Volume 11 — Louisiana Annual Reports

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

<p>The will of the testator not having been dictated to the notary in the presence of the three attesting witnesses, is null and void.</p> <p>Facts constituting bad faith in a purchaser or possessor*.</p>

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

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

<p>A bench warrant need not be signed by the Judge. The entry on the minutes is the judicial order; the affixing the seal and signature of the Clerk are merely ministerial.</p> <p>“ Selling liquor to slaves, without the consent of their masters,” is a penal offence under the statute of 1852.</p> <p>In a bail bond it is not necessary to describe an offence with the certainty required in an indictment.</p> <p>The statute of 1852 punishes the offence of “ selling liquor to slaves, without the consent of their masters,” by fine and imprisonment. The State has the right to the presence of the accused on the trial for such offence, and the accused cannot plead, or be tried by attorney, at least without consent on the part of the State.</p>

<p>APPEAL from the District Court, Second Judicial District, parish of Pla-quemines, Eousseau, J.</p>

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

<p>The right to require security, conferred by Article 3060 of the Code on the creditor, who hasnotcon-sented to the respite applied for by his debtor? etc., appears to be 'absolute, and the creditor is not limited to a period of time beyond which he is debarred from its exercise.</p>

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

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

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

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

<p>APPEAL from the District Court, Third Judicial District, parish of Jefferson, Bu/rthe, J.</p>

<p>An authentic act identifying a note With the mortgage to secure it, which recites that B. mortgages &c. to 0. & M., or any holder of mid'note, and further shows the note to be endorsed in blank by the payee, will entitle the holder) on this proof alone, to an order of seizure and sale.</p> <p>The subsequent endorsement of the note in blank by another — which is a matter -m pads — could not affect plaintiffs’ right to executory process, as such endorsement could be stricken out — possession of the note being sufficient to identify them as holders and owners.</p> <p>A stipulation in the Act of Mortgage that the mortgagor) in the event the debt has to be made by suit, shall pay five per cent, to the attorney, is not usurious 5 and the circumstance that the holders of the note are attorneys at law is no bar to their recovery of the five per cent.</p> <p>O. 0.1952, 2615,3251; C. P. T33,734.</p>

<p>Commissions allowed, to a provisional syndic, and not opposed in the District Court, cannot be assigned as error in the Supreme Court.</p> <p>Cases might arise in which a provisional syndic would not only be authorized, but required to institute suits, or defend them. The expense of counsel fees in such would be chargeable to the mass surrendered to the creditors.</p> <p>The opposition to a voluntary surrender, under the 18th section of the Act, approved February 20tb, 1817, must be made within ten days. The 10th section of the Act of 1840, which allows one year for proceedings under it, has no application to cases of voluntary surrender.</p> <p>No opposition can be filed, under the 18th section of the Act of 1817, after the lapse of ten days, though the creditor did not know of the fraud complained of within that time.</p> <p>The maxim contra non valentem agere¡ non ezm'itprescj'ipUo has been admitted in some instances, where a party was acting to recover or protect his property, but never in order to enable him to inflict a penalty on his adversary.</p>

<p>Where a debtor applies for a respite, and any of his creditors make Opposition, and he is required to give security under Article 3060 of the Code, the opposing creditors must he made the obligees in the bond, and the bond should he for a sum sufficient to satisfy their claims.</p>

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

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

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

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

<p>A judgment had been obtained by plaintiff against J. T., with privilege on the interest of J. T. in. certain goods belonging to the firm of J. T. & Co., which had been attached, and were bonded by J. T. & Co., who had intervened and claimed the goods. J. T. & Co. obtained a judgment recognizing their right to the goods, “ subject to the payment of such sum of money as may be shown to be the value of the interest of defendant (J. T.) therein.” In an action against the surety, on the bond of J. T. & Co., Held: that no judgment could be rendered until the amount of the interest of defendant, J. T., in the property attached was shown.</p>

<p>A reservation in a judgment in a petitory action, by which the right of defendant, or others, to demand that the property recovered should be used as a market, etc., will not restrain the plaintiffs from executing their writ of possession. The effect of the reservation is to allow to the parties in interest a right of action to compel the plaintiffs to use the property in a particular way, should the plaintiffs’ title contain any such limitation.</p>

<p>All that a prisoner says on the subject matter at the time of making a confession is admissable; but the jury is at liberty to believe one part of the confession and disbelieve another.</p> <p>In a prosecution for selling or giving spirituous liquor to a slave, the onus is upon the accused to show that such liquor was sold or given with the consent of the owner or person having charge of such slave.</p>

<p>The clerks of the several courts do not continue to hold their offices after a general election until 'the new Governor enters upon the discharge of Ilia duties. Article 149 of the Constitution only provides the day of their election, and does not •fix the period when “they shall eease to perform, their duties.</p>

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

<p>After the annexation of Lafayette to New Orleans the Legislature required the Parish Recorder of Jefferson to make copies of acts relating to property in Lafayette, for registry in New Orieans. The costs of these copies were fixed by law, and were to be paid by the city of New Orleans. Reid: There is nothing in such legislation which either violates or impairs the obligation of a contract, or destroys a vested right.</p> <p>To the city of New Orleans, as a civil corporation, has been delegated a portion of the powers' of the government; it was established, as are other city corporations, for the public convenience, and it is certainly competent for the Legislature, from time to time, as the public convenience or necessity may require, to add to or abridge the powers and duties of the corporation, to restrict or enlarge the boundaries of this delegated authority, except so far as they are recognized and guaranteed by the Constitution itself.</p> <p>The Act of 1858 is entitled “ An Act to provide for the removal of certain public records from the Fourth District of New Orleans to the Parish of Jefferson,” and the Act of 1854 is entitled an Act amendatory thereof. Each section in both of these Acts has direct reference to the subject-matter of its legislation,*or its necessary incidents. It certainly was not necessary to meet the requirements of the Constitution, for the Legislature to pass two separate acts for the purpose of accomplishing one object — the first in order that a thing should be done, and the second to indicate the manner in which the expense should be defrayed.</p> <p>The title of the amendatory Act not only refers to but includes the title of the first Act. The Constitution does not prohibit any designation of an amendatory Act by a reference to the title of the Act amended.</p> <p>The object of the Constitution was to prevent the amendment or revival of laws 'merely by reference to their title. It was intended that each amendment and each revival should speak for itself and stand independent and apart from the Act revived, or section amended.</p>

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

<p>The children and grandchildren of a natural aunt of the deceased are not entitled to the estate— there being no statute authorising them to set up such an illegitimate relationship as a basis for the right of inheritance, which is the creature of positive law. Code 911, 915, 917, 923.</p> <p>In an act of manumission before a notary and two witnesses, the deceased described M. L. as his “ natural daughter slave.” This is a sufficient acknowledgment of paternity, although the object of the act was to enfranchise the slave.</p> <p>No form is prescribed for such an acknowledgment, except that the declaration be made in the presence of a notary and two Witnesses. (Code 221.) If the declaration be thus made, it seems immaterial whether it be the main object of the act or not.</p> <p>Natural children are not like legitimate heirs seized of the succession at the instant the ancestor dies. They have only a right of action to cause themselves to be put in possession upon a proper showing. Code 919,943.</p> <p>The State claimed the succession, charging that M. L. was an adulterous bastard ; to the evidence of which she objected, under Article 968 of the Code, which provides that “ the exclusion [from the inheritance], either for cause of incapacity or unworthiness, shall not be sued for by others than the relations who are called to the succession of the unworthy heir,” &c. Beld: The State is not suing to exclude M. L. under any of the pretences contemplated in Article 968. She is an actor seeking by proof to have herself recognized as heir. She must, therefore, make out her case like other plaintiffs, and, when apparently made out, it is open to be rebutted.</p> <p>If the act upon which she bases her claim to the heirship be a nullity, she cannot be put in possession of the estate; and the act is a nullity if made in contravention of Article 222 of the Code, which prohibits the acknowledgment of children the offspring of an adulterous or incestuou intercourse.</p> <p>This prohibition would be futile if the State could not insist on the inquiry whether the acknowledged child was an incestuous or adulterous bastard — for such a bastard can only exclude the State.</p> <p>O. C. 477,1184, 1185,1186,1202, 1203.</p>

<p>Action for the value of a slave killed by the unskilfulness and fault of persons who were in the employment of defendant. The evidence showed that the defendant had contracted with the undertaker to put up the iron front on a building, and that afterwards defendant made a special contract with T. for T. to do the same work, with assistants and laborers employed and paid exclusively by T. The work fell to the ground and killed the slave. Held: That T. was not the servant or overseer of defendant, and consequently defendant was not liable.</p> <p>C.O.2299,2739.</p>

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

<p>A nuncupative will by public act declared explicitly that the three attesting witnesses were present when the will was dictated to the Recorder. The three witnesses, seven months after the execution of the will, testified that they were present at the time of the execution, but did not recollect hearing the testatrix dictate the dispositions, but believed they heard her, because they attested the wi.l at the time. By the Court: This evidence is insufficient to rebut the presumption which exists in favor of the truth of an authentic act executed by a Parish Recorder in solemn form.</p>

<p>The Act of March 15th, 1655, creating an interchange between the Judges of the Fourth, Seventh and Eighth Judicial Districts, contemplates nothing but a provision for the regular jury terms, as fixed by law, and does not annul the power conferred on .every District Judge to call special jury terms, when the public necessity requires them, provided they do not interfere with the discharge of his duties, as imposed by law. *</p>

<p>Statutes in derogation of common right should not be enlarged by1 construction.</p> <p>Mrs. B. claimed a thousand dollars out of her deceased husband’s estate, under the “ Act to provide a homestead for the widow and children of deceased persons” — against bona fide mortgagees. In answer to interrogatories, the widow said that she owned a house worth seven hundred dollars, and added a vague statement that she was in debt. By the Court: The statute does not say that the amount of property owned by her must be estimated over and above her indebtedness, whatever it may be and whenever due, and we cannot add such a provision to it. Three hundred dollars allowed.</p>

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

<p>Under proceedings had for a forced surrender, in which there was no prayer for imprisonment, the jury found a verdict of guilty, but the court refused to sentence the defendant to imprisonment. Held: that the Court did not err; the prayer for general relief, while it entitles the party to all the ordinary decrees or orders which the pleadings may justify, will not authorize the imprisonment of a debtor under a highly penal statute.</p>

<p>Judgment for municipal tatfes by default and confirmed, without proof that the property assessed’ in che name of the defendant belonged to him; Held: a legal presumption necessarily arises from the provisions of the assessment law in favor of the correctness of the assessment roll, and it was1 the business of defendant to show the error in the roll, if error there was.</p>

<p>Where the community is dissolved by the death of the husband, the surviving wife is presumed to have the intention to accept the community, and her right to renounce is subject to the same rules as govern the beneficiary heir.</p> <p>But a different rule prevails where a divorce lias been pronounced. Unless the wife accepts the community within the delay allowed by law, and obtains from the Judge a prolongation of that delay, she is supposed to have renounced the community. Code 2389.</p>

<p>A reed's was offered in evidence, but not filed, and therefore not copied by the Clerk in making up the transcript for the Supreme Court The transcript was brought up by the appellee, who moved to dismiss the appeal. By the cou/ri: It was the duty of the appellant to present her casein such a shape that this court could pass upon the correctness of the judgment appealed from. It is true the appellee has brought up the appeal, on the failure of the appellant todo so. But the deficiency of the record is plainly the fault of the appellant, which should not prejudice appellee. Appeal dismissed.</p>

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

<p>It is well settled that payments by an executor without an order of court are irregular, and not binding, unless it be shown that they liberate the estate from a legal obligation.</p>

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

<p>APPEAL from the District Court, Fifth District, Parish of Terrebonne, Cole,3.</p>

<p>APPEAL from the District Court, Ninth District, Parish of Point Coupee, Robertson, J., presiding.</p>

<p>The fact that the Sheriff’s wife has a law suit (to which he is a necessary party) pending before the court for which a jury is to be drawn, does not disqualify or exempt the Sheriff from performing the ministerial duties imposed upon him by the Act “ relative to juries,” approved March 14,1855; nor does the fact that he has performed those duties furnish good cause for a challenge to the array by the party opposed to his wife, when a jury thus drawn is called to try her case.</p> <p>Malpractice should be suggested ana made probable before the array willhe set aside, unless there is some apparent legal defect.</p> <p>The Sheriff was n ot disqualified to summon the jurors for the term, after they were drawn according to law; nor does the fact that he summoned them furnish ground for challenge to the array.</p> <p>The Code of Practice, Articles 496-?, made it the duty of the Clerk to draw the names of the jurors from the box, for the trial of a particular cause, and although, by the Act of 27th April, 1826, this is no longer necessary, it may furnish a guide forthe present case.</p> <p>It would nut be becoming in this case for the Sheriff to attend personally upon the jury during their deliberations.</p> <p>Where there is no qualified Coroner, the Act of 9th March, 1855, section 1st, furnishes a mode by which the vacancy may be speedily filled.</p> <p>Jly the Court: We would not be supposed to intimate that a cause must be utterly suspended when the Sheriff and Coroner are both disqualified to perform ministerial duties in a particular case.</p>

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

<p>Where the purchaser of land failed to give his notes according to the terms of sale, he cannot set up the prescription of five years.</p> <p>A debtor said he would “ settle provided his claims were allowed.” Held: insufficient to interrupt prescription.</p>

<p>A written admission made by plaintiff, that a certain slave Is the property of 3?, D., and that « he can d0 as 11(2 Pleases with her,” estops her from claiming the slave from one to whom F. D. had made title.</p>

<p>It is impossible to lay down any definite rules limiting the discretion of a court in ordering or maintaining such steps as may be necessary for the protection of the persons, or property of minors. Cases may arise for which the law has made no specific provision, and in such cases, it is the duty of the .court, in its discretion, to order such steps as may afford effectual protection; but for all the ordinary purposes of administration, the interests of minors are placed under the control of tutors and under-tutors, acting under the supervision of the court.</p> <p>A mere informality in the organization of a family meeting, does not invotve a nullity of its proceedings, and they will not be set aside in the absence of proof of injury to the minors.</p> <p>Where a family meeting assented to the second marriage of the tutrix, on condition of her giving bond to secure the minors, it will be time enough to consider the effect of this condition after the second marriage is contracted.</p>

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

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

<p>The delegation by which a debtor gives to the creditor another debtor, who obliges himself toward such creditor, does not operate a novation, unless the creditor has expressly declared that he in. tends to discharge his debtor who has made the delegation. Code, 21SS.</p> <p>Suit brought by the creditor against the delegated debtor is not evidence of intention to discharge the original debtor.</p> <p>Walton v. Beauregard, 1 Rob., 301, is of doubtful authority.</p>

<p>Action to recover cost of a side levee, which had become necessary in consequence of the removal back of the levee above by the parish of Pointe Ooupée. By the Court: It is to be presumed that the change in the levee would not have been made by the authorities of Pointe Ooupée unless the public safety had required it. It was the duty of the proprietor of the tract below, and of the parish of West Baton Rouge, to accommodate themselves to this change, as much so as if such change had been occasioned by a sudden caving of the banks of the river above.</p> <p>The discretion in regard to the plan and size of the levees is reposed by law and the regulations of the Police Jury in certain persons, who, in this respect, act in an official capacity. If, in the exercise of their functions, they should err in regard to the size of the work to be constructed, an application to the Police Jury should be made to correct the error. But, as a general rule, after the work is done, and the expense incurred, the Supreme Court will not interfere with the discretion of officers who appear to have acted in good faith.</p> <p>The reasons for the judgment rendered by the District Court were: “ This case having been regularly taken up according to assignment, and after the testimony adduced, and argument of counsel, it is ordered,” etc. By the Court: This, it is apparent, is as much a reason for rendering a judgment in favor of the defendant as plaintiff, and does not meet the requirements of the Constitution. Article 72, Constitution.</p>

<p>Where property insured by the vendor was sold, and the policy not assigned to the vendee, the latter cannot, after a loss, recover from the vendor the amount of insurance collected by him.</p> <p>A. cotton plantation was sold, subject to an unexpired lease. Before the lease expired, the cotton gin was burnt. Held: that the vendor was not liable for the deterioration in the value of the plantation caused by the fire, which was the result of the carelessness and negligence of the lessee. The lessee was not the mandatary of the vendor. He was a third person, who had rights which, neither the vendor nor vendee could disturb. Code, 2704.</p>

<p>Article 851 of the Code of Practice was intended to compel the oral answer of the party in the presence of the court and opposite party, and to compel him to answer from his recollection and knowledge of the facts in his own words, and in such language as occurs to him when thus interrogated. He cannot be permitted to prepare his answers beforehand and read them in court.</p> <p>A party interrogated may refer to’ memoranda to assist his recollection, as- other witnesses may.</p>

<p>A right of way for a railroad was granted by the owner of land on the Mississippi to a proprietor in the rear, and an acre of ground leased for a depot, etc. Subsequently, by order of the proper parochial authorities, a new levee was constructed, and the greater portion of the land for the depot was thrown outside of the levee, and consequently the public road, and so rendered useless for the purposes for which it was leased. Suit was brought to compel a surrender of an additional piece of land, to be used for a depot in lieu of that rendered useless. By the Court: The contract in question is not so much a lease as the creation of a servitude, or right of way from plaintiff’s plantation to the river’s bank for a term of years — a predial servitude in favor of plaintiff’s estate, and due by defendant’s estate. This right of way is of a particular character — a railroad, an indispensable part of which is a depot at the landing. The dimensions of the depot are precisely defined by the contract, and the lessee has the right to a depot of that size to the expiration of the term, fronting on the public road, and running back from that road for quantity.</p> <p>The caving of the bank of the river, and hence the necessity for a new levee, etc., might have been foreseen (as shown by the evidence) and the parties must be supposed to have contracted with reference to such a contingency.</p> <p>C. C., 1950,1952.</p>

<p>A title not registered may be the basis ot prescription.</p>

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

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

<p>The endorsement of the payee must be considered a« proved when the note is offered in evidence, without objection, as the endorsement then constitutes a part of the instrument declared upon.</p>

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

<p>Testamentary disposition in the following words: “ I give to my great grandchildren — Kilty's children and Lucy's, if she has any — all the balance of my properly of all kinds ; but be it known and understood, that Elvira, my daughter, is to have the care and management of it during her life in this world, and her and Stewart is to take possession of it and carry it on, and have the proceeds, if there be any, but shall not be bound to give a bond or security for anything.</p> <p>If EVoira and Stewart should die before Kitty and Lmcaj, then the property to fall into their hands to be carried on in the same way, and the proceeds to go to them. The property is not to be sold, but to be kept together until the heirs come of age ; but as they come of age, they shall be'entitled to a share with their parents.”</p> <p>There is no prohibited substitution in such a disposition. The greatgrandchildren are the instituted heirs. They are certainly not charged with the return of the testat jr’s estate to any third person, nor to preserve it for any third person. The testator clearly expresses his intention that the property which he bequeathes io his great grandchildren should be kept together, and that there should be no partition of it until the heirs come of age. This disposition is expressly sanctioned by Article 1224 of the Civil Co.de.</p> <p>The dispositions in favor of the testator’s daughter and herbu«band, and in favor of his granddaughters, the mothers of the instituted heirs, are not substitutions, but are usufructs within the purview of Article 1509 of the Code.</p> <p>Code, 1482,1489,1507,1509,1224, 531, 534.</p>

<p>Nuncupative will by public act annulled because there was nothing in the context to show that the witnesses were present when the will was received by the notary.</p>

<p>B., the guardian, appointed in Mississippi, of a minor having property in this State, filed a petition in the proper court, representing that the minor’s property here was unproductive, and that she had ho other; that it was to the interest of the minor that it should be sold, and the proceeds invested, and being unable to induce any person to become the tutor of the minor, he prayed the appointment of a special tutor and under-tutor, and that a family meeting be convoked to deliberate on the propriety of selling the property. The prayer was allowed, the appointment made, and under the advice of the family meeting the property was sold, and G-. became the purchaser. He refused to comply with the terms of the sale, on the ground (among other grounds) that no special tutor could be legally appointed to the minor.</p> <p>The appointment of a special tutor in this case was not legal, and the sale was a nullity.</p> <p>In the sale of minors’ property all the formalities of law must be observed for the validity of such</p> <p>Minors, when they become of age, can always avail themselves of nullities resulting from the omission of any of the formalities established by law in the sale of their property.</p> <p>The purchaser of a minor’s property at a judicial sale cannot be compelled to a compliance with the terms of the sale, unless the proceedings are clothed with all the formalities of law requisite to vest in him a legal title.</p> <p>The appointment of the special tutor should be considered as mere surplusage. The petition for the sale was made by the foreign guardian, and the proceedings of the family meeting advising the sale might have been transmitted to the judge by any relative, or even a stranger. (Lea, J., dissenting, with whom concurred Spofford, J.)</p> <p>Any embarrassment on the question of the right of the special tutor to receive the price might easily be avoided by making the price payable to the foreign guardian. (Lea, J., dissenting, with whom concurred Spofford, J.)</p>

<p>APPEAL from the District Court, Tenth District, Parish of Carroll.</p>

<p>Motion to dismiss appeal, on the ground that W. & H. had not joined in the appeal bond. By th& Court: The order of appeal is in favor of the plaintiff, generally, and it was not necessary that the appeal bond should be signed by W. & H. The signature of the surety is sufficient.</p> <p>The fact that the tutrix of P.’s children made herself a party to the suit is no evidence that W. & H. have abandoned the appeal. The tutrix is a proper party, for the legal title to the bill sued on is in the succession of P.</p> <p>In a suit on a bill of exchange by an administrator, the defendant will not be permitted to attack the legality of the appointment of the administrator.</p> <p>The defendant has no right to complain of the mode in which this suit is brought, for it gives him the opportunity of pleading any defences he may have against either the nominal or the real plaintiff.</p> <p>It is not competent for a party, against whom one of his letters is offered in evidence, to show by the parol evidence of the witness who wrote the letter for him that he u intended” something different from what the letter expresses.</p>

<p>APPEAL from the District Court, Tenth District, Parish of Carrol, Snyder, J.</p>

<p>On the death of B. B. the partnership of B. B. & Co. owed his widow a sum of money. The widow married V., the surviving partner of B. B. & Co., who formed a new partnership with O. C. B. In this contract of partnership the wife of V. intervened, and consented that the money due her as widow in community of her late husband, should remain with the new firm as a loan, upon which she was to receive interest quarterly. By the Gom't: The terms of the contract of partnership show' conclusively that Mrs. Y. was not a partner, but a creditor.</p> <p>The stipulation in the act of partnership by which Mrs. V. agrees not to be considered as a creditor until all the other debts are provided for, is a contract of suretyship for her husband, for the benefit of his creditors. It is a contract entered into by her, without any consideration enuring to her own benefit, both for her husband and conjointly with him, by which she renounces her own rights as a creditor for the benefit of those who may hereafter become his creditors. Such a stipulation is repudiated by the spirit and letter of our laws.</p> <p>Code 2412.</p>

<p>A judgment by default in Indiana, after personal citation, when sued upon in this State, cannot be opened to let in a defence that might have been pleaded to the original action.</p> <p>The action of debt will lie here if it will lie in Indiana,* the judgment is shown to be executory in Indiana, but even if an affidavit, or scire facias, were required to revive it there, the action of debt answers the same purpose.</p> <p>A transcript of a later date than the one sued on, containing copies of writs and returns, &c. — which had been omitted by mistake in the first transcript — was properly received in evidence.</p>

<p>The neglect or delay of the creditor to sue, or to use legal remedies, does not release the surety.</p> <p>The surety is at liberty, if he thinks the creditor not sufficiently energetic, to pay the debt and become subrogated to his right, and manage the claim to his own satisfaction.</p> <p>It is only in those cases where the surety loses his right of subrogation by the act of the creditor that the surety is discharged.</p>

<p>APPEAL from the District Court, Second District, Rousseau, 3.</p>

<p>Under Article 172 of the Code of Practice, the signature of the advócale, or of the party may be affixed to the petition, through the agency of another.</p>

<p>The pendency of a suit by a third person for the land, however unfounded it maybe, perhaps justifies the purchaser, according to the letter of Article 2535 of the Code, in requiring security from the holder of the note given for the land, which, by the terms of the instrument, is subject to all the equities between the original parties.</p>

<p>APPEAL from the District Court, Fifth District, parish of Terrebonne, Cole, J.</p>

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

<p>A runaway slave, supposed to belong to defendant, was concealed in defendant’s fodder house, among the fodder. Two slaves of defendant were sent to capture him. They thrust a broadsword into the fodder to frighten him out, and in so doing, inflicted a wound of which he died. By the Oov/ri: It was a grossly negligent and wanton act on the part of the defendant’s slaves to thrust a dangerous weapon like a broadsword into the fodder where they believed afellow-slave was concealed. It matters not that they did not intend to kill him. The master is liable for the damage done by this inexcusable negligence and barbarity, to the extent of being compelled to pay for the slave killed or to abandon his own guilty slaves to the person injured.</p> <p>Code, 180,181, 2300.</p>

<p>Objection by drawer of a bill of exchange of insufficient demand of the acceptor. The notary went to the -place of business of the acceptors, (Wm. Zauglilim, & Con) and finding it shut, made protest for non -payment, without making inquiry for the residence of the acceptors. By the Govzrt: We consider a demand, within the usual business hours, at the commercial domicil of a partnership, for the payment of a note, or bill due by the firm, a sufficient presentment. It was not necessary to make a fuvther demand at the private residence of the individual partners. The place of business is the domicil of the firm, and it is their duty to have suitable persons there to receive and answer all business demands. We express no opinion as to the degree of diligence requisite, where the obligation is that of one doing business alone, and where the debtor has both a domicil and place of business, the latter being closed at the time of the presentment.</p> <p>Notice by the notary to the last endorser exclusively, is a strict compliance with commercial usage, especially if he be ignorant of the residence of the other parties.</p> <p>Where the distance is such as to require the interval of several days for the purpose of communication, then “ the day31 which each endorser is allowed, within which to give his notices in turn, will commence with that on which he himself receives notice.</p>

<p>A liability for a general average contribution cannot properly be called a risk; it is an obligation incident to a sacrifice made to avert a risk. It is based upon the equitable rule that no one should enrich himself at another’s expense.</p>

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

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

<p>Decision in Purvis v. Harrmason, i An., 422, and Thomas v. Phillips, 7 An., 54G, affirmed.</p>

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

<p>-On motion to dismiss appeal.</p> <p>The 41st section of the Charter of the city, which dispenses the city from furnishing bond and security in all judicial proceedings, “ where, by existing laws, bond and security are required of litigants,” is not unconstitutional, as being without the terms of the title of “the Act to consolidate the city of New Orleans, and provide for the government and administration of its affairs.”</p> <p>The 41st section does not revive or amend any law by reference to its title. It refers to laws in general terms without any indication of the title of such laws.</p>

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

<p>A document intended as a will, but never probated as sucli, may be good as an acknowledgment of the paternity of natural children.</p> <p>Acknowledged natural children, after having been put in possession of their father’s succession — no legitimate heirs having been shown to exist, or none appearing — m'ay prosecute any claim belonging to the succession.</p> <p>Plaintiffs sued for certain batture property, alleged to belong to the succession of their father. Defendants averred that the father had surrendered the property to his creditors in 1809. By the Court: Tho surrender no doubt gave his syndic the right to sell, but the title still remained in Bemy. Old Code, page 294, Art. 17.</p> <p>This property was'never sold. The creditors received very nearly the full amount of their claims. As no creditor asserts any claim against the succession, and as Bemy died (in 1321) in possession of the property, it is fair to conclude that his creditors were satisfied, if not paid in full.</p> <p>Bemy died in the actual possession of the property, which he held under a valid title. There could have been no adverse possession anterior to his death, and, therefore, whatever may have been the character of the alleged possession of defendants, it should have been accompanied by a title translative of property, and exercised in good faith to form the basis of prescription.</p> <p>Possession, to be the basis of prescription, must be inconsistent with an adverse ownership — -must be continuous, unequivocal, uninterrupted, and with the intention of holding as owner, or on behalf of one assuming to be owner. In tho absence of such adverse possession, the civil possession of the original owner will be presumed to continue.</p> <p>Mere possession of battures and banks of rivers for the public use can in no case form the basis of prescription, because such possession is not incompatible with a right of ownership in a riparian proprietor.</p> <p>The several Acts of the Legislature giving to the city police powers over the batture, were never intended to disturb the rights of property, and had such been the object of the statutes, they would to that extent have been nullities.</p>

<p>Appeal from a-judgment overruling a motion in arrest of judgment after conviction of murder, on the ground that the words “ then and there” were omitted in the concluding sentence of the indictment. Held: That if such indictment were defective at common law, it is aided by the statute of 1855, which provides that it shall not be necessary to state any venue in the body of an indictment; and that no indictment shall be held insufficient for want of proper or perfect venue.</p> <p>Under the same statute any formal defect apparent on the face of the indictment must be taken by demurrer or on motion to quash before the jury is sworn; and every court before which objection is taken for such formal defect, may, if necessary» cause the indictment to be forthwith amended, whereupon the trial may proceed as if no such defect had existed.</p>

<p>In all cases where the thing sold remains in possession of the seller, it is to he presumed that the sale is simulated; and with respect to third persons, the parties are bound to show its verity. C. C., 2456.</p>

<p>APPEAL from the District Court, Tenth District, Parish of Carroll, Jfhrrar, J.</p>

<p>The fact that plaintiff had a legal mortgage on the property, for which a writ of possession, issued in favor of W., would not, if true, be a valid reason to stay the execution of the writ. That execution would not impair her mortgage rights.</p> <p>The wife’s legal mortgage takes effect only from the date when the paraphernal funds went into the husband’s hands.</p> <p>The wife’s renunciation is defective when the notary does not detail in the act the nature of the rights she renounced.</p>

<p>APPEAL from the District Court, Seventh District, Parish of East Feliciana, Merrick, J.</p>

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

<p>-Xi PPEAL from the District Court, Seventh District, Parish of West Feliciana, Ratliff\ J.</p>

<p>APPEAL from the District Court, Eighth District, Parish of Livingston, Wat-terson, J.</p>

<p>APPEAL from the District Court, Tenth District, Parish of Carroll, Farrar, J.</p>

<p>APPEAL from the District Court, Sixth District, Parish of East Baton Rouge, Bobertson, J.</p>

<p>An administrator lias no capacity to appeal in behalf of parties whom he has placed on his account as creditors, and whose claims have been opposed and rejected by the court.</p> <p>To consider the acknowledgment by an administrator of a claim against the estate as conclusive of its correctness, notwithstanding an opposition specially made to that item of the account, and without further proof, would be virtually to abrogate Articles 1004,1006 and 1006 of the Code of Practice.</p>

<p>from the District Court, Seventh District, Parish of East Feliciana, Eatliff, J.</p>

<p>ÁPPEAL from the District Court, Seventh District, Parish of West Feliciana, Merrick, J.</p>

<p>A judgment rendered on the 22d "December, and not signed until the 12th of January, may be treated as rendered at the term at which it was perfected by the signature of the Judge, and an appeal, by motion, may be made at that term.</p>

<p>Appeal from an order of seizure and sale, on the ground that the mortgage notes contained a condition that could not be judicially assumed as having happened. The mortgage notes contained the following clause : “ And in case of an overflow of the river, the payment to be extended one year longer, by paying interest.” By the Court: This clause cannot be considered as containing a suspensive condition. It is clear that the defendant’s obligation did not depend upon a future, or uncertain event; on the contrary, its terms were express. Code, 2015, 2016, 2088. The object of this clause, it is in evidence, was to secure to the defendant, in the event of an overflow, the right to prolong the term of his obligation. In order to exercise that right, the burden was on him to show that the event had happened at the time the order of seizure and sale was sued</p>

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

<p>An offer by a debtor to give the creditor in payment or discharge of creditor’s claims, a tract of land, if the creditor would give one hundred dollars to boot, will not interrupt prescription.</p>

<p>Appeal frófli a judgment overruling a motion to quash an execution, on the ground that the execution issued on the judgment, instead of the twelve months’ bond given by defendant at a sale of his property, bought by him under a previous execution on the same judgment. BytheGouH: Wherein does it concern defendant whether the present ft. fa. issued upon the judgment or the bond ? He is the principal debtor in both, and he does not pretend by his pleadiDgs that he has ever paid the debt, or that it has been extinguished in any mode known to the law, or that he has any possible defence to it,</p> <p>A twelvemonths’ bond taken under execution upon a judgment does not operate a satisfaction or novation of the judgment.</p>

<p>By the laws of Pennsylvania and Maryland, if the husband has not, during his life, reduced to possession the choses in action of his wife, they will pass to her representatives.</p> <p>By the Gcni/rt: In a case similar to this we have held that the laws of Louisiana must control the distribution of the residuary interest of a succession in this State — the right of action for the recovery of the same being immovable from the object to which it applies.</p> <p>Code, 463.</p>

<p>All cases are excluded from the jurisdiction of the First District Court of New Orleans, which do not come within the definition of criminal cases, as found in the sixth section of the Acts of 1858 and 1855 — “prosecutions for crimes, misdemeanors and offences committed within the limits of the First Judicial District.”</p> <p>The 42d section of the Act of 1855 does not give the Fivst District Court of New Orleans jurisdiction to try a contested election of District Attorned of the parish of Orleans.</p> <p>If the 42d section of the Act of 1855 applies to the parish of Orleans, the section would be satisfied, without conflicting with previous statutes, by filing the petition contesting the election of District Attorney for the parish of Orleans in any of the five district courts of general jurisdiction in the parish of Orleans.</p> <p>The First District Court, being a court of limited powers, any extension of its jurisdiction must be strictly construed, and should not be stretched by implication to cases not named.</p>

<p>APPEAL from the District Court, Sixth District, Parish of East E§ Rouge, Robertson, J.</p>

<p>Suit to recover amount of certain notes obtained by defendant from plaintiff and paid by her, as alleged, for defendant’s benefit. Plea, prescription of five and ten years. To meet this, the plaintiff urged that the Supreme Court had not decided until 3854, that she was not responsible for the debts of her former husband, and that, previous to that decision, she was not bound to bring this action. By the Court: The action of the court in that case did net have the effect of suspending the course of prescription against her.</p>

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

<p>Objections to the admissibility of the prisoner’s confession, and to the instructions of the court, must be taken by bill of exception, and not by assignment of error. And where the Justices who presided at the trial of slaves, were of opinion that they had no power to sign bills of exception, evidence of this should appear of record.</p> <p>Assignment of error, u that the tribunal who convicted said slave were informally and illegally constituted.” By the Cowt't: This objection is entirely too vague, and has not been made more explicit by any specification, even in argument, in this court.</p>

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

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

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

<p>Action to remove administrators, domiciled in Mississippi.</p> <p>Exception — that there had been no citation. By the Gourt: This objection may be considered not only as waived by the other reasons urged for the dismissal of the action, but by the appearance of the appellees, whereby it became unnecessary to make service on the curator ad hoc, on whom alone it could be made as the appellees were domiciled out of the State.</p>

<p>The depositary owes no interest for the money deposited, except from, the day on which he became a defaulter by delaying to restore it. Code, 2919.</p>

<p>Interest is due by a depositary only from the demand for restitution. Code, 2919.</p>

<p>Defendant had summoned more than forty witnesses, and asked for attachments, which the court refused him without security for the costs of all the attachments exceeding six. JBy the Cowi't: There is no averment that he expected to prove anything material by the absent witnesses, nor that he was unable to give the security required. Much discretion must be left to the judges of the first instance in such a matter as this, in order to prevent the abuse of the process of the court. O. P. 4T2.</p> <p>'Where the witness had lived several months in defendant’s house, and defendant was present at the trial and cross examined witness, he cannot allege surprise, or claim a new trial, to inquire into the competency, or credibility of the witness.</p>

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

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

<p>Liability of maker of guarantee notes to the Merchants’ and Planters’* Mutual Insurance Company, fixed according to the principles laid down in the case of McIntosh and the same company.</p>

<p>XX PPEAL from the District Court, Eighth District, Parish of Livingston, Wat-tersan, J.</p>

<p>Action against the proprietor of a newspaper for damages for a libel.</p> <p>In actions of this character malice is often implied*. At common lawj if the words spoken or published are themselves actionable, (as if they import arr accusation of an indictable offence,) malicious intent is an inference of law, and therefore needs no proof. In this dase malice does not mean a spite against the individual, but mahis animus, a wanton disposition, grossly negligent of the rights of others.</p> <p>The defendant had' a right to repbrt the fact that the plaintifiihad been arrested and held for examination on a particular charge. But he had no right to'go beyond this, and assume the guilt of the plaintiff upon an ex parte charge, heap accusations of other crimes upon his head without any foundation, and vilify his character, except upon the responsibility of proving the truth of his accusations when sued for libel, and th'at they were made with good motives and for justifiable</p> <p>The fact that defendant recanted the charges against the plaintiff the day after they were made was proper to be considered by the jury in estimating damages, but could not exonerate plaintiff en-</p> <p>The satisfaction expressed by plaintiff at the apology and recantati'on made by defendant' was not a w'aiver of his claim for damages, as it was consistent with a reservation of his right to’ sue, if he thought proper.</p> <p>Although the libel was written by one of defendant’s employees in the regular course of his employment, yet defendant was responsible, and though wholly without mordí turpitide, yet damages could be recovered against him without special proof of the pecuniary amount actually suffered.</p> <p>In all appealable cases the jury are judges both of the law and-fact, but in all cases the Judge may be required by the counsel of either party to charge the jury in writing.</p>

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

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

<p>APPEAL from the District Court, Eighth District, Parish of St. Tammany, Watterson, J.</p>

<p>APPEAL from the District Court, Third District, Parish of Jefferson, Burthe, J.</p>

<p>APPEAL from the District Court, Tenth District, parish of Tensas, Snyder, J.</p> <p>cited, on the question of tender: Janin v. Traullin, 4 La. 198; Barret v. Bullard* 19 La. 281; Fazende v. Eagan, 9 Rob. 806 ; Bach v. Barret, 2 An. 955 ; Fisk v. Proctor, 4 An. 592.</p>

<p>A memorandum, book, kept wholly in. the handwriting of the deceased, is admissible in evidence to show his indebtedness to a surviving partner,</p>

<p>Suit upon a factor’s account.</p> <p>Where the defendant had never acquiesced in the account as rendered, and there was no contract for interest, the plaintiffs can only recover legal interest.</p> <p>The charge of forty-five cents per bale, made against defendant, for drayage, labor, storage, weighing, etc., of defendant’s cotton, cannot be recovered, unless actually paid by plaintiff.</p> <p>In reply to interrogatories, plaintiffs said that “ they are in the habit of taking out open policies from the insurance offices against fire and river navigation, to cover shipments of all cotton that may be made to them, etc,-” and that “ they pay the premiums of insurance, which they charge in the account of sales to the planter.” This answer was made in reply to an interrogatory asking if the insurance was made in a mutual insurance company, “ and what dividend or scrip plaintiffs had received.” Answer held to be unsatisfactory. By the Court: As the defendant is charged with the premiums, it is'but fair that he should be credited with, at least, the value of such amount of scrip as, under a fair apportionment, he would have been entitled to receive.</p>

<p>APPEAL from the District Court, Tenth District, Parish of Madison, Snyder, J.</p>

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

<p>APPEAL from the District Court, Fourth District, Duffel, J.</p>

The counsel for plaintiffs made the following points: Did William Estill have any heritable right in the estate of Samuel Es-till ?

<p>Action to recover damages from defendant for alleged illegal conduct of the Board of Health, in ordering the ship to Fort Jackson, after her arrival in the city. By the Court: We think that the fault lies with the captain of the ship in proceeding to the city without first having been visited by a health officer, and that he thereby took upon himself the risk of being compelled to return to Fort Jackson, particularly as the cholera had so recently shown itself on his ship, and there was a case of ship fever among the emigrants.</p> <p>It will not be presumed on slight testimony that sworn officers have violated their duty in matters of discretion confided to them. Those who allege an illegal exercise of that discretion should be held to establish such allegation by conclusive proof.</p>

<p>A cemetery is an indispensable part of every city, or town, and wherever situated, must be in the neighborhood of private property. Such cemetry is not a nuisance because it depreciates the marketable value of the property in its neighborhood.</p> <p>The doctrine that the city of New Orleans has a right to violate a contract, and redress is to be had only in damages against the city, is as unsound as it is novel. The violation of a contract may be, and very often is, the ground of an action sounding in damages against the parly who has violated the contract. But the claim in such a case is for the reparation of a wrong, and the very opposite of a recognition of a right to violate a contract.</p>

<p>The validity of an attachment cannot be drawn in question collaterally, except in cases where there is an entire want of citation.</p>

<p>APPEAL from the District Court, Ninth District, Parish of Concordia, Cooley, J.</p>

<p>APPEAL from the District Oourt, Fifth Judicial District, parish of Assumption, Cole, J.</p>

<p>Although the Act of the Legislature has not declared that the delivery of the tax roll should have the force and effect of a final judgment, yet a party who has not made an effort to have the errors corrected, in the manner indicated by the Act, and seeks to go behind the assessment roll, should show some valid reason why he did not make an attempt to have it corrected, while it was subject to correction; and, moreover, not only show that there has been an error made to his prejudice, but also show the precise amount he is entitled to have deducted on account of such error.</p>

<p>Sale under fi. fa. set aside for want of valid writ and notice.</p> <p>It is where the purchaser is evicted on the ground that the thing adjudged to him belongs to ^another person than the party in whose hands it was taken, that he is left to his recourse for reimbursement against the seized debtor aud seizing creditor. But where the seized debtor himself seeks to rescind the sale on account of informality, equity requires that he should make the "bona fide purchaser whole before he evicts him.</p> <p>C. P. Til.</p>

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

<p>Action for the liquidation of partnership affairs.</p> <p>It is well settled that partnership books are evidence for and against the partners, in controversies arising among themselves, but only the books, and entries contained in them, at the time of the dissolution of the partnership. The entries made after this time by one of the partners, who has possession and care of the books, cannot bind the other partners, unless he has also had the books in his possession, examined the entries, and, when he had the means of ascertaining their correctness, made no objection, or in some similar manner acquiesced in or approved of the books.</p> <p>By the contract of partnership, two of the partners (defendants) were required to transact the outdoor business, and superintend the sales. Held : They could not be expected to attend at remote places, nor await the slow process of sales at the principal points where goods were in store ipr the purpose of being offered for sale; and they are entitled to a credit for commissions for sales actually paid by them in good faith.</p> <p>In order to hold one of the partners liable for losses on the sales of goods, it should be shown that he violated the obligations imposed upon him by the contract of partnership; and that the partners objected to his acts as soon as advised of them, or within a reasonable time after the entries in regard to such sales had been made upon the books of the firm. It is not enough to await the result of the sales to ascertain whether the same have been fortunate, or unfortunate, before objecting.</p> <p>Defendants, who assumed the collection of outstanding debts, assumed, as negoUorum gestores, the obligation of using due diligence.</p> <p>The appointment of a liquidator for the settlement of partnership affairs rests, in a great measure, in the sound discretion of the court.</p> <p>Accounts due a partnership in liquidation should not be sold, unless the trouble, expense and delay of collecting, will render them less productive to the firm than their immediate sale; or unless they are desperate, or of little value, and the delay in regard to their collection, prevents a final decree of partition within a reasonable time. These and like reasons, render a sale proper.</p> <p>Charges for interest made since the dissolution of the pai tnership, must be confined to such sums • as the respective partners had promised to bring into the partnership, or for funds withdrawn by them, and in the absence of any agreement in writing, the rate must be five per cent.</p> <p>The lessees of the penitentiary have no right to make any contract for the use, or hire of the negro convicts, except in the employments required by law, and any items for such services made by one of the partners, must be disallowed.</p> <p>A several judgment against one, in favor of the other individual partners, should not be rendered where there are available partnership assets by which the amounts received by the partners can he readily equalized</p> <p>Code 2244, 2245, 2994, 9829.</p>

<p>Where the husband joins the wife in the suit, and the petition alleges that the wife is herein authorized and assisted by her husband, it is a sufficient authorization for the wife to sue.</p> <p>A suit to set aside a conveyance from the husband to the wife, on the ground of fraud and simulation, is not a revocatory action, but in effect an action en deelctA'ation de simulaMon.</p> <p>Acknowledgments of the receipt of money by the husband from the wife are not evidence against third persons not parties to them, and the judgment rendered against the husband in favor of the wife can have no more effect against third persons than the acknowledgments themselves.</p> <p>The prescription established by Article 19S9 of the Code does not apply to simulated sales.</p>

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

<p>No protest is necessary where the drawer of the bill has no funds in the hands of the drawee, and made no provision for its payment, nor had any right to expect that a bill for the amount would be accepted.</p> <p>There is no law which makes an election day a d/ies non jtwi&ieus.</p> <p>Where the answer shows that the bill was drawn to release the boat from a seizure, it is too late to object that the captain of the steamboat was without authority to draw the bill.</p> <p>The fifth section of the Aot of 1855, “ relative to evidence,” does not empower the courts of this State to take judicial notice of the statutes of other States. It provides, “ that the published statutes and digests of other States, shall be received in the courts of this State as prima fade evidence of the statute laws of the States from which they purport to emanate.”</p>

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

<p>The Sixth District Court of New Orleans has jurisdiction of a rule against a surety on an appeal bond, the principal in which is dead, and his succession under administration in the Second District Oourt.</p> <p>If the judgment debtor be dead, the creditor may proceed against the surety in the appeal bond, without previously issuing execution against the judgment debtor.</p>

<p>APPEAL from the District Court, Second District, parish of Plaquemines, Rousseau, J.</p>

<p>APPEAL from the Sixth District Court of New Orleans, Reynolds, J., presiding.</p>

<p>Injunction of sale by Sheriff, under defendants’ execution against J., of three billard tables claimed by plaintiff under a private writing, which, after reciting the sale to J. by plaintiff, of the billiard tables, says, “ it is further understood by the parties that those billiard tables will be the property of B. Antognini, until the payment of those notes” (the price). By the Court: This private writing had no date as to third persons — at least no date prior to that of its filing in this suit— and the plaintiff should have proved not only the signature of the document, but that it was made at the date which it bears. The defendants had acquired a lien upon these billiard tables, by their seizure before this suit was brought.</p> <p>The plaintiff, as vendor, had no right to enjoin the Sheriff’s sale. He had only the right to claim the price, in virtue of the privilege of vendor, by third opposition.</p>

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

<p>A steamboat was purchased to be resold, and not to be engaged in the carrying trade. By the Court: Under the circumstances the parties were merely joint owners of the property, and not partners, or joint traders within the meaning of the law.</p> <p>A partnership is founded on the voluntary contract of the parties, as contradistinguished from the relations that may arise between them by the mere operation of law, independent of such contract.</p> <p>The surviving partner cannot alienate the partnership property. The power to alienate ceases with the dissolution of the partnership; the heirs of the deceased become joint owners of the common property, and the survivor can only dispose of his right in the thing sold.</p> <p>An action for the recovery of the value of property belonging to a succession for which the defendant has made himself liable, is not an action for damages resulting from an offence, or a quasi-offence, and the prescription of one year is inapplicable to it.</p>

<p>Executors, administrators, curators and syndics, are bound to keep a bank book in their official names, and deposit all mo»ies collected by them, as soon as received, in a chartered bank, ii there be one in the parish, although no chartered bank of the State pays interest on deposits.</p>

<p>A sufficient authorization for the wife to appear is shown, when she and her husband were duly cited: both filed their answer on the same day — were represented by the same counsel — and the wife, in her answer, expressly alleges that she was duly authorized to appear and defend the suit. Where a decree of court is rendered “ by reason of the consent of parties, plaintiff a/nd defen-dantit does not matter whether the consent was given in writing, or verbally, it will be presumed, until the contrary is made to appear, to have been given in such a way as to justify the decree.</p>

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

<p>APPEAL from the Sixth District Oourt of New Orleans, Ootton, J,</p>

<p>The following charge to the Jury held to be strictly correct.</p> <p>In order to maintain an action for damages for a malicious arrest, the plaintiff must prove malice in fact, and that the arrest complained of was made, or procured to be made by the defendants from malicious motives, and without probable cause.</p> <p>If it appears from the evidence, that the defendants in making or procuring the arrest, acted under the advice of counsel given in good faith; that they had a good cause of action against the defendant in said action, and a legal right to hold him to bail therefor — then the defendants are not liable in damages to plaintiff, and the action cannot be maintained against them.</p> <p>The verdict and judgment rendered in the District Court and confirmed in the Supreme Court, in the case of the present defendants against O'Gormel & Gould, in which the plaintiff was arrested and held to bail, and which arrest is the cause of action in this ease, is conclusive evidence of a good cause of action in that suit, and cannot now be contradicted by parol or other evidence.</p> <p>Although the firm of O'Cormel & Gould had been dissolved before the commencement of the action instituted by the defendants against plaintiff, yet all the partners of the firm of O’Gonnel <& Gould were bound in solido for all the debts of the firm, and liable to be sued for them.</p> <p>The evidence of the existence of malice on the part of the defendants, in making the arrest of the plaintiff, is not sufficient to maintain this action, if there was a good, or probable cause of action at the time, and an apparent legal right to hold to bail.</p>

<p>Action for damages for injury done plaintiff by being thrown from the cars. A bill of exceptions was taken to the admission in evidence of the declarations of the Superintendent as to the conduct of the engineer.</p> <p>JBy the Court: It is clear that the Board of Directors alone had the power to make admissions in regard to the controversy which would bind the company, and that no ordinary agent of the company would possess the power unless expressly granted.</p> <p>In order to enable the plaintiff to recover it must appear that there was no want of care, and no imprudence on the part of the plaintiff, by which the injury was in any manner directly brought about, and that the injury was occasioned by the negligence of the company, or its officers, either in not having provided the necessary apparatus and fixtures to the locomotive or train by which the accident might have been guarded against, or by the carelessness or malfeasance of its agents. If it appear that the injury would have equally happened with or without such guards to the locomotive or train, then the want of them will not increase the responsibility of the company.</p> <p>In actions of this kind vindictive damages cannot be given, although the negligence is clearly proven. Vindictive damages are sometimes allowed in the case of wilful or malicious injuries.</p> <p>In estimating damages the jury may consider the painful nature of the wound, as well as the length of time the plaintiff may have been kept from his employment, and the permanent character of the injury. The jury should allow such reasonable sum as will compensate the plaintiff, and no more. The company in such cases is not to be punished for the negligence or carelessness of its agents as a crime.</p>

<p>APPEAL from the District Court, Fourth District, Parish of Ascension, Waller-son, J., presiding.</p>

<p>Foreign judgments have no executory force in this State until they acquire it by the judgment and fiat of our own tribunals. To procure such a fiat a personal action must be brought upon the judgment — an action, the prescription of which is governed by Article 3508 of the Code.</p> <p>The prescription of actions is regulated by the law of the forum.</p>

<p>The omission(to inventory the community property, will not annul or suspend the usufruct established in favor of the surviving spouse, by the Act of 25th of March, 1844.</p> <p>The community is entitled to the enjoyment of the property and effects belonging to the husband at the time of the marriage, and owes no recompense for the diminution in value of such effects by reason of such enjoyment.</p> <p>Furniture and other movables brought into marriage, if they still exist m specie, may be taken out at the dissolution of the community by the husband who brought them, but he is not entitled to credit for their value at the date of the marriage. If they have perished, the husband must bear the loss. If they have been alienated, upon showing that the proceeds went into the community, the husband can charge the sum to the community.</p> <p>C. C. 536, 550, 559, 2871.</p>

<p>In a suit to rescind the sale of a slave, it is no defence that a tender has not been made, where the tender is impossible.</p>

<p>where the violation of a contract is passive, the putting in default is a prerequisite to the recovery of damages.</p> <p>Á violation is said to be passive, by not doing what was covenanted to be done, or not doing it at the time, or in the manner stipulated, or implied from the nature of the contract.</p> <p>It is a sufficient bar to an action for recovery of damages for the passive violation of a contract, that the defendant was not put in default by the plaintiff pi'evious to the expiration of the time within which the plaintiff stipulated to perform his part of the contract.</p> <p>■Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach, in the absence of any fraud or bad faith, are the amount of the loss he has sustained and the profits of which he has been deprived; and only for such damages as may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. Damages for supposed profits based on the speculative opinions of witnesses, are clearly inadmissable.</p>

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

<p>The address for the removal of Hufty from the office of Sheriff of the parish of Orleans was presented to the Governor, and approved by him. His official approval and signature consummated the removal.</p> <p>Article 97 of the Constitution is in these words : “ All civil officers, except the Governor and Judges of the Supreme and Inferior courts, shall be removable by an address of a majority of both Houses, except those the removal of whom has been otherwise provided by this Constitution.” Accurately speaking, the Constitution itself nowhere else provides a mode of removing Sheriffs.</p> <p>Article 89 allows the impeachment and the prosecution of Sheriffs. But the power of impeachment, or prosecution for misdemeanor in office, which, in case of conviction, involves a removal from office as an incident, and the power of removal without impeachment, or prosecution, are concurrent powers, both of which are clearly recognized by the Constitution, and neither of which excludes the other</p> <p>The theory of our representative Governments is, that offices are created, not for individual emolument, but for the public good. And the object of the Constitution was to provide not only for the punishment of official delinquents, which would involve the dismissal from office, but also a mode of removing civil officers, against whom no accusation of crime could be made, or sustained, whenever the public good should require such removal.</p> <p>It would be rebellion in a Judge to say-that a plain and unqualified grant of power, given by the Constitution to a particular department of the government, was null because he thought it was against common right.</p> <p>It is hardly tenable to say that a man can have a “ vested right ” to any public office under our form of government. Certainly it canuot be said of a Sheriff, when, in the language of the 80th Article of the Constitution, the very tenure of the office is, that he shall hold it “ for the term of two years, unless sooner removed.”</p> <p>The power of removing an officer upon address of the two Ilauses is not a judicial power, but is essentially administrative, and therefore not within the prohibition of Article 2 of the Constitution, which provides that “no one of these departments, [legislative, executive and judiciary] nor any person holding office in one of them, shall exercise power properly belonging to either of the others.” But even if this power of removal did somewhat partake of a judicial character, its exercise would not, on that account, be void, for it is protected by the concluding words of the same Article 2: tl No one of these departments, nor any person holding office in one of them, shall exercise power properly belonging to either of the others, except in the mstcvnces hereinafter expressly directed or permitted.^</p> <p>The verdict of the jury in favor of Rufty ^ in the contested election between Bell and Rufty was not a bar to the removal of Rufty by the Legislature. The question before the court was: Shall Rufty receive a commission ? The question before the Legislature was: Shall Ruft/y be removed from office? In the one case there were two parties, each urging that he could count the greater number of votes in his favor. In the other case there were no parties, but a mere act of administration. -The judgment in favor of Ruft/y has been enforced. Rufty has been placed in possession of the sheriffalty.</p> <p>The reasons assigned in the preamble to the address for the removal of Rufty, whatever they may be, cannot vitiate the act of removal, which act was within the constitutional competency of the Legislature, uncontrolled by any superior power. With their reasons, whether good, bad, or indifferent, the judiciary have nothing to do.</p> <p>While the Legislature has power to remove a Sheriff by address, proprio mot/u, without any accusation preferred by memorial against him, yet Article 97 of the Constitution does not authorize the Legislature to hear evidence upon, and decide judicially, the legality or validity of an election of Sheriff. Buchanan, J., dissenting.</p> <p>Unless the reasons assigned by the Legislature exhibit an unconstitutional exercise of power, they could not be examined judicially. Buchanan, J., dissenting.</p> <p>The exercise of judicial power by the Legislature is unconstitutional, except in the instances expressly directed or permitted in the Constitution. Buchanan, J., dissenting.</p> <p>The identical specifications upon which the relator had contested the election of Rufty before a tribunal, the decision of which was final, are the very grounds set forth in the address for the removal of Rufty. The address is thus an interference with the legal course of proceedings of the regularly constituted judiciary of the State, and an appellate jurisdiction claimed and exercised by the Legislature. Buchanan, J., dissenting.</p>

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

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

<p>The makers of a note caused it to be sequestered, and prayed for its restitution, &c., on the ground of error and fraud. The sequestration was afterward set aside, and a judgment on the note obtained.against them. Pending this litigation, the makers of the note became insolvent, and after execution against them returned milla "bona, this suit against the sureties on the sequestration bond was brought. Held: Plaintiff could not have maintained an action on the note pending the litigation for its restitution, the sequestration being merely a conservatory act.</p> <p>The sequestration had the effect not only of suspending the payment of the note, but of placing it beyond the reach of commerce.</p>

<p>A police officer maybe entitled to a reward offered by the city, for detecting and bringing to conviction one charged with arson.</p> <p>The ordinance offering the reward was not intended to be temporary, and is still in force.</p>

<p>The measure of the carrier’s liability is the market value of the goods at the port of destination.</p>

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

<p>ffhe legal presumption is that a slave, bought by the plaintiff pending the community of acquests, is community property, and the unsupported declaration in the act of sale that the purchase money was given to the plaintiff by her father cannot conclude creditors who were not parties to the act.</p>

<p>Plaintiffs sue to recover back the amount of a bill of exchange, which they had accepted and paid. By the Gonrt: Plaintiffs, having paid the bill to defendants, cannot recover, unless they have established their allegation that there was a material alteration in the bill, by which they were defrauded out of their money. A mere alteration is not enough. They must show that it was such a fraudulent alteration in the substance of their contract as, per se, to destroy the obligation resulting from it.</p>

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

<p>A vendee has no claim against his vendor for the reimbursement of expenses incurred in defending a title which was set aside for fraud, of which the vendee not only had knowledge, but in which he participated.</p> <p>As between two executors, the action of the court cannot he invoked for the purpose of assessing their proportionate shares of a liability growing out of a joint fraudulent administration.</p> <p>Where it was stipulated, in a consent judgment, that an intervention, to which an exception and answer in reconvention had been filed,'should be‘withdrawn, and the whole litigation terminated, Held,: that the consent judgment cannot be considered merely as a judgment on the exception, dismissing the intervention, but as a final judgment on the adverse claims of the intervenor and the defendáis.</p>

<p>Defendants received a claim for collection from D. T. W. & Co. The firm of D. T. W. & Co. was dissolved, and B. who had been one of the members, instructed defendants to put the proceeds of the claim, when collected, to the credit of plaintiff, which defendants accordingly did, and so instructed B. and the plaintiff. Subsequently defendants paid the money under instructions from D. T. W., as liquidating partner of D. T. W. & Co. Plaintiff then brought this suit for the amount of the claim. JTeZd: That after defendants had notified plaintiff that, as requested by B., they had placed the money collected to plaintiff’s credit; they had no right to divest the funds without plaintiff’s assent; that having done so, they were liable to plaintiff.</p> <p>After the dissolution of a partnership, no one of the partners can use the social name so as to bind the others; and to draw or endorse a note in the name of the former partnership, the authority must be express and special. Any subsequent power mdst be derived, not from the previous relations of the parties as partners, but from a new contract!* which is one of mandate, and this mandate must be express and special. Yoorhies, J., dissenting.</p> <p>No one of the partners, after the dissolution, can alienate anything more than his own interest in the partnership property. He is not permitted to do any act, still less, to malee use of the partnership funds in a manner inconsistent with the purpose of a just and proper settlement. Yoorhies, J., dissenting.</p>

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

<p>Answers by garnishees, which are manifestly evasive, ought not to be amended — such a practice might lead to frivolous delays. But where an answer is really responsive to the question, though it might be more comprehensive, it is within the discretion of the court to allow the garnishee to answer more fully, in cases where the questions propounded admit of a truthful, but at the same time of an unsatisfactory answer.</p>

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

<p>13L PPEAL from the Second District Court of New Orleans. Morgan, J.</p>

<p>The 4th section of the Act of 12th ¡March, 1838, re-enactedln'1850, which provides that managers and lessees of theatres shall pay $500 per annum, for the benefit of the Charity Hospital, is not unconstitutional; nor is it repealed by the Act of 1853, taxing managers and lessees of theatres $200.</p>

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

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

<p>The licitation of proiierty to effect a partition may be ordered, on proof by witness of its necessity, as well as upon the report of experts.</p> <p>Code 1261.</p>

<p>The delivery of the effects of a deceased passenger to the agent of the administrator appointed in Massachusetts, before the appointment of a curator here, Trill discharge the master.</p>

<p>It is the effect of the inscription, and not the effect of the mortgage, which ceases at the expiration of ten years, unless there be a reinscription within that time; and hence the reinscription after ten years lias effect only from the date of the reinscription.</p> <p>Code, 8883.</p>

<p>An injunction issued to restrain the negotiation of a bill of exchange, which being dissolved, this - suit for damages was brought on the injunction bond. By the Gowt: The rule of damages would seem to be that the probable loss sustained by a party in consequence of having been deprived of the free disposal of his own property should be the true standard; in other words, he should be placed as nearly as possible in the situation in which lie woukfhave been if the disturbance had not taken place. Consequential or vindictive damages cannot be allowed.</p> <p>Plaintiff is entitled to recover lawyer’s fees actually expended by him to obtain the dissolution of the injunction. 1 _</p>

<p>APPEAL from the District Court, Fourteenth District, Parish of St. Martin.</p>

<p>On a trial for muvder the Judge told the jury that “ murder is of very frequent occurrence in this community, and when a jury has a case of murder which is clearly made out, the court believes it necessary for a jury to bring in an unqualified verdict in order to deter others from crime.” By tke Court: Such a charge was calculated to impress upon the minds of the jurors that in all cases of murder they were not at liberty, or, at least, could not with propriety exercise that discretion which is expressly conferred by the statute of 1846, which declares that in all eases where the punishment demanded by law is death, it shall be lawful for the juvy to qualify their verdict by adding thereto, “ without capital punishment.” We think the discretion of the jury should not have been trammelled by instructions which were not only' calculated to secure an unqualified verdict, but might have been construed by the jury into an intimation of the opinion of the court as to the guilt or innocence of the prisoner.</p>

<p>Where a person is injured by the carelessness of a slave, the lessee of the slave is the person first liable to respond in damages, under Article 2299 of the Code.</p> <p>Where a slave occasions injury to any one by his negligence, and the lessee has not induced it by any want of vigilance or care on his part, the lessee may recover against the owner of the slave an indemnity for such damages as he may have been obliged to pay third parties.</p> <p>C. F. was injured by the carelessness of a slave in driving a carriage ; the slave was hired to defendant, but the title was in B. Plaintiff obtained a judgment for damages, and B. abandoned the slave, who did not bring enough to satisfy plaintiff’s judgment, and the balance was claimed from defendant — I/elcL: that in the particular case, both the owner and the lessee were relieved by the abandonment. By the Gov/rt: Whether there may not be cases where the parties would not be permitted to relieve themselves from a responsibility by a surrender of the slave as in those cases where particular skill and experience are required, and an incompetent slave is employed as a N workman, it is not necessary for us to determine.</p> <p>Code 180, 1S1, 2800.</p>

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

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

<p>The removal of a mortgaged slave from Louisiana to Alabama, and his subsequent sale there, cannot be set up in this State as a bar to the mortgage existing prior to his removal.</p>

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

<p>Where a person who was a witness on a former trial, was present at the second trial, it is not competent to show, by a bill of exceptions taken at the previous trial, that he had then refused to answer certain questions, without, at least, first propounding the questions to him.</p>

<p>Defendant was sued for the cost of a license for keeping a beep-house, &c. He pleaded that he was protected by the statute which provides that “it shall not be lawful for any municipal, corporation within this State, to levy any tax on persons engaged in selling articles of their own manufacture, manufactured within this State.” By the Court: The evidence shows that the appellant keeps a beer-saloon, in which he retails, by the glass, b„eer of his own manufacture. His manufac-tory and saloon are both situated on the same lot. It -appears to us that the immediate sale of beer from a manufactory, and the retail of it in a public saloon, form distinct branches of business,' trade or occupation. We do not think it was the intention of the law-maker to exempt from taxation such articles thus retailed to carry on a public salpon. Hence, we conclude that the appellant, as keeper of a beer-house, or saloon, does not fall within the exemption of the statute.</p>

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

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

<p>Appeal dismissed for want of proper parties.</p> <p>The practice of the Supreme Court is to notice ex officio^ and without any motion to dismiss having been made, the want of proper parties for a final decree".</p>

<p>M., one of the partners, defendants, was the agent of the Bank of Kentucky. Pending this agency, defendants received from S., L. & Co., of Louisville, a consignment of flour, which they were directed to sell and retain proceeds towards payment of a draft drawn by plaintiffs They sold the fio ur, and M., acting under instructions from the bank, attached the proceeds. After the attachment, defendant received a despatch from S., L. & Co., directing them to deliver the flour, or its proceeds, to plaintiffs. ByiheGouH: The defendants, as factors, and holding the funds as an irregular deposit, ought not to defeat the arrangement of the parties by taking upon themselves the agency of the Bank of Kentucky. The two agencies are incompatible, and having received the consignment of the flour for a particular purpose without objections, and made a sale, they became absolutely the agents of the parties interested in the shipment of which they had notice, and they cannot be permitted to defeat the very object of the consignment of the flour by diverting the proceeds to their individual claims against S., L. & Co., nor by acting as the agent of third parties.</p>

<p>A judgment homologating an administrator’s account and discharging the administrator, rendered upon publications made pursuant to Art. 1172 of the C. C., is not res judicata as to the heirs. The form of notice prescribed by that Article is meant merely for creditors. The heirs should have been cited.</p> <p>Plaintiffs, heirs of A., in an action against his administrator to recover their share of the succession, in their petition, declare their heirship to be derived through their ancestor B., a predeceased brother of A.; and, in the same connection style themselves ii7ieirsv of B. Held: That under Art. 982 of the 0. C. this was equivalent to an express acceptance of the succession of B., though that succession was not the subject matter of the litigation.</p> <p>Representation is a legal fiction, the effect of which is to put the representative in the place, degree and rights of the party represented. It is true, a person may represent one whoso succession he has renounced ; but that is not the case of plaintiffs, w7io declare, in their petition, that they W'e Hie 7ieirs of the pa/i't/y whom, they represent.</p> <p>A petition is a judicial proceeding in the sense of Article 9S2 of the Code.</p> <p>Plaintiffs claim nothing in. the succession of B. They refer to him. merely to show, that through him? they are entitled to inherit from his brother A. It is with respect to the succession of the latter only that they assume the quality of heir, in the manner intended by Art. 982 0. 0. Spofford, J., with whom concurred Lea, J., dissenting.</p> <p>This article was taken from Art. 778 of the Code Napoleon, the commentators upon which generally recognize the distinction upon which this case should turn, a distinction pointedly made in Anderson v. Cox, 6 An. 18. Spofford, J., with whom concurred Lea, J., dissenting»</p>

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

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

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

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

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

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

<p>Action to recover damages fox-injury caused to goods by the bursting of casks containing chloride of lime. (By the Court: Where the common carrier is unable to make good his defence upon some of the grounds which form exceptions to his liability, it is clear he must pay the loss, although not chargeable with any negligence whatsoever; and in fact, even where he has exercised every possible diligence to prevent the loss. He is also liable for a loss occasioned by an acci-. dent arising from any unseen nuisance in the course of his navigation.</p> <p>As the damage in this case was not caused by superior force, (force mayeure,) or by accident, (cas-fortuity defendants are liable.</p> <p>As between, the shipper and the master, the legal presumption arises from the bill of lading, thal the goods were in good condition, but such presumption cannot affect third persons.</p> <p>Code 2725.</p>

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

<p>Bill of exceptions to the refusal of the court to charge that “ the jury are not the judges of the lair and fact in a criminal case, but must take the law as laid down by the court” — Held: The charge asked for was erroneous. By the Court: In both civil and criminal cases, the jury are judges of the law and the fact; otherwise it would be impossible for them to render a general verdict in</p> <p>any case.</p> <p>It is in general safe, as it is in conformity with the theory and the presumptions of our criminal jurisprudence, for the jury to regard the exposition of the law given by the court as correct and decisive — but they are under no compulsion to do* so. They not only have the physical power to disregard the instructions of the court, but there might be extreme cases where it would be right to exercise the power. Still the statutes require the Judge to expound the law to the jury and, in general, they will do well to heed it as authoritative.</p>

<p>A mulatto having been examined in chief as a witness for the State — on cross-examination it appeared that he had been a slave, whereupon the prisoner’s counsel called on the courtto exclude his testimony, there being no evidence that he had been emancipated. Held: the objection came too late — there being no averment that the incompetency of the witness was not known before the examination in chief. The color of the witness would naturally have suggested an inquiry into his condition onhiswir dwe; and as the prisoner had a person in courtto prove that the witness had once been a slave, there could have been no surprise when, on the cross-examination, the witness testified to that fact. The prisoner could not be permitted thus to take the chances of the witness’ testimony if it had been favorable to him, reserving the right to objeetto his testimony if unfavorable.</p> <p>Where the objection to the competency of the witness arises from 7ds own examination, he may be further interrogated to facts tending to remove the objection, though the testimony might, on other grounds, be inadmissible. When the whole ground of the objection comes from himself only, what he says must be taken together, as he says it. j</p>

<p>Question, of fact as to whether the damage to goods, was before, or after shipment.</p>

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

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

<p>An interpretation of a statute which must lead to consequences mischievious and absurd is inadmissible, if the statute is susceptible of another interpretation whereby such consequences maybe avoided. The legislative intention must be honestly sought after and faithfully executed, if not in conflict with a paramount law. And in cases like this, the meaning must be sought, not merely in the words of the statute itself, but in its subject matter, in the history of the legislation thereupon, in the purpose of the law, the reason of its enactment, and the evil it sought to remedy.</p> <p>The subject matter of the Act of 14th March, 1855, (“ an Act creating a Recorder of Mortgages for the parish of Orleans,”) is not the erection of a new office It seems to imply the recognition of an existing office, whose duties are well known. It does not purport to extinguish that office, and to substitute a new and different one. It provides for the mode of appointing an incumbent to fill it at stated intervals, for the mode of giving his bond, and for the appointment of his deputy, whose duties are to be commensurate with his own, but for whose acts he and his sureties are to be responsible. All these sections relate to the officer,‘not to the office; the office exists independent of the statute; and these simple provisions about the incumbent constitute its whole subject matter.</p> <p>The statute in question is in fact but a grouping together in one act of parts of three pre-existing laws, with very slight changes of phraseology, and no change whatever of substance. By it the Legislature has merely said “ here is a condensed statement of all the law now in force relative to the mode of appointment, term of service,'amount and condition of the bond, and appointment, duties of and responsibility for a deputy, of the Recorder of -Mortgages for the parish of Orleans: all else, upon these specified matters, is repealed.”</p> <p>It cannot fairly be inferred that an ancient office was thereby abolished, and a new one created. The literal terms of the statute do not seem to require such a construction; its history, subject matter and purpose alike forbid it.</p> <p>A person holding an existing office under a fixed tenure cannot be removed, or liis regular term of service abridged by an ordinary act of legislation, other tfian an Act abolishing the office. The mode of removing officers is prescribed by the Constitution:</p> <p>"While the history of the legislation, and the circumstances under which the statute was enacted may be inquired into, as furnishing aids to its interpretation, still the plain and unequivocal meaning, according to its received acceptation, of the language in which an Act is expressed, should not be overlooked. Lea, J., dissenting.</p> <p>Under the Constitution unless the object of a law is expressed in its title, the law is absolutely void; indeed nothing else can be lawfully included in it; if therefore, the object or intention of the lawgiver is not made clear by the other parts of the Act, it must be determined with absolute certainty by a reference to its title. Lea, J., dissenting.</p> <p>The object -of the statute in question is expressed m its title: that title is “ an Act creating a Record er of Mortgages for the parish of Orleans.’” The statute created anew the office of Recorder of Mortgages, and authorized the appointment of a new officer. Lea, J., dissenting.</p>

<p>An opposition to the proceedings of creditors granting a respite is not too late, if the proceedings have not been homologated, although ten days may have elapsed since they were regularly filed in court.</p> <p>Code, 8058.</p>

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

<p>Under an allegation made by the plaintiff, who sought to enjoin the sale of property seized by defendant, that plaintiff was the owner of the property seized, he cannot be permitted to prove the ex-tinguishment of the mortgage note held by defendant.</p>

<p>The emancipation of a slave by last will only takes effect after the formalities prescribed by Article 187 of the Code have been fulfilled; that is to say, after a declaration shall have been made to a competent court; after that declaration shall have been advertised ; and after the oppositions, if any be made, shall be determined. The declaration of intention to emancipate is to be made by the executor, or by the heir of the testator. Buchanan and Voorhies, JJ., and Merrick, O. J.</p> <p>Since the statute of 1846 a slave taken from Louisiana to California does not thereby acquire freedom, Buchanan and Voorhies, JJ., and Merrick; 0. J.</p> <p>A slave carried from Louisiana to California by her-master, though she there acquires the status of a free person, cannot stand in judgment in this State, except in a suit for freedom. Spofford,</p> <p>Voorhies and Lea, JJ., and Merrick, C. J.</p> <p>If the court were to decree to the plaintiff, now in California, the legacies bequeathed to her, her freedom would be recognized, which would be final between the parties to this suit. What then would prevent her return to Louisiana? What force would there be in the Act of 1846, after her freedom had been recognized by the court. Merrick, C. J., and Voorhies, J.</p>

<p>After the testimony had been taken, and the argument commenced, the cause was continued. Pending the continuance a new judge was elected, who refused to try the case de nono, but permitted counsel to take bills of exceptions to the testimony which had previously been introduced. Held: The plaintiff had the right to have the cause tried de 7i0«o,but as he was not prejudiced by the action of the court, inasmuch as his bill of exceptions shows that his sole purpose in asking for. a trial denonOy was to allow him to except to certain evidence, which the court permitted, there is therefore, no error in the proceeding? of the inferior court.</p> <p>Parol evidence is admissable to show fraud in the registry of title to a steamboat.</p>

<p>The Legislature, "by the Act of 11th of March, 1854, p. 46, intended, infixing the compensation of the Assessors, to include, under the term property, the capital which it was the duty of the Assessors to ascertain.</p> <p>The term property, in its enlarged signification, includes capital.</p>

<p>The owner of property and others interested will not be considered as having notice of the proceedings of the commissioners of estimate and assessment after the expiration of the delay fixed by the court for filing their report; and where the report was afterward filed and homologated— it will not bind. them.</p>

<p>A valid abandonment passes the property in the vessel to the underwriters, and from that moment, at‘least, the captain becomes the agent of the underwriters, and his sale of the vessel, however reprehensible it may be, is made for their account and cannot relieve them from liability.</p> <p>In estimating the cost of repairs in order to ascertain whether it will exceed fifty per cent of the ship’s valuó, the deduction of one third new for old is not to be made; that rule applies to repairs made in certain cases of partial, or average losses, and seems to have been extended to a case of technical total loss only by local usage in two or three States.</p> <p>Where but two thirds of the valuation is insured, the owner is his own underwriter for the balance, and the nett proceeds of the sale of the vessel should be divided as salvage between the parties, in proportion to the amount each had at risk.</p>

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

<p>Under Article 8510 of the Code a slave may acquire freedom by prescription.</p> <p>Article 3510 of the Code w'as not intended to introduce a mo'de-of emancipating slaves, or of changing their status. It treats of the slave as being still a slave after the ten years enjoyment of his freedom. But it prohibits the master- from restraining him. The public have an overruling interest in the question of his status \ and the laws by'which the manumission of slaves has always been so sedulously guarded from abuse, are all in vain, if the State can be compelled to recognize as unconditionally free, with liberty to remain in the State, and without regard to age, character, and other legal qualifications, all such slaves as their masters may choose to turn loose for the space of ten years. Spofford, J., with whom concurred Lea, J.</p> <p>Code, 177.</p>

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

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

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

<p>The commissions of syndids upon the property sold take precedence of the vendor’s privilege asan expense of administration resulting to the benefit of the vendor, but not so the fees of the cousel for insolvent, nor the counsel for syndic, nor the attorney of absent creditors.</p> <p>Code, 3223, 3234.</p>

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

<p>•Counsel who made a certain admission on the minutes p£ the Court, not permitted to lessen its effect by his own testimony, showing that it was not authorized by his client, and that he mitde it from^he statement of a witness whom he believed, and by whose affidavit, produced, it appeared that the witness did not state quite so much as was covered by the admission.</p> <p>Code, 3400.</p>

<p>In a compromise partition of the effects of the succession between the widow and heirs in 1850, the ship 0. fell to the heirs. The executor, however, was not discharged. In 1851 the ship was in Liverpool, where she was supplied by plaintiff with patent metal for sheathing, for the price of which this suit was brought. The ship seems to have been sent on this voyage by B. & O., B. being the executor. By the Qowi'i: Under the circumstances of this case, the executor, in that capacity cannot be rendered responsible for this bill. The plaintiff must be left to his remedy against B. & C.jind the heirs who authorized this voyage. The executor, as such, can only be rendered, responsible for expenses incurred in the legitimate administration of the succession.</p> <p>The acknowledgment of the correctness of the account by the captain who contracted for the repairs, withdrew it from the application of Article 3499 of the Code and subjected it to the prescription provided by Article 8508. Lea, J., with whom concurred Spofford., J., dissenting.</p> <p>It is unjust that the owners should be benefited to the extent of the labor and materials furnished by the plaintiff, without any liablity for a reasonable remuneration. Lea, J., with whom concurred Spofford, J., dissenting.</p>

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

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

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

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

<p>APPEAL from the District Court, Seventh District, Parish of East Feliciana. Waüerson, J., presiding.</p>

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

<p>Where mortgage creditors not only did not oppose the sale by the syndic of the mortgage property, and did not endeavor to enforce against him the pact de non alienando, but took a rule upon him to compel him to sell the property for cash, they cannot complain that the proceeds of the sale are burthened with the charge of the surrender, the movables proving insufficient.</p> <p>By the Gourt: We are not prepared to say that a privilege for law charges does not attach as well to property mortgaged with the foregoing pact as without it, so long as the title to the property has not been divested by a sale. The pact gives the creditor a more easy mode of seizing the mortgage property, but does not elevate his mortgage into a privilege.</p> <p>The proceeds of mortgaged property ought to be applied, whether there are one or several immo-vables, to the payment of the privileges in the order in which the property was mortgaged, commencing with the most recent and ascending to the most ancient.</p> <p>The mode of contribution to debts privileged genwaUy upon movables a/nd immovables has been judicially determined. The decisions are that the immovables, not the mortgage creditors» owed the contribution and that these privilege debts must be borne by the immovables pro rata? according to the price which they produced respectively, and this rule is not opposed to Articles 8286, 8287 of the Code. Spoeford, J., with whom concurred Lea, J., dissenting.</p> <p>C. P. 715.</p>

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

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

<p>Witnesses cannot be impeached by proof of particular facts but only by proof of their general reputation for truth and veracity in the neighborhood where they are known, otherwise a witness might be prejudiced without Ihe possibility of defending himself.</p> <p>Though recognizing the decisions of common law courts, that where a father sends home slaves with his married daughter, it is presumed to be a gift — yet it is settled in Mississippi, that the character of the wife’s possession of such property may be shown by her acts and declarations, out of the presence of her husband.</p> <p>Only adverse possession can be the basis of prescription in Mississippi</p>

<p>To entitle a party to the extraordinary remedy of a supersedeas to stay a writ of possession, issued from the District Court on a judgment of this court, he should show affirmatively that the writ of possession issued in contravention of the terms of the decree of this court.</p>

<p>Parties to a judgment homologating a tableau of distribution cannot sustain an action against o ne who was also a party, to recover the amount decreed to him as legatee, on account of his incapa city to receive the legacy.</p> <p>Where a testator left $100,000 to the Mayor of the city, to be used in the construction of an orphan asylum in the city of New Orleans, and after his death his estate was so reduced as only to pay - one-fourth of this amount — an amount insufficient to fulfil his intention — an investment of the sum at interest by the Mayor, with a view to raise the requisite amount, did not forfeit the legacy.</p>

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

<p>Proof that in the ordinary transactions of life one has acted as the agent of another does not show a power nor furnish presumptive evidence of a power to accept donations.</p> <p>That defendant’s ancestor once lived in a state of concubinage with the plaintiff will not defeat an action brought by the latter against the former to carry out an act of donation, inter vivos, made by defendant’s ancestor, to plaintiff, “ of movables not exceeding one-tenth part of the whole value of his estate.” 0. G., 1468. *</p> <p>In an action against the wife, service of citation on husband or wife is sufficient to interrupt prescription. 0 P., 192. The fact that the husband was not personally cited, and the wife not’authorized to-defend the suit until after the term of prescription pleaded had elapsed, did not destroy the effect of a legal service of citation upon the wife.</p> <p>0. 0., 8484, 8516.</p>

<p>Where property is seized under attachment, and the property is bonded, the surety, in proceedings against him, will not, after judgment unappealed from by defendant, be allowed to show that the attorneys who filed an answer for the defendant were not authorized to represent the defendant.</p> <p>A surety is bound to ascertain his principal, and where, by mistake, he signs a bond for the lessee of the owner, instead of for the owner himself, to release property from attachment, he will be bound; for, if he had not signed the bond, the property would not have been released and the attachment dissolved.</p> <p>Where, in such a case, judgment has been rendered against the owner, and execution has issued against him, and has been levied on his property, and his lessee enjoins the sale, the surety on the attachment bond, being also surety on the injunction bond, cannot set up his mistake as a defence to proceedings against him. He should not be allowed to aid in defeating the levy, and ihen set up his own act as matter of defence.</p> <p>A rule against a surety- on an attachment, if taken after the actual return of an execution against the principal, is regular, even though taken before the return day named in the execution.</p>

<p>APPEAL from the District Court'of the parish of Concordia, Gooley, J.</p>

<p>When the co-plaintiff or co-defendant dies, pending a casein the nigh Court of Errors and Appeals of Missisippi, the practice is to suggest the death on record, and to let the cause proceed,</p>

<p>A contract, however inartificially or obscurely drawn, by which two persons agree to furnish mer_ chandise “ to the concern” and stipulate that one should act as salesman and the other pass as the proprietor, and that both should share equally in the expense and profits, constitutes a partnership between the parties.</p> <p>And one party cannot sue the other upon an account for any specific sum, until the affairs of the partnership have been liquidated.</p>

<p>Plaintiff sued fov the nullity of a judgment, and for an injunction to restrain the execution of tifi. fa. issued under it. The defendant in the injunction and the owner of the judgment directed the Sheriff to release the seizure, and afterwards made a motion in open court for the release of the seizure, which motion was allowed, hut the District Court went further, and ordered the suit to be dismissed. Held,: that the order dismissing the suit was improperly made, the plaintiff having a clear right to a trial of the issue of nullity of the judgment.</p>

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

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

<p>A defendant, in an action for the partition of community property, who demands ip reconvention a judgment for one-hatf of the charges incurred in supporting the slaves in controversy, will be precluded from asserting title to plaintiffs’ interest in the property, as a “ dation enpaiement.”</p> <p>Parol evidence of plaintiff’s admission that he promised to abandon the slaves in question to the defendant, although received without opposition, will.not have the effect to entitle defendant to assert such title.</p> <p>When a judgment of separation from bed and board is rendered, the husband .ceases to be the head of the community, and one undivided half of the property thereof vests immediately in each of the spouses, who thereby become joint owners ; the wife having in this case continued to posses Qipjnine cominwni, is accountable for the fruits of the property.</p> <p>A claim, by the wife, for expenditures prior to the dissolution of the community, is inadmissible. It being neither alledged or proved that those expenditures were made with her separate or para* phernal funds.</p> <p>The Supreme Court will give effect to evidence which would have been inadmissible under the pleadings., but to which no ojection was made. Buchanan, J., dissenting.</p> <p>The income of the separate estate of one of the spouses belongs to the community. C. C. 2371, Buciianan, J., dissenting.</p> <p>A verbal quit claim of slaves, amounting to an informal settlement of a community, will avail as a dation 67i paiement, notwithstanding it was not reduced to writing. Buchanan, J , dissenting.</p> <p>Where the wife bore all the chaigcs of the support of the family and the education of the children, she is entitled to claim one-half of the amount from the husband, on a settlement of the community. BucnANAN, J.j dissenting.</p>

<p>The defendant, a tutrix, made a declaration of her intention to change her domicil from the parish ' of West Baton Rouge to New Orleans. The declaration was filed and recorded, and a copy served on the under tutor, who, in answer, set up various grounds on which he prayed that the tutrix be decreed to he unworthy to retain the tutorship; that the order confirming her as natural tutrix be rescinded, and that if deemed worthy, she be appointed dative tutrix, on giving security, &c., &c. Reid.: that these issues presented to a simple declaration of intention for a change of domicil, which the party had a clear right to make, are utterly inadmissible, and has no parallel in the jurisprudence of this State.</p> <p>C. 0. 43, 327, 841, 850,351.</p>

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

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

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

<p>A duly certified copy of an act under private signature, recorded in the office of conveyances, is admissible in evidence, in lieu of the original, when the latter is lost, and due diligence has been used in searching for it and publishing ’he loss.</p> <p>Where the affidavit of the subscribing witness, upon which the act under private signature was admitted to record, stated that the affiant was present when the act was executed, and saw the parties sign the same, it was a substantial compliance with Art. 2250 C. C. It is the recording of the title in the proper office which is notice to third parties, and not the testimony upon which the instrument was admitted to record.</p> <p>The fee-dockets of Clerks of Court are official records authorized by Art. 776 of the Code of Practice, and copies from them, duly certified, are admissible in evkence. The fact of their serving as account-books for the fees of the Clerk, does not lessen their authenticity as records of the proceedings had in suits.</p>

It is contended that, when the prisoner has accepted a juror tendered to him by the State, and the juror is sworn, that juror becomes one of his judges and can not be taken from him. — He is one of a branch of the Court. The State having once waived the right to enquire into the qualifications of a juror, upon the voir-dire examination, before presenting him to the accused, waives with it every objection which it might have urged to the juror. 2 Bay’s Rep. 155.

<p>Privilege for wages of crew is prescribed by sixty days. The rule is the same as to the furnishers of supplies. Such items of both as fall within sixty days are allowed, rateably. 0. 0. 3205.</p>

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

<p>P.or former decisions as to Ihe construction of the same will, see 12 Rob. 549; 5 An. 441; 7 A. 692. In this case the court determined to abide by every thing decided in the above recited cases, as having settled the law for the parties to this suit.</p> <p>At the death of the testator the slaves, which he directed by his will to be emancipated, acquired instanter the condition of statu Uberi, and every child of a woman who had been his slave followed the condition of its mother, and became free when she became free. Such child would be free at the time fixed for the emancipation of its mother, even had she died before that time. 0. 0. Art. 196.</p> <p>Under the terms of the testator’s will, and the above recited decisions of the Supreme Court, these staini libeH would become free at the expiration of the time designated by the testator without any formal manumission, but upon the express condition that, upon their refusal to go to Liberia at the time fixed for their emancipation, or upon their return after having gone thither, they should forfeit to the heirs of the testator the disposition of his will, and become slaves again.</p>

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

<p>Articles 880 and 890 0. P. contemplate an amendment of the judgment in favor of the appellee, under an answer, only as against the appellant, and not as between one appellee and his co-appellees* If either of the appellees is dissatisfied with the judgment, he should appeal against his co-appellee. Legal charges and wages of the captain and crew of a vessel are superior in rank of privilege to the claim for repairs of the boat. C. 0., Art. 8204.</p> <p>A contractor with the owner of a boat tor its repairs, after repairing it, voluntarily delivered it to the Syndic of the owner who since the contract had gor.e into insolvency. JJeld, that this was an abandonment of the contractor’s right to detain the boat until the debt due for repairs should be paid, and that he must look to his privilege alone.</p> <p>O. O. 8204, O. P. 888, 890.</p>

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

<p>XA. PPEAL from the District Court of West Feliciana, Merrieh, J.,</p>

<p>The obligations of the sureties on the Sheriff’s bond, held not to be affected by the erasure of the unmeaning phrase “ for a like sum,” nor by the interlineation of the names of the last two sureties.</p> <p>The date of such instrument not being of the essence of it, a change of the date, so as to correspond with the date of its acceptance by the parish officers, could not invalidate it.</p> <p>The sureties on such bond may recede before they have been accepted, and until they give notice of their wish to recede, they may be accepted. After acceptance the contract was perfect, nnd no party could retract.</p> <p>The addition of two other sureties separately bound, could not affect the liability of the first eighty who continued to be severally bound, each for the sum and upon the conditions he had specified, and no others.</p> <p>■Where a Sheriff, by failure to give bond as Sheriff within the time prescribed by law, had thereby for feited his capacity as Tax Collector, and afterwards he executes a bond as Sheriff with sureties and is made Collector of Taxes by appointment of the Recorder of the parish — Held: flhat the sureties were bound to know that he had forfeited his right as Tax Collector at the time of Ihc execution of his bond, and that he could only be restored by the Recorder’s appointment, and were not therefore discharged.</p> <p>A defaulting Sheriff may be appointed Tax Collector after exhibiting a discharge from the proper officer of the State.</p> <p>Sureties on a Sheriff’s bond cannot be permitted to plead ignorance of a defalcation of the Sheriff at the time they signed the bond. The records of the Auditor’s and Tteasurer’s office are open to the public, and they might have inquired into the State of his account. It was not the duty of the Auditor and Treasurer, who were neither parties nor privies to the bond, to hunt up the sureties and serve them with a copy of the Sheriff’s account.</p> <p>In this contract with the sureties there was no warranty by the State that the Sheriff was not a defaulter ; and an Act of the Legislature extending to the Sheriff.time of payment, is no fraud on the sureties, who only guarranty his future fidelity.</p> <p>Code, 8006.</p>

<p>A part of the internal improvement lands granted to this State by Act of Congress of September-4, 1841, were located by agents of the State, and for the sale of the unlocked lands an office was created by Act of the Legislature of 1844, the Register and Receiver being authorized to issue warrants for such lands. Under this Act and that of 1847, purchasers of these land warrantsbe-come the agents of the State for the location of so much of the internal improvement lands as was indicated by the warrant.</p> <p>The patent issued, pursuant to the approval of such location, could only issue in favor of the person holding the warrant under which the location was made. It cannot be supposed that the Legislature intended to confer upon the Governor the power to grant a patent to any other person than him to whom the State had sold the warrant.</p>

<p>A planter shipped his cotton to defendants, merchants in New Orleans. He afterwards wrote to them to sell by the time his brother returned from Texas, a period fixed by a conversation had with him. Cotton was then worth 12^ cents. They did not sell for several months afterwards, when cotton fell to 7 cents. Meld, that the letter was a positive instruction to sell, and that they were liable for the difference in the price. C. 0. 2971, 2972.</p> <p>The fact that he shipped a subsequent crop to the defendants was no ratification of their acts in the premises.</p> <p>The prescription of one year to actions for quasi offences is not applicable. The case is one ex con-tractu and not &a delicto.</p>

<p>The Common Council of New Orleans authorized the Mayor to appoint wa commissioner, expert or arbitrator ” to meet an arbitrator of the plaintiff, and value a piece of land which plaintiff proposed to sell to the city. The two commissioners assessed the value at $10,000, and reported accordingly, and the Mayor recommended payment of that sura, but the city never paid it.</p> <p>Held: there is a wide difference between an expert and an arbitrator, and between both and a commissioner. But in whatever capacity the referees acted, there was nothing in the record to show that they bound the city to pay anything.</p>

XX PPEAL from the Fourth District Court of New Orleans, Reynolds, J. The following affidavit was made for the arrest of plaintiff: [Rep.] Fourth District Court. — Personally came and appeared before me F. Le-febvre who, being duly sworn, deposes and says, that the commercial firm, of which he is a member, is a creditor- of the insolvent Joseph Figuiere in the sum of two thousand three hundred and forty dollars; that said Insolvent filed his petition for a cession, on or…

<p>See 10 A. R. for decision remanding this case.</p> <p>In Mississippi (as is admitted,) a settlement, "bona fide, made before and in contemplation of marriage, is good not only against the husband but against his creditors and subsequent purchasers.</p> <p>This rule is yet more indexible, where, in anticipation of marriage, the wife has secured her own property to her own use and that of her children.</p> <p>Even though, before the marriage settlement, the parties had been formally espoused, the husband having then a wife living (in Tennessee,) which espousals were by the law of Mississippi void; yet, a divorce having taken place between the husband and his first wife, and a second marriage, after such divorce, formally celebrated in Mississippi, between the husband and his second wife, in view of which this marriage contract was executed, the contract is as valid as if the first illegal marriage had never existed, as against subsequent' creditors.</p> <p>The contract must be governed by the law of Mississippi, where the parties resided at the time of the marriage. 0. 0. Art. 10.</p>

<p>I'he allegation “ that plaintiff is about to subject the said schooner or the bond substituted for the release thereof, to the payment of said judgment,” is vague, uncertain and in the alternative, and is insufficient to support a demand for an injunction.</p> <p>Matters available in defense of a suit, will not authorize an injunction, at least in the absence of any showing, that an irreparable injury is about to be inflicted.</p>

<p>Where land, once public, has become private property, the possessory action will protect the possession of him who holds as owner against the intrusions of all persons, whether claiming the property in virtue of title or not.</p> <p>A perfect Spanish grant and survey made by order of the court, wherein the old lines are ascertained in conformity to the grant, and confirmed by the Act of Congress of Sd March, 1815, is valid and conclusive against a preemption certificate and patent from the United States, as respects the lands embraced in the grant, although the portion of said land embraced in the patent may have been returned as vacant by an officer of the United States. In such case a survey made by officers of the United States are not conclusive evidence of the boundaries of the tract described in the Spanish grant, and courts are at liberty to receive other testimony in relation thereto, and if superior, to decide in favor of such evidence. The rule is different as to imperfect, and other titles emanating from the government of the United States The approved surveys in such cases are generally, if not always, conclusive.</p>

<p>A sale will not be set aside on the ground that it was made in fraud of creditors, by one in insolvent circumstances, where it was made openly, fora fair value, and with the knowledge of several o* the creditors, although the sale was of the vendors entire stock of goods.</p>

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

<p>Te authorize a tutor to purchase property for the benefit of the minors under his charge, he must obtain the advice of a family meeting "before the purchase. And where he bids in property without such advice, the executrix, who caused the property to be sold, is not bound to wait till the tutor convene a family meeting, to approve of his purchase, but on failure of the tutor to comply with his bid, she may at once put up the property again for sale. C. 0. 2589.</p> <p>A purchaser who holds an unliquidated demand, secured by a tacit mortgage on property sold at probate sale, has no right to withhold the price of his bid and delay the adjudication until his claims can be liquidated by a court.</p>

<p>lVhere there is a discrepancy in the boundary lines, as shown by a public act on the one hand, and a plan attached to the act on the other, if the description be clear and unambiguous in the former, it will prevail.</p> <p>On the 16th of September, 1820, M. & G-. entered into an act of compromise, by which Cr. conveyed to Mo, with a warranty against his own act, all his right in a portion of the batture, in the fau-bourg St. Mary. By the terras of the act, the batture conveyed extended to the water’s edge. On the 20th of September, 1820, G*. made an act of donation to-the city of New Orleans, by which .the batture previously conveyed to M. was created loanspubli&us. Under the facts ol the case, it was held, that for the purpose of the donation, G. was to be regarded as the negoi/iorwm gestor of M., who was bound by the act granting the batture to the public. In 1851, the act of donation of September 20th, 1820, was, by agreement, rescinded. This action was brought by the heirs of M. against the heirs of G. to recover the proceeds of the batture sold by G. to M. in 1820, which proceeds were received by the heirs of G. under the Act of 1851, rescinding the donation of 1820. Held: The contract of 2uth of September, 182G, so long as it endured, seemed to have been viewed by M. and by his heirs, as binding upon them ; but when that donation was rescinded in 1851, and the loeuspuVUcus created by the contract of 1820 was again made the subject of private ownership, the warranty contained against their own acts in the conveyance of the 16th of September, 1820, unquestionably forbade the heirs of G. to put into their own pocket the proceeds of the land embraced in that conveyance to M.</p> <p>The heirs of G. were bound to account for the proceeds of the batture conveyed to M. when called upon, but the right of action only accrued when the money was received, which, being less than two years before this suit was brought, the prescription of ten, twenty and thirty years could not avail.</p> <p>The principles decided in JRoselmsr. Delachaise, 5 Ann., affirmed.</p>

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

<p>A person who is a mere nominal party to the suit, is a competent witness.</p> <p>Wherever a nominal party to a suit is liable for costs in his individual capacity, he is incompetent as a witness, although he may demand nothing for himself, but joins the plaintiff in a prayer for a judgment in his (plaintiff’s) favor. Merrick, C. J.</p> <p>C. C. 2260,</p>

<p>APPEAL from the District Court of the parish of Morehouse, Richardson, ■ J.</p>

THE record in this case is missing. The Reporter is unable to give the name of the Judge by whom the case was tried, and the names of the lawyers who appeared in it.

<p>A simple appearance is not sufficient to entitle a party to relief from a judgment forfeiting Ms re- m cognizance. There must be an effective appearance — an appearance that finally disposes of the</p> <p>If it is ever allowable for the accused to procure relief from such a Judgment, it must at least be si case where he has done all in his power to procure a trial without effect.</p>

<p>No special order to answer is necessary when the interrogatories are annexed to the petition, and the garnishees are duly cited.</p> <p>The Act of 20fch March, 1889, p. 168, assimilates parties cited under its provisions to garnishees, and makes them liable in the same manner. The garnishee must answer within the usual delay, and in case of his refusal or neglect to do so, it shall be considered as a confession of his having property in his hands belonging to the debtor sufficient to satisfy the demand. C. P. 262, 268.</p> <p>It is in the sound discretion of the District Judges to rescind their interlocutory orders.</p> <p>An order, rendered on an ex parte motion, that interrogatories be taken as confessed, is not a definitive judgment, and no formal motion for a new trial is necessary in order to have It set aside.</p>

<p>Where a person states, when examined on his voir dire, that he has formed and expressed an opinion relating to the guilt or innocence of the prisoner, and that it might bias him in forming an opinion after having heard the testimony — that direct evidence only would change his opinion —that circumstantial evidence would not — he should be rejected as incompetent to act as a juror, . although he should further state that the opinion he has formed is not so fixed that it could not be changed by the evidence which might be adduced ón the trial — that he thought he could do justice between the State and the prisoner — and that the opinion he had formed would not influence his mind as a juror. As to the appointment of triors, when there is a challenge to a juror, although such a request is unusual in this State, it should be allowed on the request of the prisoner.</p> <p>The power to grant a change of venue is confided to the District Courts exclusively, and the exercise of it is not subject to revision by the Supreme Court.</p>

<p>The Statute of 1855, relative to bonds of State and parish officers, so far as it relates to the enforcement of the rights created by the registry of the bond is purely remedial, and in no manner affects the previously existing rights, the enforcement of which it was intended to facilitate. It was intended to give to the registry of the bond, as to property sold after its registry, the same effect as that conferred on acts of sale by the clause of non-alienation.</p> <p>The mortgage created by the act was intended to secure the bond. There is nothing in the legislation on the subject which justifies the inference that the bond was intended exclusively for the benefit of the State. It enured to the benefit of any person who had a claim against the Sheriff for malfeasance in office. And By the Court: the provisions of the Statute are applicable to “ all public officers” who, under existing or prospective legislation, were “ required to give a bond.” The Act of 1855 did not repeal the Acts of 1847 and 1848, so far as the provisions of those Acts were reenacted in the revisory legislation of 1855.</p> <p>Sureties have an equitable interest in the payment of the principal demand, and a judgment creditor has a right to permitan execution to issue at their instance.</p>

<p>APPEAL from the District Court of the parish of Morehouse, Richardson, 3.</p>

<p>An appeal was filed on the 11th July, 1855, the court being then in session and the cause was continued on the 20th July, i855. A motion made by the appellees, on the 16th July, 1856, to dismiss the appeal for irregularities in the transcript, namely, the want of an order of appeal, comes too late. If the Sheriff has se. zed more property than could be considered reasonably necessary to satisfy the judgment, the proper course is not an injunction but an application to the District Judge to reduce the seizure. O P., 652.</p> <p>Where it appears that plaintiff, in injunction, was not only surety on a twelvemonths’ bond, but co-debtor, in aoiido, with the principal in the judgment on which the execution had issued, and that the property had been sold, for which the twelve mouths’ bond was given, and also thg-t the bond was past due and unpaid — -the defendants had the right to issue execution against him in his capacity of surety. 0. P., 719, 720.</p>

<p>The defendant purchased the land in controversy, at a public sale provoked by him to enforce a mortgage, in his favor, resting on it. The plaintiff, claiming the land by a deed from the mortgagor, which was executed subsequent to the mortgage, but anterior to the public sale to defendant, yet not registered until afterwards, instituted a petitory action and sought to rescind the sale to defendant for various alleged defects and vices.</p> <p>Held: That it is doubtful, under the facis of the case, whether plaintiff can inquire into the regularity orgood faith of the proceedings under which defendant acquired title The mortgagor was the proper party to attack the order of seizure and sale by a direct action, and that conceding plaintiff could impeach defendants title, he had not laid a foundation for doing so in his petition, having alledged no tender to defendant of the mortgage debt which burdened the land, and which was only discharged by the sale, which he sought to treat as a nullity.</p>

<p>APPEAL from the District Court of the parish of Morehouse, Richardson, J.</p>

PPEAL from the District Court of the parish of Union, Richardson, J. But this case must be decided by the law applicable to it. whether… Held: that the nondelivery of the property transformed the bond, by operation oí law, into a statutory judgment, on which execution might issue against all the obligors for the debt, interest and eost remaining unpaid; that the forfeiture imparted to the bond the force and effect of a judgment; that .the Sheriff’s return of the forfeiture,…

<p>The validity of a judgment ordering a partition cannot be inquired into, on the trial of an opposition to an administrator’s account, which is not based on the partition, and which does not embrace any of the property divided.</p>

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

<p>-£L PPEAL from the District Oourt of the parish of Oaddo.</p>

<p>When a person receives a shipment of cotton, and gives a bill of lading in the ordinary form, h© becomes liable as a common carrier.</p> <p>The fact that plaintiff inspected the boats before the shipment does not exempt the carrier from liability for a loss occasioned by the unseaworthiness of the vessel.</p>

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

<p>Where no term of the court was held at Monroe, in October, 1855, though the record of an appeal was returnable at that terra, it was held to be a sufficient compliance with the law to file the record at the subsequent term.</p> <p>Where the accused is not called at the courthouse door to receive his sentence, nor his sureties called to produce his body, there is no forfeiture of the bond obligating him to appear and receive his sentence.</p>

<p>The answer of one of the defendants, who are commercial partners, is admissible against his co defendant.</p> <p>Plaintiff died pending the suit in the District Court of Caddo, the administrator of his succession also-died. There being no publication to fill his vacancy, the Clerk of the court, representing the succession, entered appearance, em officio, in the Supreme Court — Held: that he could do so under the circumstances by the provisions of the Act of 1855, without proof of his appointment of administrator.</p>

<p>The rule that the husband cannot be a witness for or against his wife, nor the wife for or against her husband, C. 0., 2260, being founded on considerations of policy and morality, is believed to be without exception, and the fact that the spouses live apart does not change this rule of law.</p>

<p>A deputy Clerk is without power to grant an iujunotion.</p> <p>The Acts of 1831, p. 102, and 1833, p. 93, as to the damages to be awarded on the dissolution of an injunction, do not apply to the case where an injunction is dissolved restraining the proceedings of an execution during the pendency of an action to annul a will. They apply only to injunctions obtained in cases in which there are judgments in the proper sense of the word, and not ex parts orders made by the Judge of a probate court.</p> <p>Such special damages, only as are alleged and proved, will be allowed on the dissolution of an injunction in a case of this kind.</p>

<p>A judgment confessed by the president of the police jury, is res adjudicata against each individual taxpayer. *</p> <p>In the absence of an appeal or action of nullity, no irregularity in the form of proceeding before the district court can be inquired into after the lapse of one year. When the police jury has been regularly cited or made its appearance, no inquiry can be entertained after the lapse of that period, as to whether the power to confess judgment was or wa3 not formally conferred by sufficient authority.</p> <p>The parish tax collector is the proper person to collect the taxlevied to pay the subscription of stock of a railroad company.</p>

<p>In -a possessory action, where plaintiff alleged himself to he the owner and possessor of the land in question — Jteld, that the defendant having in answer to interrogatories propounded to him, admitted that he leased the land from the plaintiff, defendant was estopped to deny the allegation of. ownership and possession.</p>

<p>The statute against carrying concealed weapons does not contravene the second article of the amendments of the Constitution of the United States.</p> <p>A partial concealment of the weapon, which does not leave it in full open view, is a violation of the statute.</p>

<p>APPEAL from the District Court of the parish of Jackson, Richardson, J.</p> <p>cited 12 R. 231, 3 A. 248, 3 N. S. 147, 18 L. 418, 7 Ann. 225.</p> <p>cited Story on Bills, 351-2-3; 10 Peters, 572; 9 L. 124, 19L. 370.</p>

<p>üL PPEAL from the District Court of the parish of Morehouse, Richardson, J.</p>

<p>Complaint of tlie non-joinder of other parties defendant and the mis-Joinder of plaintiffs, can not be made when the case stands at issue on the merits.</p> <p>It did not appear that defendant had any establishment or agent in the parish of West Feliciana, at the time suit was brought, and it did appear that he had a house and home in Catahoula, to the jurisdiction of the court of which parish he had excepted — Held : Eren if he resided alternately in the two parishes, be might have been sued in either.</p> <p>The nature and extent of the service of counsel may be proved by parol.</p>

<p>Any device, by'which a larger amount is sought tobe obtained, for the use of money, than the highest rate of conventional interest is usurious and operates as a forfeiture of the advantage thereby sought to be illegally obtained.</p> <p>The Act of 1852, allowing interest at the rate of five cent, per annum, upon all debts from the time they become duó, is applicable only in cases where no stipulation for interest has been made.</p>

<p>PPEAL from the District Court of the parish of Morehouse, Richardson, J.</p>

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

<p>APPEAL from the District Court of the parish of Morehouse, Richardson, J.</p>

<p>It is a sufficient evidence of a Clerk of a District Court in this State, being the administrator of an estate, which he assumes to administer ex offioio under the Act of 1855, that he files a written appearance in this court as such. No order of court, oath, bond or letters of administration are required to authenticate his capacity.</p>

<p>APPEAL from the District Court of the parish of Franklin, Barry, J.</p> <p>cited, 7 A., 595, 178 and 377. Morrison, for defendant and appellant — cited, C. C., 2294, 3030, 3008; O. C., p. 432, Art. 22.</p>

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

<p>A person is responsible, under 0.0., Art. 2294, for the damages resulting from an assault and battery committed by him.</p> <p>The future diminished capacity to earn wages, consequent upon injuries resulting from an assault and battery, properly enters into the computation of damages — also .bodily pain- and suffering occasioned by the battery may properly be considered by the jury in making up their verdict.</p>

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

<p>APPEAL from the District Court of the parish'of Morehouse, Barry, J.</p>

<p>APPEAL from the District Court of the parish of Ouachita, Biehardson, J.</p>

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

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

<p>The decree of separation from bed and board does not dissolve the bonds of matrimony. 0. 0. Art. 188; 0. 0. Art. 152.</p> <p>The surviving •wife is not precluded from claiming the marital portion, under Art. 2859 0. C., by the fact of having obtained a judgment of separation from bed and board, and of having lived separate from her deceased spouse up to the time of his death, for though separated in bed and board, she is still the wife, and incapable of contracting a second marriage.</p> <p>When the husband died worth $31,000, and the surviving wife was fifty-five years of age, and all the means she had was $1,180, Held: that the husband died rich, and the surviving wife was in necessitous circumstances within the meaning of Art. 2859 of the Code. '</p> <p>The Art. 918 C. C., which provides the heir to the entire succession, does not repeal nor introduce an exception into Art. 2859, which provides for the sole case where one of the spouses dies rich, leaving the other in necessitous circumstances.</p> <p>The husband or wife, separated in bed and board, is not entitled to the marital portion. Lka, J., dissenting.</p>

<p>G-. transferred the negotiable note oí N. to M. B. & Oo., and took from them their written agreement to hold the note as collateral security for the payment of a debt due by G-. to them, and G-. transferred that agreement to S. — all having been done before the maturity of the note, M. B. & Oo. having been paid the debt due them by G-. — Held; that S., by virtue of the transfer of. said agreement, took the note unaffected by any equities, in relation to it, existing between <3-. and N.</p>

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

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

<p>PPEAL from the District Court of the parish of Rapides, Ogden, J.</p>

<p>APPEAL from the District Court of the parish of Avoyelles, Ogden, J.</p>

<p>APPEAL from the District Court of the parish of Natchitoches, Chaplin J.</p>

<p>■Where a party whose interest is affected by the judgment is not made one of the obligees in the appeal bond, the appeal will be dismissed on motion.</p>

<p>XX PPEAL from the District Court of the parish of Avoyelles, Ogden, J.</p>

<p>XX. PPEAL from the District Court of the parish of Rapides, Chaplin, J.</p>

<p>The offspring of slave mothers, born whilst the mothers are affected by a mortgage or privilege, aro born subject to the same mortgage or privilege.</p>

<p>APPEAL from the District Court of the parish of Natchitoches, Ghaplin,, J.,</p>

<p>The power to hypothecate must be express and special. 0. C. 2966.</p> <p>The Archbishop of the Cathoiic Church of Louisiana cannot, without authorization, lawfully mortgage or encumber the real estate belonging to the church.</p> <p>C. C. 8267, 8269 and 3270.</p>

<p>The court, on a trial for murder, may rightfully reject as incompetent a juror who has conscientious scruples against finding an unqualified verdict of guilty in a capital case, even after he was accepted, both by the State and by the defendant, if he has not been sworn.</p> <p>Where the whole of the regular panel of jurors has been exhausted, without securing a single juror, the prisoner has no right to require the service upon him, two days before the trial, of the list of the jury de talilnts which is summoned. In such case the court may proceed with the trial m-stamter.</p>

<p>The tacit mortgage in favor of a minor cannot, be enforced against the purchasers of property of a succession which was sold to pay a community debt, to which the minors’ interest was subordinate.</p> <p>The debt due a community creditor is not necessarily’novated by his taking the individual note of the surviving spouse, with mortgage to secure its payment.</p> <p>It is unnecessary for the Judge to fix the amount of a suspensive appeal bond, nor is it necessary for the appellant to execute bond in favor of a party who has no interest in maintaining the judgment so far as appealed from.</p>

<p>APPEAL from the District Court of the parish of Natchitoches, Ohcvpman, J.</p>

<p>The defendant who has been sued on his draft, has the right to interrogate plaintiff on facts and articles, to show that the draft was given in error, or without consideration.</p> <p>The rule as to exclusion of parol testimony to contradict written agreements, does not apply in such < a case.</p>

<p>A married woman, cited as garnishee, must answer the interrogatories propounded, though she be? not authorized by the court or her husband, under penalty of having them taken pro con/esso.</p>

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

<p>The intervenors S. O. and E. G. St. H., having, by the evidence adduced to show their maternal descent, shown also their paternal origin, it was competent for the other parties in interest to show that the connection, of which the intervenors thus declared themselves the offspring', was an adulterous connection.</p> <p>The avowed father having been, at the time of the conception of said intervenors, the husband of another woman and not of their mother, they fall within the prohibition of Art. 914 O. O., and their claim to the succession of their mother was rightfully repelled. C. 0. 201.</p>

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

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

<p>MX. PPLTOATION for a Prohibition.</p>

<p>Where hay was shipped, according to the bill of lading, in good order and condition, and on its delivery, at the place of destination, was damaged, it is incumbent on the owners of the vessel, to show that the damage was not caused by bad stowage or want of care.</p> <p>C. 0. 3.</p>

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

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

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

<p>Gratuitous bailees are not liable, except for losses occasioned by their fraud or gross negligence.</p> <p>A package of bank notes was delivered by the agents of plaintiff on board a steamboat for transportation, the amount of which was specified on the face of the package and the attention of the officers called to its value — i&Z# .• That gross negligence is fairly to be inferred, from the fact that the officers of the boat could give no account whatever of its disposition.</p>

<p>Usufructs are not exempt from seizure, except in the single case of the usufruct, given during the marriage to the father and mother, to the estate of a minor child. 0. 0. 289. In all other cases it is subject to seizure and sale. 0. 0.525, 54T.</p> <p>The seizure of all the right, title and i/nteresi of the debtor in and to the thing seized, is a sufficient seizure of the thing itself.</p> <p>If the donor reserves to himself the usufruct of the property donated, the donation is considered void, and if the vendor retain the possession of the thing sold, the sale is presumed to be simulated. With these presumptions in his favor, the judgment creditor of the donor may seize the property donated, without having obtained a judgment annulling the donation. 0. 0.1520, 2456, 1915.</p> <p>0.P. 649, 654, 655.</p>

<p>Facts: — Not creating legal subrogation. Code, 2157.</p> <p>Where there is no price there is no sale.</p> <p>C. C. 2439, 2440.</p>

“ There was no actual seizure by the Sheriff in tiny of the attachment cases, and consequently no privilege in favor of the intervenors.”

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

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

<p>APPEAL from the Third District Court of the parish of Jefferson, Burthe, J.</p>

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

<p>A mortgage on the property of a minor "was attacked on the ground that the under tutor was not called to the family meeting which consented to the mortgage. The following acknowledgment, signed by the under tutor, witnesses and notary, was written at the foot of the jproces verbal of the family meeting, to wit: “ and S. N., the under tutor of said minor children, having waived due notice to attend, and having taken full cognizance of the foregoing proceedings, declared that he approved the same in every respect.” Held: that it cannot reasonably be inferred from this acknowledgment that the under tutor was absent from said family meeting. The law makes it the duty of the under tutor to oppose the homologation of the family meeting when he is of opinion that it'is injurious to the interest of the minors. Its requirements to attain that object were substantially complied with in this case.</p>

<p>A third person, not hound for a debt, who pays it in discharge of the debtor, and receives at the time from the creditor a subrogation to his rights, can receive from the debtor only the amount so paid to the creditor. AUter, if the transfers from the creditor were made in virtue of a sale or donation.</p> <p>C. O. S2T8.</p>

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

<p>The Act of 15th of March, 1855, entitled “ an Act relative to slaves and free colored persons,” is unconstitutional, because its title expresses two distinct objecis, to-wit, slaves and free colored persons, and because many of the sections of the Act embrace objects not expressed in the title.</p> <p>Slaves and free colored persons embrace two classes, which it is impossible to confound in legal parlance ; for in the eye of the Louisiana law there is, with the exception of political rights, social privileges, and the obligations of jury and militia service, all the difference between a free man of color and a slave, that there is between a white man and a slave</p> <p>This court cannot say, that one of the objects comprised in the title of the Act in question, was more in the contemplation of the Legisluture than the other, nor select between the two objects expressed, and to sustain those portions of the statutes which are applicable to the object they selected, to the exclusion of the other expressed object, not to speak of the other and widely various objects embraced in the numerous sections of the statute. The whole act is liable to the same objection, and the whole is void for unconstitutionality.</p> <p>The doctrine of all American courts is, that a Legislative Act should not be declared void, uniese its incompatibility with the paramount law be clear beyond a reasonable doubt. Spofford, J., (with whom concurred Lea, J,) dissenting.</p> <p>The argument that slaves are one object, and free colored persons another, overlooks the fact that both compose a single, homogeneous class of beings, distinguished from all others by nature, custom and law, aud never confounded with citizens of the State. No white person can be a slave; no colored person can be a citizen. A slight change of phraseology without any change of substance, will show that there is unity in the object of the law in question, as indicated by its title ; it is an act relaime to persons of color whether Bond or free. The division of this class of persons into bond and free, does not duplicate the objcQt of the If w which was intended to regulate the entire class. Spofford, J. (with whom concurred-Lea, J ) dissenting.</p> <p>The design of a title is merely to indicate the general subject of the law, and not to furnish a detailed exposition of its provisions. If the latter were the case, it would lead us to the absurd conclusion that the title should be as long as the act, unless indeed the act abounded in tautology and surplu-sage. What good sense would dictate is what the Constitution exacts, namely, that by some general but concise expression at the head of the law, the attention of both legislator and citizen should be fixed upon the main subject-matter to which all the details in the body of the statute are auxilliary. Spofford, J. (with whom concurred Lea, J.) dissenting.</p>

<p>21 PPEAL from the Third District Court of New Orleans, Kennedy, J.</p>

<p>The jurisdiction of the Supreme Court in cases of appeal attaches on the filing of the bond of appeal, and the inferior court thereafter Ü&s no authority to take any steps in such cases, except such as are necessary to transmit the record. An order by the inferior court granting an extension of time to prosecute the appeal, is a mere nullity.</p>

<p>In a suit, instituted by a citizen of another State, to recover.slaves from a citizen of this State, which he alleges are fugitives from his service, the slaves have, in the eye of the law, no interest in the result of the suit. The 2d section of Art. 4th of the Constitution of the United States does not contemplate a case of this kind. Were the Constitution*Construed otherwise, it would apply to all questions of ownership in slaves, between citizens of different States.</p> <p>The maxim contra non xalentem agere non currit prescripjjp, does not apply to relieve the plaintiff in a case where the plea of prescription was set up by the defendants, acquirendi causa. It has been applied to prescriptions, Uberandi causa, in three classes of cases:</p> <p>1st. "Where there was some cause which prevented the courts or their officers from acting or taking cognizance of the plaintiff’s action. A class of cases recognized by the Roman law, as proper for the allowance of the utile tcmpus. The cases of Querry's Ew. v. Toussier's Ex., 4. M. R. 609 ; Ayr'aud v. Babin's Heirs, 7 N. S. 481, and Smith v. Taylór, 10 R. R 188, are of this kind.</p> <p>2d. Where there was some condition or matter coupled with the contract or connected with the proceedings, which prevented the creditor from suing or acting. See cases of Zandryr. L'Eglise, 8 L. R. 219; JTUnt v. Curry, 6 L. It. 69.</p> <p>8d. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action. The following are cases of this class: Boyle v. Mann, 4 An. 170, and Martin v. Jen/nings, 10 An. 558.</p> <p>Art. 8444 O. 0. and the Act of 1848, p. 60, declare that property in slaves is acquired by the prescription of five years, whether the parlies reside in the State or any of them reside out of it. Prescriptions run against all persons unless included in some exception established by law. C. C. Art. 3437.</p>

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

<p>APPEAL from a judgment of the Fourth Justice of New Orleans.</p>

<p>APPEAL from the District Court of the parish of Point Coupée, Gooley, J.</p>

<p>APPEAL from a special tribunal organized for the trial of a slave, parish of Orleans.</p>

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

<p>The Police Jury aforesaid, by an ordinance adopted 29bh December, 1855, imposed a yearly tax w on each and every person keeping a dairy, within the limits comprised within the upper line of this parish and Verret Avenue, a yearly tax of two dollars for each and every cow, &c.” Under the Act of March 15th, 1S55, p. 395, the said Police Jury may impose a tax “ on all persons pursuing any occupation, trade, or profession,” and, therefore, may impose a tax on dairymen. But, the tax must be levied on all dairymen. The ordinance in question, while professing to tax the occupation, really imposes a tax upon cows kept by dairymen within certain limits. Considered in that light it is equally inconsistent with a just interpretation of the statute which conferred the power of taxation on said plaintiffs. It is not a tax on personal property to be preceded by an assessment, nor even on all cows within their jurisdiction. This is not only repugnant to the principles of equality which govern the exercise of the taxing power by the State, but was, evidently, not within the scope of the authority conferred by legislation on the said Police Jury.</p> <p>The 5th section of the general Act “relative to Police Juries,” approved 9th April, 18á7, (seeSess. Acts, p. 82,) was not repealed quoad said Police Jury by the aforesaid Act of 1855.</p>

<p>Plaintiffs sued for the specific performance of a contract, by which defendant agreecl'to buy of him certain land free from incumbrances: Held, that plaintiff, in order to maintain his action, should have done all required of him by law to put the defendants mora; 0. 0.1907,1908. Besides executing an act of sale of the land to defendant he should have procured the receipt of the Tax Collector and the certificate of the Recorder of Mortgages, showing that the property was free from incumbrances.</p>

<p>This suit was brought to recover the amount of certain drafts, drawn by the captains of certain schooners, for the inspection, at sundry times, of said vessels'at the Rigolets, the Atchafalaya and the Mississippi river, during the time the quarantine regulations were inforced in the year 1855. The defence rests on the ground that the Act of March, 1855, p. 47, did not contemplate the payment of fees for the inspection of vessels at the Rigolets and the Atchafalaya river; that the Board of Health were only authorized by the statute to claim fees for the inspection of vessels in the Mississippi river, and that only one of said vessels was inspected in the Mississippi river, and for that defendants had deposited the money in court.</p> <p>JB.y the court: There is not drawn in question the constitutionality or legality of any tax, toll or impost whatsoever, or of any fine, forfeiture or penalty imposed by a municipal corporation, and the amount in controversy is under $8G0. The case is, therefore, not within the provisions of Art. 62 of the Constitution of 1852, which confers on this court its jurisdiction.</p> <p>Conceding that the fee imposed by the Act of the Legislature is a tax, toll or impost, upon which no opinion is expressed, the only question this court can consider is the constitutionality of the laws or ordinances under which the tax, fine, toll or impost is ^vied, and not its application to the facts or the construction of such law by the inferior court.</p> <p>The u fee ” exacted of vessels undergoing inspection in time of- quarantine, under the Act of 1855, is a tax. The question in this case is purely one of law, touching the legality of a tax, toll or impost, and as such this court is compelled to take jurisdiction of it, and to construe this law for the parties. Spofford, J., dissenting.</p> <p>The tax, toll or impost levied upon the defendants’ vessels was a legal exaction. Spofford, J., dissenting.</p> <p>The “ fees ” claimed by plaintiff are sanctioned by law, and the law imposing them is constitutional. Lea, J., dissenting.</p>

<p>Where an agent,'whose authority having been revoked, rendered his account, showing certain assets in his hands belonging to and a balance of money due his principal, and having offered to pay the same on being released from all his liabilities on account of his agency, which was refused — instituted suit against the principal, to compel the homologation of his account and his discharge from all his responsibilities as agent, on delivering the assets and money, due according thereto: JOeld^ that the principal was entitled to a judgment on a rule taken by him, for the money admitted to be due him.</p> <p>It is no objection to the judgment on the rule that a part of the case was left open for trial.</p> <p>While the mandatary is compelled to render his account, he has the right to retain oril/y a* sufficient a/mowxt out of the property of the principal in his hands, to satisfy his expenses and costs and he may even retain, by way of set off, what the principal owes him, provided the debt be liquidated. 0. 0. 2973, 2992.</p>

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

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

<p>Under tlie statutes of Mississippi, the trustees of insolvent banks are not restricted to the collection of such assets as are necessary to pay the debts of the corporation, but they have the right to collect all the assets and, after payment ef debts, distribute the surplus among the stockholders.</p> <p>In ordinary cases the decisions of the State courts, upon the construction of State laws, not involving questions under the Constitution of the United States, are authoritative. But in a case like this, where there is difference of opinion between the Supreme Court of the United States and the Court of Errors of Mississippi, it is a good reason for following the former, that it is more in harmony with the jurisprudence of Louisiana.</p>

<p>APPEAL from the Second District Court of Ne,w Orleans, Morgan, J.</p>

<p>Simulated sale.</p>

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

<p>A judgment, based upon a defective citat’on, and an attachment that was set aside, is an absolute nullity, which may be urged as matter of defence by any one having an interest.</p> <p>A purchaser at a Sheriff’s sale, made without a previous seizure, acquires nothing, at least as against a third party in possession.</p>