Volume 11 — Robinson's Louisiana Reports

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

<p>Property surrendered by an insolvent, subject to a mortgage, having been sold by his syndic, was purchased by the mortgage creditor, and the price retained in satisfaction of his claim. Bond was given by the creditor, with security, for any amount which he might ultimately have to contributo towards the payment of the privileged expenses of the estate; but no mortgage was reserved on the syndic’s sale, nor was it recorded in the office of the Recorder of Mortgages. The property was after-wards sold by the purchaser to a third person, to whom a certificate was delivered from the Recorder of Mortgages, showing that the property was clear of incum-brance. On a rule on the second purchaser, to show cause why the property in his hands should not be sold to satisfy the contribution due by his vendor, the mortgage creditor, for the privileged expenses of the estate : Held, that the defendant in the rule not being aware that his vendor was bound to pay any part of the price of the property as a contribution for privilegnd expenses, and neither the act of sale nor the procés-verlal of the adjudication having been recorded, and no mortgage or privilege reserved by the syndic, he could be made liable only in case of having expressly assumed the payment of the contribution. Rule discharged. C. C. 3238, 3314,3317.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>cited Manadue v. Kitchen and others, 3 Robinson, 261.</p>

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

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

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

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

<p>Plaintiff caused a carriage to be sent to his factors, to be forwarded to him when ordered. They sent it to a dealer in such articles, with instructions to sell it, and he sold it, at private sale, to defendant. It was not proved that tho latter knew of the want of authority in the vendors. In an action against the purchaser to recover the carriage, or its value : Held, that the defendant acquired no right to the carriage, his vendors having none, nor any authority to convey any; and that the sale was null. C.C. 2427.</p> <p>It is only after an uninterrupted possession of three successive years, that one who purchased a thing stolen or lost, at public auction, or from a person in the habit of selling such things, can demand the price he paid for it of the rightful owner, who claims the property. C. C. 3472,3473, 3474.</p>

<p>A resolutory condition is implied in all commutative contracts, to take' effect in case either party fails to comply with his engagements. C. C. 2041.</p>

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

<p>Public notice given by a rail road company that all baggage is at the risk of the owner, not brought home to the owner, will not exonerate the company from liability as carriers.</p> <p>In an action against a rail road company, to recover the value of baggage lost, it was proved to be the usage on the road for a car to run to the end of the pier forming one of the termini of the road, and take from steamers all the baggage and effects of the passengers, and to return to the ticket office, a short distance from the pier, where passengers were at liberty to take off their baggage without charge, the car proceeding with the remaining baggage; and that there was no person employed by the company to take care of the baggage, each passenger being expected to look out for his own. It was proved that the plaintiff’s baggage was put on the car at the end of the pier, and that he did not accompany it, but took his passage in the succeeding train. Its loss and value were established. Held, that the baggage was lost by the carelessness of the company; that their responsibility attached as soon as the baggage was received on the car at the end of the pier ; and that the plaintiff’s not accompanying his baggage does not ex-cuso the negligence of the carriers. Judgment for the plaintiff. C. C. 2722, 2725.</p>

<p>The commission allowed to the provisional .syndics of the creditors of an insolvent estate, by the 11th section of the act of 30th February, 1817, of “ one per cent on the appraised value of the goods and effects confided to their care,” is to be calculated on the appraised value of the property as shown by the schedule of the insolvent.</p> <p>A provisional syndic of an insolvent estate has no other duty to discharge than that of keeping the property surrendered as a deposit, performing such conservatory acts as may be necessary for the interest of the insolvent and his creditors, and demanding and receiving the rents and income of the property, and such debts as may become due during his administration, which expires on the nomination of definitive syndics.</p> <p>Law charges are the costs incurred in court in the prosecution of a suit, to be paid by the party cast. Such costs, when taxed according to law, are privileged against the insolvent’s estate, whether incurred previously to the insolvency, or in the concurso. C. C. 3162, 3163.</p> <p>The costs of the proceedings, incurred in establishing a charge of fraud against an insolvent, are included among the law charges privileged against the estate.</p>

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

<p>Where the holder of a note, in consideration of a partial payment by the drawer, grants him an extension of time for the balance, without the consent of the accommodation endorser, the latter will be discharged. C. C. 3032.</p>

<p>An action to recover the amount of a policy having been instituted against an insurance company, a short time before its dissolution by the expiration of its charter, an answer was filed by the attorney of the company a few days after its dissolution ; he shortly afterwards resigned his appointment, and no further proceedings were had for several years. The charter of the company made each shareholder “ liable, in his individual and private capacity, to the extent of his shares, in any suit or action pending at the time of the dissolution of the charter, or to be brought thereafter.”' A few days before the dissolution of the charter, the company transferred, for a certain sum, all its capital stock to another company, which guarantied the stockholders of the old company from all further responsibility as such. The action was tried, some years after, ex parte, in the absence of any representative of the company or its stockholders, and without notice to, and in the absence of any one interested in the defence, and judgment rendered in favor of the plaintiff! In an action, by one of the stockholders of the dissolved company, to annul the judgment: Held, that the judgment was illegal and void; that the defendants, by the expiration of their charter, had lost all capacity to appear in court; that the plaintiff should have cited the stockholders, in ease ho intended to exercise his recourse against them under the charter, and have made them defendants, unless he chose to avail himself of the transfer of the stock, and to call the transferrees to defend the suit under the responsibility assumed by them; and that the plaintiff in the action of nullity, being still responsible for the debts of the dissolved corporation to the extent of the shares transferred by him to the new company, had a sufficient interest to authorize him to-sue to annul the judgment. C. P. 606.</p>

The court having determined that i.he plaintiff had an interest in the cause, which authorized him to maintain an injunction, I would respectfully inquire, whether any member of the court has read the document, to be found at page 36 of the record, being nothing more or less than a copy from the books of the Insurance Company, of a transfer of Mr. Musson’s twenty shares, on the 21th day of April, 1835?

The defendants having obtained a judgment against the plaintiffs, in the District Court of the First District, on a note secured by the pledge of certain shares of the stock in the Bank of Louisiana, caused the same to be seized and sold by the sheriff, and, through an agent, became the purchasers thereof. The present action was instituted before the Commercial Court.

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>cited the 4th sect, of the bankrupt act of 19th August, 1841. Civil Code, arts. 3335, 3336, 3337, 3342, 3346. Conrad, Assignee, v. Frieur, Recorder, 5 Rob. 49.</p>

<p>Appeal from the District Court of Terrebonne, Deblieuoc, J.</p>

Appeal by the defendants from a judgment of the City Court of Lafayette, Carrigan, J., homologating the sale of certain property of the defendants sold- under writs of alias ji. fa. issued from that court.

<p>The purchaser at a judicial sale, made under the orders of a Court of Probates, is not bound to look beyond the decree of the court recognizing the necessity of the sale. Pie is bound to look to the jurisdiction of the court; but the truth of the record concerning matters within its jurisdiction, cannot bo disputed.</p> <p>The provision of the Code of 1808 (book 3, title 1, art. 59), that the place where the party died is that in which his succession shall be considered to be opened, having been repealed by the Code of 1825, which declares (art. 929) that the succession shall be considered as opened in the parish in which the deceased resided, if he had a fixed domicil within the State : Held, that the death of the party must be considered as irrevocably vesting the jurisdiction, and that, if the death occurred while the old law was yet in force, the jurisdiction must be determined by it^ though no proceedings were had before the promulgation of the new. But that where a parish has been divided since the death, the jurisdiction will depend upon the fact of the court of the original parish having taken any steps, or assumed jurisdiction in relation to the mortuaria, before the division. If it has, its jurisdiction will not be divested by the division ; otherwise jurisdiction will belong, under art. 929 of the Civil Code, to the court of the parish which embraces the residence of the deceased.</p> <p>A tutor, as such, without letters of administration, has no authority to administer a succession in which his pupil has an eventual or residuary interest. Such a succession must be administered as an entire thing, for the advantage of the creditors, as well as of the beneficiary heirs entitled to the residue after the payment of debts.</p> <p>In the alienation of the property of minors, the advice of a family meeting forms an essential part of the judgment or basis upon which it rests. Though the Civil Code does not expressly require that the family meeting shall be held in the parish in which the court sits, such must be considered as the true construction of all its provisions, taken together.' C. C. 305, 308. Act 10 March, 1834, s. 1</p> <p>The act of 10th March, 1834, relative to the'titles of purchasers at judicial sales, applied only to the actual and immediate purchaser at the judicial sale. The benefits of that act were extended to subsequent vendees, holding under the original purchaser at the judicial sale, by the act of 11th March, 1837. Consequently the homologation of the sale, on a monition sued out before the act of 3 837, by one to whom an act of sale was executed, on an acknowledgment, at the foot of the pro-ces-verlal of the auctioneer, made by.the person to whom the property was adjudicated, that he had purchased the property for the former, will not cure any irregularities in the sale.</p>

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

<p>An agent is responsible for any damage that may result from his neglect of duty. C. C. 2971, 2972.</p>

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

Code of Pract. art. 344. Rawle v. Slápvñth, 8 Mart. N. S. 410.. The witness, Hillman, being interested in the costs, was incompetent. Lessassier v. Hertzel, 8 Mart. N. S. 265. 3 Starlde on Evid. p. 752. Greenleaf on Evid. p. 435, and notes. The retaining of the drafts by the defendants must be treated as an acceptance. Bayley on Bills, ed.-1830, ch. 6, sec. 1, pp. 191 — 194, and authorities there cited.Story on Bills, 272.

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

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

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

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

<p>Where proceedings instituted by one of the Municipalities of New Orleans, under the act of 3 April, 1832, regulating the opening and improving of streets and public places, have been discontinued before any final confirmation by the court of the report of the assessors, the owners of property required for the improvement, and assessed at a certain price, cannot claim the amount on the ground of an implied sale, though the Municipality have taken possession of the premises. Per Curium : The proceedings not having been perfected, the parties can claim no rights under them ; the plaintiffs can only demand the premises, or damages for the injury resulting from having been deprived of them.</p>

<p>The powers ami duties of the officers of a bank being defined by its charter and bylaws, they will, when acting within the sphere of their respective duties, represent the corporation, and bind it by their acts; but in other matters they can only represent or act for it when authorized by a resolution of the board of directors.</p> <p>A cashier of a bank has no authority, by virtue of his office, to represent the bank at a meeting of,the creditors of an insolvent, and to vote for a syndic. A resolution of the board of directors can alone empower him to do so. But a ratification by the directors of the acts of a cashier who had voted at a meeting of creditors without authority, made after the proceedings before the notary were closed, and the ten days had expired after which the rights of the parties claiming the syndieship became fixed, cannot affect rights previously acquired. C. C. 1789, 2252, Act 20 February, 1817.</p>

<p>Where a lessee for years, and his surety, abandon the premises, the lessor, for the preservation of the property and the protection of his rights, may collect the rent due from the sub-tenants and procure new ones, for the benefit of the lessee or surety; and where the lessor has never refused to place the premises under their control oil their complying with the lease, such acts will not be considered as amounting to a cancelling of the lease, and the lessee and his surety will be bound for the difference between the amount of the lease and that received from the sub-tenants.</p> <p>Where pending an action to enjoin an execution issued on a judgment obtained by a lessor against the surety of his lessee, for the amount of a lease for years, to be paid from time to time as the rent may become due under the lease, the lessor sells the premises, without any stipulation that the sale is made subject to the lease, the lease will be thereby dissolved.</p>

The plaintiff claims from the defendant $3,593 60. He represents that by the will of his mother, which was admitted to probate in the parish of Orleans on the 18th February, 1836, he was appointed her universal legatee, and Thomas H. Maddox and Henry Carleton, the defendant, her testamentary executors; and that Maddox was also appointed his tutor, he being then a minor and his father dead.

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

<p>The provision of art. 2256 that parol evidence shall not be admitted against or beyond the contents of written acts of transfer of immovables, was designed for the. protection of contracting parties against each other. It does not apply where a partner claims from his co-partner a sum of mqney, alleged to have been privately and fraudulently received by him from a purchaser of partnership property as a part of the price, and offers the purchaser as a witness to prove the payment of the money, though not mentioned in the notarial act of sale signed by both partners and the purchaser. The testimony of the purchaser is admissible.</p> <p>Art. 2622 of the Civil Code, which provides that one against whom a litigious right has been transferred, may release himself by paying to the transferree the real price of the transfer, with interest from its date, relates only to conventional assignments. It does not apply to a transfer resulting from a sheriff’s sale under execution, the transferree acquiring all the rights of the owner of the right sold. C. B. 647, 690.</p>

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

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

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

<p>Plaintiffs having sold to defendant a quantity of cotton, delivered it to him on receiving only a part of the price. The purchaser shipped the cotton, consigning it to a house of which the intervenor was a member, for sale on account of the shipper; and, in consequence of advances made hy the intervenor, had the bill of lading made out in the name of the latter. Plaintiffs having sued to recover the balance of the price, sequestered the cotton; and the party who had made the advances intervened, claiming a privilege on its proceeds. Held, that by delivering the cotton before payment in full, the vendors authorized defendant to consider himself its absolute owner; that by suffering the intervenor to take the bill of lading in his name, defendant gave him the same right to the cotton from the date of the hill, as if he had endorsed to him a bill of lading filled up in defendant’s own name, which would transfer the property ; that the privilege of the vendor, under art. 3194 of the Civil Code, exists only so long as the property remains in possession of the purchaser ; and that under art. 3214 of the Civil Code, the intervenor was entitled to a privilege on the proceeds of the cotton, for the advances made by him.</p>

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

<p>Under art. 275 of the Code of Practice, or under the 9th section of the act of 7th April, 1826, to obtain a sequestration, the applicant must make oath that he fears that the party having possession of the property may remove it beyond the limits of the State during the pendency of the suit. It is not any privilege or mortgage which the creditor has on the property, hut the circumstance which • causes him to apprehend that its- removal may deprive him of his recourse upon it, that gives the right of sequestration. The requisites for obtaining a sequestration under the act of 1826, where the party has a lien or privilege on the property, are the same as under section 6 of art. 275 of the Code of Practice, in cases in which the creditor has a special mortgage.</p> <p>Where a sequestration has been illegally issued, the true standard of damages is the probable loss sustained by the defendant in consequence of having been deprived of the free use or disposal of his property. He should be placed as nearly as possible in the situation he would have been in, had the sequestration not been issued.</p>

<p>The court has decided that in all cases where a lien or privilege is claimed upon property, whether personal or otherwise, the party claiming that privilege and wishing to enforce it, as provided for by the amendment of the Code of Practice passed April, 1826, must make the affidavit required of those claiming a sequestration of property specially mortgaged to them, as provided for in the 6th section of art. 275 of the Code of Practice, thus putting property not susceptible of being mortgaged, upon the same footing with immovable property, although the five preceding sections of the same article, make a marked distinction between the affidavit necessary to obtain a sequestration of personal property, and property capable of being specially mortgaged. To support this decision the case of Débaillon v. Ponsony, 5 N. S. 43, decided in the Western District, in August, 1826, is solely relied on.</p> <p>The correctness of that decision is not impugned, but it is inapplicable to the case now before the court; and the error which I think the court has fallen into, is, in not drawing the distinction between property capable of being mortgaged, and personal property.</p> <p>There are but two species of property capable of being specially mortgaged, land with the growing crops thereon, and slaves. There can be no other case in which an affidavit to sequester property, should comply with the requisites of the 6th section of article 275.</p> <p>The case of Debaillon v, Ponsony, was one of these, and. the affidavit in that case, must have been made previous to the amendment of April, 1826, for the suit was finally decided in August, 1826, too short a time for it to have been made after the passage of the act.</p> <p>It appears that Ponsony was the tutor of Debaillon, appointed more than two years previous to the institution of the suit. He was, therefore, appointed under the old Civil Code, and his property was liable for his administration of the minors’ estate, according to the provisions of the law as they then existed. Now by a reference to page 454, art. 15, of the old Civil Code, and to the case of Winchester v. Thibodeaux' Ex’rs. (8 La. 192), it appears there existed in favor of a minor, on all the property of his tutor, from the day of his appointment, a mortgage, or, in other words, that the property of the tutor was specially mortgaged for the faithfulness of his administration. This then was a case under the 6th section of art. 275, and the sequestration would have been maintained, even if the amendment of April, 1826, had never been passed. That such an affidavit should be required where slaves specially mortgaged are sought to be sequestered, is reasonable and just, for it would be hard indeed if the owner should be barred of the privilege of removing his slaves, before the debt became due, from one parish to another, because the party holding the mortgage or lien, in order to keep the slaves subject to the final decision of the court, can do so, by merely recording his mortgage in the parish to which the slave may be removed, and his mortgage being so recorded, no other creditor can deprive him of the lien and privilege which his special mortgage gives him, and this is the sole reason why the affidavit is required; but with personal property this lien or privilege can not be so preserved.</p> <p>The Code of Practice enumerates six different cases in which the writ of sequestration may issue. Art. 276 says that an affidavit must be filed, setting forth the cause for which the order is claimed, and that bond and security must be given before the issuing of the sequestration. In these sections there is, but one that requires that the affidavit must state the apprehension of the property being removed out of the State, and one that it will be removed out of the jurisdiction of the court; the other four require nothing more than the reasons for which the sequestration is required. This being the law, how can it be said that the act of 1826, which was passed for extending the cases in which a writ of sequestration might issue, should be so construed as to limit it, and, in some cases to destroy it altogether ; and why is this 6th section thought so peculiarly appli-ble to the amendment of 1826, when it speaks merely oí properly specially mortgaged, and the other five sections refer to both personal and immovable property, and the act does not set forth any particular form of affidavit to be made.</p> <p>The amendment of April, 1826, extended the right to sequester to all cases where there existed a lien, or privilege, upon a compliance with the requisitions of law, and in 1839 it was farther extended to all cases where a party fears that the other will conceal, part with, or dispose of the moveable or slave in his possession, during the pendency of the suit, upon his complying with the requisitions of the law. The words “ upon his complying with the requisitions of the law” are used in both amendments, and what they mean in one they must necessarily mean in the other. The court has decided that those words mean, that the affidavit must state the apprehension that the property sought to be sequestered is about to be removed out of the State. I conceive that no other construction can be put upon them than, that the cause for which the order is claimed should be set forth, and bond and security be given, as required by art. 276. If the construction of the court be right, what would have been the effect between April, 1826, and the amendatory act of 1839, and what since ?</p> <p>A ship builder repairs, or builds a tow-boat or ferry-boat which never leaves the State, or even the jurisdiction of the court, yet he has a privilege on the boat for the price of his labor. Suppose, after the delivery of the boat and the lapse of sixty days, judgments are obtained, and executions about to be levied on the boat which would deprive him of his lien and privilege — what must he do 1 Of what avail would his privilege be to him, if denied the right of using it — if before it can be used he must make an affidavit, which would be false upon the face of it ? Suppose that previous to the act of 1839, the owner of the boat was about to make a sale of her, what was the privileged creditor to do 1 He has a lien, and privilege by the act of April, 1826, but if he attempts to enforce that lien and privilege, and, by so doing breaks off the sale, he will have to pay damages for it. Instead of extending the benefits of the writ of sequestration, such a construction would utterly destroy it. Again: as the words “ requisitions of the law,” used in the act of 1839, cannot, by any construction whatever, mean that the affidavit must be in conformity with the 6th section of art. 275, why should the same words be considered as having a different meaning when used in the act of 1826 ? See on this subject 1 Rob. 531.</p> <p>A contractor to fill up a lot in the city of New Orleans has a privilege thereon (7 Mart. N. S. 17), but no special mortgage. Can it be pretended that, if he wishes to sequester, finding that the property is about to be sold, he must swear that the lot is about to be removed out of the State of Louisiana, and give his reasons for so believing- ?</p> <p>The 6th section of article 275 applies solely to slaves, and to growing crops, and must be confined to them, and to them only.’ In the case of Frail v. Feet’s-Curator (3 La. 274), where the property sequestered was in the hands of the sheriff, the court refused to set aside the sequestration, and declared it lawful under the amendment of April, 1826, giving a right to a writ of sequestration where there was a lien and privilege, although the affidavit did not state that the property was about to be removed out of the State, or even beyond the jurisdiction of the court, but merely stated the reasons why the sequestration was called for, the party having complied with the requisitions of the law, by giving bond and security. See the record in the Supreme Court, no history of the case being given in the report. In no case has such an affidavit been required, except where slaves and the ■growing crops are sought to be sequestered. See 5 La. 345. 14 La. 266, 351, 536. 17 La. 211. In all of these cases, the reason given for requiring sueh an affidavit was, that the property was mortgaged; and now, since the act of 1839, even this is not required; a party has but to swear, to obtain the sequestration, that the other will eonceal, part with, or dispose of the slave or moveable in his possession during the pendency of the suit, and to comply with the requisitions of the law, that is, by giving bond and security. No possible case can now occur, in which it would be necessary, to obtain a sequestration, to make such an affidavit as is required by the 6th section of article 275, the amendments of 1839 covering every conceivable case.</p> <p>Kelly & Co. had such a privilege or lien on the steamboat Angora, as is contemplated by the act of 1826. They state in their affidavit, that it was for the furnishing of supplies and necessaries for the use of the boat, as required by article 276 of the Code of Practice, and on the trial of the case they proved the allegations of their affidavit to be true, and judgment was rendered in their favor with privilege on the steamer. That the judgment giving this privilege was correct is indisputable; that they had a right to sequester the steamboat is equally so. The only point to be decided is, whether they were bound to make an affidavit, as required by the 6th section of the article 275 of the Code of Practice.</p>

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

<p>The signature of the judge is required only to final judgments. C. P. 546. Other decrees or orders made in the course of a suit, may be entered on the minutes, and, where theymay cause irreparable injury, maybe appealed from, though not signed. C. P. 544.</p> <p>A garnishee having answered the interrogatories propounded to him, took a rule on plaintiffs to show cause why he should not be allowed to file a supplemental answer. Plaintiffs, averring that the answer filed by the garnishee was evasive and insufficient and amounted to a judicial confession in their favor, and cannot be done away with by any subsequent answer ; that measures have been taken to fix the liability of the garnishee, by obtaining an order directing him to deliver to the sheriff a transfer-warrant for certain shares of stock held by him for the defendants; and that the supplemental answer came too late, moved for a judgment against the garnishee for the amount claimed by them. The supplemental answer was allowed to be filed, and the motion for a judgment against the garnishee overruled, by an order pntered on the minutes, but not signed. On appeal by plaintiffs : Held, that the appeal must be dismissed, the judgment being an interlocutory one, not producing irreparable injury.</p>

<p>Appeal from a judgment of tbe Commercial Court, Watts, J. These two cases were consolidated and tried together, and from a judgment in favor of Gannon, McGawley appealed.</p>

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

This was an action to recover $825, with interest. The plaintiff prayed that “ the Citizens Bank of Louisiana might be cited, and that it be decreed that he recover” the amount claimed ; and further, “ that whereas said bank is now in course of liquidation, under, a judgment of this court, petitioner prays that-said judgment be declared executory in due course of administration of said bank” ; &c.

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

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

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

Spangenberg, contended that form is not of the essence of the contract of pledge. 7 Toullier, 613. 18 Duranton, 586. 8 Pothier, 610. Du contrat de Nantissement, ch. 1, art. 2, s. 17. That the intention of the parties must prevail. Civil Code, art. 1040, s. 2. 1 Rob. 247. And that a pledge may be created by a contract in the form of an absolute sale. Ames on Corp. 344. 4 Pickering, 410. 7 Cowen, 412. 1 Mart. N. S. 407.

<p>The mere seizure under a fi. fa. of a judgment in favor of a debtor, does not divest the property of the latter, and transfer it to the seizing creditor. It gives him at most a right to proceed and sell the judgment, and to be paid by preference out of the proceeds. A fi. fa. is the warrant of the sheriff, authorizing him to seize property and keep it, and to sell it to satisfy the judgment under which it was issued. When a seizure has been made, the sheriff is not bound to return the writ, though it have subsequently expired. He may retain it, and sell the property seized. If he returns the writ, he will be without authority to hold, or dispose of the property ; and any privilege resulting from the seizure will cease to exist.</p> <p>Where the proceeds of property seized and sold under a fi.fa., are claimed in virtue of a previous seizure under a fi. fa., the claimant must oppose, by way of third opposition, the application of the proceeds to the satisfaction of the second execution. C. C. 396, 397,401,402.</p>

<p>The obligations of a warrantor depend upon the law in force at the time of the sale.</p> <p>Under the Code of 1808, the vendor was bound, in case of eviction of the purchaser, to pay him, in addition to the price, &e. the increased value of the property at the date of the eviction, though the purchaser did not contribute to such increase. Book 3, tit. 6, arts. 54, 57. The original price, added to the rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be ascertained; other things mu st be taken into consideration; and the general rule, that damages are to be measured by the loss actually sustained, and not by the gains of which the party has been deprived, is inapplicable.</p> <p>The curator of a succession credited himself in his account with a sum, exceeding the amount of the assets of the succession in his hands, which he claimed in consequence of eviction from land sold to him by the deceased. On the opposition of the heirs, it was decided, that the claim of the curator, so far as it exceeded the assets in his hands, was prescribed; and judgment was rendered allowing his claim to the amount of such assets. On appeal: Held, that the claim was an entire one, arising from the same cause,' and could not be prescribed in part; and that the account should be homologated.</p>

<p>The property of a debtor being the common pledge of his creditors, every act done by him with intent to deprive them of their eventual rights upon it, is illegal. C. C. 1963, 1964.</p> <p>Where one purchases property from an absconding debtor, with notice that his1 object in selling it was to deprive his creditors of their recourse upon it, and such purchase operates to theirinjury, it will be annulled. C. C. 1973. But the purchaser, though in bad faith, will be entitled to a restitution of so much of the consideration or price paid by him, as he shall prove to have enured to the benefit of the creditors, by adding to the amount applicable to the payment of their debts. C. C. 1977.</p>

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

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

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

<p>On an applicatian by Lockett and Micou, for the plaintiffs in these cases, for a re-hearing.</p>

The plaintiff having obtained a judgment against the defendant, appealed from a judgment in favor of M. Caruthers & Co., whose answers, denying that they had any property in their possession belonging to the defendant, or owed him anything, were traversed.

<p>Where a party notified by his adversary to attend at a certain hour at a commissioner’s office, for the purpose of taking the deposition of a witness, attends at the appointed hour, waits for half an hour without the commissioner’s appearing, and leaves, and, after his departure, the commissioner arrives, and proceeds to take the deposition, it will be inadmissible on the trial.</p>

<p>Appeals, from the District Court of the First District, Buchaji-. an, J.</p>

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

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

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

<p>No appeal -will lie from, a judgment ou an opposition by a third person, claiming to be paid by preference to the mortgage creditor out of the proceeds of property sold under an order of seizure and sale, where the amount claimed by the opponent is only three hundred dollars, though the claim for which the order of seizure and sale was issued exceeded that amount.</p>

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

<p>To render one of the original parties tó a pblicy of insurance, alleged to have assigned all his interest therein for the benefit of his creditors, competent as a witness for the ether insurers in an action on the policy, the acceptance of the assignment by all the creditors must be proved, where the assignment, stipulating the release of the debtor, is not so manifestly for their benefit, that their acceptance can be presumed. Nor will such a witness be rendered competent by the exfeeution, in open court, of an instrument abandoning all his interest in the policy for the benefit of his creditors. Per Curiaih; He is still interested that the creditors who have not released him should receive a part of the amouut sued for; and he cannot release himself.</p>

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

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

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

<p>An act of sale of lands, passed in 1774 before a Spanish commandant in Louisiana, in the presence of two witnesses, which recites thatthe vendor did not sign it because he could not write, and that the title was delivered to the vendee who took im - mediate possession, and which had remained among the notarial records of the parish, is admissible in evidence to prove a title to the property. Per Curiam: The act would have been sufficient evidence of title under the Spanish law, which permitted parol sales of immovables; it has all the requisites of an authentic act; and the absence of the vendor’s signature is sufficiently accounted for by the public officer who received it, the ordinary mark of a party to an authentic act not being required at that period.</p> <p>An extract certified by the clerk from the minutes of the court, showing that a judgment had been rendered in a suit, though the minutes were signed by the judge, is not the best evidence of the judgment, as the law requires a judgment to be given and signed in every case ; and it is to be presumed that one exists until the contrary is shown. The extract from the minutes would be admissible to prove a judgment ren-. dered in 1814, on proof that no judgment could be found in the record, and that no . other tihan that entered on the minutes appeared to have ever existed, or that it had been lost.</p> <p>Testimony of witnesses taken in a suit between other parties, offered to prove possession by persons long since dead, is inadmissible, where the affidavit made for the purpose of laying a foundation for its admission does not state that the witnesses are dead, nor what efforts have been made to procure other evidence of the fact.</p> <p>Copies of judgments of the Supreme Court, certified by the clerk, are sufficiently proved. The signatures of the Spanish governors, and other known officers of the former provincial governments of Louisiana, prove themselves. Where any question is raised as to the authenticity of such signatures, or the authority of the officer, the burden of proving the fraud or want of authority, devolves on the party alleging such fraud or want of authority.</p> <p>A defendant in a petitory action may defend himself by setting up title in a third person.</p> <p>By a royal order of the 22d October, 1798, the power to grant lands was taken from the Governor of the province of Louisiana, and restored to the Xntendant.</p>

<p>Parol evidence is inadmissible to prove that a slave sold by defendant to plaintiff, was represented as possessing certain qualifications not mentioned in the act of sale.</p>

<p>Indulgence granted by tbe state treasurer to an auctioneer, by taking his notes for a sum due to the State for taxes on sales made by him, will not discharge the sureties on his official bond. The treasurer has authority to collect whatever is due to the State, but not to receive any thing but money in payment of debts due to it, nor to extend the time of payment, or novate any debt.</p>

<p>A wife haying obtained a judgment of separation of property, levied a Ji. fa. on the property of the husband, who subsequently applied for the benefit of the bankrupt act of Congress, of 19th August, 1841, and was discharged. The wife’s execution not haying been satisfied in full: Held, that the balance of the debt due by the husband, was extinguished by his discharge.</p> <p>A creditor who seeks to enforce the payment of a note executed by a married woman, though separated in property from her husband, must prove that the consideration fpr which it was given, enured to her advantage.</p> <p>Where a married woman, sued on her note, secured by mortgage, given for the repayment of money counted and delivered to her in the presence of the notary’s clerk, adduces evidence which shows that the transaction was a disguised advance to her husband,•'she will beboujid, if it bo shown that she subsequently converted the fund to her owñ’Usa,'uirder(false pretences, to the prejudice of the creditors of her hus-bandV K ' U.</p>

<p>Appeal from the District Court of the First District, Buchan~ an, J.</p>

<p>Where plaintiffs, having failed in obtaining their evidence in time for a trial urged by the opposite party, were unable to make out their ease; and the court ordered a dismissal as in case of non-suit, they will not be regarded as having abandoned the suit within the meaning of art. 3485 of the Civil Code, which declares that where a plaintiff abandons, or discontinues his case, prescription shall be considered as not having been interrupted thereby.</p> <p>The fact that a marriage was celebrated by a person acting as a justice of the peace, and that the parties afterwards lived together as man and wife, is sufficient legal evidence of a marriage; and the testimony of a witness who swore that he was a justice of the peace in another State, and celebrated the marriage, is sufficient proof of the fact that the witness was a justice.</p> <p>District Courts have jurisdiction of an action to annul the legacies in a will, instituted by persons claiming to be heirs of the deceased, against the legatees in possession.</p>

<p>The appellants, stockholders in the Firemen’s Insurance Company of New Orleans, having paid only the first instalment of five per cent on each share, the Directors declared the stock forfeited. Plaintiff having obtained judgment against the company, sued out a ji\ j a. under which interrogatories were propounded to the appellants; and, on a rule taken on them to show cause why they should not be compelled to satisfy the execution to the extent of their unpaid subscriptions: Held, that under the act of 10th March, 1838, incorporating the company, the.directors had no right to declare the stock forfeited after the payment of only five per cent, and that the appellants were bound to satisfy plaintiff’s judgment to the extent of their unpaid subscriptions.</p>

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

<p>There can be no abandonment as for a total loss, in a case in which the damage is under fifty per cent of the value of the thing insured.</p> <p>Where the policy provides that the vessel insured is warranted free from average, unless general, under fifteen per cent, the limitation forms a part of the contract, and the insurers will not he liable unless the loss is proved to have exceeded th at amount.</p>

<p>An act of the legislature of Pennsylvania, of 5th March, 1842, provides, that any assignment of property, made by a bank in pursuance of that act, must be approved by the Court of Common Pleas of the county in which the bank' is situated, and be recorded in. the office of the Recorder of Deeds for the same county; and an act of 14th April, 1834, authorizes the prothonotaries of the courts of Common Pleas to sign the judgments of those tribunals. Plaintiffs offered in evidence a copy certified by the Recorder of Deeds to be a true copy from the records of his office, of an assighment made by a bank under the act of 1842, and of a certificate annexed to it signed by the prothonotary of the Court of Common Pleas, and sealed with its seal, reciting that the court had approved of the assignment. Appended were certificates from the presiding judge of the Court of Common Pleas attesting the signature and official capacity of the Recorder of Deeds, and from the prothono-tary of the court attesting the signature and official capacity of the presiding judge. Defendants excepted to the evidence* alleging in their bill that the assignment could only be proved by producing the original, or, on showing that it couuld not be had, a copy compared therewith; that the act of Congress respecting the authentication of non-judicial records, was inapplicable to the case; and, if applicable, had not been complied with. The bill did not state in what the act had not been complied with. Held, that the act of Congress applies to such a case ; that so general an oh-jection as that the law has not been complied with, is insufficient in a hill of exceptions ; and that such generality cannot be corrected by specifications after appeal.</p> <p>Defendants having attached certain bank bonds and notes belonging to plaintiffs, and having recovered judgment in the court below, caused them to be sold under The judgment was reversed on a devolutive appeal. Plaintiffs, in an action for damages for the illegal attachment, having proved that the bonds and notes ha$ fallen in value pending the seizure, and that they were sold for much less than they might have been sold for had no attachment been issued: Held, that the defendants should pay the actual damages caused by their attachment.</p>

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

<p>No recourse can bo had on the sureties in an appeal bond, until it be clearly shown by the creditor, that the proceeds of the sale of all the estate and effects of the principal, have proved insufficient to discharge his demand. So, where a husband appeals from a judgment against him for a community debt, and dies, leaving children and a widow who accepts the community, the sureties on the appeal bond will be liable only in case the judgment is not s atisfied by the widow and heirs so far as they are respectively bound for it, and cannot be satisfied by the sale of all their property, real and personal, liable for its payment.</p>

<p>Parol evidence is inadmissible to alter, modify, or contradict a written act of transfer of immovables or slaves, or to prove any agreement or stipulation beyond its contents, where there is no allegation of fraud, error or violenc’e. C. C. 2256. But such evidence is admissible to prove that the adjudication price of real estate sold at auction, was paid to a creditor holding a mortgage on the property, and the manner of such payment.</p> <p>The title of property sold at auction vests in the purchaser from the moment of the adjudication. C. C. 2586.</p>

<p>Permission to occupy certain premises, without pay, on condition of leaving whenever required by the owner to do so, does not give rise to the relation of landlord and tenant between the parties, nor invest the owner with the lessor’s lien or privilege, or right of sequestration. A stipulation for rent is of the essence of the contract of lease.</p> <p>Liens and privileges are stricti juris, and exist only where they have been expressly given by law. O. C. 3152.</p>

<p>Plaintiffs Raving advanced to defendants a certain sum on merchandise consigned to their house in another city, defendant drew a bill on the consignees, in their favor, for the amount advanced. The proceeds of the shipment falling short of the advance, plaintiffs sued for the difference, on an account debiting defendant with the amount of the hill, and crediting him with the nett proceeds of the sale. On an objection that the action should have been on the bill: Held, that the suit was properly brought.</p>

This was a rule taken by the appellant on the plaintiff, to show cause why a certificate of the clerk of the Supreme Court, that the transcript of the record had not been filed within the time prescribed by law, should not be cancelled on the ground of error.

<p>A purchaser of real estate cannot be affected by any agreement respecting its sale, made between his vendors and a former owner of the property, which was unknown to him at the time of the purchase, and not registered.</p>

<p>The jurisdiction of the Supreme Court being appellate only, and limited by the Constitution (art. 4, § 4) to civil eases in which the matter in dispute exceeds three hundred dollars, it cannot issue a mandamus to an inferior tribunal where the amount in dispute is under that sum. A mandamus can be issued by the Supreme Court only in aid of its appellate jurisdiction. C. P. 829, 839.</p>

<p>Action by a bank, in liquidation under the acts of 14 and 26 March, 1842, to recover the amount of a dividend due on stock held by it in another corporation, to which it was indebted in a larger sum for money on deposit: Held, that the claim of the bank was discharged by compensation. Act 5 April, 1843, s. 2.</p>

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

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

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

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

<p>Appeal from tbe District Court of the First District, Watts,</p>

<p>One who has effected insurance on his life may assign the policy, or a part of it, to a bona fide creditor; but such an assignment will be without effect as to third persons, creditors of the insured, where there was no proof of notice to the assurers before the death of the assured, nor of the acceptance of the assignment by the transferee before that date, and the policy remained in the possession of the assignor. C. C. 1804, 2612, 2613.</p> <p>The assignor of a debt is not divested of title, as to third persons, before notice to the debtor; till then the assignee has but an inchoate right. C. C. 2613.</p>

Lagrange, the petitioner, represents that, on the 16th of September, 1834, he made to Zephyrin Barré, by public act, a donation inter vivos of all he possessed, to wit, a tract of land and five slaves, on the condition that the donee should furnish him with food, bedding, clothes, fire, lights and medical attendance, free of any charge, during the petitioner’s life.

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

The plaintiff represented that he had obtained a judgment, in a court of the State of Mississippi, against the defendants, a corporation created by a law of that State, for the sum of $7,778 23, with… Held: as the trustees of the aforesaid Brown, Brothers & Co., &c. &c. Respectfully yours, “ J. D. Tyler, “ Thos.

<p>Persons of color are presumed to be free. Per Curiam : Slavery is an exception to the condition of the great mass of mankind, and, except as to Africans in the slave-holding States, the presumption is in favor of freedom, and the burden proof is on him who claims the colored person as a slave.</p>

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

This case grew out of the following agreement, and presented the question whether the instrument itself amounted to an absolute sale, vesting a title to one third of the property in Milli-gan, from its date. A full statement of the pleadings and evidence will be found in the opinion of the court, infra. “ Agreement betwixt Messrs.

<p>An action of revendication of real property may be instituted before the court within whose jurisdiction the property is situated, though the domicil of the defendant be in another district, or before the court of his domicil, at the option of the plaintiff-C. P. 163.</p> <p>The Commercial Court of New Orleans has no jurisdiction of petitory or possessory actions. Act of 14th March, 1839, s. 3. But where an exception to its jurisdiction on that ground, has been improperly overruled below, the Supreme Court will examine and decide the case on its merits, under the fourth section of the act of 14th March, 1839, which declares that “ no judgment rendered in the Commercial Court shall be void for want of jurisdiction, but in case it be determined that the court had not jurisdiction of the case, the court to which the appeal is taken shall condemn the plaintiff to pay all costs in the court of the first instance, though a judgment may be rendered in the Supreme Court in his favor.”</p>

<p>"Where a defendant consented to become surety for the plaintiff as administratrix of her husband’s succession, on condition that she would leave the whole management of the estate to his co-defendant, he will he responsible, in solido with the latter, for any amount that may be due from him to the plaintiff, for her share in the community of acquets,</p> <p>One who has managed all the business of a succession, under an agreement by which a third person consented to become the security of the plaintiff as administratrix, on the condition of her trusting the sole management of the estate to the former, will be allowed the usual commissions of an administrator, as an offset, pro tanto, against ■ any claim by the plaintiff for a sum coming to her, as the widow of the deceased, from the succession.</p>

<p>The provision of the Second section of the act of 3 March, 1819, which declares that no appeal, taken from a judgment in favor of a landlord in an action to recover possession of the premises after the termination of the lease, shall suspend execution, is, as to judgments rendered in such cases by the City Court of New Orleans, virtually repealed by ss. 4, 5 of the act of 10 March, 1838; and a suspensive appeal may be obtained in all such cases, on giving bond, with sufficient surety, for any damage which the appellee may sustain in consequence of the delay occasioned thereby.</p>

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

<p>Prescription runs against a vendee’s action of warranty from the date of the eviction, and not from that of the sale.</p> <p>Where a party excepts to the jurisdiction of the court, but proceeds to trial without asking for judgment on his exception, it will be presumed to have been waived.</p>

<p>Action by certain creditors of a company against the commissioners appointed for the liquidation of its affairs, claiming a privilege on its property, and praying that it may be sold for the payment of their debts. It appeared from different acts of the Legislature, that the State claimed a privilege on the property of the company, and to have subseqently become, by a forfeiture, declared by an act of the Legislature, the actual owners of the property, which act directed the' treasurer of the State to sell the same. No citation or other notice of the proceedings was given tothe governor, treasurer, attorney general, or district attorney, but judgment was rendered declaring the act pronouncing the forfeiture unconstitutional, the State not to be the owner of the property, and ordering it to be sold by the commissioners, reserving, for a future decision, the question of the privileges of the different creditors. On appeal: Held, that the State not having been cited, nor notified of the proceedings, the judgment must be reversed, and the case remanded for a new trial, after the State shall have been notified through the proper officers.</p>

<p>By an act of 28 March, 1839, for expediting the construction of the Clinton and Fort Hudson Rail Road, it was provided (see. 2,) that certain bonds of the State should be loaned to the company, on condition that it should agree, “ in case said bonds, and the interest thereon, are not punctually paid according to the provisions of this act, that the rail road constructed by the company shall, by the mere failure to pay said bonds (or either of them, s. 4,) and the interest thereon, and the payment thereof by the State, become the property of the State.” Anactof March 8,1841 after recitingr that the bonds so loaned had been sold by the company, and that a portion of the first instalment of interest on said bonds is due and unpaid, and that the company i» unable to pay the same, directs (s. 1,) the treasurer of the State to pay the interest so due; and declares, (s. 2,) “ by virtue of the second and fourth sections of the act of 1839, the said road, with all the machinery, fixtures, slaves and appurtenances thereunto belonging or appertaining, to be forfeited to the State.” Held, that so much of the act of March 8, 1841, as declares the road, with the machinery, fixtures and slaves, forfeited to the State, is unconstitutional, and confers no right whatever on the State ; and that the question whether there has been a forfeiture or not, is one for judicial enquiry and decision.</p> <p>The powers and duties of the commissioners appointed by the Governor to liquidate the affairs of the Clinton and Port Hudson Rail Road Company, under the act of 26 March, 1842, ch. 159, are defined by the second section of the act, which declares that the liquidation of its affairs shall be conducted according to the provisions of the act, “ to provide for the liquidation of banks,” of 14th March, 1842, ch. 98.</p> <p>So much of the sixth section of the act of 25 March, 1844, ch. 83, as directs the treasurer of the State to sell the property, privileges and immunities of the Clinton and Port Hudson Rail Road Company, was enacted under the erroneous impression that the property and privileges of the Company were legally vested, by forfeiture, in the State. The Legislature had no power to direct the sale of the property.</p>

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

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

<p>Appeal from the District Court of Lafayette, Boyce, J.</p>

<p>Plaintiff having purchased a slave from a third person, transferred to the latter in payment of the price a part of a twelve-month’s bond. In taking out execution on the bond, plaintiff’s attorney, by mistake, ordered the clerk to credit the execution with the amount of the part of the bond so transferred. The balance due on the bond having been collected by the sheriff, the trausferree <^laimed to be paid the amount transferred to him out of the sum in the hands of the sheriff, in preference to’plaintiff: Held, that the transferree cannot be prejudiced by the mistake of the plaintiff’s attorney, and is entitled to the amount claimed.</p> <p>Letters written by a third person to an agent are inadmissible in evidence against the principal.</p>

<p>An endorsement of a partial payment, in the hand writing of the holder of the note, without other proof that a payment was made at the date mentioned in the endorsement, is insufficient to interrupt prescription.</p>

<p>Appeal from the District Court of St. Martin, King, J. v.</p>

Martin, King, J. The plaintiff prayed for damages for a trespass upon his land, committed by the defendant, and for a judgment establishing the boundary between his land and the defendant’s.

<p>Fraud will not be presumed. It cannot, generally, be proved by direct and positive evidence ; but the circumstances going to establish it must be strong, consistent, and calculated to induce the belief that a fraudulent intent existed.</p> <p>Fraud in obtaining an endorsement, is no defence to an action against the endorser, by one to whom the note had been transferred in the usual course of business, for a gdod consideration, without notice, unless fraud or collusion can be proved as to him.</p> <p>It is not indispensable that demand of payment of a note or bill should be made, and notice of non-payment given, by a notary.</p> <p>Where a plaintiff relies on the protest and certificate of a notary, under the act of 13 March, 1827, to prove a demand of payment and notice of protest, parol evidence is inadmissible to explain, contradict, or add to the written evidence; nor can a portion of such evidence be used to make out one part of the case, and the testimony of the notary, as to any thing required by law to be inserted in such acts, to make out another part. As to any other facts, the notary is competent. But a plaintiff may offer the protest and certificate in evidence, and the parol testimony of the notary to prove a demand and notice, with the view, in case the protest and certificate should be insufficient under the statute, to rely on the parol evidence alone. If the protest and certificate be imperfect and insufficient under the statute, they are not the best evidence, and, consequently, parol testimony cannot be excluded as secondary.-</p> <p>A notary cannot testify as to any thing which will contradict or strengthen his official acts.</p> <p>Tho notary by whom a protest was made and notice given of the protest of a note or bill, is a competent witness to prove the protest and notice. ■ He is not disqualified by his liability for neglect or mistakes in the discharge of his official duties.</p> <p>Where a number of interrogatories have been propounded to different witnesses, an exception that they “ contain leading questions,” without further specification, will be disregarded, as too general.</p> <p>The acts of 14 March, 1823, and 13 March, 1827, authorising notaries, parish judgesj qnd, in some cases, justices of the peace, to protest and give notice of the protest of bills and notes, have introduced no new rule as to demand of payment, or the diligence to be used in giving notice of protest. They merely introduced a new moda of proof, unknown to the commercial law.</p> <p>A protest by a notary of a domestic bill or promissory note for non-acceptance or nonpayment, and his certificate of notice to the endorser, are inadmissible under the general commercial law. They are only received yvhere there is a statute or local law authorising their admission. By the act of the legislature of this State, of 13th March, 1827, a notary is authorised to do what the holder of the bill or note is required, under the commercial law, to do himself, and to certify the facts officially ; but the mode of proof authorised by the statute is not exclusive.</p> <p>A presentment of a bill or note for payment, and notice of non-payment given by an agent of the -holder, or by any person lawfully in possession for the purpose of demanding payment, is sufficient.</p> <p>■A notary to whom an inland hill had been given to demand payment, testified, that ■ he called on the day of payment, during the usual business hours, at plaintiff’s counting-house, which was named, on the face of the bill, as the place of payment, but found no one there, and that he waited a short time without seeing any one of whom he could make a demand; that he afterwards sent his clerk to make a demand, who returned the note to him unpaid; and that one of the plaintiffs soon after came to the notary’s office, where he demanded payment of him, and was in- ■ formed that the bill could not be paid: Held, that the demand made of one of the plaintiffs at the notary’s office, and his answer, show that the note would not have been paid though he had waited longer, or some one been present when he called at the place of payment; that no injury resulted to the endorser; and that the demand was sufficient.</p> <p>A demand of payment of an inland bill, made by the clerk of a notary to whom the bill had been given for the purpose of making a demand and giving notice in case of dishonor, is sufficient. The notary had a right to appoint a substitute, for whose acts he was answerable. And where, in such a case, the notices of non-payment were made out by the notary, and deposited in the post office by the clerk, the notice will be good.</p> <p>The provisions of the statute of 13 March, 1827, requiring notice of protest to be sent to an endorser at his usual residence or domicil, are the same as those of the commerciallaw. The domicil'of a citizen being, according to art. 42 of the Civil Code, the parish in which he habitually resides and has his principal establishment, notice must be directed to him there, or sent to some post office within the parish, unless there be a post office nearer to his actual residence in an adjoining parish or State, in which case it may be directed to the latter, the domicil of the endorser being mentioned.</p> <p>The rule of the commercial law, that a notice of protest must be sent to the post office ■ nearest to the actual residence of the endorser,-and that the holder must use due diligence to discover his domicil and the nearest post office, is, so far as it requires that the notice shall be sent to the nearest post office, subject to many exceptions, one of which is where the party to be notified is in the habit of receiving his letters at a more distant office, or by a more circuitous route, and that fact be known. The great object of the law is to give notice in as speedy and convenient manner as it can be done; and when there is a reasonable compliance with this rule it is sufficient. '</p> <p>It is not absolutely necessary that a notice of protest should be directed to an endorser at the post office nearest to his residence, where he receives his letters and papers from two offices, and the difference in their distance from his residence is but little. In such a case, a notice directed to either will be good.</p> <p>In an action against the endorser of a bill, it was proved that he was in the habit of receiving his letters from two post offices, both of which were in the parish of his domicil, but one about a mile nearer to his residence than the other; that, supposing him to apply at the two offices every mail day, he would receive letters, if sent to him through the farthest office, from ten to eighteen hours sooner than if directed to the nearest; and that he had instructed the postmaster at the farthest office to retain all letters which might come to his office for him: Held, that a notice of protest directed to the endorser at the farthest office was sufficient.</p> <p>Where it is proved that defendant had declared “that his residence is the parish of -,’■> and, that, by the laws and regulations of the post office department, all letters directed to that parish, without specifying any particular office, are sent to a post office from which he was in the habit of receiving his letters, a notice of protest directed to him, as the endorser of a bill, at that parish, will be sufficient.</p>

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

<p>Appeal by the plaintiff from a judgment of the District Court ¡of St. Mary, Boyce, J.</p>

<p>Payments to the creditors of a succession, made without an order from the Court of Probates, are irregular ; but when they exonerate the estate from legal charges, and thereby benefit the heirs, the latter must show that such charges are unjust, unfounded, or excessive, or the payments will be allowed to the party by whom they were made.</p> <p>Parol evidence is inadmissible to prove the appointment of a curator to a succession, unless it be first shown that the record of his appointment has been lost or destroyed.</p> <p>Evidence, though improperly admitted, will be disregarded, where it could not'have operated to the disadvantage of the party who objected to it.</p>

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

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

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

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

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

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

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

<p>Appeal from the Court of Probates of St. Martin, Briant, J.</p>

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

<p>Appeal from the Court of Probates of St. Landry, Garrigues, J.</p>

<p>To annul a sale on the ground of fraud, the creditor must prove the inability of the debtor to pay his debts, and injury to himself. Per Curiam: A contract, though made in bad faith, cannot be rescinded by creditors unless it operate to their injury. C. C. 1973.</p> <p>The seizure under a jft. fa. of the interest of a debtor in notes, entitles the seizing creditor to be paid by preference out of the proceeds.</p>

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

Landry, Boyce, J. Where a note is so drawn as not to bind the makers, it will be liable to the same objection on the part of the endorser. 3 Mart. N. S. 637.

<p>Where a purchaser of land at a sheriff’s sale does not, at the time, exercise his right of requiring the sheriff to put him in possession, but permits a third person to occupy at part of the premises, he cannot afterwards, by a petition, addressed to the judge of the court from which the execution was issued in chambers, obtain, in a summary way, an order directing the sheriff to put him in possession.</p>

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

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

<p>Appeal from the District Court of Lafayette, King, J.</p>

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

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

<p>Though a contract by which a parly alleges that he sells, and actually delivers certain lands and slaves to his endorsers, to be held by them until indemnified for then-endorsements, reserving a right to redeem the slaves on discharging the endorsers from any liability, be deoided by the Supreme Court to be a mortgage and not a sale, it must be duly recorded.to entitle the endorsers to the privilege of hypothecary creditors, as against other creditors having mortgages regularly registered.</p>

<p>Where factors accept and pay a draft drawn on them, and charge it to the drawer' in their account current, with a commission for makiug the advance, they cannot separate the draft from the account, and sue on it alone.</p>

<p>Where, in answer to an interrogatory, a party states facts not necessarily connected with that as to which he was interrogated, such irrevalent matter will he struck out, on motion.</p> <p>Defendant promised, in writing, to pay to plaintiff, on a day fixed, a certain sum, in molasses at the market price. It was proved that, a few weeks before the time of payment, defendant wrote to plaintiff, requesting him tq send, as soon as possible, casks in which to receive the molasses, as defendant apprehended that the cistern which contained his molasses would burst. Plaintiff did not send for the molasses, and, a few days after the debt was payable, defendant’s cistern bursted, and the molasses was lost. In an action against defendant for the amount so promised: Held, that admitting plaintiff was bound to furnish the casks, a mere notice to send them, without specifying any time at which the delivery was proposed to be made, is not a sufficient tender to place the molasses at his risk. Judgment for plaintiff for the amount claimed, payable in molasses, at the market price, at the time of payment.</p>

Mary, Campbell, J. The petition alleges that, under a fi. fa. issued on a judgment obtained by Brashear as curator of the estate of William S. Barr, deceased, against Singleton W. Wilson, one of the defendants in this action, the sheriff sold to John B. Bemiss, certain land, for the price of which Bemiss, in addition to the payment of a conventional mortgage in favor of Lewis Moore for $800, gave his twelve-months bond for $700, with interest.

<p>Action by a wife for a separation of property, claiming a slave as paraphernal, and opposition by the creditors of the community. Plaintiff offered in evidence a notarial act of sale of the slave, in which the vendor acknowledged the receipt of a sum of money from the plaintiff, as the price. Plaintiff then offered parol evidence to prove that the transaction was in fact a dation en payement, and that the slave was given to plaintiff by her mother, as an advance upon her inheritance: Held, that the evidence was admissible to prove that the slave was acquired by the funds of the wife, and that, in this respect, it does not contradict the notarial act.</p> <p>Under the Code of 1808, when a slave formed part of the paraphernal property of the wife, the issue of the slave was also parapernal. Code of 1808, book 3, tit. 5, arts. 50, 62; book 2, tit. 2, art. 4; book 3, tit. 3, art. 12. Under the Spanish laws, the issue belonged to the community of gains.</p> <p>The Spanish laws, and the Codes of 1808 and 1825, agree in the general principle, that all property acquired by purchase during the marriage, whether in the name of the husband or wife, belongs to the community, (Febrero, part 2, book 1, ch. 4, §1, no. 6 ; Code of 1808, book 3, tit. 5, art. 64 ; C. C. 2371, 2374,) even where the purchase is made with the funds of the wife ; but from this rule are excepted things received by either spouse, as a dation en payement of money due as a separate and individual right, or purchases made as a bona fide reinvestment of money under the wife’s control, and forming part of her paraphernal property. Thus a dation en payement by a mother, made to the wife, as an advance upon her inheritance, is paraphernal.</p>

<p>The plaintiff in a petitory action can recover only on the strength of his own title.</p> <p>The just title required to enable a possessor to acquire property in a slave by the prescription of five years where the parties are present, and by ten years between absentees, must be one derived from a person whom the possessor honestly believed to be the real owner: and it must be such as would, in its nature, suffice to transfer the property, if derived from the real owner. C. C. 3437, 3439, 3450, 3451.</p> <p>A slave may be acquired by the prescription of fifteen years without any title on the part of the possessor, and whether he be in good faith or not, and this prescription runs against absentees as well as residents; but the possession must be continous, uninterrupted, public, unequivocal, and animo domini. C. C. 3465, 3466.</p> <p>A donation of a slave made to a concubine, was not illegal under“the Code of 1808. Book 3, tit. 2, art, 10.</p>

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