Volume 12 — Louisiana Annual Reports

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

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

<p>Appeal from the Tenth District Court of New Orleans, Strcmbriclge, J.</p>

<p>The principles of this case decided in case of Griffon v. Blame.</p>

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

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

<p>Where the sale of succession property is ordered to pay debts, an heir cannot be allowed to retain the price of property adjudicated to him.</p> <p>It is not necessary that the executor should make a tender of a transfer to the purchaser at public sale, in order to put the latter in default.</p> <p>The proceeding of folie encMre may be resorted to in succession sales, and anew order of sale is not necessary.</p>

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

<p>Where the plaintiff sued to recover the value of horses shipped on defendants’ boat, and alleged to-have died of a disease contracted in consequence of the negligence and want of skill of those in charge of the boat in removing the horses from one part of the boat to another, under the general denial it is competent for the defendants to give in evidence all circumstances going to relieve the act of removal, of the character of a tortious violation of the contract between the parties, by assigning a reasonable necessity for such removal.</p>

<p>Appeal from the Eifth District Court of New Orleans, Sto-mobridge, J.</p>

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

<p>When the price of property was paid in cash, with money borrowed by the purchaser, but at the same time the purchaser executed his note for the amount to the order of the vendor, and consented, in the act of sale, to a mortgage upon the property, in favor of the vendor, or any dona fide holder of the note, the transaction cannot be considered simulated, and the lender of the money, as holder of the note, will be protected in his right of mortgage.</p>

<p>The defendant, in his answer to a suit for money loaned to him, averred that the money was not loaned but given to him, partly in payment of an antecedent indebtedness, and partly as a remunerative donation for services rendered. Held' That this was not an admission that the defendant was ever indebted to the plaintiff, and that the burden of proof rested on the plaintiff to establish that the transaction was a loan.</p> <p>The bare fact that A. handed a certain sum of money to JB. unexplained will not authorize A. to recover it back, on the allegation that it was a loan; it is the presumptive evidence of either the payment of an -antecedent debt or of a gift.</p>

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

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

<p>Where the defence set up to a recovery upon a contract is the insanity of the obligor, it must be shown that the mental derangement was notorious when the contract was entered into, where there had been no interdiction of the party sought to be charged. C. 0., 1781.</p>

<p>The defendants were appointed a “ Permanent Committee ” to forward a scheme proposed at a public meeting of the citizens of New Orleans, of establishing a railway across the Isthmus of Tehuantepec, and in that capacity contracted with the plaintiff. It was held that the burden of proof, as to the terms of the contract, rested upon the plaintiff, and that to hold the defendants liable, he must show that he contracted with them personally, or that they misled him by assuming to act for others without sufficient authority.</p> <p>In cases of this character, the controlling question is, .whom did the employee trust? If no artifice or deception was used in making the contract, and the employee knew the capacity in which his immediate employer acted and looked to a special fund or to a projected company to reward him, he cannot hold the honest agent personally liable.</p>

<p>Where real property is sold by written title, it is to the written will of the parties at the time of the sale that we must refer, to ascertain the object sold \ we are not permitted to defeat the plain and ordinary meaning of their language by theories deduced from a presumed inadequacy of price or a comparison of the business talents of the vendor and vendee, even supposing such matters to be properly in evidence.</p> <p>Where a particular claim comes precisely within the written description of the object sold, the vendor is estopped by the very distinct terms of his act of sale from saying he never meant to sell that claim, and the writing is conclusive upon the parties unless impeached for fraud.</p> <p>Merrick, O. J., dissenting. The object of construction of an instrument is to ascertain the intention of the parties. That intention, when ascertained, is the act itself; the notarial instrument is but the evidence of it.</p> <p>One of the first rules of construction is that the instrument must be understood according to the subject matter of the contract, verbo debeat imteXligi, secimdAtm axibjectam materiam.</p> <p>It is the common intent of the parties — that is the intent of all the parties that is to be sought; for if there was a difference in this intent, there was no common consent and consequently no contract.</p>

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

<p>In an action on a valued policy of insurance the plaintiff is not put on proof of interest in the object insured by a plea of the general issue.</p> <p>When the shipper has insured the freight, unless there is a special denial in the answer that he paid the freight in advance the fact need not be proved.</p> <p>Freight paid in advance is a lawful object of insurance, and the underwriter cannot avoid liability on the ground that freight thus paid in advance might be recovered back in consequence of the loss of the cargo.</p>

<p>Payments made by a factor of debts due by his principal, are considered as money advanced by the factor and without a subrogation to the rights of the creditor, the factor cannot claim any privilege arising from the nature of the debts thus paid.</p> <p>The terms “necessary supplies ” furnished to a plantation, include such supplies only as are essential to the subsistence and management of the plantation.</p> <p>Factors who have furnished supplies to a plantation, as regards creditors having an equal privilege with themselves, can only claim a ratable proportion of the proceeds of the whole crop.</p>

<p>A., executrix of the estate of i?., left the State, after having appointed G. as her agent. Certain property of the estate was afterwards sold by order of court, and the price in cash and notes paid over to G. as the agent of the executrix. Shortly after A. died, and (7., the agent, was appointed executor of JS.’s estate, and in that capacity collected the part of the price unpaid. No account of the price was rendered to the heirs of -5. by the representatives of Aand her successor in office rendered no account thereof.</p> <p>JTéld: That the failure to deposit the power of attorney of the executrix in the office of the Recorder of Mortgages did not affect the validity of the proceedings under which the property was sold.</p> <p>That the heirs of the executrix, at whose instance the property was sold, could not be made liable for the price: 1st, because the part of the price unpaid at her death was properly paid to her successor in office, and 2d, because the cash payment having been made to 6y., as agent of A., in her capacity as executrix, he is presumed to have been in possession of the amount at the death of A., and when afterwards appointed the successor in office of A., to have kept possession of the fund in that capacity.</p>

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

<p>Where property is seized under execution and the sale is enjoined by a third person claiming to be the owner, it is the value of the property under seizure, ansi not the amount for which the writ issued, which determines the right of api>eal.</p>

<p>In every sale of a seaworthy steamer, where time is given for the payment of the price, it is to he considered as having been in the contemplation of the parties, that the vessel was to be employed in navigation, and even if that navigation extends beyond the waters of the State, in the absence of any allegation of fraud or insolvency, the vendor will not be permitted to' attach the boat where the price is not yet due, by swearing that the debtor is about to remove his property out of the State before the debt becomes due.</p>

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

<p>The transfer of a judgment rendered in another State, which is final between the parties, cannot be resisted when sued on by the assignee in this State, as being the sale of a litigious right.</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>On motion to dismiss the appeal—</p> <p>The Supreme Court derives its jurisdiction from the Constitution, and the repeal of a statute which had conferred jurisdiction on it does not affect its powers.</p> <p>The affidavit of the^appellant, in a suit for divorce, that his interests involved in the suit exceed three hundred dollars, is sufficient to give the Supreme Court jurisdiction.</p> <p>On the merits—</p> <p>The plaintiff had filed a supplemental petition, after answer and reconventional demand by the defendant. A default was taken on the supplemental petition, which was aftewards confirmed eco parte upon the deposition of a witness examined under commission. The case did not stand fixed for trial at the time. Reid: That such a proceeding was irregular and that no judgment should have been rendered on the supplemental petition, until the whole case had been regularly tried.</p>

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

<p>John McDonogh% by his will, instituted as his universal heirs the city of New Orleans and the city of Baltimore; he gave as an annuity to the Society for the Belief of Destitute Orphan Boys, one eighth part of the nett yearly revenues of the rents of the whole of his estate,- until $£00,000 was realized; the said one-eighth part of the revenues to be set apart yearly or half yearly by the Commissioners and Agents of the general estate, (for whose appointment the will provided,) and deposited in some one or more of the banks of New Orleans until the same should amount to $£00,000. The will provided that the said amount should be invested in the purchase of real estate, from which a perpetual revenue from the rents of said estate should be drawn for the support of the Institution; that the Directors of the said society, assisted by the Mayor and Aldermen of the city of New Orleans should make the investments, and that the Mayor and Aldermen should approve of the purchases of real estate and become parties to the deeds by which the property should be acquired. Held: That the pendency of a suit between the cities for a partition of the succession, was no bar to an action for such instalments of the annuity as had fallen due; that the mode of investment was a matter of mere form which could not operate to annul or defeat the bequest ; that it was not in the power of the testator to compel the city, through its Mayor and Aider-men, to become a party to the purchases in real estate in which it was to have no interest, it being the intention of the testator that the Society for the Belief of Destitute Orphan Boys should be the recipient of the bounty; that the liability of the defendants to discharge the legacy was not affected by the control over the estate given in the will to the Commissioners and Agents whose appointment was directed; that it was contrary to public law and policy that the simple tenures by which alone our laws permit property to be held, should be so complicated; and that such illegal modes, conditions and charges imposed by the will are to be disregarded.</p>

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

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

<p>Appeal from the District court of the parish of St. James, Ratliff.| J., presiding.</p>

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

<p>Several distinct causes of action cannot be cumulated against several defendants in one suit, unless the defendants have a common interest to be adjudicated upon in one judgment.</p> <p>Proceedings, under the Act of 18á0, against a defendant for fraud, may be cumulated with a revocatory action for the rescission of the alleged fraudulent sale; and in such a proceeding it is not only the right but the duty of the plaintiff to make parties to the suit all who have an interest to be affected by the judgment.</p>

<p>Appeal from the District Court of Lafourche*Randall, J.</p>

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

<p>Xhe certificate oí the Clerk that “ the transcript contains a true copy of all the papers and documents filed and all the proceedings had, all the orders of court of record and all the evidence adduced by the parties on the trial of the cause, cannot be contradicted by an affidavit in the Supreme Court that the original citation to the defendant was among the papers when the judgment 5>y default was rendered and when the appeal was taken.M</p>

<p>When the Sheriff, before the return day of the writ, had notified the plaintiffs of his release of the seizure of a slave on account of an adverse title set up by another, and had called upon both parties to point out property subject to seizure, which they failed and refused to do. Held: That the subsequent neglect of the Sheriff to return the writ on the return day, did not subject him to the statutable remedy by rule, which is not applicable to such a case. The plaintiff should have resorted to an ordinary action for damages.</p> <p>The Legislature in 1855 having re-enacted the 17th Section of the Act of 7th April, 1826, without change, thereby ratified the judicial construction the Act had received.</p>

<p>Appeal from the Fifth District Court for the Parish.of Assumption, Gole, J.</p>

<p>Where a part of the testimony taken in the lower court has been lost, the case will be remanded for a new trial.</p>

<p>A conditional endorsement does not bind the endorser if the condition be not accomplished.</p>

<p>The duties which the law imposes on common carriers of passengers by water, in relation to the treatment and accommodation of passengers during the voyage, necessarily cease on the termination of the voyage. If, during the voyage, a contagious disease breaks out on the vessel, and on her arrival at port the city authorities find it necessary, in order to prevent the spreading of the infection, to have her sick passengers sent to the hospital to be treated, the owners of the vessel cannot be made liable for the expenses incured thereby.</p> <p>"When the consignees of the ship have paid the contribution imposed by the Statute as hospital money, and the act of introducing the passengers is not in violation of any prohibitory law, an action for damages arising from a quasi offence will not lie.</p>

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

<p>It is the amount due at the institution of the suit which constitutes the matter in dispute, and determines the right to- appeal as affected by the amount involved.</p>

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

<p>A witness, called to testify to the existence and contents of a deed, cannot be objected to on the ground that he obtained his information as attorney of the party against whom he is called to testify, if the deed had been intrusted to him after the relation of attorney to the party had ceased.</p> <p>The fact that the party against whom evidence is offered of the contents of a deed is in possession of the instrument does not authorize secondary evidence to prove the contents of it, without first giving him an opportunity of producing the original.</p>

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

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

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

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

<p>The heir who has permitted thirty years to elapse without having done any act showing an intention to accept the succession is barred by prescription from any rights as heir. O. 0.1028.</p>

<p>There was a judgment decreeing in favor of the x>lainti(f a servitude of passage, &c., over defendants’ lots, for which a suspensive appeal was allowed, oil defendants giving bond in a sum fixed by the court. The condition of the bond given was that the defendants should pay whatever judgment might be rendered against them. IIeld: That it was not necessary that the value of the servitude should be estimated and referred to in the motion for the appeal; that it was the duty of the Judge to fix the amount of the security when the order was granted.</p> <p>Article 577 of the Code of Practice is applicable to judgments decreeing the delivery of real estate yielding revenues, and not a right of servitude.</p> <p>If the proprietor of two estates, between which there existan apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist, actively or passively, in favor or upon the estate which has been sold. C. C. 765.</p> <p>Parol evidence is admissible to prove the existence of such apparant servitude. Where parties have been acting in good faith in the assertion of what they deem to be their legal rights, a case is not made out for damages.</p>

<p>An attachment will not lie in an action for damages eec delicto ; nor in an action for the settlement of a partnership before any liquidation of accounts, when, from the nature of the business, it is impossible that the plaintiff can swear with certainty to the amount that will be found due to him on a final settlement.</p>

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

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

<p>A bill of exceptions should be taken or reserved at the time the ruling of the Judge in the matter complained of was made. If not then reserved, the Judge cannot be compelled on a subsequent day to sign a bill of exceptions.</p>

<p>Appeal from the District Court of Carroll, Fa/rra/r, J.</p>

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

<p>Where the mandatary has made no agreement for a compensation for his services, and it cannot be inferred, either from the nature of the employment or the relation of the parties, that it was in contemplation of both parties that the mandatary should receive compensation for his services— it is a case of a gratuitous procuration, and the mandatary is not entitled to compensation. O. O. 2960.</p>

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

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

<p>Appeal from the District Court of the parish of St. James, Ratliff, Judge of the Seventh District, presiding.</p>

<p>Appeal from the District Court of Madison, Farrar, J.</p>

<p>"Whatever may have been the authority of a Commissioner of Election to inquire into the evidence of citizenship of a voter, prior to the passage of the Act approved the -20th of March, 1856, entitled “ an Act providing for the Registry of the names and residence of all the qualified electors of the city of New Orleans, according to Artiole-eleventh of the Constitution of the State,” he has no such power as the law now stands.</p> <p>By the said Act of March 20th, 1856, an officer is created having authority to receive and consider the proof of citizenship of any person desirous of exercising the elective franchise in New Orleans, and proof being made according to certain rules and forms of evidence set forth in the statute, to enregister the name of the applicant as a qualified elector, and to deliver him a certificate*</p> <p>This certificate is, by law, full proof of the right to vote at the day of its date of the person named in it, and no person can vote in New Orleans who is not the bearer of a certificate of registry.</p> <p>The office of Register, under the statute, is a special tribunal for the trial of the right to vote in New Orleans; and the certificate is in the nature of a judgment, which is not subject to revision by the Commissioners of Election.</p> <p>These judgments of the Register are, however, subject to revision. The '9th section of ,the Act provides a mode of redress, by a suit against the Register, for an applicant to whom the Register shall ‘ refuse a certificate. And the validity of the certificate, and the sufficiency of the proof upon which it was based, may in all cases be examined upon the contest of an election, by the tribunals seized of the jurisdiction of such contest.</p> <p>Where the registry of the vote is more than three months old, and there is no change of domicil endorsed upon the certificate, the vote may be challenged upon the ground that the voter has changed his domicil since the date of the registry, and by such change of domicil has lost his vote in that precinct. Upon such challenge being made, the Commissioners of Election may lawfully swear the voter as to the fact of his change of domicil.</p>

<p>Appeal from the District Court of Pointe Coupée, Gooley, J.</p>

<p>The interdiction of the wife for the cause of insanity, is no ground for a decree of separation of property against her in favor of the husband.</p> <p>The community can be dissolved by the husband, only by the eifects of the dissolution of the marriage bond, or a separation a mema et thoro, of which a dissolution of the community ip thelogical sequence.</p>

<p>Judgment reversed where rendered on issue joined by defendant, a married woman, unauthorized by her husband or the court.</p> <p>The husband being sued with the wife, and both cited, the plaintiff might have made his judgment by default final on proving his demand, but it must appear from the record that such proof was made.</p>

<p>When the wife by the marriage contract constituted to herself as dowry certain slaves, and her father became a party to the contract and signed it, he is estopped from contesting his daughter’s title to the slaves.</p>

<p>Where, to enforce a mortgage containing the pact de non alienando property had been sold under an order of seizure and sale, prosecuted contradictorily with the third possessor, who was an absentee, by the appointment of a curator ad hoc, and when the order of sale, and all the proceedings under it, were subsequently homologated by a monition; Held: that the judgment could not he collaterally attacked by one claiming to have derived his title subsequently from such third possessor.</p> <p>The purchaser in possession under such a sale cannot be disturbed in his title, on the ground of irregularities and defects in the executory proceedings, from which the parties in interest might at the time have been relieved by appeal.</p> <p>The vagueness and uncertainty in the description of the property in the act of mortgage will not be permitted to operate to the injury of a purchaser in good faith who went into possession under the sale of the property, which was understood at the time to be the object of the mortgage and sale under it. The notice with which the parties under whom a claim is set up adverse to the purchaser, is chargeable, is sufficient to vest in the purchaser a valid title to the land which he went into possession of under the sale, notwithstanding an uncertainty in the description as to the land</p>

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

<p>Where the Sheriff is incapable of acting by reason of interest and there is no- Coroner of the parish the Judge may appoint a special officer to attend the jury during the trial.</p>

<p>,1 ix PPEAL from the Ninth Judicial District Court for the parish of Pointe Coupée, Cooley, J.</p>

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

<p>A minor emancipated under the Act of the Legislature of March 1855, but not yet over twenty-one years of age, is invested with all the capacities in relation to his property and obligations which, he would have had actually at the age of twenty-one years, and may be appointed Administrator of a succession.</p>

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

<p>"When an attorney’s fee is contingent upon his success in collecting money for liis client, the fee not being exigible until the money is collected, prescription against the attorney’s demand does not begin to run from the date of the judgment he has obtained for his client.</p>

<p>The defendants, the factors of the plaintiff, effected insurance on their stock of tobacco and other merchandize in four different insurance companies. Some of the insurances were for six months, others for a year, and at different rates. The rate of insurance was equal to one-eighth of one per cent, per month. The plaintiff, in the accounts rendered of sales of tobacco, was charged one-fourth of one per cent, per month for insurance. Held: That the defendants were not to be considered as plaintiff’s agents in the insurances they had effected, but they are to be considered as being themselves the insurers of the plaintiff at the rate of one-fourth of one per cent, per month, and as having re-insured at the best terms they could obtain in the different insurance offices in the city.</p> <p>The plaintiff’s tobacco having been lost by fire, the defendants are not entitled to charge commissions on sales not actually made. Their liability to the plaintiff is that of insurers.</p>

<p>The first section of the Act of the'Legislature of the 10th of March, 1847, conferring upon administrators and other representatives of a succession, the power of acting as auctioneers in the sale of the property of the succession, was not abrogated by the Act of the 7th of April, 1847, directing the Judge of the court to order the sale to be made by the Sheriff of the parish or such auctioneer as the parties might name.</p> <p>The two Acts passed at the same session are not so uttefly inconsistent with each other as to be wholly irreconcilable.</p> <p>Although the action for a reduction of the price of land on the ground of deficiency in quantity be prescribed, it may nevertheless be setup as a means of defence against a demand for the price.</p>

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

<p>To sustain an order of seizure and sale at the suit of the administrator of a succession, authentic evidence of the plaintiff’s appointment as administrator is necessary.</p> <p>It is too late to supply that evidence after the appeal from the order is granted.</p>

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

<p>The Legislature may constitutionally delegate to Police Juries authority to pass all such ordinances as they may deem necessary relative to roads and levees.</p> <p>The Police Jury may, in order to avoid the expense of expropriation of property, authorize the owners of the soil over which the road passes, to keep up gates by which the right of way may be secured to the public with the least injury to the owner.</p>

<p>In an action by an overseer for his wages, a plea in reconvention may be set up by the defendant, claiming damages for the unlawful killing of one of the negroes by the overseer.</p> <p>An overseer is not permitted to chastise the slaves of his employer with unusual rigor, nor to maim or mutilate them, or to expose them to the danger of loss of life.</p>

<p>APPEAL from the District Court of Carroll, Fao’rar, J. Tried by jury.</p>

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

<p>■ The Sheriff may, in the exercise of a sound discretion, levy an execution on property apparently belonging to a third person, when he has good reason to believe that the property is held for the purpose of sheltering it from the legal pursuit of the creditors of the debtor in execution, but he renders himself liable for damages if he seizes any other property than that of the defendant in execu-</p> <p>A bond of indemnity tendered to the Sheriff, neither lessens nor adds anything to his obligations or duties, nor will it justify him in making an illegal seizure.</p> <p>The mere failure of the Sheriff to make a return of the execution within the legal delay will not subject him to the payment of the amount specified in the writ, if circumstances are shown to excuse his failure.</p>

<p>Appeal from the District Court of Bast Baton Rouge, Robertson, J.</p>

<p>*When the return day mentioned in a commission for taking testimony has expired, testimony taken under it is taken without authority and cannot be received.</p> <p>An order extending the return day, made after it had already expired, would not render testimony admissible which had been taken without authority.</p> <p>A public officer ought not to be permitted to testify as to the contents of documents in his office, without annexing copies of such documents to his deposition. The witness may annex to his answers the entries made in books and explanation of erasures.</p>

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

<p>-In an action for the liquidation of the affairs of a partnership, when one partner, the plaintiff, sets up a claim under express contract for compensation for extra services or labor, testimony is inadmissible to prove the value of the services of the other partner under a claim by reconvention on a quoAiiv/ni valebant</p> <p>No partner is entitled, unless under a special agreement, to any compensation, commission or reward for his services while employed in the partnership business.</p>

<p>Where the answers of a witness to cross-interrogatories are imperfect and evasive, the deposition cannot be rejected on that account. The objection goes to the credibility of the witness alone, if all the cross-interrogatories have been answered.</p>

<p>Where the plaintiff in an injunction seeks to restrain the execution of a judgment, on the ground that the property seized does not belong to the judgment debtor, but to the plaintiff in injunction, no other issue can be made but that of ownership. An affidavit that the Sheriff had “ seized ” the individual property of the defendant, without any description of the property seized, or statement of its value, is too vague to authorize an injunction, and the petition which is not sworn to cannot supply the defect.</p> <p>The fee of counsel for the defendant should be assessed as damages on dissolving the injunction, although it was not shown to have been actually paid. The liability to pay it, is sufficient.</p>

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

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

<p>The Statute of 1852, which declares that “ the prescription of all other open accounts, the prescription of which is ten years, under existing laws, shall be prescribed by three years,” is not applicable to the case of a demand for balance of subscription to the capital stock of a corporation.</p>

<p>Under the law which prescribes the obligation of proprietors of lands bordering upon the river to suffer the servitude of a levee for the use of the public, the soil alone owes the servitude.</p> <p>TFhen, for the public safety, it becomes necessary to construct the levee on ground on which buildings had been erected by the proprietors of the soil at a time when no immediate servitude was due the public, and the buildings are demolished for that purpose, the owners are entitled to be com" pensatedfor their value, to be estimated at the time they were taken for public purposes.</p>

<p>District Judges have power to admit the accused to hail, at chambers, without proceeding by habeas corpus. An error in the mode of proceeding will not invalidate the decree or the bond taken under it.</p> <p>Deputy Sheriffs are expressly authorized by law to> represent the Sheriff in all duties confided to the latter. They have the power to receive an appearance bond and discharge the accused upon its execution, although the order of the Judge directed it to be taken by the Sheriff.</p> <p>"When the bond has not been filed it cadnot be considered as in evidence, or as produced on the</p>

<p>Hie principles of law settled ip the case of Stewart v. The City of Jtfew Orleam-, 9 An. 461, reaffirmed.</p> <p>Under that authority, held? that the city was pot liable ip the present case for the nonfeasance or misfeasance of the officers .of the police jail.</p>

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

<p>Appeal from the District Court of Madison, Farrow, J.</p>

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

<p>Appeal from the District Court of East Eeliciana, Satliff, J. Tried by a jury..</p>

<p>The Acts of the Legislature, approved March 7th, 1816, and March 16th, 1818, pointing out the manner of obtaining residence within the State, related to the acquisition of political rights.</p> <p>They prescribed condition? on which a political domicil could be acquired.</p> <p>A person who actually lives In the State, animo manendi, must be sued personally. He cannot be brought into court by attachment, because he has occasionally gone outof the State, for temporary purposes, in each year since he came to the State to live.</p>

<p>The fees for services of an attorney at law, although he has acted under an appointment by the court, as tutor ad litem, for minors, cannot be recovered in a proceeding by rule,,.after the determination of the litigation in which he has been employed.</p>

<p>Actual possession of the land is a fact indispensible to be proved in order to sustain’ the possessory action. O. P'. 47.</p> <p>A mere civil or legal possession is insufficient, unless it is shown to have bfeen pl-eced'ed at some time by' a natural possession1 in the plaintiff or his authors.</p>

<p>A donation inter vivos, in which the donor makes a reservation in favor of himself of an annuity sufficient for his subsistence according to his previous habits and condition in life, is not a donation “ omninrn, bonorum,,” prohibited by Article 1484 of the Civil Code.</p>

<p>Under the city ordinance providing that “ every keeper of a transient theater, circus, menagerie, or other public exhibition or show, shall pay in advance a tax of ten dollars for each performance,rr &c., a tax cannot be levied on one who keeps a permanent establishment for an exhibition consisting of natural and artificial curiosities, for admission to which visitors are charged a certain</p>

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

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

<p>The acceptance of a succession may be established against an heir by proof of payment of its debts by bitn. He may however rebut the legal presumption arising from such proof, by showing that iff was done under protestation or with other motives and intentions than that of accepting.</p> <p>"Where the heirs have formed a partnership, acts done in the partnership name, which would imply an acceptance of the succession, are presumed to be concurred in by all, and will bind them all in the absence of contrary proof.</p>

<p>PlaintiffsT claim to 574 63-100 arpens of land was confirmed by Act of Congress of 28fch February,» 1823. He claimed 574 63-100 acres, .and in 1849 his claim «was surveyed as containing this latter quantity, and the survey approved. ■ Held: That the plaintiffs’ title to the whole 574 63-100 acres would no doubt be. good against third persons, and against any one not claiming under the United States Government; but that it is not so as against a purchaser from the Government, whose patent must prevail against a mere survey without title.</p>

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

<p>APPEAL from the District Court of Pointe Coupee, Robertson, Judge of the Sixth District, presiding.</p>

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

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

<p>A contract stipulating a compensation for services to be rendered in procuring an Act to be passed, by the Legislature for the relief of the party promising to pay therefor, is contra "bonos mores, and cannot be enforced, even although no improper means are alleged or shown to have been resorted to by the agent in obtaining the passage of the Act.</p> <p>In a case of this kind, which is an exception to the general rule, the party himself will be permitted to allege that the contract was contrary to good morals.</p>

<p>Where usurious interest was stipulated before the passage of the Act of 20th March, 1850, “ relative to the rate of interest,” but paid since the promulgation of that Act — Held: That the whole of the interest paid could be recovered back under the second section of the Act of February 19th 1844.</p> <p>The contract relative to interest was void at the time it was entered into, and it remained unaffected by the subsequent law in existence when the payment was made.</p>

<p>The executor has the right, whether seizin, be given to him in the will or not, to cause sufficient property of the estate to be sold to pay the debts, unless the heirs furnish him with money.</p> <p>He represents the succession fully when he applies to the court for an order for that purpose.</p> <p>The widow has a a vested interest in the community property after the death of her husband, but her acceptance of the community will no more take the administration out of the hands of the executor or administrator of her husband’s estate than would alike acceptance on the part of the</p> <p>The administration of the succession of the deceased husband involves with it the administration of the community, and the executor or administrator may rightfully cause the community property to be sold for the purpose of paying the debts of the succession.</p> <p>The purchaser at a sale thus ordered, acquires all the interest which the widow in community could have had in the property.</p>

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

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

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

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

<p>The Act of the Legislature of 1852, which relieved the Citizens’ Bank from the decree of forfeiture of its charter, while it restored the “ rights and privileges ” of the corporation, is not to be understood as having restored those of the individual corporators, so as to entitle the original stockholders to . a credit at the hands of the Bank, as at present organized, of thirty-three dollars per share, as a loan payable in instalments, according to the original charter.</p>

<p>When the liability of the surety had been fixed by the same judgment in which the principal was' condemned, held, that an agreement under which, without the formality óf a Sheriff’s sale, a twelve months’ bond was given by the principal, to cover the debt and costs, as if the property seized, had been adjudicated on a second crying for that amount, did not have the effect of releasing the surety.</p>

<p>APPEAL from the District Court of West Baton Rouge, Rob&rtson, J.</p>

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

<p>The principles in the preceding case of Perm v. Ott, reaffirmed.</p>

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

<p>APPEAL from the District Court of St. Tammany, Wateopton, J.</p>

<p>■When the defendant had no acknowledged domicil or residence in the parish in which he was sued, field, that the return of the Sheriff that he had left the copies of the petition and citation at defendant’s place of residence in the parish with a white person oyer the age of fourteen years, “ residing at said residence,” was manifestly had.</p> <p>The judgment rendered against the defendant after default thereupon was null and yoid, as the defendant made no appearance in the cause.</p> <p>Counsel fees in the suit to annul the judgment and enjoin its execution were properly disallowed to the plaintiff as damages.</p>

<p>The commissioners are the mandataries of the cities of New Orleans and Baltimore, and derive no power from the will of the testator. (See case of Society for reUef of Orphan Boys v. New Orleans mid Baltimore, 12 An. 62.)</p> <p>The commissioners and agents cannot stand in judgment for the cities without the authorization of the latter.</p>

<p>A notary public cannot be allowed to increase his legal fees for those acts which he does in his official capacity, by testimony as to the value of extra services.</p> <p>A motion filed in the Supreme Court by the defendant, who is appellee, to have the judgment of the lower court amended by dismissing plaintiff’s demand, is a substantial compliance with Articles 888 and 890 of the Code of Practice, and authorizes the entire reversal of the judgment of the lower court and a judgement of the appellate court in favor of defendant.</p>

<p>When the only subscribing witness to an act of sale is dead, and after diligent search and inquiry no one can be found who is acquainted with the signature or place of residence of the vendor, proof of the genuineness of the signature of the subscribing witness will be sufficient proof of the execution of the instrument.</p>

<p>When the wife in opposition to a creditor of the husband, in whose favor she had made a formal renunciation, claimed the property mortgaged by him as her separate property — Held: that a conveyance of the property to the wife, by act under private signature, not recorded, in which the consideration of the transfer was stated to be a partial payment of the amount due to the wife from her father’s succession, without its being shown where the father’s succession was opened, or what amount the wife was entitled to inherit, was insufficient to rebut the legal presumption of title in the community.</p>

<p>Under the 12fch Section of the Act of the Legislature of 18th March, 1820, reenacted in 1855, a prosecution criminally and a conviction is a prerequisite to the civil liability of a party sought to be made liable for the debts of a vacant estate on the ground of having taken possession of it without authority, with the intent of converting the same to his own use.</p>

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

<p>An appeal from an order submitting a cause to referees is premature and will be dismissed.</p>

<p>No action lies for the price of fraud. The law leaves parties who traffic in forbidden things and then break faith with each other, to such mutual redress as their own standard of honor may award.</p>

<p>Although the entire interest of a co-heir in a succession fallen to him may he seized and sold under execution at the instance of a creditor of the heir, the Sheriff is not dispensed from the necessity of seeing that a description of the property seized be given in as accurate a manner as the nature of the case will allow, so that bidders may know what they are bidding for, and the property of the debtor may not be unnecessarily sacrificed.</p> <p>When the proportion of the heir’s interest in the succession was not given, either in the return of the Sheriff or the advertisement of the sale, and it did not appear how many heirs there were, nor of what property the succession consisted, nor what- was the amount of the inventory, the sale was properly declared illegal and void.</p> <p>As the plaintiff, previous to bringing his action to annul the judgment, made a tender of the amount for which his rights in the succession had been sold, and which had gone to the payment of his judgment debtor, it was not necessary to make him a party to the suit to annul the Sheriff’s sale.</p>

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

<p>Insurance companies cannot be made liable in an action for damages, for having conspired and agreed with each other that they would not insure any boat in which a particular person should be employed, in order to prevent that person from obtaining employment.</p> <p>The defendants had the right, separately or acting in concert, to decline taking any risk in any boat on which the plaintiff should be employed as master.</p> <p>Courts can enforce only legal obligations and redress injuries to legal rights.</p>

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

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

<p>Where, by the terms of the policy of insurance, the party desiring to be insured, upon any particular shipment of merchandize, was bound to present to the Insurance Company an invoice of the goods, and pay or secure the premium to the company — ITeld: That on a policy of insurance in this form, there must necessarily exist as many contracts of insurance as the endorsements upon the policy of separate shipments of goods; that such contracts only became complete when the invoices of the goods were presented and endorsed upon the policy.</p> <p>The assured under such a policy could not recover from the underwriters for the loss of goods the shipment of which did not appear by any bill of lading, and of which no invoice had been furnished to the company previous to the loss.</p>

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

<p>The plaintiff was the slave of a citizen of Louisiana, by whose formal act and consent she was emancipated, in the year 1839, in the State of Ohio, where she was carried for that purpose. She subsequently returned to Louisiana and has been residing here since as a free person of color, her former master also residing here. Hele!; That she did not forfeit her freedom thus acquired abroad, by returning to the State. Such penalty is not imposed upon free persons of color for returning to the State in contravention of law. The Act of the Legislature in 1816 does not prohibit an express emancipation of a slave in a foreign State by a master resident in Louisiana. It only guards against manumission being implied from the mere fact that the slave, whether with or without the consent of the master, has been upon the soil of a territory where slavery is prohibited.</p>

<p>APPEAL from the District Court of St. James, Duffel, J.</p>

<p>The prisoner was charged with having committed larceny of the property of Mary Buckley, Proof having been adduced that she was a married woman and that the goods stolen were bought by her while residing with her husband, it was held, that the Judge should have charged the jury, that all property bought during the existence of the marriage is presumed to belong to the community.</p> <p>Por any larceny committed against the property of the community, the chattels stolen should be alleged to be the property of the community.</p> <p>Proof that the chattels belonged to the community, will not sustain the charge that the same belonged to the wife. *</p> <p>The presumption of ownership by the husband might be rebutted by the State by showing that the wife was separate in property from her husband, or that the property was bought in her own name by the wife with her paraphernal funds, or that the husband had himself transferred the goods to the wife for the purpose of replacing her paraphernal effects.</p>

<p>A tender of payment by the creditor in order to exonerate him, must be followed by a consignment or deposit of the money or notes. O. O. 2103,2165; O. P. 405, 407, 412.</p>

<p>A paper filed by an administrator purporting to be his account, but wliich merely gives a statement of the creditors of the estate and the debts which he has paid, but does not show that he had any money in his hands to be distributed, or that he collected or distributed any money of the succession, is not such an account or tableau as could be homologated and made binding upon either the creditors or the heirs, unless they had been personally cited.</p> <p>Any one heir may compel the administrator to render his account without the concurrence of his co-heirs and without making his co-heirs parties to the suit,</p>

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

<p>A privilege on a steamboat for damages, caused by non-delivery of freight, is lost at the expiration of sixty days from the date of the default and consequent liability. After that time elapses, a sequestration will not lie.</p>

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

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

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

<p>The proper mode of seizing a debt existing in the form of a judgment, is a notification of seizure by the Sheriff to the judgment debtor.</p>

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

<p>The right of a plaintiff in attachment to follow the property attached into the hands of third persons who have acquired rights from the owner after the attachment, depends on the reality of the Sheriff Ts possession under the attachment.</p> <p>The possession of the keeper appointed by the plaintiff is the possession of the Sheriff, but if the plaintiff in, the attachment is himself the keeper and suffers the property attached to be taken out of his possession and carried to a distant parish from his own residence, where it is sold without any steps having been taken to regain the possession, he cannot disturb the title of the purchaser.</p>

<p>When appeal is taken by motion in open court, one who is a party to the suit and who signed the appeal bond, although only as surety, will not be permitted to allege that he was not a party to the appeal.</p> <p>Under the terms “ et alii,” parties to the suit not expressly named, may be considered as included among the obligees in the bond.</p> <p>The garnishees had received from the defendants certain promissory notes, with instructions to place the proceeds to the credit of the intervenor-, to whom the defendants were indebted. IIeld: That the property in the notes could only enure to the benefit of the intervenor when he had been informed of what was done, and had assented thereto; until then the defendants might have changed the destination of the property. The rule is that, when the proprietor may sell and deliver, the creditor can seize.</p>

<p>Under the Act of the Legislature of March 15th, 1855, the Governor has authority to appoint a-liquidator to take charge of and liquidate the affairs of any corporation, when its charter has been decreed to be forfeited and and there is no law existing at the time which provides for its liquida-</p>

<p>The deceased by his will, which was executed iu 1848, after a legacy to his wife of certain specified' property, declared as follows:</p> <p>“ AU'the balance of my property, I will to my six brothers and two sisters, to be equally divided be‘tween them, after all claims against me are paid. And, I hereby appoint, Jolm Valentine, my brother, to execute this will; and, in case of his death or absence, PaUtzen Belcher, my wife’s brother. I would recommend that this property be sold, for one-fourth cash, and the balance on six, twelve, eighteen and twenty-four months* time; and the notes secured by mortgage to secure payment.”</p> <p>“ I would recommend that the money be paid to them, so as to be of the greatest advantage to them, possible. There will be somewhere from two> to three thousand dollars for each of them, if it were so divided at the present time. IVhat my property is, and where situated, you will find by the copy of the titles in my bank-box. Although I have made several errors, yet I think the above will be easily understood X have one house on Circus Street; two on Gravier; two on Adele; one corner of Camp and St. Mary; and one vacant lot, corner of Plaquemines and Seventh streets.”</p> <p>Held: that this was a disposition of the property which the testator then had, and was not intended to cover his future acquisitions ; and that, consequently, property purchased by the testator in 1858, after the will was made, did not pass under it.</p> <p>u A disposition, the terms of which express no time, neither past nor future, refers to the time of making the will.” C. C. 1715.</p>

<p>As the jury in trying an indictment for murder have the power to find the prisoner guilty of manslaughter, it was pertinent and right for the Judge to instruct the jury in the law both of murder and manslaughter, notwithstanding his counsel chose to assert that the only issue for the jury to try was the sanity of the accused.</p> <p>The judge did not err in refusing to allow the tardy motion for an inquisition of lunacy, there being no pretence that the prisoner had become insane since the trial, and the" question of his sanity at that time having been fully considered and passed upon by the jury as a question of fact.</p>

<p>An appeal will not be dismissed on the ground that the judgment was not signed when the order of appeal was made, if it appears to have been signed at the time the appeal was made out.</p> <p>■It is not necessary there should be as many copies of a record of appeal made out and filed as there may happen to be appellants with interests in any way conflicting. When the necessary parties are before the court, a transcript filed by any one of them, will authorize the court to adjudicate upon the merits of the whole cause.</p> <p>The right of priority of a creditor making the first attachment, will not be defeated in consequence of another creditor having discovered that there was a dormant partner interested in the property attached, and having attached his interest.</p> <p>When property is attached within the jurisdiction of our State courts, questions of privilege and priority among the attaching creditors, must be determined by the laws of Louisiana.</p> <p>A bill was drawn in Tennessee on a merohant in London, under an authorization to draw against shipments of tobacco to an agent of the London merchant at New Orleans. On the faith of such an authorization, the intervenors discounted the bill, which the drawer afterwards refused either to accept or pay. Held: That the intervenors acquired no privilege upon the tobacco, which they attached in New Orleans, in the hands of the agent of the drawee, because they had no actual possession or control of the tobacco by themselves or by their agents.</p> <p>Under such circumstances, in order to give the bill-holder such an interest in the tobacco as would defeat attaching creditors of the consignors, there should have been an agreement between the consignors and the consignee, that the tobacco should be held by the consignee for the benefit of the -bill-holder, so that the latter would look to the fund for payment, and not to the consignee^ personal credit.</p>

<p>It is the duty of the syndic in selling a slave at auction to declare the existence of any disease in , the slave known to him, and. which could not be discovered on simple inspection.</p> <p>Where he has failed to do so, the sale will be rescinded on the ground of such redhibitory vice.</p> <p>Where the existence of the disease before the sale to the knowledge of the vendor is clearly shown 9 a post mortem examination is not necessary.</p>

<p>APPEAL from the District Court of West Feliciana, Waterston, Judge of the Eighth District, presiding. Tried by a Jury.</p>

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

<p>Novation will not be presumed. ‘‘It can only be established by an express declaration to that effect by the creditor or by acts which are tantamount to such a declaration.” C. C. 2188.</p> <p>When the tutor gave his individual notes for tha amount of an account rendered by an attorney-at-law for professional services in suits in which the interests of the minor were involved, held: that it was not a novation of the debt.</p>

<p>The writ of provisional seizure cannot be sued out without a bond being given by the plaintiifs except in the cases expressly enumerated in the Code of Practice.</p> <p>The furnishers of provisions to the boat’s crew are not furnishers of “materials ” in the sense of Art. 285, No. 8, of the Code of Practice.</p>

The will itself shows that the heir was not in existence at the time of the death of the testator. Held: that these dispositions were conditional, and as soon as the condition was fulfilled by incorporating those asylums, the capacity to take the legacies was then created. “ The direction of the testator to his executors to establish the asylums mentioned in the will, and hand over the legacies to them when incorporated, is not in…

<p>An appeal will not be dismissed, in a case where the Clerk has notice that citations are necessary, by the filing of the petition of appeal but fails to issue them. It is not indispensible that the petition of appeal should contain a prayer for a citation to the appellees.</p> <p>The husband has under his control personal actions to which his wife is entitled, but the joinder of the wife in the suit does not destroy the action.</p> <p>In an action for damages for a malicious arrest, the following instructions to the jury were asked by the defendant: “That the plaintiff must not only prove malice, but must also show that there was no probable cause for the prosecution, and that the defendant is not bound to prove probable cause until the plaintiff has shown the absence of it, and that if the plaintiff show malice and not the want of probable cause, the defendant cannot bo condemned,, as it is just as necessary to show the want of probable cause as it is malice, before a recovery can be had. Held: that the charge asked for was proper, and should have been given to the jury.</p> <p>"Where a person maliciously and without probable cause procures the arrest of another, the error of the magistrate in ordering the arrest on an affidavit which charged no act or offence punishable by law, will not absolve the party procuring the arrest.</p> <p>The court did not err in declining to instruct the jury that the mere belief of the affiant in the truth of the charges would exonerate him, but it would have been proper to instruct the jury that “ probable cause does not depend upon the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting.</p> <p>Evidence of malice on the part of the defendant towards other persons than the complaining parties is inadmissible.</p>

<p>Under a clause in a will by which the testator constituted his executor detamer of liis estate, held, that the seizin of the executor did not embrace the testator’s interest in property belonging to a particular partnership, which the will provided should be continued in accordance with the contract of partnership.</p> <p>The executor is entitled, however, to his commissions on the net proceeds of the crops received by him from the surviving partner.</p>

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

<p>The landlord has a privilege upon the property of the defendant not yet removed from the leased premises. His privilege is continued in force by the order of the court directing the Sheriff to retain in his hands the proceeds of the property seized.</p>

<p>The Sheriff has a right to sue in his official capacity on a bond executed for the price of property-sold by the Sheriff, and for which the bond had been executed in favor of his predecessor.</p> <p>■When an instrument offered in evidence is not objected to, any indorsement on it is considered as proved.</p>

<p>The remedy given to third persons by opposition is limited to the cases specified in the Code of Practice. Such third persons may, as in a separate action, obtain an injunction and arrest the seizure of the property he claims, but he cannot assail the regularity of the plaintiffs proceeding against the defendant in the the seizure.</p>

<p>APPLICATION for a writ of mandamus to the Judge of the Sixth District Court of New Orleans.</p>

<p>The Act of 1855, entitled “ An Act to provide a revenue and the manner of collecting the same,” is not unconstitutional.</p> <p>The practice of the profession of law is not shielded from taxation.</p>

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

<p>APPEAL from the Second Justice’s Court, Bradford, J.</p>

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

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

<p>A judgment homologating the assessment for expense of opening a street, voluntarily executed, has the force of the thing adjudged.</p>

<p>A Sheriff’s deed is a title translative of property, and the title and possession under it cannot he treated by a third person as a nullity.</p>

<p>Damages will not be allowed for delay when no time was specified in the contract within which the work was to be completed.</p>

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

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

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

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

<p>"Where several persons buy a tract of land, in the name of one of themselves, for the purpose of dividing it into lots and squares, and selling the same at a profit to be shared among them, the notes and assets, as well as the unsold lots, are subject to the action of partition, and a suit by one of the partners against the other, to compel him to account for sales made by him, will not be barred by the prescription of ten years.</p> <p>Where it does not appear to have been more the duty of one partner than another to collect debts due to the partnership, and the partner who undertakes to collect them has placed them in the hands of a competent attorney, and has acted in good faith, he ought not to be held responsible for the negligent or irregular acts of such attorney {or other competent agent) although the suit was brought in the name of the individual partner instead of the names of the joint owners.</p>

<p>In assumpsit of a debt GoncUtionaVy^ prescription does not commence to run until tlie condition is accomplished.</p>

<p>Prior to the Act of 183T the office of curator of a vacant estate terminated in one year from the date of his appointment. The action to compel the curator of a vacant estate to render his account seems to be of the nature of the action of mandate, and subject to the prescription of ten years from the expiration of his office.</p> <p>The character the plaintiff has given to his action by his pleadings must determine the prescription applicable to it.</p>

<p>Where the book-keeper of a commission merchant, offered as a witness to prove his accounts, swears to their correctness, hut it appears, on cross-examination, that he made no original entries on the day book, cash book and invoice book — saw none of the goods purchased, and only knows that u he kept the ledger correctly from the entries furnished him by the partners and other clerks”_ Held: That the proof was insufficient. The clerks who made purchases for defendant ought to have been examined, and the drafts and receipts ought to have been produced.</p>

<p>The tacit mortgage of the minor on the property of his tutor can only be enforced for the balance which will appear to be due him, upon an account of tutorship rendered or ascertained by a judgment obtained against his tutor in default 'of rendition of account.</p> <p>The tutor himself cannot assert this tacit mortgage upon property which was affected by it in his hands, and which he has alienated or incumbered in favor of third persons: non constat, that at the termination of the tutorship he will owe the minor anything, and even if this should be the case, the latter would have to proceed first against such property as his tutor might then be possessed of, the law reserving to the third possessors of property sold by the tutor the right of discussion.</p>

<p>The Supreme Court is without jurisdiction when an indictment is quashed in Unvtne^ and consequently no fine has been actually imposed, and the offence charged is not punishable with death or imprisonment at hard labor.</p>

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

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

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

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

<p>Where a charge of false packing is made, in reference to cotton of various planters, in different sections of the country, under circumstances rendering the charge improbable, and the plaintiff' urges a reclamation against the factor who sold him the cotton in lots, and without any particular representations as to quality, the cotton having been sampled by the seller and re-sampled by the purchaser, the latter must furnish clea/r, consistent and cogent proof to enable him to recover. Nor is it sufficient for the plaintiff to show that the cotton, or a portion of it, was mimed; it must also be proved that it was mixed to the prejudice of the buyer, and be made legally certain that the cotton was inferior to the samples by which it was sold. An unreasonable custom will not be enforced. But whether the cotton was fraudulently packed of mixed qualities, or was mixed by carelessness or accident, if it was inferior to the samples, by which it was sold, the buyer is entitled to relief, provided it was so packed that its defects could not have been discovered on simple inspection.</p> <p>The sampling of the cotton by plaintiff’s brokers in Liverpool, and want of correspondence between the cotton he sold there and his samples taken there, cannot affect the defendant. The contract sued on, having been made here, must be governed by our laws.</p>

<p>The presumption created by the Act of 1840 that slaves found on ships, steamboats,- or other vessels, without the consent in writing of the owner, were received on board with the intention of depriving their masters of them, is liable to be destroyed by the testimony of at least two witnesses, not employed on board, and corroborating circumstances. '</p>

<p>Same case, 10th Annual, pages 208 and 792.</p> <p>The circumstance of plaintiff having suffered more than four years to elapse from the maturity of the due-bill held by him before he put it in suit, combined with the fact of a settlement made in the mean time between the parties, which purported to be in full of all demands, is sufficient to throw upon the plaintiff the onus of proving that the consideration of the due-bill was something distinct from the credit allowed him in the settlement in question.</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>Persons owning or chartering a steamboat, are bound by the acts of the Captain employed by them. in matters appertaining to the regular business of the boat.</p> <p>So also a planter for engagements entered into for him by his overseer acting strictly in the line of his employment.</p>

<p>Where testimony had been given without objection, as shown by the bill of exceptions, and its exclusion had, therefore, become impossible, the Jury being already in possession of i -Ueld: That a motion to exclude such testimony was unmeaning and was properly overruled.</p> <p>In providing against the crime of arson, the statute makes no distinction in reference to the ownership of the house, whether belonging to the accused or to a third person.</p> <p>The Judge a quo did not err in admitting evidence that another and different firing of the premises had taken place three or four weeks previously to the firing charged in the indictment, and under circumstances tending to throw suspicion on the defendants of the same crime they are now charged with, and of which testimony had already been offered to the Jury.</p> <p>It is competent for the State to prove by a witness that the defendant had offered such witness a bribe to swear falsely that certain other witnesses, who had testified on the part of the State, had threatened to burn defendants’ house the day before the fire testified to by them. It is not a sufficient objection to such evidence, that the defendant had not introduced any testimony. The evidence objected to did not purport to rebut or discredit any evidence which it was anticipated the accused were about to offer.</p> <p>A verdict in a capital case of “ guilty without capital punishment,” is justified by the 25th section of the Act of 1855, relative to criminal proceedings.</p> <p>The endorsement of the name of the offence on the indictment, is no part of the finding of the Grand Jury.</p> <p>The ruling of the late Court of Errors and Appeals, that the term felony is unknown to the laws of Louisiana, was an unadvised dictum, and is not concurred in by this court.</p>

<p>In interpreting a will, the intention of the testator must be ascertained as far as practicable, and regard will be had to all the facts and circumstances under which the will was made.</p>

<p>Where> at request of prisoners' counsel, the Judge charged the jury that they were the judges of the law as well as of the facts, that this was the law of the case and of the State, as decided by the Supreme Court, but added, that in his opinion, it was “ bad law” — Held: That the accused was not prejudiced by the Judge’s expressing his personal opinion against the iaw.</p> <p>Xlis telling the jury that this was the law of the case "before them., was equivalent to telling them that his private opinion, in regard to the correctness or policy of the law, should not weigh with them, but they must take the law as expounded by the Supreme Court.</p> <p>But the charge as given, without qualification, conceded too much to the prisoner, and did not represent accurately the ruling heretofore made by this tribunal upon the point in question. The jury are not judges of the law and facts in the same sense. They are exclusively judges of the facts; but of the law only subordinate^. They may find a general verdict of guilty or not guilty, and on so doing must pass upon the law as well as the fact. But, while they are under no compulsion to take the instructions of the court as law, they are expected to apply the law as expounded by the court to the facts which they may find.</p> <p>The omission of the Judge to charge some matter which may occur to the counsel as favorable to the prisoner, but which the Judge was not asked to give in charge to the jury cannot be regarded as error.</p> <p>The Supreme court can only act in criminal cases upon matters which appear by bills of exceptions or assignments of error.</p>

<p>The certificate of the secretary of an incorporated, company, bearing its seal* affords prima, facie evidence of the facts therein stated. The court is bound to presume, from such certificate, that legal notice was given to the stockholders of the company of a meeting of which they were entitled to be notified. A special tax was imposed in aid of the corporation, the holders of the tax receipts to become stockholders in the company for the amount thereof. Held: That the payment of the tax does not release the stockholders from the obligations contracted by them under the charter. Instalments of the subscription of the stockholders, fixed and required to be paid in by resolutions of the Board of Directors, cannot be regarded as-open accounts, and prescribed against as such. Such instalments may be considered at least as equal to accowits stated.</p>

<p>The State may appeal in criminal cases where the indictment, charging an offence punishable with death or imprisonment at hard labor, has been quashed before trial, or held bad upon a demurrer.</p> <p>Where there is a discrepancy between the English and French texts of a statute, the former must prevail.</p> <p>The English text is emphatically the la/w. It was intended and is required that the laws should be published and thus promulgated in both languages; but they are enacted, as required by the Constitution, in the language in which the Constitution of the United States is written. A honajide translation into French, and publication of the original and translation, is all that is required; and a mistake in the translation is in the same category with a typographical error.</p> <p>A person present aiding and abetting at the commission of an offence is a principal, and may be punished as such; (overruling the decision in the case of the State v. Hendry ¡ 10 An. 207 )</p>

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

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

<p>The 58th and 59fch Articles of the Civil Code, relating to the sending into provisional possession of the presumptive heirs of art absentee, have no application to the question whether letters of tutorship have been properly granted upon the persons and property of minors whose father is alleged to be dead.</p> <p>The certificate of the Register of Births and Deaths for the parish of Orleans is a legal document, creating of itself a prima facie presumption of the death of a party.</p>

<p>A testamentary executor domiciled out of the State is not entitled to letters without giving security, as is required from dative testamentary executors.</p>

<p>The appeal will be dismissed under the rule of court of 29th May, 1854, where the appellant has died «ince the appeal, and the administrator having received the twenty-five days’ notice required by that rule, fails to make himself a party. _</p> <p>The delay for applications for re-hearing is fixed by law at three judicial days, and longer time should not be allowed within which to move to reinstate an appeal dismissed under a rule of</p>

<p>Proof of verbal acknowledgments of indebtedness is not entitled to much weight, particularly after the death of the person who is alleged to have made them.</p> <p>"Where a minor arrived at the age of majority gives a receipt to his tutor, the receipt is not conclusive against him, and the fact which it recites may be contradicted by oral testimony.</p>

<p>ON the application of Ann L. Webb for a mandamus to the Judge of the District Court of East Baton Rouge, Beale, J.</p>

<p>'The redhibitory action cannot be maintained when the purchaser of a slave permitted many months to elapse, after the first development of disease, without resorting to medical aid.</p>

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

<p>The lemfori governs the admissibility and effect of evidence.</p> <p>The principle as to the liability of common carriers laid down in the case of Wattsw. Steamer Samon, 11 An. 43, re-affirmed.</p>

<p>It is a sufficient compliance with Art. 72 of the Constitution, for the Judge to state in his decree that, “ after hearing evidence and argument of counsel for the reasons assigned in open court, it is adjudged and decreed, &c.”</p>

<p>An action of redhibition to set aside the sale of a slave on the ground that the slave had so little-mind or sense as to be utterly worthless, cannot be maintained.</p> <p>Such a case falls within the Article 2497 of the Code as a defect apparent to any ordinary observer.</p>

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

<p>Where the disease of which a slave died manifested itself within three days after the sale, but death was caused by a relapse not attributable to negligence on the part of the purchaser, held., that the sale should be avoided.</p> <p>The presumption of the existence of a disease at the time of the sale, from its manifestation within _tíjree days after the day, may be rebutted by evidence.</p>

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

<p>An acknowledgment by the father of natural children by his own slave, besides being offensive to morals, is amere nullity.</p> <p>A slave can neither sue for alimony nor inherit.</p> <p>The Act of the Legislature of the 6th March, 1857, which forbids the emancipation of slaves thereafter in this State, renders impossible the enfranchisement of slaves under a last will and testament, not carried into execution for that purpose prior to the passage of the Act of the Legislatature.</p> <p>The testator, after a disposition in favor of his slave Rachel and her children, of one-third of his estate, declared as follows: u I give OAid bequeath the remainder of my estate to my said executor, Charles Dudley Smith,Held: That as it was not the intention of the testator to give to his executor the portion of the estate xn*eviously devised to ‘others, the legacy in favor of the slaves which lapsed in consequence of the impossibility of their enfranchisement, enured to the benefit of the heirs of law of the testator as in case of intestacy.</p>

<p>The first section of the Act of the Legislature of 1855 (Session Acts, 477) merely prescribes the form, of the writ of fieri facias; the second section of that Act prescribes the period within which the writ may be returnable. Held: That when the writ was returnable on a fixed day, which was not less than thirty nor more than seventy days, it was not informal. Held, also, that the Sheriff’s • return, containing no mention of a call on the plaintiff to point out property, was clearly defective, and could not be made the legal basis of a proceeding for a surrender.</p> <p>The default of the Sheriff being established, it was incumbent on him, in order to avoid liability for the amount of the writ, to show a legal excuse, and the plaintiff was not bound to prove that he had been damaged.</p>

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

<p>Where an insolvent had neglected to make one of his creditors a party to the insolvent proceedings and being himself syndic, had, in violation of the Act of 188?, suffered nine years to elapse without filing a tableau of distribution, it was Keltic he was not in a condition to compel such creditor to become a party to his stale proceedings in surrender, but that the creditor might wholly disregard them.</p>

<p>In attaching a vacant lot of ground or tract of land, it is not necessary the Sheriff should take possession of the property attached by the actual and corporeal detention of the same.</p> <p>The execution of the writ has the legal effect of vesting in the Sheriff the civil possession of the defendant.</p> <p>Where the defendant in the writ, or his tenant, held the natural possession of the property attached, it would be different.</p>

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

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

<p>Such portions of the Act No. T1 of 1852, entitled “ An Act to consolidate the city of New Orleans and provide for the government and administration of its affairs,” as are not contrary to the Act No. 164 of 1856, entitled M An Act to amend an Act entitled * An Act to consolidate the city of New Orleans and to provide for the government of the city of New Orleans and the administration of the affairs thereof,’ ” are not repealed by the latter Act.</p> <p>The former city authorities having had the power “ to regulate every thing which relates to bakers,” the present city authorities have not been deprived of it by the Act of 1856.</p> <p>There is nothing unconstitutional in those parts of the city ordinance which regulate the weight and inspection ofbread.</p> <p>The authority given by the ordinance to seize bread unstamped or deficient in weight, and to conduct the offender before the Recorder to be by him dealt with, is not a violation of Article 6 of the amendments to the Constitution of the United States.</p> <p>Violations of the city ordinances may be prosecuted before the Recorders of New Orleans, where it is so directed by law or the ordinance.</p> <p>The forfeiture, for the use of the city workhouse, of bread illegally baked is not a violation of Art. 105 of the Constitution.</p> <p>The contract spoken of by Article 105 of the Constitution, the obligation of which the Legislature is prohibited from impairing, is a contract in existence at the time of the passage of the law.</p>

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

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

<p>It is not for the carrier to render it probable that the injury to freight was occasioned by one of the natural dangers incident to the navigation. It is incumbent upon him to show that he has used diligence and proper skill to avoid the accident, and that it was unavoidable.</p>

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

<p>APPEAL from the Second District Court of New Orleans, Cotton, Judge of the Sixth District Court, presiding-.</p>

<p>When the death of a slave is necessarily connected with and a direct sequence of the vice of character, it can then be no more regarded as a fortuitous event than a death which results from a vice of body.</p> <p>Held: That value of a slave could be recovered where the slave was a notorious runaway, and died of a disease contracted while a runaway, and which was a consequence of exposure in the woods and the eating of indigestible food.</p>

<p>ON application for a mandamus to the Judge of the Fifth District Court of New Orleans, Eggleston, J.</p>

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

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

<p>A testator having no descendents living, devised his whole estate to his mother, brother and sister, omitting entirely his father who survived him. The father made a notarial act of renunciation of all his right and interest in the estate of his deceased son. Creditors of the father claimed the right to have the renunciation set aside on the ground that it was made by their debtor in fraud of their rights as jlament creditors, and to have the portion of the estate for which they alleged the father was the forced heir of his son, subjected to the payment of their claims against the father. Reid : That such an action could not be maintained.</p> <p>There are rights of the debtor which the creditors cannot exercise, even should he refuse to avail himself of them.</p> <p>The debtor in this case would only have the right to demand the reduction of the donation mortis coma to the disposable portion.</p> <p>By Art. 1491 Civil Code, this reduction can be sued for only by forced heirs or by their heirs or assigns ; the wurd “ assigns” is defined to mean those whose rights have been transmitted by particular title, such as sale, donation, legacy, transfer and cession. O. C. 8522.</p> <p>The creditors of the forced heir are not embraced within the definition, and cannot sue for the reduction.</p>

<p>Even after a motion to dismiss an appeal has been filed, the certificate of the Clerk of the lower court to the transcript may be amended.</p> <p>The Act of 20th March, 1839, §19, enlarged the discretionary power of the Supreme Court contained in Art. 898 C. P., and made it imperative, not to dismiss appeals for clerical errors not attributable to the appellant.</p> <p>ín a bond requiring the accused to appear u when notified,” when the Sheriff returns that he could not find the accused after diligent search, and his surety, who was personally notified in time, failed to produce him as he bound himself to do, this was sufficient to put the parties in default, and the bond was properly forfeited against both principal and surety.</p> <p>An objection that the bond only required the accused to appear and answer the charge of robbery, whereas an information was filed against him for the crime of larceny alone, is sufficiently answered by the fact that the accused bound himself, not only to appear at court to answer that specific charge, but also not to depart thence without leave of the court first obtained.</p>

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

<p>The plaintiffs in a petitory action claimed to have derived their title by inheritance from their grandmother, who they alleged inherited the property from her husband, Thomas Bally, who ¿lied intestate. The instructions to the jury were: “ That it was sufficient for tibe plaintiffs, in default of affirmativeproof, showing that Thomas Baity died without leaving an/y ascendants, to show that one hundred years had elapsed between the birth of the nearest ascendant of said Thomas Baity and the institution of this suit. That in order to ascertain whetlber one h/undred years had elapsed from the birth of such ascendant to the time of the institution of this suit, it was sufficient for tibe jury to talco into consideration the age of the witness, the length of time since tibe death of Thomas Bally, his age when he died, and the age that his father must necessarily hare been at tibe time of the birth of Thomas Bally, and that no direct proof of the time of the birth of the father or otlber ascendant of Thomas Batty was required.''</p> <p>It was held that the charge was substantially correct. It suffices to deny that there are heirs in the descending line, and this being a negative, no proof need be given of it. But collaterals must always prove the death of ascendants by evidence, or show that one hundred years had elapsed since the death, in which case death is presumed, and not before.</p> <p>It was also held that the lapse of one hundred years from the birth of Thomas Bally's ascendants to the date of the institution of the suit, was sufficient presumptive evidence to establish that they were not in existence at the death of Thomas Bally, controversy being one between the heirs of Thomas Bally’s wife and the defendant claiming without any title whatever.</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. — Tried by a jury.</p>

<p>The privilege awarded by Art. 8184 of the Code to furnishers of necessary supplies to a plantation, does not extend to a crop entirely cultivated and gathered after the supplies were furnished, so as to take effect after the plantation has been sold.</p> <p>The privilege under that Article “ on the product of the last crop and the crop at present in the ground,” must be confined to the crop cultivated, standing or being gathered and taken off at the time the supplies were furnished, it cannot be extended to the crop subsequently planted and sold with the plantation to a third party.</p>

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

<p>Ef, upon a general survey of the provisions of the policy and the circumstances under which it was procured, it appears that the intention of the company was to insure for the benefit of any person in interest, although not named, the common interest of the parties shall not be defeated for the want of technical or even customary phrases. If, on the other hand, the most natural construction of the policy is, that the party named as the assured only sought to protect his own interest, the contract is not to be extended so as to cover the interest of a third person.</p>

<p>Where a deed was executed in the State of Mississippi in the form adopted in a common law State to create a mortgage there, and real estate situated in Louisiana was embraced in the deed, Held: , That the instrument must be considered as having but a single aspect, and it was not reasonable to suppose that the parties contemplated a mortgage as to the property situated in Mississippi, and a sale as to the property in-Louisiana.</p> <p>From the fact that the%arties to the deed were both residents in States where the common law prevails, and that the instrument was executed in a common law State in the form of a mortgage, part of the property to be affected by the instrument being situated in that State, it must be considered that it was the intention of the parties to create a mortgage to secure the payment of a sum of money.</p> <p>When the purchaser of property was fully informed of the title of his vendor, and that he claimed under a deed executed in another State and embracing property situated there as well as in this State, he was bound to enquire what effect the law would give to such a deed.</p>

<p>The accidental omission in the petition of the name of one of the plaintiffs, where they are a firm, will not vitiate an attachment where the affidavit was made by one of the firm on behalf of the= firm, and the bond was given by the firm as principals.</p> <p>In such a case no new bond and affidavit are required.</p> <p>The property of a partnership having a domicil out of the State can be attached here in a suit against, one of the partners.</p>

<p>APPEAL from the District Court of St. Tammany, Merriclc, J.</p>

<p>Corporations possess onlyjura minorwni. 'They have not the power of contracting on all subjects, like persons of full age and sui juris. Having only such powers as are conferred by their acts of incorporation, they cannot be bound by contracts made by those not authorized to represent</p> <p>A corporation cannot be bound for any contract made without its authorization expressed by a resolution of the Common Council.</p>

<p>The Auditor of Public Accounts has no authority, under the Act of the Legislature of 18th March, 1855, (sec. 9,) to appoint counsel to appear for the State in civil suits in the District Courts in New Orleans, or to appear for the State in the Supreme Court in New Orleans.</p> <p>In the city of New Orleans the State is represented by the Attorney General, its highest law officer, who is required by law to keep his office there.</p> <p>It was the intention of the Legislature, in the above recited Act, to provide for the collection of money due the State in parishes or in courts where the State should be unprovided with an official representative.</p>

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

<p>In the punishment of offences, where the law leaves it to the discretion of the court, the discretion of the court does not extend to the infliction ot the penalty of imprisonment at hard labor.</p>

The court having rendered a decree in favor-of the plaintiffs and appellants, Clcorhe & Bayne applied for a re-hearing: There is no question of more general interest ¿o a commercial community than that passed upon in this case.

<p>APPLICATION for a writ of prohibition to the Judge of the Fifth District Court of New Orleans, Eggleston, J.</p>

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

<p>Where one endorses his name on a negotiable note with a space left in blank for the name of the person to whose order it was to be made-payable to be afterwards inserted, and the maker sells the note in that condition without the blank space being filled, the holder cannot treat the party who had thus endorsed his name as merely surety and hold him liable without notice of pro-</p> <p>It is not unusual to endorse promissory notes containing blanks to be afterwards filled up so as to make the party an endorser, and the note as to him is to be treated exactly as if it had been filled up before he endorsed it.</p>

<p>Where the consideration of a note due in presentí was the acceptance by the plaintiff of the maker’s draft payable at twelve months, by which the latter was enabled to purchase property — Held : That the maker could not resist payment on the ground that the note was not immediately ex-igible.</p>

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

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

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

<p>%'Jie Act of the Legislature of the 5th March, 1852, having fixed the prescription of the accounts of merchants and all other open accounts at three years, whereas the prescription was previously ten years, when more than one-third of the time required for the prescription under the former law had elapsed — JTéld: that the account sued on was prescribed after the lapse of two years (being two-thirds of the time required under the new law) from the date of the promulgation of the statute to the institution of the suit.</p> <p>The Act of the Legislature of 1848 abolishes the distinction between residents and absentees in matters of prescription.</p>

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

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

<p>The commission of the curator of an estate cannot be calculated upon debts included in the inventory, but either fictitious in character or exaggerated in amount.</p> <p>The claim of the widow under the Homestead Act of 17th March, 1852, yields to the claim of the minor whose tacit mortgage dates from a period antecedent to the passage of the Homestead Act.</p> <p>The claim of the widow under the Homestead Act, is superior to all privileges created previously to the death of the husband and subsequently to the- passage of the Act, except that of a vendor, ner privilege yields to funeral expenses, expenses of last illness, and law charges growing out of the administration and settlement of the succession.</p> <p>It is the duty of the representative of an estate, upon the rendition of an account, to support every charge against the estate by a proper voucher.</p>

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

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

<p>A crop growing at the time of the dissolution of the marriage forms part of the acquets and gains. The Judge in decreeing a partition must direct the manner in which it shall be made.</p>

<p>Executory process may be taken out against mortgaged property of an estate yet in course of administration. . *</p> <p>"Where notice of an order of seizure and sale was given to the defendant as tutrix, she having full authority as such to represent the estate ih the proceeding, her qualifying as administratrix did not render it necessary that she should be notified in this latter capacity also.</p> <p>The maker of a promissory note cannot object to the failure of the holder to demand payment at the place of payment, unless he can show that by such failure his funds there deposited to meet his obligation had been lost.</p> <p>Judgment amendéd in the Supreme Court so as to cover an instalment of the mortgage debt falling due since the order of seizure and sale was granted.</p>

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

<p>The Act of the lTtli of March, 1852, providing a homestead for the widows and children of deceased persons, is without effect as to creditors whose rights had- accrued before the passage of the Act.</p>

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

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

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

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

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

<p>(The treaty made in 1853, between the United States and France, confers on Frenchmen, in all the States of the Union, whose laws permit it, the right of possessing real aiul personal property by the same title and in the samo manner as the citizens of the United States, and declares that, in no case, shall they be subjected to taxes on transfers, inheritance, or any others, different from those of citizens of the United States, or to taxes which shall not be equally imposed. Meld: That the succession of a French citizen, who died before the treaty was made, will not be exempted from the operation of the Act of the Legislature of Louisiana, in 1842, imposing a tax of ten per Cent, on successions falling to foreigners.</p>

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

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

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

<p>As a general rule, an executor who endorses a bill or note, although he does so as'executor, is per-' sonally bound ; he is. therefore, incompetent as a •witness to fix aliability on a pVior party to it.</p>

<p>This action was against the drawers of a draft; one of the grounds of defence was, that it had not been properly presented for acceptance. The notary certified that he “had presented the draft to a clerk of the drawees at their office, the drawers not being in, and demanded acceptance thereof, and was answered that the same would not be accepted.” Held: That this was a sufficient presentment, the defendants being merchants, having a counting room in New Orleans. Reid, alsor That it i? questionable whether the drawer was entitled to notice, as he had no funds in the hands of drawees, and it did not conclusively appear that the agreement with them was such as to authorize the drawer to accept an acceptance.</p> <p>If the day on which a draft should, by its terms, be presented comes on Sunday, it may be presented on the day previous. The court should take notice of the fact, that the date of its maturity is Sunday.</p>

<p>Ijl the absence of a special warranty against a particular redhibitory vice, the knowledge of Its existence on the part of the vendor at the time of the sale, although nothing was said' on the subject, will protect the vendor from liability.</p>

<p>Where the sale of specific property alleged to liave been seized under execution is informal, and there bad in fact been no sign of the property, it was error in the court below in dissolving the injunction to allow special damages.</p> <p>The curator acZ hoc appointed to represent several defendants, is only entitled to the simple tax fee of ten dollars, unless he has made application on proof, to have the allowance increased in proportion to the services rendered.</p>

<p>One who is clerk and also in partnership in a particular business with his employer, may, where his duties as clerk and partner are distinct, sue for his salary due him in the former capacity, without resorting to a suit for the settlement of the partnership transactions.</p> <p>A married man may serve his wife in her executorial capacity, for a debt due him by the testator. The institution of the suit by the husband will be considered as an authority to her to be sued.</p>

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

<p>The accused, a slave, was prosecuted under the 6th Section of the Act of 1843, and convicted of stabbing, with intent to kill one Smith, a white man. The Act under which he was indicted, was re-enacted in 1855. ( See Act, p. 50, Sec. 4.) The same Statute was re-enacted verbatim, by the Act of 19th March, 1857. By Section 43, of the latter Act, it was declared “ That all laws, or parts of laws, conflicting with the provisions of this Act, and all laws on the same subject matter, except what is contained in the Civil Code, or Code of Practice, be repealed, and that this Act shall take «ffect'from its passage.” (Acts of 1857, p. 284, Sec. IS. ) The crime charged, was alleged to have been committed anterior to the passage of the Act of 1857. Held, That the Statute, under which the Slave was prosecuted, was repealed by the Statute of 1857, and that the rule of law is, that when a law is repealed, before the final action of the appellants court, the prosecution must be dismissed.</p> <p>In construing penal Statutes, courts cannot take into view the motives of the law-giver, further than they are expressed in the Statute.</p> <p>Where a Statute re-enacts a law, and repeals all other laws upon the same subject matter, theformer laws will be considered as suspended. The promulgation of the re-enacted law, and the repealing provision at the same time, will not have the effect to continue the old law in force, until the new law goes into operation.</p>

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

<p>Where a wife in community takes the title to immoveable property in her own name, she must clearly show that it was paid for with her separate funds to rescue it from the community.</p>

<p>A married woman is responsible cimliler for her wrongful acts, even when done in the presence of her husband.</p> <p>Plaintiff objected to defendants filing an amended answer. Held: That he was properly allowed to do so. The matters set up in it having an important bearing on the merits of the case.</p> <p>The marriage of a minor, and domicilled in Louisiana, contracted in another State, in fraud of our laws, does not emancipate the minor, and her tutor cannot be held responsible for affording shelter and protection to his ward, and even counselling her in her difficulties.</p> <p>A person who, without the consent of the tutor, pursuades a minor to elope with, and marry him, in fraud of our laws, acquires no right to administer her estate, and, perhaps, no right to her person and to her society, except, so far as voluntarily yielded to him.</p> <p>Granting leave to defendants who have been joined’in an action for damages, to have separate trials, rests in the discretion of the Judge who tries the case.</p> <p>Alleged co-trespassers, who have been sued in another Parish for the same cause of action, may be received to testify on behalf of a defendant charged also, as a co-trespasser; his position may possibly affect his credibility, but not his competency.</p> <p>This was an action for damages. The jury found for the defendant; although the court did not consider the defendant free from blame, yet, in affirming the verdict, much stress is laid on the fact that plaintiff had not only acted in a manner grossly improper, but in palpable violation of law.</p>

<p>APPEAL from the District Court of Bossier, Egan, J.</p>

<p>APPEAL from the District Court of Bienville, Egan, J.</p>

<p>The beneficiary heir, of age and present in the State, has a preference for the administration over the tutor of co-heir who is a minor.</p> <p>The term-, beneficiary heir, applies to one who may accept, as well to one who has accepted with the benefit of inventory.</p> <p>A woman may be appointed to administer a succession in which she is interested as heir.</p>

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

<p>Successive injunctions upon different grounds which might have been put at issue in one proceeding, will not be allowed.</p>

<p>The special endorsee of a bill or note, may disregard all posterior endorsements, even though special, and avail himself of the possession of the instrument to sue the maker.</p>

<p>An appeal from an interlocutory order, oyer-ruling a motion to dissolve an attachment, will be dismissed unless it appear that such order will work an irreparable injury.</p>

<p>The defendant, whose property has been seized under an execution, and who has given a delivery bond under the Act of 1842, ( Rev. Stat., p. 528, Sec. 5,)' may make a valid sale of the propeity. The judgment creditor cannot seize the property in the hands of the vendee ,* his remedy is against the parties to the bond. And when the sheriff has declared the bond forfeited, subsequent seizing creditors cannot complain of informalities in the declaration of forfeiture. It is an answer to them to say that the bond was rightfully forfeited.</p>

<p>APPEAL from the District Court of Morehouse. Bicha/i'dson, J.</p>

<p>The parish Treasurer is the depository of the School Fund due to his parish; he may demand payment from the collector, and on his defaulit sue him to recover it.</p>

<p>Where parties have entered into a contract for building a house and subsequently deviated from it, the contract price should, as far a? applicable, indicate the measure of the value of the work</p>

<p>APPEAL from the District Court of Morehouse, Richai’dson, J.</p>

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

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

<p>Sureties on an appeal bonds ought to relieve themselves from liability, on the ground that proper diligence was not used to make the money out of the principal debtor. Held: That it does not appear that by any act or even neglect of the creditor, a subrogation to his rights, mortgages and privileges, can no longer be exercised in favor of the sureties, and they are therefore bound.</p>

<p>APPEAL from the District Court of Union, JiicJicmhon, J.</p>

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

<p>APPEAL from the District Court of Ouachita. 1lichao'dson, J.</p>

<p>The party who relies on an exception dilatory in its nature, although arising from the force of th« proceeding, must specially plead his exception and point out the particular defect upon which he relies.</p> <p>■When a wife had obtained a judgment for separation of property against the husband, and under her execution had purchased a tract of land, but omitted to record the sheriff’s déed to the saime, until after a creditor of the husband had obtained and recorded a judgment against him. JZeld : That the sale to the wife, as to the judgment creditor of the husband was null and void, because not recorded according to law, and that the wife had the option to pay the creditor or suffer the property to be sold and essert her mortgage (and the Valid mortgages to Which she was legally subrogated,) upon the proceeds of the sale.</p> <p>The court takes judicial cognizance of the signatures of recorders, and when no objection, has been made to the introduction of the certificate, it must be held as proving whatever can be reasonably and fairly implied from it.</p>

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

<p>The Act of 1857 which gave to the auditor of public aocouuts the remedy of a writ of distress against delinquent tax collectors and their sureties, merely provided a remedy of which the auditor could have availed himself while it was in. force. But the failure of the auditor to exercise the remedy and enforce the demands cf the State against tax collectors, cannot deprive the State of its right to collect the unpaid dues by another remedy provided subsequent to the delinquency; for when an obligation is due, a change in the mode of procedure does not affect it.</p> <p>Where the obligation of the sureties on a tax collector’s bond is solidary, the State may proceed against them before obtaining judgment against the principle obligator.</p> <p>The caso as presented by this action, is not inconsistent with the Code of Practice, it is not affected therefore by any repealing clause in the law of 1855, for there is a saving clause in the Act excluding from repeal the provisions of the Code of Practice on the subject.</p> <p>Parties who sign a bond impliedly waive defects in its form.</p> <p>Actions against tax collectors or their sureties, are not prescribed by 1, 2, 8, 4 or 5 years.</p>

<p>The right of an heir to an inheritance is not a litigious right within the meaning of Article 2630 of the Civil Code. Such a right may be sold. C. O. 2á2G.</p> <p>A. 3. died, leaving a will in which was the following clause: f‘ I will and bequeath to my wife A. L. 3the use of all of my property both personal and real, during her life.” “ However, if any of my ch ldren sue for a portion during her life, I then will and bequeath to her all of the property that I can dispose of by will, forever.” A child sued for partition, and the question was what were the wife’s rights under the will. Held: That the husband having made a will, his wife’s rights must be fixed by it, and she has no usufruct of his share of the community^ under the Act of 1844. In the absence of proof to the contrary, the law presumes a community. Afterpayment of the debts of the succession, the wife is entitled to one-half of the residue in her own right, and her husband having left three children, she is entitled to but one-third of his share of the community, and one-tliird of his separate estate.</p>

<p>Plaintiffs claiming to have a charter of the Louisiana legislature to construct a turnpike road from Point Pleasant, in the parish of Morehouse, to Bceuff River, in the same parish, alleged that the police jury of Morehouse had opened a road running some distance, parallel with their turnpike» tind intersecting it at one point, thus diverting travellers from the turnpike and inflicting heavy damages in the way of loss of tolls. The action was for damages against the police jury. Held : The charter of the plaintiffs does not deprive the parish of the prerogative of making other public roads from other points even if these roads should cause a diminution of plaintiff’s receipts. •</p>

<p>APPEAL from the District Court of Catahoula, Ba/rry, J.</p>

<p>Three persons signed a bond for the appearance of D., charged with an assault with a dangerous weapon. Two of the sureties delivered D. in compliance with their obligation under the bond. X>. escaped, after the delivery, and the State sought to hold defendant, the other su, ety, liable. Held: When one, of several sureties, on a single bond, avails himself of the privilege of surrendering the prisoner, it must be presumed to be done in the interest of his co-sureties, as well as nf himself, and it absolves all, if it absolves one.</p>

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

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

<p>The highest rate of conventional interest for the loan of money, and two and a half per cent, in addition thereto for advancing, is usurious.</p> <p>If a planter, for a consideration, engages to ship his crop to a factor, and violates his engagements, he will be liable for commissions on the crop.</p>

<p>A credit appearing on a note, will not interrupt prescription, unless it is shown where and by whom the payment was made.</p> <p>Where a judgment creditor seizes property on execution and a third opponent sets up a privilege on the thing seized, it is competent for the seizing creditor to plead prescription against the opponent, nor will the circumstance that the opponent, since the filing of his opposition, obtained a judgment on his claim in a different court, affect the seizing creditor’s right to make the plea.</p>

<p>Plaintiff employed K. as hev overseer and stipulated that he should receive a portion of the proceeds of the crop as compensation for his services. Plaintiff, on grounds deemed sufficient, dismissed him before h is time was up. Held: That K. was entitled to compensation for the value of his services up to the time of his discharge, and that in estimating the value, reference should be had to the stipulations of the contract; to the probable amount which the defendant would have received, had there been no violation of the contract: and to the probable receipts of the plaintiff, had K. discharged his duty in every respect.</p>

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

<p>Remarks made by a slave, in conversation, and consisting merely of a detailed narrative of a past! occurence, should not be received in evidence, as forming part of the res gestee.</p> <p>Two members of a patrol company while on duty hailed a slave, at night, who was riding into a-village. The slave attempted to escape, whereupon the patrol fired on him, and inflicted wotinds of which he died. In an action by the master, against the patrol who shot liis slave, for damgaes. Held: That the plaintiff could not, under the circumstances of the case, recover.</p>

<p>The facts of this case, it was hétela establish simulation.</p> <p>The original papers from other Clerks*' offices will not be received to complete* a record- in the Supreme Court.</p>

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

<p>Ule District Judge of the Parish in which the slaves ave situated, lias jurisdiction to try an action for their partition.</p> <p>Plaintiff need not, in order to sustain a sequestration, swear that he fears defendant will conceal, part with, or dispose of, the property sequestered. It will be sufficient if he make oath of his interest in the property sequestered, and that he fears that defendant will send it out of the jurisdiction of the co-irt during the pending of the suit.</p>

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

<p>A, being indebted to S, deposits in his hands, merchandize to be sold, and the proceeds to be applied to the extinguishment of the debt. This constitutes a contract of mandate between A and J3,which obliges the former to reimíravse’the latter, whatever necessary and useful expenses have been incurred in fulfilling the object of the mandate.</p> <p>A nonsuit entered up against a party who does not appear when called in court, is not such an abandonment of the suit, as prevents it from, interrupting prescription.</p>

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

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

<p>APPEAL from the parish of St. Landry, Bupré, J.</p>

<p>APPEAL from the District Court of St. Landry. The record does not disclose the name of the who tried the case.</p>

<p>The law does not prohibit an allowance of alimony, when a proper case is shown, to illegitimate colored children, out of the succession of their father.</p>

<p>A party who excepts to the proceedings in a cause in which he is interested, must show in his bill all the facts, not otherwise of record, necessary to give the act complained of its erroneous complexion.</p> <p>One accused of murder cannot show, as a justification, that the deceased bore the general character of ? quarrelsome and vicious man. The effect of testimony, offered by the accused, that a pre-</p> <p>• vious quarrel existed between him and the deceased, would tend to aggravate rather than to mitigate the offence.</p> <p>When the accused goes to trial without objection, it will be too late after conviction to urge, as error, that he had not been served with a copy of the indictment and a list of the jurors who were to try him.</p> <p>If an imperfect copy of an indictment be served upon the accused, and he consent to go to trial, without insisting upon a perfect copy and the delay accorded to him by law, it will be too late to to make the objection after conviction.</p> <p>In the absence of a bill of exceptions, it will be presumed, that the accused accepted the jurors who tried his case, and it will be too late to object after verdict.</p>

<p>APPEAL from the District Court of St. Martin, A. VoorMes, J.</p>

<p>The authorities are not reconcileable on the subject of the right of a party to an act, his heirs and assigns to attack the act for simulation. It is more consonant with general principles that they should not be permitted to do so. But forced heirs are to be viewed as third persons, and have the right to attack the act made by their ancestors, on the ground of simultation.</p>

<p>On the death of his wife, defendant qualified as natural tutor to his children. Having married a second time, he left his two daughters with their uncle and under tutor, and moved with the rest of his family out of the State. Plaintiff, the under-tutor, brought suit to deprive the father of his tutorship. The District Court dismissed the suit for want of jurisdiction. But Held: The act of defendant in changing his domicil has not deprived his daughters, who have never left the territorial limits of the jurisdiction, which originally conferred their guardianship upon defendant, of the protection of the-court which conferred such guardianship.</p> <p>Sequestration of the slaves maintained, and the appointment of the father as tutor annulled.</p>

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

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

<p>A whicK starts from, certain points and Hues not recognized as boundaries the parties themselves and not shown by the evidence to be true points of departure, cannot be made the basis of a judgment establishing a boundary1.</p> <p>Ño effect can be given to a plea of prescription where the boundaries are rto‘t established in a manner to show to what property the plea must be applied.</p>

<p>Where plaintiff applied for a new trial, on the ground that the introduction of his letters and account sales, to prove facts specially pleaded, of which facts those letters and accounts were the best and most direct evidence, had taken him by surprise, Hclti: that the new trial was properly refused.</p>

<p>APPEAL from the District Court of Lafayette, Dupré, J.</p>

<p>The only persons who have an interest in opposing the submission by an Administrator of any of the interests of a succession, to arbitrators, are the heirs and creditors.</p>

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

<p>Á sale made by two of three parties, of tfieir interest in a commercial co-partnership, to the third partner, does not deprive- the creditors of the partnership of- their privilege upon such effects of the partnership as may be found in the succession of the latter partner, the vendee,, at hi» death.</p>

<p>A PPEAL from the District Court of Natchitoches, Chaplin, J.</p>

<p>APPEAL from the District Court of Rapides, O. H. Ogden, J.</p>

<p>APPEAL from the District Court of Rapides,. O. If. Ogden, J.</p>

<p>1 PPEAL from the District Court of the Parish of Winn. Trial by a jury.</p>

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

<p>An Administrator dies without having rendered his account. An Administrator is appointed for his estate. The only regular account the latter can render is of the succession of which he is the adoninistrator. By pursuing the forms of law, his account of this administration may bind such persons as are bound to take notice thereof; but lie can bind no one by a pretended account of the administration, by his intestate and himself, of a succession of which he himself never was the legal representative.</p>

<p>The Act of 18£6, prescribes the mode of proceeding in contesting the election of a Sheriff. The Supreme Court is not the proper tribunal to entertain such a contest, and cannot go behind the commission to examine the proof upon which the governor acted in issuing it.</p>

<p>The State has a l-iglitto recover legal Interest on a forfeited hail bond frono tlie- principal' and snretjr therein, from the date of the judgment.</p>

<p>A donation of a slave with the reservation of the usufruct to the donor, during1 his life, is radically null.</p>

<p>An action to recover wages of the officers-, sailors and crews of ships and other vessels, is prescribed in one year, whether they are employed by the season or by the month.</p>

<p>A commission merchant cannot charge a planter for insurance unless he was instructed to insure, or a subsequent ratification by the latte'r is shown. Eight per cent, interest, and two and one-half per cent, commission, avowedly charged for advancing, taken together constitute an usurious charge.</p>

<p>APPEAL from the District Court of Nachitoches, Ohaplin, J.</p>

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

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

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

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

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

<p>An accomodation endorser against whom, and his principal, a judgment in solido has been rendered, on paying the judgment becomes legally subrogated to all the rights of the creditor in a twelve months’ bond given in the case by the principal obligor, and may enforce the payment of such bond by the surety therein.</p>

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

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

<p>The surety may be sued without making the principal a party to the suit.</p> <p>The Auditor’s account, charging a delinquent tax collector with the amount of his defalcation, is sufficient evidence to establish the liability of the surety on the collector’s bond.</p>

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

<p>The information charged that tlic prisoner on, &c., at, &c., “with a certain dangerous weapon, to wit: a pistol, in and upon one Thomas Martin-, did make an assault, by wilfully shooting at hinx with the intent, him, the said Thomas Martin, then and there to kill and murder.” There was endorsed on the information the phrase “ Information with intent to kill,” which formula was re* peated by the clerk in the entry on the minutes of the court. Held: That the mistake of the clerk neither enlarged nor reduced, nor violated the authentic accusation contained in the body of the information on which the prisoner had beon arraigned and pleaded not guilty.</p> <p>The verdict of guilty, found by the jury, was properly followed by a sentence against the prisoner for the offence charged in the body of the information. The minor offence of “an assault with intenc to kill,” endorsed on the information, was not the offence for which he should have been punished.</p>

<p>A motion to dismiss the appeal is too late after the lapse of three judicial days, from the filing of the transcript, and after the cause has been set down for trial at the instance of the party who moves the dismissal.</p> <p>Property sunk in a steamboat and unclaimed for twenty-three years held to be clearly derelict.</p> <p>Excessive damages awarded below will be reduced by the Supreme Court.</p>

<p>'11)6 GL'Betibii bí ii vei-ahdali bf the saino fvidtb ivitii the sttebt, ih frbnt of one’s house, is hfit iiil infringement of the lights of the oUiier of the adjoihing teheinfeht find cannot be complained of as In Violation of the Articles bf the Civil Code regulating the servitudes of light and view.</p>

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

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

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

<p>The defendant, sued for a tax bill, objected to the citation, that the advertisement by which he was cited, under the Act of the Legislature, April 15,1853, was only once inserted in the official newspaper. The objection held not to be valid.</p>

<p>A merchant in Louisville filled an order on him for merchandize to be shipped to the purchaser at Yiclcsburg, «and took a bill oflading for the same, deliverable to the purchaser at Vicksburg, from, the agent of a steamboat on which the goods 'were to be transported, The goods were taken by drays from Louisville to Portland, to be there received on the boat according to the custom of the trade in low water on the Ohio river. At Portland the goods were delivered to a different boat from the ohe from which a bill oflading had been taken, and were never delivered to the purchaser at Vicksburg. IIeld: That the bill of lading in such a case is conditional, and only binding in case of actual delivery of the goods to the steamboat.</p> <p>'íhe vendor of the goods did not use ordinary care and diligence in shipping the goods and the purchaser is entitled to recover back the price paid for them.</p>

<p>The written admission of a party of the fact that he had made a verbal sale of a slave to another, Is primary evidence, and makes legal proof of title to the property.</p> <p>Where a sale is made with the right of redemption, the right must be exercised within the time agreed on, otherwise the purchaser becomes irrevocably possessed of the thing sold. C. C. 2548.</p>

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

<p>Where the defendant, in an injnnction suit prays, in his answer, for damages against the principal and sureties, and the judgment dissolving the injunction is silent on the subject of damages, it is equivalent to a rejection of the claim for damages and the judgment is res judicata between the parties.</p>

<p>The appellee, at any time before the cause is at Issue on the merits, may have the appeal dismissed as being premature* the judgment of the lower court not having been signed.</p>

<p>An appeal from a judgment against the two members of a commercial firm in solido, taken by one of the partners only, dismissed on the ground, that the other partner against whom the judgment was rendered should have been made a party to the appeal, he having an interest in maintaining the judgment to secure his recourse against the appellant for his portion of the debt.</p>

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

<p>Children to the extent of the legitime are not considered as heirs, but as creditors of their father’s estate. They are entitled to the revocatory action only for the enforcement of their legitime, beyond that they are mere ordinary heirs and cannot be heard to allege the turpitude or defeat the judicial confession of their father. Yide Succession of Trimmett, decided in 1854, opinion book 24, page 323.</p>

<p>The mere delay to make payment of the amount of an award, when the debtor has taken no steps to set it aside and has not denied its obligatory force, and when no formal demand upon him to enforce it has been made, will not subject the debtor to the payment of the stipulated penalty in addition to the amount of the award.</p>

<p>The Board of Underwriters in New Orleans being a body composed of private individuals, without being incorporated, and through their treasurer having received on deposit money to which the plaintiff was entitled, it was held: that a suit to recover the money could be maintained against the treasurer in his individual capacity.</p>

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

<p>Where in a suit to enjoin a seizure of property as illegal and to recover damages, the judgment maintaining the injunction is silent as to damages, it is equivalent to a rejection of the claim for damages, and will sustain the plea of res judicata, in a subsequent suit for damages.</p>

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

<p>from the Sixth District Court of New Orleans. Tried by a Jury before Cotton, J.</p>

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

<p>&UCHANAN, J. The testator, who lived in Mississippi, owned, besides his property in that State, a large real estate in Louisiana, worth $840,000. He bequeathed to his daughter, a married woman, $20,000, upon the express condition that she should renounce, within twelve months after his disease, all claims upon the property of his succession situated in Louisiana: failing in which, she should forfeit the legacy of $20,000. This sum wa> paid to her, and a deed of relinguishment executed by her in accordance with the requirements of the will. She received also the further sura of $25,000 from the property of the lather’s succession situated in Mississippi. Held: That the receipt of these sums did not amount to a valid ratification of the act of relinquishment of her claims upon the estate of her father situated in Louisiana; that this deed of relinquishment was without effect, whether tested by the law of Mississippi or of this State, if the law of the former State is to govern, the deed would be void for want of the acknowledgment of the grantor, a married woman, apart from her husband, before a Judge or Justice of the Peace, that she signed, &c., without threats or compulsion of her husband. If the Mississippi statute, prescribing these formalities, be laid out of view, the general principle of the common law, which prevails in Mississippi, that a married woman being considered mbpoieéaie HH, can, in general, do no act to bind her, Would render this deed equally inoperative. 2. If the deed of relinquishment be judged by the law of Louisiana, it is equally void, as not having a lawful purpose. The testator left three children, who are his forced heirs, as to his real estate and slaves, situated in Louisiana, and the clause of his will requiring one of them to relinquish her lawful claim as heir to one-third of his Louisiana property, exceeding in amount to $100,000, on receiving $20,000 cash frotn his executors, under the penalty of being completely disinherited, waá contrary to law, and, therefore, not a valid cause or consideration for the deed of relinquishment. The two sums of $20,000 and 25,000 must be viewed simply as so much received by her on account of her inheritance, and which she may be bound to collate.</p> <p>StOFFOkn, J., concurring. Held : That in so far as the deed of relinquishment affected property situated in Louisiana, its force and effect must be determined by the law of this State, but expressed no opinion upon the validity of the deed, under the law of Mississippi.</p> <p>Merrick, O. J., also concurred in the opinion of Buchanan, J., hut did not consider it clear that the deed of relinquishment should be considered as void; and doubted whether this deed should, be set aside without plaihtiffs órst tendering to the defendants the $45,000 which was received as its consideration out of the Mississippi estate, and which the testator hada right to withhold from his daughter.</p>

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

<p>Xn a contestation between opposing creditors and the syndic of an insolvent, on their oppositions to the tableau of distribution filed by the latter, the decision of the court below on each of the claims in litigation, is a separate judgment belonging to the party in whoso favor it was rendered, and binding upon all parties who did not appeal from it; nor can such judgment be disturbed on appeal, unless the party having an interest to maintain it is made a party to the appeal.</p> <p>Creditors whose claims have been disallowed, cannot make themselves parties to the appeal without giving bond; the appeal bond given by the syndic, will not suffice to maintain the appeal on the part of such creditors; these creditors are alone aggrieved by the judgment disallowing their claims, and not the estate represented by the syndic. In conflicts between creditors in which the syndic is without interest, he cannot be permitted to interfere, and cannot maintain an appeal.</p>

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

<p>The Act of 19fch of March, 1857, providing for an interchange between the Judges of the 7th and 9th Districts, intended that, after the elections of April, 1857, those Judges should first hold the regular series of jury terms, each in his own district, before commencing the interchange.</p> <p>The meaning of ambiguous words, &c., in a law, may be ascertained by examining and comparing with them the context of the law, and by considering its reason and spirit, and the cause inducing its enactment. O. O. 16, 18.</p>

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

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

<p>An appeal will not lie to the Supreme Court in an injunction suit to arrest the execution of an order of seizure and sale for a less amount than three hundred dollars, although the preperty seized Is worth more than $800, and the plaintiff in injunction claims in his petition a larger sum for damages and attorney’s fees.</p>

<p>The Art. 671C. O. being derogatory of the right of property must be strictly construed. The right granted thereby to the first proprietor of lands in cities, who builds, to take possession of the land of his neighbor for the foundation of his building, must be confined to the side walls, and cannot prevent the latter, who afterwards builds, from occupying the whole front of his land, but he has no right to avail himself of the side wall before paying half the cost of its execution.</p> <p>Damages refused to a builder against whom an injunction has been sued out, where the whole foundation of his claim for damages is a supposed hindrance thrown in his way In executing a building contract which confessedly required for its execution the use of a side wall erected by the plaintiff in the injunction, and for which he has not been compensated, where the party against whom damages are sought to be recovered, has resorted to legal means to maintain what he conceives in good faith to be his just rights.</p> <p>The courts should restrain within reasonable bounds, the infliction of pecuniary penalties against a party who has only attempted to pursue what he in good faith supposed to be his legal rights, according to the forms of law.</p>

<p>The Supreme Court is without jurisdiction to determine whether an ordinance of a municipal corporation levying a tax, or imposing a fine, forfeiture, or penalty, less than $800, has or has not been repealed by an Act of the State Legislature.</p>

<p>ON Application for a Mandamus to the Third Justice of the Peace of the city of New Orleans.</p>

<p>Plaintiffs purchased certain premises of which defendant had been the lessee of their vendor for a term of years, already expired, they assuming to prosecute to final judgment a suit commenced by him to oust his lessee, who claimed a tacit reconduction of the lease. This suit resulted in a judgment in their favor, under which defendant surrendered the property to them. Held : That a written notice given by the plaintiff to defendant of their purchase, and that they would look to him for the rent, was not an agreement on their part to charge the same rent as was stipulated in the expired lease.</p>

<p>The knowledge of the existence of a disease in a slave by the buyer, which would deprive him of his action to rescind the sale for a redhibitory vice, must be clearly established. It will not be sufficient to prove merely, that there was some conversation about the health of the slave, although the vendee may have said “ he knew all about the slave.”</p>

<p>It is a sound rule of construction never to consider laws as applicable to cases which arose previous to their passage, unless the Legislature have in express teims declared such to be their inten-</p> <p>The Act of the Legislature declaring, that debts shall bear interest at the rate of five per cent, per annum from the time they become due, unless otherwise stipulated, is not applicable to debts which were contracted and became due before the passage of that law.</p>

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

<p>Where it appeared that defendants had sold the harge that plaintiffs illegally attached — llelfl: That defendants could not maintain an action of damages for loss of freight, hy reason of ,'the illegal seizure.</p>

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

<p>The Act of the Legislature of the 25th of April, 1858, since repealed, which declared “ that each and every incorporated Insurance Company and agency of foreign Insurance Company, in the city of 2T<m Orleans, shall be taxed five hundred dollars per annum, was in contravention of Article 123 of the Constitution, declaring that taxes should be equal and uniform throughout the State.</p> <p>The fact that the Act provided that the amount of the tax should be paid into the treasury department to be divided equally between the different TTire, Hose and Hook and Ladder Companies of New Orleans, did not render it a local^assessment for local benefit.</p>

The judgment in this case is sought tó be reversed on the ground, that the court erred in admitting the confessions of the prisoner, (Record, p. 8.) The hill of exceptions shows, that Kitty went to… Held: that “ in order to exclude evidence of a prisoner’s confession, it must appear affirmatively, that some inducement to confess was held out to him by, or in the presence of, some one holding authority.” These two last decisions were in 1846.

<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>Where a rule to inflict on a syndic the penalty for not keeping a bank book, &c., &c., has been passed upon by the court in homologating the syndic’s account, a second rule, on the same grounds, cannot be taken, unless the right was reserved in the dismissal of the first rule.</p> <p>Nor can the debtor take the rule on the pretence that he is the transferee of claims of creditor unless he has been legally subrogated to those claims.</p>

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

<p>The provisions oí our laws on letting and hiring do not favor abrogation of leases, where the loss or inconvenience is not caused by the fault of the lessor. Except in extreme oases tlie remedy of the lessee is for indemnification.</p>

<p>Appeals in cases of contested elections must be considered as falling within the general rules applicable to appeals in all civil cases and where proper and necessary the return day may be extended.</p>

<p>In cases requiring proof of dates of delivery of a great variety of articles, &c., a memorandum, made at the time, may be referred to by a witness, because of the difficulty, and often impossibility, of malting the proof with certainty without such reference.</p> <p>Where a plantation, slaves, &c., were sold at public auction, testimony offered by the purchaser to establish his claim to certain articles alleged by him to have formed a part of his purchase, was properly excluded on the objection, that they were not embraced either in the printed advertisement or in the inventory read at the sale.</p> <p>A witness maybe interrogated on cross-examination upon matters unconnected with those on which he was examined in chief.</p>

<p>The 6th section of the Act of the 29th of March, 1826, (session Acts, p 140) which provides for a sequestration of the property and a meeting of the creditors of any merchant or trader who shall abscond or conceal himself in order to avoid the payment of his debts, is still in force.</p> <p>That law provides for a mode of proceeding different from the one had in view in cases of voluntary and forced surrender, and is not affected by the Acts of 1855 upon those subjects.</p>

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

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

<p>Where a party, whose property was sold under an order of seizure and sale, was present at the sale and bid himselffor the property, he is estopped from contesting the validity of the sale on merely formal grounds which were obvious to him at the date of the sale.</p> <p>If the advertisement of the sale was defective in not describing particularly the buildings, he should have objected to the sale and not enticed other persons into bidding.</p>

<p>Evidence may be reoelved to show that a note which was given by the former tutor of a minor, in his own name, was in fact signed by him in his capacity of tutor, and that the consideration was a debt due by the minor, Such testimony does not contradict any part of the note, and will authorize a judgment on the note against another tutor to the minor subsequently appointed,</p>

<p>APPEAL from the District Court of St. Martin, A. Toorhies, J.</p>

<p>APPEAL from the District Court of St. Martin, A. Voorhies, J.</p>

<p>The husband Is a necessary party to an appeal taken from a judgment in favor of his wife, and if his name is omitted in the appeal bond, when the appeal is granted, as if on motion in open couTt, the appeal will he dismissed.</p>

<p>A judgment cannot be enjoined by a plea in compensation founded on notes of the plaintiff held by defendant before the judgment enjoined was rendered.</p> <p>In the absence of proof it will be presumed that the notes were acquired before their maturity.</p>

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

<p>The redhibitory action cannot be maintained by the purchaser of a slave at auction where it appears that he was told by the auctioneer in answer to his own question, that the sale was made without any guarantee except of title, and that tor a considerable time before he gave his notes in compliance with the adjudication he was aware of the extent, if any, to which the value of the slave was impaired by tbe alleged malady.</p> <p>From this a waiver of any objection to the purchase on the ground of unsoundness will be inferred.</p>

<p>On the removal to this State of French subjects, who were married and resided long after their marriage in France, a tacit mortgage in favor of the wife for preexisting claims against her husband, originating during their residence in France, does not attach to the immovables acquired by her husband after his arrival here.</p>

<p>The principles settled in the case of Smith v. McMiclcm, 8 An. 821, reaffirmed. A judgment belonging to a partnership in a steamboat, is not liable to seizure under executions issued on a judgment against the individual members of the partnership.</p>

<p>When the husband mortgaged the separate property of his wife to secure a debt due by himself, and the wife appeared in the act and made a formal renunciation of all her rights, it was held that the act was not binding on the wife.</p>

<p>The legal presumption, that the husband of the mother is the father of all children conceived during the marriage, can only be rebutted in the mode and within the time prescribed by law.</p> <p>The right to disavow or repudiate a child born under the protection of the legal presumption, is peculiar to the father and can be exercised only by him or his heirs within a given time an l in certain cases; and if the father renounces the right expressly or tacitly, it is extinguished and can never more be exercised by any one.</p> <p>The disavowal by the father must be made in a judicial proceeding, an action to which the child is a necessary party. If the father has never legally contested the legitimacy of a child born in lawful wedlock, mere oral and ex parte declarations of the father, or his wife, or of the child whose claim is contested, touching the legitimacy, cannot be received as evidence.</p> <p>The penalty of ten per cent, interest upon the funds in hand, for a failure by an administrator to render an annual account, can only be enforced when accompanied by a proceeding to remove the administrator.</p>

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

<p>No remedy is given by statute against a parish, for a private injury caused by the absence of bridges or a neglect to keep them in repair,</p> <p>Where it was not shown that the Police Jury of the parish were under a legal obligation to keep the bridge over a certain water course always in repair — Etelcl; They were not liable for damaji ges occasioned by the ruinous oondition of the bridge.</p>

<p>APPEAL from the District Court of St. Martin, A. Voorhies, J,</p>

<p>APPEAL from the District Court of St. Mary, A. Yoorhiea, J.</p>

<p>The Act of the Legislature empowering the Judge to appoint an Attorney to prosecute in behalf of the State {pro. tempore), when the District Attorney shall not attend, is not unconstitutional.</p> <p>In all criminal cases as well as civil cases, a written assignment of errors must be filed, in eonfor* mity to Art. 897 of the Code of Practice.</p> <p>If the assignment is not filed before the cause is submitted the right to file it is waived,</p>

<p>The word “ immovables,” as employed in Article 3250 of the Civil Code, which specifies the objects which aloft# are susceptible of mortgage was intended to embrace only such things as are immovable by their nattwe^ as lands, buildings, &c.</p> <p>“ An action for the recovery of an immovable estate or an entire succession,” although, by legal intendment considered an incorporeal immovable, is not susceptible of mortgage.</p> <p>An entire succession, disregarding the elements which enter into its composition, is not an object susceptible of mortgage.</p> <p>A judicial mortgage will not attach to an immovable action as distinguished from the property which is the object of the action, nor to the entire interest of the debtor in the movables, slaves and immovables which composed the active mass of a succession falling to him as heir.</p>

<p>APPEAL from the District Court of the parish of St. Mary, A. VoorMes, J.</p>

<p>A party may institute a petitory action for one tract of land, and in the same petition may sue the same defendant for slander of title of another and distinct tract, but could not in the same suit sue for a tract of land and for damages for slander of title to such tract.</p> <p>The confirmation of a land claim enures to the benefit of the original grantor or those holding under him, as held in 3d L. It., 107, Sacbett v. Hooper.</p>

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

<p>APPEAL from the District Court of Lafayette, Dupré, J.</p>

<p>In cross actions brought by husband and wife for a separation from bed and board it was held!</p> <p>That where the faults of the parties are nearly balanced, and are of a similar nature, neither party can be heard to complain in a court of justice</p> <p>Tinder the laW of Louisiana, as hitherto interpreted, disappointments in the marriage relation, and mere incompatibility of temper, are not causes for a judicial separation between husband and wife — excesses, outrages and cruel treatment of a nature to render the conjugal life intolerable, are; but with the qualification, that the party complaining must be comparatively innocent. Mutual insults and outrages, the fruit of mutual pro vocations, unless there be a great and palpable disproportion of guilt, as between the parties, furnish no sufficient ground of action to either.</p>

<p>APPEAL from the .District Court of the Parish of St. John the</p>

<p>In a suit to remove the father from the tutorship of his minor, on the ground of notoriously bad cao« duct, the party should allege particular facts of which the defendant was guilty, in order to enable the court to determine whether such facts constituted “ notoriously bad conduct.”</p> <p>No cause of exclusion or removal from the tutorship is applicable to the father, except that of unfaithfulness of his administration and of notoriously bad conduct. C. C., 326.</p>

<p>The purchaser of property while in the peaceable and undisturbed possession of the property, can* not maintain the revocatory action against his vendor to set aside the sale of the property to hia own vendor, on the ground of fraud and simulation.</p>

<p>It cannot be inferred that the testafor intended to give a general seim/ti to the executor from the following expressions: UI leave the whole of this foregoing, as written, to the management of Fergus Fathom, to have my request carried out fully and faithfully.”</p>

<p>In the jurisprudence of Louisiana a distinction is not made between words actionable and words not actionable as the basis of damages in a suit for slander where no special damages are proved.</p>

<p>The accused had made certain statements as to his guilt to B. Held : that the District Judge did not err in permitting the statements of the accused to B. to go to the jury When the facts embraced therein had been corroborated by evidence aliunde.</p> <p>Although an original confession may have been obtained by improper means, yet subsequent confessions of the same or of like facis may be admitted, if the court believes, from the length of time intervening, or from proper warning of the consequences of confession, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled. In the absence of any such circumstances the influence of the motives, proved to have been offered, will be presumed to continue and to have produced the confession, unless the contrary be shown, and the confession will therefore be rejected.</p>