duly protested, is a sufficient averment of demand of payment. A special averment is not absolutely necessary.</p> <p>The plea of the general issue, in an action against the endorser of a note, throws upon the plaintiff the burden of proving all the facts necessary to a recovery, to wit: demand of the maker, protest, and notice to the endorser.</p> <p>The written proof of notice of protest,- provided by the act of 13th March, 1827, does not exclude parol evidence thereof.</p> <p>The notary by whom the protest was made is a competent witness, in an action against the endorser of a note, to prove notice to the latter.</p> <p>An agent may be a witness in all cases, except in suits against the principal on account of the negligence of the agent. In such cases, he cannot be a witness for the principal.</p>

<p>The certificate of the Governor, under the great seal of the State, is the best evidence of the official character of one styling himself a judge of one of the courts of the State, by whom a commission to take testimony has been executed. Where such evidence is not produced, nor its absence accounted for, parol evidence that the person acted, to the knowledge of the witness, in the capacity assumed by him, cannot-be admitted.</p>

<p>Appeal from the Court of Probates of New Orleans, Bermu. dez, J.</p>

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

<p>There is a strong analogy between the cessio bonorum, of an insolvent and the administration of the surrendered property by his syndics, and the liquidation of banking corporations, by commissioners, under the acts of 14 and 26 March, 1842. In both cases, the property vests, in effect, in the creditors, and the former owner has no longer any right or interest, but that of receiving the residuum after the payment of all the debts, and, for that purpose, of coercing a final settlement by the commissioners. Neither the insolvent debtor, nor the stockholders of the insolvent corporation, can appear in court to control the administration of the assets.</p> <p>The legislature have power to provide for the distribution among the creditors of the property of insolvent corporations, whose charters have been forfeited ; and the acts of 14 and 26 March, 1842, for the liquidation of banks, are insolvent laws applicable to such corporations.</p> <p>The act of 25 March, 1844, incorporating the St. Charles Hotel Compaay, is not inconsistent with any provision of the constitution of the State, or of the United States. It does not impair the obligation of any contract, nor destroy any vested right; nor did the legislature, in its enactment, exercise any other than legislative power.</p>

<p>Where a contract is attacked on the ground of fraud, parol evidence is admissible to prove the allegations of fraud upon which the contract is sought to be annulled, whenever the consent of the complaining party is shown, under the allegations, to have been the consequence of the fraud. But such evidence is inadmissible to establish a verbal agreement of the defendant to transfer real property, and a fraudulent refusal on his part to comply therewith. C. C. 2255, 2256.</p> <p>The answers of a party to an action, interrogated, under art. 2255 of the Civil Code, as to á verbal sale of an immovable, denying the sale, cannot be contradicted.</p> <p>A plaintiff can neither require the performance, nor recover damages for the nonperformance of an agreement, without legal proof of its existence.</p> <p>A party cannot complain of a sale, made by the sheriff, of real property, in block, unless it be alleged and proved that she requested ■the officer to sell it in seperate parts.</p>

<p>The syndic of the creditors of an insolvent is responsible for the whole proceeds of the sale of the estate, as shown by the procés-verbal of the sale. Where credit is claimed for any sum, he must show that he used proper diligence to secure and collect the amount.</p> <p>Interest will be allowed on debts due by estates administered by curators, executors, or administrators, if the estate be sufficient, from the death of the debtor, if then due, or, from the time of becoming due, if after that event, though no judicial demand have been made (C. P. 939) ; but this interest cannot exceed five per cent on debts, on which a higher rate has not been stipulated in writing by the terms of the contract.</p> <p>Compound interest cannot be recovered.</p> <p>Where the syndic of the creditors of an insolvent pays money without authority from the court, he cannot require that the persons so paid shall be made parties to any proceedings against him, to render him responsible for the sums thus paid.</p> <p>Under the 6th section of the act of 13th March, 1837, requiring executors, administrators, curators, and syndics to render full and fair accounts of their administration, at least once in every twelve months, under pain of dismissal from office, and of being condemned to pay interest at the rate of ten per cent a year on all sums for which they may be responsible, from the expiration of the twelve months, the payment of such interest is a part of the penalty, and necessarily coupled with the removal from office, and one cannot be imposed without the other; and such penalties can be only inflicted in eases which have arisen since the promulgation of the act.</p> <p>The syndic of a succession found, after an examination of his accounts, to owe a balance to the estate, should be condemned, like a curator or executor, to pay interest thereon, at the rate of five per cent a year, from the date of the judgment. C. P. 1007.</p>

<p>Where an agent of a third person, believing himself authorized as such to sell certain property of, his principal, receives from a purchaser, who also believed that he was authorized to sell, a part of the price, which was paid over to the principal, the purchaser, on discovering the want of authority in the vendor, may recover from the principal the amount so received by him, and this, though a balance may be still due by the agent to the principal, after crediting the former with the amount paid over by him. Art. 9134 of the Civil Code does not apply to such a case.'</p> <p>An agent is bound to deliver to his principal whatever he has received by virtue of his procuration, though unduly. C. G. 2974.</p> <p>The relation of principal and agent is not that of debtor and creditor from the moment that the agent receives money or property for the principal. It is a trust; and does not give the agent any title to the money or property so received, which would be the case if he were regarded as a debtor. The agent may become a debtor of the principal, but not until the dissolution of the contract of agency, and his neglect or refusal to account and deliver over the funds or property. While the agency continues, the property or money in the hands of the agent belongs to the principal, the agent being a mere trustee.</p> <p>An agent is a competent witness for his principal, in an action against the latter to recover a sum of money, alleged to have been paid to the agent through error, and admitted to have been paid by him to his principal. The witness is indifferent, being responsible to one or the other party for the amount in controversy.</p>

<p>Appeal from the District Court of West Feliciana, Butler, J.</p>

<p>The will of one who died without legitimate children or descendants, contained the following provision: J’institue pour ma légataire unique et universette, ma scour JE. P., lui dormant et lui léguant á ce litre la généralité des Kens que je délaisserai á mon déces. Held, that this was an absolute institution of an universal heir, by which the legatee became entitled to the whole estate of the testator, and, after the death of the testator, seized of right of the eifects of the succession, without being bound to demand the delivery thereof. C. C. 1599, 1602.</p> <p>Art. 1474 of the Civil Code, which declares that where the father disposes in favor of his natural children of the portion permitted by law to be so disposed of by him, he shall dispose of the rest of his property in favor of his legitimate relations, un. less he bequeath the rest to some public institution, does not constitute his legitimate relations his forced heirs for the rest of his estate. Ho is bound to dispose of the rest of his property in favor of his legitimate relations, but he may bequeath it to such of them, one or more, as he may select.</p> <p>Except in the case of accretion from legacies made to several conjointly, as próvided for by arts. 1700, 1701 of the Civil Code, the legitimate heirs of a testator will inherit from him only such portion of the succession as may remain undisposed of, either because the testator has not bequeathed it to any legatee or instituted heir, or because the heir or legatee has not been able or willing to accept it, C. C. 1702. Legatees by an universal or particular title, benefit by the failure of the particular legacies which they were bound to discharge (C. C. 1697); and an universal legatee, when he concurs with a forced heir (C.C. 1603), and, á fortiori, when he does not, is bound to discharge all the legacies, except in case of reduction. Consequently, where a testator, dying without legitimate descendants, but leaving several brothers and sisters, institutes one of them his universal heir, such universal heir or legatee will be entitled to the benefit resulting from the failure or reduction of the particular legacies, to the exclusion of the other brothers and sisters.</p> <p>Where the instituted heir consents to the execution of the particular legacy, the particular legatee cannot contest the right of the legitimate heirs to attack his legacy as illegal. The unwillingness or refusal of the instituted heir to contest, the par-' ticular legacy, cannot render it valid; and the particular legatee being incapable of receiving, and the instituted heir unwilling to accept it, the particular legacy remains undisposed of, and must, under article 1702 of the Civil Code, devolve upon the legitimate heirs.</p> <p>A testator, dying without descendants, instituted one of his sistdrgjris universal heir. Another sister, and a surviving brother commenced an action against the executor of the deceased, the particular legatees, and the instituted heir, for the purpose of causing the legacies to be declared null. The instituted heir answered, through her attorney in fact, that plaintiffs could not attack the will, as the respondent, being the universal legatee of the testator, was entitled to claim the whole of his estate ; averred that the dispositions of the will were legal and valid; and prayed that the petition might be dismissed, and the will maintained in all its parts. Held, that the averment of the validity of the will, and the prayer for its execu- • tion, do not amount to an acquiescence, on the part of an instituted heir, in tha illegal dispositions, nor to a consent that the legatees shall take the legacies, notwithstanding their illegality.</p> <p>An attorney in fact defending an action on behalf of his principal, unless specially empowered, cannot, by any allegations or confessions in the judicial proceedings, renounce or abandon any of the rights of his principal.</p>

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

<p>To recover the penalty stipulated to be paid, in case of non-eompliance by defendant with a contract to deliver certain articles, plaintiff must prove that defendant was put in default previous to the commencement of suit. C. C. 2122. Putting the defendant in mora, is an indispensable pre-requisite to such an action. C. C. 1906. The want of it need not be specially pleaded; nor is the effect of the omission to put defendant in default waived by his setting up any special defence.</p>

<p>Appeal from the Court of Probates of St. Bernard, Rousseau, J.</p>

<p>An actual bankruptcy or cessio bonorum, either voluntary or forced, alone has the effect of rendering immediately exigible debts not matured by the lapse of the time stipulated in the contract, or by the happening of the contingency on which the parties agreed that they should become payable. The mere fact of the insolvency of the debtor does not produce such an effect. C. C. 2049.</p> <p>Where a debt is payable at a particular place, a demand by the creditor there, is a condition precedent; and must be made before instituting suit.</p>

<p>Appeal from the Court of Probates of NewAMeans, Bermudez, J.</p>

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