Volume 13 — Louisiana Annual Reports

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

The appellant respectfully petitions for -a re-hearing, and begs leave to submit the following observations in support of his application: In the opinion delivered by the majority, of the-court, it is observed : “We think it sufficiently established by affirmative, proof; that the pbrtion of the money loaned, which went to nay the debt of $3,611 20, due to the Citizens’ Bank, enured to her benefit.” Hence, it is clear that the attitude, in which the plaintiff stands before…

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

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

<p>In the assessment of damages in a suit upon an attachment bond, the rule is that the plaintiff shall recover the damages actually sustained and no more *: unless in a case where the attachment was utterly unfounded and malicious.</p> <p>Property which is under seizure by the United States Marshal is beyond the reach of the State process so long as the Marshal’s possession lasts, and an attachment from a State court is inoperative on property so situated,</p>

<p>ri‘he captain of a vessel may keep the goods unless the shipper or consignee shall give him security for the payment of the freight. O. O. 3213. But he cannot demand payment before giving the consignee an opportunity to inspect the condition of the shipment, and he is bound upon the consignee’s tendering the freight money, to place the whole lot of goods comprising the shipment on the levee, separate from other goods subject to the inspection of the consignee.</p>

<p>The defendant being sued on his note payable to plaintiff’s order, sfet up as a defence that he had sold to the plaintiff, by notarial act, the stock in trade, &c., of a coffee house, the price of which was composed in part of the note sued on. The notarial ■ act of sale contained an acknowledge ment that the price was paid in “ current money.” ' It was held: 'That as the plaintiff had held the note at the time of the sale, and after the sale had continued to hold it, without making any demand of payment until it was nearly prescribed, parol evidence should be let in to establish that the note sued on formed part of the price of the sale.</p>

<p>The Act of the Legislature of the 25th of March, 1840, which imposes a fine of $500 on the captain and owners of a boat, when a slave is found aboard without a written permission of the owner, does not make it necessary there should be a conviction in a criminal prosecution to entitle the owner to recover the fine.</p> <p>A guilty intention is a necessary element in ascertaining whether the penalty under the statute has been incurred, and although the fact of the slave having been found aboard without such permission of his owner, is presumptive evidence of the guilty intention of depriving his master of him and of transporting him out of the State, or from one part of the State to the other, yet such presumption may be rebutted by other evidence.</p>

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

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

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

<p>’Hhe Article 456 of the Code of Practice does not refer to the award of amicable compounders. Where there is no allegation of fraud or other malpractice the homologation of the av/ard of amicable compounders should be made on motion without any delay being granted to the adverse party.</p>

<p>Where the petition and notes annexed had disappeared from the Record and could not be found after diligent search, the case was properly tried on a copy of the petition filed under an order of court contradictorily rendered.</p> <p>Where consent is the basis of a judgment it must appear before the appellate court by proof independent of the judgment itself.</p>

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

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

Reasons given by Judge Hunt for refusing the new trial asked for in the lower court: “ A motion for a new trial was made in this case on the 22d July, inst., by Mr. Abell, of counsel for the defendant, on seyeral grounds. “ 1st. That the verdict of the jury is against law and evidence.” This ground is of a vague and indefinite character and presents nothing for examination.

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

<p>APPEAL from the Second District Ooui't of New Orleans, Morgan, J.</p>

<p>1. A suit instituted upon a note before it is due has the effect of interrupting prescription so long as the suit lasts after the maturity of the note, even if it be ultimately dismissed upon an exception of prematurity.</p> <p>2. A partial release of the mortgages and privileges of the creditor, releases the surety only pro tanto.</p> <p>Defendants in a chancery suit in the United States Court were ordered, under a penalty, to file a cross-bill and bring in other parties against whom the complainant had demands, but whom he could not cite before the court, as they were citizens of the State with the complainant. These third parties answered by denying the jurisdiction of the court, and in case the plea was overruled setting up matters of defence to the complainant’s demands. The Supreme Court of the United States decided, that the Circuit Court did not obtain jurisdiction over the parties in Louisiana cited in by the defendants, and the proceedings were dismissed. Hélct by a majority of the cov/rt: that these proceedings had the effect of interrupting the prescription as to all of the parties who answered the cross-bill within the period of prescription.</p>

<p>'£he following document, written, signed and dated in the hand of John McDonogh, held to be valid as hi? olographic will or as a oodicil thereto; “ $100,000. New Orleans, January 25th, 1848.</p> <p>Four years from and after xny death, I hereby authorize and direct (and will) my executors to pay unto Francis Pena one hundred thousand dollars. John McDonogh.”</p> <p>fcut this legacy not being within the terms of Article 1624 of the Civil Code, does not bear interest before the suit brought for the same.</p> <p>Conceding the suspicion which may attach to the appearance of a small scrap of paper as the title to a large fortune, and the delay in the person who sets it up four years after the testator’s death as a codicil to his will, yet these suspicions should not counterbalance the testimony of numerous and uncontradicted witnesses who sustain the genuiness of the document.</p>

<p>Where the plaintiff eujoined the execution of a judgment, alleging that it had been paid, and praying that it should be decreed to have been satisfied, the District Judge erred in rendering a final judgment on overruling defendants’ motion to dissolve-the injunction.</p> <p>The conservatory process of injunction in such a case is separate from the principal demand which should be put at issue regularly, before a final judgment could be rendered.</p> <p>An affidavit for an injunction stating, that “ the facts and allegations, as set forth in the foregoing ‘petition, are true, as therein alleged, to the best of his (afficMils') knowledge and belief” is sufficient.</p>

<p>The Act of the Legislature relative to contested elections, (Rev. Statutes, 217,) does not embrace the case of a contested election of the Judge of a District Court out of the city of New Orleans.</p> <p>Out of the parish of Orleans there is no law providing for a judicial scrutiny into the votes for any other than parish officers.</p> <p>In the absence of statutory authorization the courts are without jurisdiction raMone materia, to entertain the case of a contested election, and the consent of parties cannot give them jurisdiction.</p> <p>A Judge of a district embracing two parishes is not a parish officer within the meaning of the Act relative to contested elections.</p> <p>A mandamus will not issue to compel a District Judge to grant an order of any kind in a case where it is apparent that his court is without jurisdiction, raUone materia.</p>

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

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

<p>In the partition of a succession it is not proper, where a part of the heirs have purchased property, to form lots of the notes of the heirs, who were purchasers, with the cash, thus compelling the heirs who had not purchased to receive a part in the notes of their co-heirs. In such case the obliga- * tions of the heirs purchasing at the sale should be assigned to them.</p> <p>When the mass of the succession to be divided is of such a character that it cannot be formed into lots without manifest injury to the parties, that formality is not required.</p> <p>A partition will be set aside where a minor heir is represented by his tutor who is himself a party to the partition. The objection need not have been made by way of opposition before the notary, before whom no contestation could have been made concerning it.</p> <p>The under-tutor, if he be not interested adversely to the minors, properly represents them all in a partition where there is no division to be made of the share of the minors i/nter se.</p> <p>The heirs purchasing at the succession sale are chargeable with the interest stipulated in their notes from maturity until the day of the formation of the mass of the estate for partition.</p> <p>The notary must be assisted by experts in making a partition. C. C., 1289.</p>

<p>like holder of á promissory note, payable at a specified place, secuved by ait act ¡mpoi'fciilgpl confession of judgment, is entitled to executory process agaihst the maker without making authentic proof that the note was presented at that place for payment.</p>

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

<p>APPEAL from the District Court of the Parish of Point J.</p>

<p>A lessor who Instead of resorting to the process of law, uses intimidation or threats of police officers to expel the lessee, will be liable in an action for damages.</p> <p>Where the damages allowed by a jury are excessive, they will be reduced in the Supreme Court.</p>

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

<p>‘X'he rule maintained by the older decisions in Louisiana, that a special endorsement invested the title to a note in the endorsee, who alone could sue on it, was always subject to exception, where it appearel that the endorsee had been merely the agent of the party in whose name the suit was instituted.</p> <p>An order of seizure and sale was properly granted to the mortgagee, on the notes of the defendant, payable to his own order, although there was a special endorsement on the back of the notes to a third party.</p>

<p>The principles of law respecting the right of batture as settled in the cases of K&mie&y v. MwvicipaUty Mo. 2,10 An., 54, and Memy v. Municipality Mo. 2, re-afflrmed.</p> <p>The alluvion belongs to the owner of the soil situated on the edge of the water whether it be a river or a creek, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use. C. C. 501.</p>

<p>The inventory of the estate, which served as the measure of the administrator’s bond, is the basis l^upon which to estimate the commissions of the administrator, and not an inventory taken subsequently without any new bond being given by the administrator.</p> <p>need not specify the charge for each item of service, and it is no objection to it that it makes an aggregate claim larger than that claimed in the petition. When a bill of particulars is called for in a suit by an attorney-at-law for services rendered, it</p> <p>The object of the bill of particulars is to show the nature and extent of the services to enable the court to judge of their value in the aggregate, and no greater amount could be allowed than that claimed in the petition.</p>

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

<p>When a curator’s account is homologated only in “ so far as not opposed,” the heirs are not concluded as to items in the account to which opposition was filed by creditors.</p> <p>The treaty between the United States and Trance, the effect of which was to suspend the State law imposing a tax of ten per cent, on successions falling to foreign heirs, stipulates, “it shall remain in force for the space of ten years from the da/y of the exchange of the raiAficaUone, which shall be made in conformity with the respective Constitutions of the two countries, and exchanged at Washington within the period of six months or sooner, if possible ” Held: Thatunder such a stipulation, the ratifications did not relate back to the date when the treaty was signed.</p> <p>The treaty did not become operative until the exchange of ratifications on the 31th of August. 1868</p>

<p>The presumption which has been applied for the purpose of quieting titles in the interest of parties in possession under a Sheriff’s sale for a long period of time, that the formalities for effecting the sale had been complied with, will not be applied for the purpose of disturbing possession.</p> <p>A Sheriff’s sale is radically null, where the land conveyed by the Sheriff does not correspond with the order of seizure either in quantity or boundary.</p>

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

In his will, Benjamin Blalte uses these words : “ I give to my daughters, Susan, Gatharine and Adeline, thirty-five shares, each, of Virginia Bank… Held: in trust, &c., “ on the same conditions and limitations as is directed and made with respect to the other devises to them in this my will.” Plaintiffs then offered as evidence, an indemnifying and refunding bónd made by Susan E. Blalte, through Gonwwy B. Nutt, her agent, specially empowered thereto, in favor of Dr. Austin…

<p>The plaintiff sued to recover the value of wood cut on his land by the defendants. Held: That the action was prescribed as to damages resulting from a trespass which had been committed more than one year previous to the institution of the suit.</p>

<p>The rule that ia actions of separation from bed and board both parties should be dismissed when guilty of mutual wrongs has its qualification, that the wrongs shouid be similar in nature and so proportioned in extent as to render it difficult to ascertain which party is mainly in fault.</p>

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

<p>The Act of Congress admitting Louisiana into the Union which provides, that It shall be a condition upon which said State is admitted into the Union, that the river Mississippi and the navigable rivers and waters leading into the same and into the Gulf of Mexico shall be common highways, and open to the inhabitants of the States and Territories of the Union, was not intended to apply to streams only capable of an imperfect navigation in time of floods and very high water.</p> <p>The right to charge toll for the use of a lock on a water course is a franchise which the sovereign alone can confer.</p> <p>The Act of the Legislature approved May 25th, 1856, entitled “ An Act providing for the separation of the Lafourche and Terrebonne Navigation Co. from the Barataría Canal Co., and determining the condition of said separation” is unconstitutional and void.</p> <p>There is no law which prevents a corporation from causing some of its works to be built with an understanding with the contractor that he shall be permitted to reimburse himself by the receipt of the toll arising from the same.</p>

<p>The District Court has jurisdiction of an appeal from a Justice’s Court, in a proceeding under the landlord and tenant law, to expel a contumacious tenant, although the price of the lease is under $10.</p> <p>A claim by defendant in reconvention for the value of buildings erected by the tenant, being not properly connected with the main action, is not admissible in such a proceeding.</p>

<p>It is a sufficient ground for the institution of a suit in a State Court to avoid a will and the probate * of the same on proper allegations, that, under the established and settled jurisprudence of the Supreme Court of the United States, the United States Courts will not entertain enquiry into the validity of the will after the probate thereof in a State Court, and that the party causing the will to be probated is fradulently endeavoring to evade the examination of all questions touching the Validity and existence of the will by suits instituted in the Circuit Court of the United States.</p> <p>In all cases an action to set aside a will which had been probated, involves the reversal of the decree of probate, the probate being merely ancillary to the will.</p>

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

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

<p>The buyer has not the right to suspend payment of the price, under Art. 2585 of the Code, where he has made a sale of the land by the same description and for the same price, without warranty against the disturbance which is made the ground of resisting payment, and which was specially mentioned in the conveyance to his vendee.</p>

<p>The Article 1965 of tiro Civil Code, which provides that the action to annul n contract made in fraud of tlie rights of creditors, is to be exercised by the representive of the creditors when there has been a cession of property, is no longer in force, having been changed by the Act of the Legislature, of1855, (Revised Statutes, pp. 256, 257,) which authorizes, in express terms, the institution of such a suit by an individual creditor after the cession of property.</p> <p>The plea of want of service of a petition of intervention, is a dilatory exception, which is waived by pleading to tho vagueness and insufficiency of the petition.</p>

<p>Where, in an action for divorce, añ exparte order had been made allowing the wife $75 per month for her support and on a rule to show cause why execution should not issue, the execution was ordered for a less sum than $300, held: that an appeal did not lie from such order.</p> <p>Ex parte orders for the allowance of alimony cannot bind the opposite party except they may furnish one of the items of proof to justify a third person in demanding from the husband payment for the necessary supplies furnished the wife during the pendency of the suit.</p>

<p>The right of a broker to a commission upon a sale, depends entirely upon the completion of the sale, and brokerage is not due until the sale is executed.</p>

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

<p>Held: That the batture outside of Front street is susceptible of private occupation without injury to the rights of the public upon the banks of the Mississippi river, within the corporate limits of New Orleans.</p>

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

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

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

<p>An account cannotbe considered an “ open account,” and as such prescribed by three years, under section 2 of the Act of March 5th, 1852, where it was signed and rendered by the debtor, with a statement in detail of its debtor and creditor items.</p>

<p>A Sheriff and his sureties are liable for money collected by the Sheriff on a twelve months’ bond which he had taken for goods sold by him officially.</p> <p>Prescription commences to run only from the time when the right of action accrued.</p> <p>The burden of proof is upon the Sheriff and his sureties to show what the former has done with money that he has collected in his official capacity.</p>

<p>The clause in the will of JoJm McDonogh, prohibiting the division of the estate between the cities of New Orleans and Baltimore, held to be a condition contrary to law and to be reputed as not written.</p> <p>A testator can order that the effects given or bequeathed by him shall not be divided for a certain time, which cannot exceed five years. C. 0.1223.</p> <p>The personal charge by the will on the cities to pay over to the American Colonization Society and the Society for the relief of Destitute Orphan Boys, a certain proportion of the revenues of the property bequeathed, did not create a mortgage or real right in favor of the societies on the property.</p> <p>The bequests in favor of the societies are quasi usufructs, and as such, they can only last thirty years. C. O. 607.</p>

<p>The true construction of Art. 2419 of the Civil Code is, that the party attacking a sale as being a disguised donation must prove, either that there was no consideration paid, or that the price paid was less than the one-fourth of the real value of the property pretended to be sold.</p> <p>The advantage which a father bestows on his son, though in any other manner than by donation or legacy, is subject to collation.</p>

<p>APPEAL from the District Court of the Parish of St. Tammany, W-ilson, J.</p>

<p>ÜPhe District Court may entertain jurisdiction of a suit to set aside a decree of the Supreme Court probating a will, when the existence of the will is denied and sufficient charges of fraud are made by one who was not a party to, nor concluded by the decree sought to be annulled.</p>

<p>APPEAL from the District Court of the parish of Carroll, Farrao', J.</p>

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

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

<p>The statute relative to a change of venue in civil cases (Acts of 1855, p. 808,) does not make such change a matter of right, but leaves it discretionary with the court to grant or refuse the application after hearing evidence.</p> <p>Where a seasonable though fruitless effort had been made to examine a witness whose testimony had been taken under commission, in relation to contradictory statements alleged to have been made by him, proof of such contradictory statements was properly received.</p>

<p>In August, 1810, B. by a power of attorney, authorized Vr. S. to collect the purchase money of a tract of land which he had previously sold. A description of the land was given and the attorney was also authorized to ratify the sale. Under his authority, he ratified the sale and collected the unpaid purchase money. Meld: That after so great a length of time, the sale and ratification must be considered as conclusive on those plaintiffs who claim under B.</p> <p>In the absence of all proof of fraud, good faith in the transactions of parties will be presumed after great length of time.</p> <p>The law generally considers the tax and costs as the only damage which a party sustains by the defence of the suit against him.</p>

<p>APPEAL from the District Court of the parish of St. Helena, Watterston, J.</p>

<p>When husband and wife removed from another State to Louisiana and after the removal the husband received money from the estate of the mother of his wife, it was held that the wife had a valid claim therefor against the husband’s estate.</p> <p>The will of W. M. contained the following clause: “ I wish my wife Jemnette Matthews to lime Tier lawful part of my estate, mid her choice of the house servants after my decease, as prescribed by the lams of this State f</p> <p>Held: That the clause, “ her lawful part of my estate,” applied by the testator to his wife, meant, the one-half of the acquests and gains in full ownership, and the usufruct of the other half.</p> <p>Held, also: That the clause by which the testator bequeathed to his wife her choice of the house servants after the testator’s decease, was a bequest of as many as she should choose to select of the slaves employed about the house at the time of the testator’s death, and that the widow having selected four, from, out of the eight or nine in number, was entitled to them.</p>

<p>APPEAL from the District Court of the Parish of Madison, Fas'rar, J.</p>

<p>ON a mandamus to the Eon. P. E Morgan, Judge of the Second District Court.</p>

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

<p>Tho registry of a Sheriff’s deed in the hook of mortgages, does not convey the information required hy the statute ; unless recorded in the hook of conveyances, the property is liable to seizure.</p>

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

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

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

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

<p>Where a contract belongs to a class which is reprobated by public policy it will bo declared void, although in that particular instance no injury to the public may have resulted.</p>

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

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

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

The court, in declaring the sale to the defendant valid, has substantially decided, 1st. That a sale of immovable property by a Sheriff,… Held: that if a man stands by and is silent while his own property is being sold, and suffers another to become the purchaser, or if, by his acts, his conduct or his words, he causes another to believe in a certain state of things, and induces him to act on that belief, he will bo estopped by such proceedings on his part.” They admit also…

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

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

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

<p>The proceeding by rule under tlie 71st section of the Ecvenue Act, against a Tax Collector and bis sureties, is a summary one, to be tried without the intervention of a jury.</p> <p>The time being fixed for answering the rule if the party called upon to show cause neglects to answer, no judgment by default is necessary, but the rule may on proof be at once made absolute.</p>

<p>When an appeal bond for a devolutive appeal was given in favor of tho administratrix, but not in favor of the creditors of the succession whose claims were opposed by the appellant, the appeal was dismissed.</p>

<p>The right given by statute to persons in confinement under a judgment of conviction rendered in a criminal prosecution, of making the appeal returnable before the Supreme Court at its next term, wherever held, and to have it tried by preference, is a right givon only to the prisoner. The State has not the right to have the appeal returnable out of the usual course of appeals.</p>

<p>Where the defence to an action for a balance of account was, that there were usurious charges in previous accounts which resulted in the balance sued for—Held: That if such previous accounts were tainted with fraud or usury, their reception without objection by the party to whom they were rendered, would not be a valid objection to the defence, if it was set up within the time limited to recover back usurious interest.</p>

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

<p>APPEAL from the District Court of Concordia, Haralson, J.</p>

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

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

<p>When the charter of an incorporated company provides that a mortgage stockholder may transfer his stock and bo released from his mortgage, upon the new stockholder furnishing mortgage to the satisfaction of tne President and Directors of the company, no personal liability on the part of the original stockholder remains, after a transfer so made.</p>

<p>The knowledge of the existence of a mortgage communicated to .the purchaser in the act of sale, will bind him without proof of the mortgage being recorded.</p> <p>And when such mortgage contained the pact de non alienando, the purchaser and third possessor is not entitled to notice of the proceedings to enforce the mortgage.</p>

<p>It is a general rule that in an information or indictment for a statutory offence, it is sufficient to follow the words of the statute. *</p> <p>The test whether the plea of autrefois acquit is a sufficient bar in any particular case, is whether the evidence necessary to support the second indictment, would have been sufficient to have procured a legal conviction upon the first.</p>

<p>The testator gave to his wife the “ absolute control over the” increase of his estate, with power to dispose of it as she pleased until his (the testator’s) son arrived at the age of majority. Held: That the word “ increase” was sufficiently comprehensive to embrace the revenues and income of the property, and that the intention of the testator was to give to his wife the usufruct for the period mentioned.</p> <p>Art. 1745 C. C. which provides that in the event of a second marriage, the husband or wife having children by the first marriage, can only give to the spouse of the second marriage the least child’s portion as a usufruct, and not to exceed a fifth part of the decease’s estate, remains unrepealed.</p>

<p>In regard to re-insurance, the custom among underwriters, in the city of New Orleans, is to divide the risk and not to take the whole of it; and when the application is silent, this is always understood.</p>

<p>Since the Act of the Legislature of March 6th, 1857, prohibiting the emancipation of slaves in this State, the right of a slave to be emancipate! by the will of hU master, can no longer be enforced.</p> <p>If the law should be changed, the remedy of the slave might be revived.</p>

<p>A judgment obtained against the surety cannot be enforced if the principal has been released from the same debt by a judgment in his favor annulling the contract which gave rise to the obligation.</p>

<p>As a general rule the execution of a judgment cannot be enjoined by any other court than that from which the writ issued.</p> <p>Unless a necessity exists for it and a manifest injury would otherwise be done, no court, other than that rendering the judgment, has jurisdiction over the execution.</p> <p>A party will not be permitted to arrest an execution by a defence of compensation, which he might have made, but omitted to make in the suit wherein the judgment was rendered, the execution of which he seeks to arrest.</p>

<p>APPEAL from the District Court of tbe Parisk of Tensas, Farrar, J.</p>

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

<p>The husband cannot by testamentary disposition defeat the effect of the Act of 1852, “ to provide a homestead for the widow and children, of deceased persons. ”</p> <p>The claim of the widow is a privileged debt.</p> <p>When there are no descendants of the husband, the amount due to the widow is received by her in full property, and she is not bound to give security.</p>

<p>PPEAL from the District Court of East Feliciana, Haralson, J., presiding.</p>

<p>The neglect of the Clerk to issue or the Sheriff to serve the citation of appeal, is not an irregularity imputable to the appellant, who, in such case, will be allowed further time to cite the appellee.</p>

<p>APPEAL from the Fifth District Court of New Orleans, Augustin, 3.</p>

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

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

<p>Tho surety on an appeal bond cannot be made liable where the Sheriff’s return to the writ of jft. fa. does not show that a demand was made on both plaintiff and defendant to point out property, tho parties being present or represented in the parish.</p>

<p>The judge alone, or other authority exercising his functions, at tlie domicil of the minor, has the right to make the appointment of tutor or guardian.</p> <p>And it is the tutor or guardian of the domicil alone who can, in virtue of the personal statute, under which he is appointed, act as such in other countries.</p>

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

<p>When after the forfeiture of an appearance bond and an appeal from the judgment of forfeiture, it appeared by a supplemental record that the accused had been tried, convicted and sentenced under the charge for -which he gave the bond to appear—Held: that the appellate court was without original jurisdiction to try the question whether satisfaction of the bond should be ontered on account of such new facts.</p> <p>A mere surrender, or a new arrest of the prisoner at a time subsequent to that when the bond was forfeited, does not satisfy the judgment.</p>

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

<p>APPEAL from tlie Fourth District Court of New Orleans, Price, J.</p>

<p>The common carrier, under the commercial law, is answerable for all losses that do not fall within the excepted cases of the act of God (perils of the seas,) or of public enemies, but he may limit his responsibility by special notice of the liability he means to assume, so that the shipper will be bound to prove negligence or fault in the carrier in "case of loss or damage in the goods shipped.</p>

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

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

<p>In an action for damages for a malicious prosecution, it is essential to maintain the action that both malice and want of probable cause should ho shown.</p> <p>A tenant lias a right to removo the improvements and additions he has made, provided he leaves the property leased in the state in which he found it, but when the additions are made with lime or cement, or the like, the lessor should be notified by the lessee of the intention to remove them, in order that the lessor may exercise his right of retaining them or paying a fair price.</p>

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

<p>It is too lato after conviction in a criminal case, to raise au objection to a juror for a cause existing anterior to tlie swearing of the jury.</p> <p>Itis a good cause of challenge on the partof the State, that a juror has conscientious scruples against the infliction of capital punishment.</p> <p>Where it appears that the accused had sufficient time to have filed a motion containing all his grounds for a new trial, the refusal of the court below to permit additional grounds to be added on the trial of the motion, and to receive evidence in support of them, hold not to be a sufficient ground for reversing the judgment.</p>

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

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

<p>A trust deed, made in tlie State of Texas, assigning personal property for the benefit of certain named creditors, will not, in the absence of any evidence of the law of Texas, be permitted to prejudice the claim of a creditor of the assignor attaching his assets in the hands of a third person in Louisiana.</p>

<p>The Mayor of tlie town, of Jackson being by law ex officio Justice of the Peace, has the power to issue warrants for the arrest of criminals.</p> <p>The error of a magistrate in issuing a warrant without an affidavit will not render him liable for damages if ho acted in doing so in good faith audfor what he deemed to bo the public good.</p> <p>A warrant issued by a Justice of tho Peace to arrest a criminal is a complete protection to the Constable acting under it and those callod on by him to assist in executing it.</p>

<p>APPEAL from the Sixth District Court of the Parish of Iberville, Beale, J.</p>

<p>APPEAL from the Sixth District Court of the Parish of Iberville, Seale, J.</p>

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

<p>A landlord is not responsible in damages to bis lessee, arising from tlie illegal conduct of an adjoining proprietor, in constructing a privy against the intervening wall when it appears that the wall was fit and sufficient for the purpose designed. The Article of the Code applies, when there are vices and defects in the thing leased—he is not bound to guarantee against losses that happen from the nature of the wall, and the illegal conduct of the adjoining proprietor.</p> <p>When the lease was entered into, the lessor was not obliged to suppose that his neighbor would violate the law, and, therefore, it cannot be considered that a warranty against his illegal acts formed a tacit condition of the contract of lease.</p> <p>All that is required of the lessor is to have a wall, staunch and sufficient for the purpose for which it is intended : he is not required to have a wall capable of protecting the lessee against the unlawful acts of the contiguous proprietor.</p>

<p>"Where an obligation was to be paid in several installments, and all tlie installments were due when the debtor made a payment without directing on which installment the credit was to be given—Held: The payment must be deemed to have been made in part satisfaction of the whole debt and prescription on all the installments was thereby interrupted.</p>

<p>In a petitory action proof of adverse possession is a necessary part of plaintiffs’ case, because the petitory action can only be maintained against a party in possession.</p> <p>An admission of plaintifls’ title, is not sufficient ground upon which to base a judgment against the defendants.</p>

<p>Where one alone of several defendants appeals from the judgment in favor of the plaintiff, the appeal will be dismissed, unless the appellant makes his co-defendants, who were necessary parties in the court below, parties to the appeal.</p>

<p>Tho Act “relativa to slaves,” approved March 19th, 1857, does not require a preliminary examination of slaves, charged under oath with crime.</p> <p>The Supreme Court is without juris liction to fix a day for the execution of convicts.</p> <p>Tho linn of the execution is not an essential part of the judgment.</p> <p>It is the duty of tho Sheriff to exocute the sontence, even after tho day fixed has lapsed by reason of an appeal, and in caso of his failure, the Executive of the State, bound by the Constitution to seethe laws faithfully executed, would cause the legal execution of the convict.</p>

<p>IVhcn a court orders a bond to "be taken for the appearance of a party accused of crime, it is no objection to the bond that it was taken by a person not duly authorized by tho court (in the order) to take the bond—when it appears that it was takon by the Sheriff or his deputies.</p> <p>■When a party enters into the obligation of suretyship for the appearance of a person charged with crime, he incurs a civil obligation which, like all others, is to bo considered in reference to the substance of things.</p> <p>It is not an idle form ; it means something. Inasmuch as tho accused was in the custody of the Sheriff or his deputies, it was fairly intended that tho Sheriff and his deputies (no other person being mentioned) were intended as tho proper persons to take the bond ; and neither the accused nor his sureties who had, by their act, put this construction upon the order of tho court for the bond and secured tho discharge of the accused upon this construction, can be permitted to gainsay this conclusion upon which they acted.</p> <p>A blank in a bond, remaining unfilled, does not materially change the character of the bond. Tho accused could not fail to know that it was for his appearanco at the next term of tho District Court, and from day to day and term to term until tho prosecution should be ended or he should be discharged.</p> <p>The technical objection that the crime alleged in the indictment is not properly described in the bond, will not avail; for tho general condition that the accused should not depart without leave of the court, having been violated, he and bis sureties are equally bound.</p>

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

<p>Under an indictment for forgery and uttering as true a forged “order for the payment of money,” which was set forth in hose verba in the bill of indictment—the accused cannot except to the admission in evidence of an instrument corresponding exactly with that set forth in the indictment, upon the ground that it was styled in the bill “ an order for the payment of money,” whereas it was in reality a “check.”</p> <p>A check is an order for the payment of money.</p> <p>Any lack of definiteness or technicality in the name given to the instrument alleged to have been forged, was cured by setting forth the instrument in full in the bill.</p>

<p>The principal object of an election is the casting of votes, and the unconstitutionality of the police provisions of an election law cannot render the votes illegal and thus disfranchise the (doctors; the citizens have the prerogative of voting, and the Legislature cannot, by encompassing with unconstitutional provisions an election law, make the votes of electors null and void.</p> <p>If the votes of the citizens are deposited, the intent and design of an election are accomplished. It would be unwise to make an election depend on some unconstitutional provision of the police part of an election law, or on the failure to comply with its directory provisions ; for then almost every election would be contested ; the people would bo virtually deprived of their elective power, and the tenure of office would depend on the will of juries and courts.</p> <p>The public good demands that the will of the people, as determined at the ballot box, should not lightly be disturbed.</p> <p>If the voters think proper to go forward and voto under a defectivo law, those who were candidates ought to be the last to complain, when the result has been affected by neither the unconstitutionality of the law, fraud, error, nor collusion.</p> <p>Justices of the Peace are clothed with certain judicial powers ; but the Constitution makes a difference between Judges and Justices of the Peace. Justices of the Peace are not included in the word “ Judges” in the 82d Article of the Constitution which declares that<c it shall be the duty of the Legislature to fix the time for holding elections for all Judges, at a time which shall bo different from that fixed for all other elections.”</p>

<p>Prescription against a demand for the recovery of the value of improvements put on land is suspended while the action for its recovery is pending.</p>

<p>The law vests in the District Judge the discretionary power of continuing a case, if he thinks justice requires it—there is no law to prevent him from granting a brief delay oven during the progress of a cause for the purpose of summoning a new witness, oither for the Stato or the accused. But an abuse of this power which might operate prejudicially to the accused, will notbe sanctioned ; it must be a proper case.</p>

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

<p>■Where the plaintiff in execution procured, the appointment of a curator ad hoc to represent defendant in the appointment of an appraiser, the absence of the defendant or other sufficient cause must be shown to justify the appointment.</p> <p>And if the debtor conceals himself, besides servico upon the curator ad hoc appointed to represent him, notice should also be left at tho place ivhoro the defendant last resided.</p>

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

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

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

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

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

<p>It is sufficient proof of notice of the transfer of a judgment to show that it was left at the place of residence of the judgment debtor with his wife, as in case of a citation in civil process.</p>

<p>An action for damages Incident to the action of warranty for eviction under Art. 2482 of the Code cannot be maintained where no actual eviction occurred, in consequence of a compromise made by the warrantor with the plaintiff before judgment was rendered</p>

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

<p>An agent undertaking to insure at a particular' place goods bought by him, will be relieved from responsibility towards his principal by notifying him at once of the impossibility of obtaining insurance, upon ascertaining the fact.</p>

<p>Tlie first section of tlio statute of 1855, which provides a summary remedy in favor of the plaintiff in an execution against tho Sheriff for a failure to return tlio writ on or before tho return day, was not repealed by the Act passocl on tho same day, which treats of tho duties of Shorills, etc., and provides for the protection of any person who sustains damages ill consequence of the failure of the officer to return tho writ on the return day.</p> <p>Tho former is a substantial re-enactment of a statute which had boon in force for many years and had undergone frequent judicial exposition, which could not havo been unknown to the Legislature of 1855 whon they were reducing the previous legislation to a more completo system. Tho latter contains provisions of a more general nature, and. affords a remedy to a larger class of persons. They should bo so construed as to give effect to both.</p>

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

<p>’íkc homologation of the umpire's report) contradictorily with the parties in interest, is final as to the special matter embraced in it; and they cannot be mooted again bofore the same court when the cause comes on to be heard on its merits.</p>

<p>A deed of sale purporting to convey only the light, title and interest of defendant in execution, convoys-, by sucb description, the property itself.</p>

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

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

<p>Under a clause in a policy of insurances, effected upon a vessel for tlie benefit of the owner, that it should become void upon assignment thereof, transfer of interest or change of command—Held : That the seizure of the vessel by tlie Sheriff at the suit of a creditor, would not have tho effect of avoiding the policy.</p> <p>Nor could the policy be avoided where the assured agreed “ that the vessel should, during tho continuance of the policy, be completely found with master, officers and crew, on the ground that she was not so found while laid up under seizure.</p>

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

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

<p>APPEAL from tlie Third District Court of New Orleans, Duvignaud, J.</p>

<p>ON an application for a mandamus to the Judge of the Sixth District Court of Now Orleans.</p>

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

<p>The division of the hatture outside of New Levee Street as far as Front Street into streets and squares, was not an expropriation of tho property, so far as tho streets were concerned, of which tho riparian proprietors had never been in possession. 12 An., 500.</p> <p>By the terms of the Act of tho Legislature of the 30th April, 1853, (Session Acts, p. 298,) tho proprietors of batture in the limits of the city of New Orleans, in reducing the batture to private occupation are bouud to leave open to public use, without charge, whatever space may be required by tho corporation for public highways or streets.</p>

<p>By the Act of the Legislature of 2Gth March, 1844, the surviving spouse owes no interest on the share of the community property belonging to the children of the marriage as long as he or she remains single.</p> <p>"Whore a suit is brought by the purchaser of property subject to a mortgage in favor of minors, to fix the amountof tlio mortgage, the court will not order the sum to bo paid over to the tutor of the minor. It must remain in the hands of the purchaser until the liquidation and final settlement of the tutor’s account at the majority or emancipation of the minor, or until tlie tutor takes legal stops to have the mortgage released.</p>

<p>APPEAL from tlio District Court of the parish of Terrebonne, Roman, J.</p>

<p>Where defendant was interrogated os to whether lie had not promised plaintiff that he would never plead proscription against tho notos sued on—Held: That as far as tho interrogatory referred to a time prior to the acquisition of prescription, defendant could not be compelled to answer, as such an interrogatory is clearly illegal.</p> <p>The interrogatory is not illegal and might properly be answered, so far ns it relates to a promise made after tho prescription had been acquired.</p> <p>An acknowledgment by tho debtor, after tho prescription has boon acquired, that ho has not paid tho debt, would not bind him to pay it, because ho could still urge his plea of prescription.</p> <p>An acknowledgment in writing over his signature by the debtor, that a domand has been made upon him, is sufficient to put him in default and to make his debt bear interest from the dato of his acknowledgment.</p>

<p>Where evidence is certified by tlio Clerk, or a statement of facts is made out by tlio District Judge, Uio Supremo Court docs not examine the same as a Court of Error—but reviews and weighs tlio evidence and gives effect to that which preponderates, precisely as the jury or the District Judge ought to have done.</p> <p>Where parties dosire it the court will, in a proper case, find the facts in such a manner that the questions of law can ho fairly raised for the consideration of the Supreme Court of the United States.</p> <p>Ike title of the United States to the selections of Land made by the State of Louisiana, under the Act of Congress, approved September 4th, 1841, passed out of the government and vested in the State of Louisiana at tlio timo of the final approval of the selections by the Secretary of tlio Interior, unless there had been some legal claim to them, at the time, obtained from tlio General Government which prevented the acquisition by the State. Claims to these selections must be established by certified copies and other legal evidence, and tlie unconditional selection of lands under tlio Act, and the approval of them by the Departments at Washington, is superior in proof to any recital contained in subsequent lettors of the Commissioner of the General Land Oflice.to the Register and Receiver—mid to any report made by the Register and Receiver to the Commissioner favorable to the rights of those claiming these selections under tlie General Government.</p> <p>Although the action of tlio Gonoral Land Office is generally conclusive upon the subject of tlio grant of public lands, up to tho issuing of the patents or other divestiture of title, it could not by its subsequent action upon a fictitious claim defeat rights already vested.</p>

<p>In tho present legislation of the Stale an action by a slave for freedom cannot bo maintained.</p>

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

<p>A final account of administration of the estate of IF. St. J. 22., deceased, administrator of II L. C., deceased, was rendered by the defendant. The widow C.,on behalf of herself and of a minor daughter, specially opposed certain items, and prayed that the administrator might be charged with the value of a gin house, etc., belonging to II L. (7.’s estate, which were consumed by fire during W. St. J. 22.,s administration. Three of the heirs of II L. G., one of whom was thojplaintiff heroin, filed gonoral opposition, but did not seek to charge the administrator with the value of the gin house. A judgment was rendered on plaintiff’s opposition against the administrator for $2,6Y9 08. That judgment was not appealodfrom and is not now appealable.</p> <p>The plaintiff brought the present action against defendant, as administratrix of said W. St. J. 22., to recover damages sustained, as one of the heirs of IIL. G., by the burning of the gin house abovo mentioned. The defendant plead the aforesaid judgment in bar of this action.</p> <p>Held: that the plea was well taken. That judgment liquidated the account between the deceased administrator and the heirs, and particularly the balance due by the former to this plaintiff.</p>

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

<p>Tho tax of ten'per cent, required by tbo Act of March, 1855, sec. 7, to be paid by every heir, legatee or donee, domiciliated in a foreign country, upon all sums of money, or on the value of all property which he may havo received from tho successon of any person deceased, in this State, is not a debt due by tho succession, but is simply a debt due by tho heir who happens to reside in a foreign couutry.</p> <p>Foreign heirs havo also a right to accept a succession purely and simply, and to take possession of the property without interference by the State, unless there is an averment that they intend to remove the property to defraud the State.</p> <p>A suit to recover this tax should bo brought directly against the heirs who, under the statute, owe it to the State.</p>

<p>APPEAL from the District Court of the Parish of Franklin, Mayo, J.</p>

<p>The plaintiff had stored his cotton in defendant’s warehouse and taken a receipt, in tho margin of which were inserted tho words “ Fire-proof Warehouse.” The same words wore inserted at the head of their advertisements in the papers. Held: that the words so inserted formed no part of tho contract, and that without proof of tho plaintiff having been deceived thereby, or of fraud, or an attempt to deceive, the defendants could not be rendered liable for the loss of tho cotton by fire.</p>

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

<p>Allegations that a judgment was obtained through fraud and other ill practices, are too general to authorize the arrest of its execution.</p> <p>Where a judgment is sought to be executed after the person’s death, in whose favor it was obtained, it is not necessary that the /t. fa. should issue in the name of the deceased person’s legal representatives.</p> <p>Where a case is tried upon an exception alone, the allegations'in the petition are taken as truo, except where evidence has been admitted on the trial, which negatives the truth of those allegations.</p>

<p>A Sheriff cannot bo hold responsible for property seized by his predecessor in office, without proof that tho property so seized had como iuto his possession, or that ho had bound himself in some way for its production.</p>

<p>The language of a penal statute is not to be stretched by construction beyond its natural meaning.</p>

<p>APPEAL from the District Oourt of the parish of Union, Egan, J.</p>

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

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

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

<p>Tho neglect of tho voncleo to havo the act of salo recorded whereby a creditor of the vendor is enabled to attach the proporty and have it sold for his debt, docs not release the vendor from his obligation of warranty.</p>

<p>APPEAL from tke District Court of tlie Parish of Jackson, Barry, J.</p>

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

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

<p>A judgment against a warrantor will not be amended by tbc Supreme Court, whore the warrantor has not been made a party to the appeal bond.</p>

<p>The Sheriff is not authorized to seize property in another parish, even when pointed out hy the debtor.</p>

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

<p>The property of the cummunity is liable to seizure, for the debts of the husband contracted bofore the . marriage.</p>

<p>In a suit brought to recover the value of a slave from the person hiring him, oil tho ground that the slave was hilled on the promises, and while in tho possession of tho person so hiring, and that tho person refuses to account for his death—JIdd: that tho Coroner’s inquest over the body of the slave was inadmissible as evidence, being 11 res inter alias acta.”</p> <p>"When a slave dies in the possession of the person hiring him, the person so hiring is bound to pay the value of said slave to his owner, unless he can show that he is not liable for his loss? because his, death was produced by some cause for which ho is not legally accountable—this is an exception to tho general rule that the actor must prove his case.</p> <p>The onus prdbandilics upon a party who is obliged to free himself from liability by proving a fact, when tho knowledge of that fact is supposed to be more within his reach than that of his adversary.</p>

<p>To determine, under the Act to provide a homestead for the widow and children of deceased persons, approvod March 1741832, whether they aro entitled to receive any thing from tho estate, tho sum of their entire property is to be considered, and if it amounts to $1,000, nothing can bo withdrawn, from the estate, although some one minor heir or tho widow may bo in necessitous circumstances and not possess the $1,000.</p>

<p>The statute against carrying concealed weapons does not infringe the constitutional right of the people to keep or hear arniá—it is a moasuro of police prohibiting only a particular ihode of bearing armsj which is found dangerous to the peace of society.</p> <p>A prosecution for the tc offence>} is only barred by the lapse of one year.</p>

<p>A proprietor is not bound to yield a part of liis soil for tlie construction of a levee, which originally was not required to protect his own land from inundation, hut which was rendered necessary by closing a bayou in order to reclaim swamp lands belonging to tho State, or to others.</p> <p>A divestiture of vested rights may be effected, not only by a change or destruction of the title to tho property, but also by a destruction of tho property itself.</p>

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

<p>An action by the master to procuro tho emancipation of bis slave, under the Act of the Legislature of 15th of March, 1855, (since repealed,) held to be appealable.</p>

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

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

<p>Parol evidence is admissible to explain tlie nature of tlio sale of improvements upon land sold, and tlieir location, extent and value, when there is ambiguity in the act of sale with regard to them.</p> <p>Where a person in selling a tract of land sells also his “ entire interest” in all improvements upon public land adjacent to said tract, he makes to Ills vendee only a quit claim of his interest in said improvements.</p>

<p>XI is not necessary to filo an amended petition in reply to, and explanatory of, an amended answer, as tlie testimony in support of its averments is admissable under the issue presented by tlio amended answer.</p> <p>Yet such amended petition will be recoived, and when filed, service thereof upon the defendant is unnecessary.</p> <p>Amendments should be recoived, whenever required to accomplish the ends of justice.</p>

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

<p>A notary is not required to have a particular style of seal to give authenticity to his copies.</p>

<p>Where a suit was brought against the owners of a steamboat for the value of a slave, alleged to have been carried off oil the boat, and during the pendency of the suit, the slave was recovered by the plaintiff,—Held : That the plaintiff was nevertheless entitled to prove and recover judgmont, for the amount he had expended in recovering the slave.</p>

<p>Under Article 1057 of the Code of Practice, the judge is authorized to order execution against an administrator personally, wlio makes a vague and insufficient answer to a rule, under Articles 1088, 1056, C. I5., taken by creditors whose claims have been fixed by a final judgment upon the administrator’s account.</p>

<p>Wlioro the condition of tho appeal bond for actcvolutivc appeal, is only for payment of tho costs of tho appeal, tho appeal will ho dismissed.</p> <p>Tho defect in the original bond cannot bo cured by the substitution of another bond, after motion made to dismiss the appeal.</p>

<p>A District Judge lias no power to summon a jury, at tho timo fixed by law to hold tlic regular probate term of the court.</p>

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

<p>The Police Javy of a parish have the power to impose a tax on drinking houses within the limits of an incorporated town in the parish, although the town by its charter is empowered to grant licenses for that purpose.</p>

<p>A testator is not allowed by law to bequeath to a stranger a usufruct for life of liis whole estate when he has forced heirs. “No charges or conditions can bo imposed by the testator on the legitimate portion of forced heirs.” 0. 0.1703. “ IÍ the disposition made by donation inter vivos or moriis causa bo of an usufruct, or of an annuity the value of which exceeds the disposable portion, the forced heirs have the option, either to execute the disposition, or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of.” C. C. 1486.</p>

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

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

<p>APPEAL from tho District Oourt of Morehouse, Richardson, J.</p>

<p>A party must allege and prove some disturbance or danger of eviction even to require security from Ills vendor,'and much more to stay an order of soizuro and rescind the sale.</p> <p>When a party after the sale perfects the title conveyed to him, he is only entitled to receive from Ins vendor a credit upon the price paid him, to the amount which it cost him to perfect his title.</p>

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

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

<p>APPEAL from tbe District Court of tbe Parish of Oaddo, Creswell, J.</p>

<p>A creditor of an estate, whoso debt operates as a judicial mortgage, and is in a twelve months bond executed by the deceased, cannot cause the property of the succession to be sold for cash, without the benefit of appraisement, to satisfy his claim.</p>

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

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

<p>■When an appearance "bond lias been duly forfeited, tlic appearance of tbe accused at a subsequent term of the court to stand his trial will not liberate the security from liis liability.</p>

<p>The principle ill the case of Hollander, v. His Creditors, 6 An. p. GC9, re-affirmed, to the effect that all the privileges created by Art. 3184 C. C. as amended by the Act of 1S43, arc equal iu rank, except the privilege for the wages of the overseer, which is declared by the Act to be superior to that of the furnisher of supplies ; this exception evidently confirms the rule.</p>

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

<p>APPEAL from the District Court of the Parish of DeSoto, Creswdl, J.</p>

<p>•A call in warranty will not bo allowed after the caso has been set, an l called up for trial.</p> <p>In an action,en declaration de simulation” where plaintiff has alleged the utter insolvency of defendant—JIdd: That authentic acts of sale of land and slaves to defendant, are admissable in evidence to establish the fact of his solvency, and consequent ability to make the purchase of the property m controversy.</p> <p>A party claiming title under a Sheriff’s sale made by virtue of ,a fi fa. in support of his title, must produce not only the sale of the Sheriff, but also the writ of execution, the Sheriff’s return and the judgment.</p> <p>-The Act of 1855, with rogard to the effect of Sheriff’s sales, does not mako the original, or copy of such a salo, sufficient proof, in itself, of a title translative of property.</p>

<p>A steamboat will be beld liable for obligations incurred, during a trip, whether the trip was authorized by the owners or not.</p> <p>The bill of lading does not create the contract between the shipper and the common carrier ; it has been adopted as a convenient mode of establishing the contract, but is not an exclusive species of evidence.</p> <p>A steamboat is responsible for money deposited by travelers, when the deposit isa necessary one.</p> <p>A person receiving a voluntary deposit is liable only for gross nogligonce or fraud.</p>

<p>It is too lato for a party to a suit to ploacl tlie want of issue joinod, upon a potition of intervention, after lie has gone into trial without auswering it, unless ho can show that he was ignorant, boforo going to trial, of the existence of the intervention in the record.</p>

<p>S. R. sued as payee upon a noto made payable to S. R. efi Go., alleging that he had traded alone under that stylo and firm ; defendant oxcoptocl, on the grounds, that lie had traded with S. R. <£ Go., and denied that plaintiff owned the noto-, or traded, as alleged, under the name and stylo of S. R. & Go.— Held: That plaintiff, to recover as payee, should provo that he alone composed the nominal firm of 8. R. cú Go., to whom the note was made payable.</p>

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

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

<p>It is not necessary to move in open court to have a decree of the Supreme Court recorded in an inferior court, as Article 620 of tlie Code of Practice, requiring it, is repealed by the Act of 1855, relative to tlie duties of tlie Clerks of the District Courts.</p> <p>A party who has pointed out property, is estopped from objecting to the action of the Sheriff in levying upon it.</p>

<p>The obligation of warranty, on tlio part of each of the co-heirs towards the other, in matters of partition, extends to the solvency of the debtors, whose debts may have been partitioned.</p>

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

<p>APPEAL from the District Court of the Parish of DeSoto, Creswell, J.</p>

<p>APPEAL from the District Court of the Parish of Rapides,</p>

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

<p>An action of lesion, as "between tlie parties to tlie contract of sale, is not peremptorily destroyed "by an anterior sale, whicli lias never come in conflict with tlie title acquired by tho vendee.</p> <p>Tlie legal effect of a judgmont of separation of property, obtained by tho wife, is to dissolve the community, ipso facto, from the time of filing the petition for separation.</p> <p>The wife thus separated in property from her husband, when she docs iiot renounce, is not presumed to accopt tho community of acquets and gains, existing up to the date of bringing her suit ,• she has a contingent and eventual right only, to be exercised at tho expiration of the time fixed for tho community, if she chooses to accept.</p>

<p>Ail approval of tlio final account of tlie tutor, and an agreement, that as approved it should bo homologated, ruado by the ward, after attaining the age of majority, or being emancipated, is equivalent to a waiver of citation, and a consent judgment.</p> <p>A judgment homologating an account under such circumstances, cannot bo treated by the ward as a mere nullity, by filing an opposition to tho account homologated by his consent.</p> <p>A direct action under proper averments of fraud, or mistake, must be brought to annul such a judg-</p> <p>Whore tlio ward has givou his tutor a receipt for tho balance shown to ho due him, by tho final account, which lie had previously approved, it would seem, under tlio authority of llaydel v. Roussel, 1 An. 38, that ho would bo bound to bring a direct action against his former tutor, to annul his receipts, before ho is allowed to file an ordinary opposition to such final account.</p>

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

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

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

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

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

<p>A suit brought against ono of the members of a commercial firm, interrupts prescription with regard to all the partners.</p> <p>Where a note was signed by one of the members of a commercial firm with the addition of tho words “ in liquidation”—Held: that such a note was a notice to tho payee that the firm was dissolved, and that without a special authorization to tho partner signing the note from his co-partner, the note was not binding on him.</p>

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

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

<p>The decision hi the case of the State of Louisiana, ex reí. John Türpin, against tho same party reaffirmed.</p>

<p>A mandamus will not bo granted to compel tlie Judge of the lower court to sign a bill of exceptions when it does not appear that the hill of exceptions had boon exhibited to the adverse party previous to its being presented to the court.</p>

<p>ON an application for a rule against the Judge of the Second District Court of New Orleans.</p>

<p>When a statute punishing an offence has been repealed without any saving clause, as to prosecutions already commenced, it operates as a pardon to persons convicted under such repealed statute.</p> <p>It is tho duty of the court, ex officio, to notice the repeal of laws.</p>

<p>ÁPPEAL from the District Oourt of the parish of St. Helena, Wilson, J.</p>

<p>^^PPEAL from the Justices Court of the Parish of East Feliciana.</p>

<p>The Act of Congress of tlic 29th of May, 1830, declares “ all assignments and transfers of rights of preemption in public lands, prior to the issuance of a patent, to bo null and void.”</p> <p>An amendment of that Act in 1832 only authorizes such assignment or transfer after certificates of paymontor final receipts for the price of such pre-emption, from the land ofiice. Statutes at Large, 4, pp. 423 and 496.—Held: That the provisions of these statutes are imperative, and that a probate sale of a pre-emption right, ordered for the purpose of paying debts of the succession, when no payment of the government price of the land had been efl'ected, was the sale of a thing inalienable.</p> <p>In an action by the widow and heirs of the pre-emptor, against one deriving title from the purchaser at the probate sale.—Held: That the land having been paid out of the land office in their name, and a patent issued in their name, they were entitled to recover, but not without reimbursing to the defendant the money which had gone to the benefit of the estate by the supposed salo.</p> <p>The claim of the defendant for his improvements on the land was also allowed.</p>

<p>Tho State Tax Collector has a right to institute an action in tho name of the State, for the recovery of taxes, when it is evident that tho seizure of property would occasion an injunction.</p> <p>The interest of a company in steamships is an object of taxation covered'by the fifth clause of the first section of tho Act of 1855.</p> <p>Where an incorporated company has property subject to taxation m the district of its domicil, they are bound to apply to have the tax roll corrected if they are erroneously assessed.</p> <p>The mill tax, under tho Act of tho Legislature of 1S55, is levied to provide means for the education of the white youth of tho State ; it was approved tho same day as the Act to próvido a rovenuo, and boing for diil'eront objoots, both Acts must have effect, as they are not utterly repugnant to each other.</p>

<p>Where the suit was for damages for slander of titlo to a slave—Held: that an amendmentof the petition by the plaintiff praying to be decreed to be the owner of the slave, was properly allowed in the decree sustaining an exception to the petition, on the ground that it set forth no cause of action.</p>

<p>A bill of exceptions to tlie rejection, of evidence in the court below will not be noticed in tho Supreme Court, unless it contains the grounds upon which the testimony was rejected.</p> <p>The defendant may give in evidence, without amendment of the pleadings, facts which have occurred after issue joined, having a direct bearing upon tho matters in controversy, and properly admissible in evidence, the power being reserved to tho court to order a continuance or grant a new trial, when the other party is taken by surprise.</p> <p>An amendment to the pleadings, setting up such new matter, if asked for, should be allowed.</p> <p>A party must show an actual eviction, in order to recover in an action of warranty.</p> <p>The return to a writ of possession in a suit to which tho warrantor was not a party, is not conclusive evidence of eviction.</p> <p>Whore contiguous lots of ground were sold separately at public auction, and adjudicated to tho same purchaser, Held: that it was a salo of a number of independent things, giving a right of warranty as to each, and that tho purchaser would have no action of rescission except for such lots as were deprived of their proportions by eviction from part of them.</p> <p>The purchaser who went into possession of the property sold, is onlyventitled to recover from his warrantor interest on the price paid, from the date of the eviction.</p> <p>The warrantor is not liable for the taxes paid on the property by his vondees.</p> <p>The fourth paragraph of Art. 2482 of the Civil Code does not include counsel fees for bringing the action against the warrantor.</p>

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

<p>By the terms of the application for a policy of insurance, it appeared that the slave whoso life was insured was a laborer in a tobacco warehouse, and the policy declared that he was not to be employed in a more hazardous occupation; the slave was subsequently drowned in the river Mississippi by falling from a plank whilst walking on it from a steamboat to the shore, having been sent by his master up the coast, to be employed on a sugar plantation.—Jfdtl: That as the slave was not lost while actually employed on the sugar plantation, and the master was not prohibited by the policy from removing the slave front New Orleans, except that ho could not bo taken to more southern localities, the company was liable for the loss.</p> <p>Held: That parol evidence was admissible to show that the written assignment of a policy of insurance was intended as collateral security for an obligation which had been discharged before the suit was brought oil the policy.</p> <p>Held: That testimony to show that the company would not have insured at the rate of the policy, if it had been known that the slave would have been subjected to the risk of a voyage on a steamboat, was properly refuted.</p>

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

<p>The tacit mortgage of a minor for an unliquidated amount, upon property, opposes no legal impediment to the seizure and sale of such property, at the instance of a judgment creditor of the owner.</p>

<p>After the delay has expired for citing delinquent tax payors under the Act of the Legislature of March, 20th, 1855, providing the modo of collecting city taxes, the procedings are tobe conducted by the City Attorney by virtue of the Thirty-Fifth Section of that Act. '</p> <p>The Act of the Legislature of 1855, which provides that a commission of five per cent, should be added to each tax bill for the fees of the City Attorney, was repealed by the Act of 1856.</p>

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

<p>APPEAL from the District Court of the Parish of St. Helena, Wilson, J.</p>

<p>Under the Code of 1808 the office of testamentary oxocutor oxpired at the end of the year, unless it was otherwise expressed in the will, or the term of office was prolonged by tho Judge.</p> <p>The action to compel tho executor to render his account is prescribed in ton years from tho expiration of his office.</p> <p>Tho prescription against such an action by a legatee under tho will, is not suspended because tho legacy was a conditional one, depending upon the liquidation of the estate, to ascertain its amount.</p>

<p>Whore two parties woro indicted together under the Act of the 6th of March, 1819, and there were two counts in the indictment, one charging the defendants with having inveigled, taken, stolen, and earned away a certain slave, and tlio other charging them, with having aided the same slave in running away from the service of his master, and being tried together, upon the same evidence, the jury convicted the one on the first charge, and acquitted him on the second ; and acquitted the other on the first charge, and convicted him on the second.—Held: That thero is no impossibility in the co-existence of the crimes detailed in the indictment, and the commission of them by one or more individuals at the same time, and consequently thore is no repugnancy in the counts or the findings under them.</p>

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

<p>A partner is bound to indemnify his copartners for any loss to the firm occasioned by an act of his done in violation of the contract of partnership, unless his partners, by their acts or assent, ratify and confirm his acts which occasioned the loss.</p>

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

<p>The proces verbal of a probate sale is prima facie evidence of title, without the production of the decree of the court therein recited.</p>

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

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

<p>The vendor of the agricultural products of the United States, in the city of New Orleans, has, under the Actof the Legislature approved March 15th, 1855, a privilege upon such products sold, superior to all others, if exercised within five days after their delivery.</p> <p>He may waive this privilege, by stating in his order for the delivery of such produce, that it is to be delivered without vendor’s privilege.</p>

<p>APPEAL from the District Court of the Parish of Terrebonne, Roman, J</p> <p>On the 5th February, 1846, S. G. Moore sold to J. B. Robinson, with other property, lot No. 102, in township 20, range 18 east.</p> <p>On the 7th April, 1848, the administrator of Moore’s estate brought suit against Robinson for a balance due on the purchase, to which, on the 2d October, 1848, Robinson filed an answer, alleging want of title in Moore, and the pendency of a suit by B. A. Long, claiming the land. (This was an error, as no suit was pending nor had one been brought).</p> <p>On the 25th March, 1849, Rosette and Frederick Billiot entered into the following agreement with B. A. Long :</p> <p>“ Whereas, the said Rosette Billiot and her son Frederick claim as their property a quarter section of land, situate on the east bank of Petit Oaillou, known as the quarter section sold J. B. Robinson by S. G. Moore, and to which deed reference is hereby made for a more accurate description of said land, and believed to be lot No. 102, in township No. 20, of range 18 east, containing about 160 acres, more or less. Now as the said party of the first part are unjustly kept out of the possession of said land, and it requiring a suit to establish their claims thereto and put them in possession of the land, the said party, B. A. Long, agrees and binds himself to pay all the expenses attending said suit, and establish the title of the said Rosette and Frederick to the said land, so far as the same can be done, and hold the said party of the first part harmless against all costs of suit and other contingent expenses. And the first party agrees if upon a full hearing of the matter the said land'shall be adjudged and decreed to them, to sell the same to said B. A. Long for the sum of one hundred and fifty dollars, and convey to him their interest aforesaid, in fee simple, upon his paying the sum agreed upon at such time as the title is clearly vested in the said Rosette and Frederick.”</p> <p>This act was recorded on the 6th April, 1849.</p> <p>On the 31st March, 1849, suit No. 356 was instituted by Rosette and Frederick Billiot, against J. B. Robinson, claiming the land ; citation issued and was served on the 2d April, 1849. The administrator of Moore’s estate filed an intervention on the 19th October, 1850, and on the 22d October, 1851, he filed a supplemental petition of intervention, alleging that plaintiffs had parted with all their interest in the land by the act aboye quoted, dated the 25th March, 1849, praying that Long be cited, and that he be decreed to have purchased a litigious right, etc. This suit was dismissed on the 8th October, 1852, the plaintiff having been called at the courthouse door and not appearing.</p> <p>On the 21st April, 1853, the petition in the present suit was filed by Rosette and Frederick Billiot against Robinson, claiming the land, alleging that he has taken possession of the land without a shadow of a title. Service of this petition was accepted by the defendant, but the acceptance is not dated. Default was not taken until the 21st November, 1853, and the' defendant filed his answer on the 25th November, 1853, calling the administrator of Moore’s estate in warranty, who came in and answered on the 2d December, 1853. In his answer to the call in warranty, the administrator of Moore’s estate asked to have Long made a party, alleged that he had purchased a litigious right, and prayed to be released on paying to Long the price of his purchase, and strenuously contested the validity of the original claim of the Billiots. Default was taken against Long on the 14th July, 1857, who filed his answer, claiming title, on the 6th October, 1857.</p> <p>On the 26th April, 1853, Rosette and Frederick Billiot passed a formal act of sale of the land in question to B. A. Long.</p> <p>These being the facts, two questions arise :</p> <p>1. Did Long purchase a litigious right in the intendment of Articles 2622 and 2623 of the Civil Code.</p> <p>2. Was the tender valid.</p> <p>First—Is this a Jitigious right subject to the provisions of Art. 2622 of the Civil Code?</p> <p>By the Roman law the transfer of a litigious right was originally prohibited, and the suit continued as if no such transfer had beenomade. Tam quam si nihil factum sit lite peragenda. The right conferred by Art. 2622 was established by Anastasius in the law per diversas, and confirmed by Justinian in the law ab Anastasio.</p> <p>Art. 2622 of the Civil Code, found under the head “ of the assignment or transfer of debts or other incorporal rights” provides “ he against whom a litigious right has been transferred may get himself released by paying to the transferee the real price of the transfer together with the interest from its date.”</p> <p>Art. 2623. “ A right is said to be litigious whenever there exists a'suit and contestation on the same.</p> <p>Another definition of a litigious right is found in Art. 3422, which provides, “ whenever the terms of law employed in this Code have not been particularly defined therein, they shall be understood as follows ; ” and sec. 22 of that Article defines litigious rights to be “ those which cannot be exercised without undergoing a law suit. ”</p> <p>Now we contend that section 22 of Article 3522 has no application to the litigious rights spoken of in Article 2622, for the next Article particularly defines what litigious rights are subject to the provisions of Art. 2622. And it is, as if the language of Art. 2622 had been, “ he against whom a right has been transferred on which there exists a suit and contestation may get himself released, etc.”</p> <p>Now, what constitutes “a suit and contestation?” It is necessary that there should be a petition filed and served on the defendant, the cause must also be at issue.</p> <p>C. P., Art. 357, “ The cause is at issue when the defendant has answered, either by complying or denying the facts set forth in the petition, or by pleading-such dilatory or peremptory exceptions as he is bound to plead in hmini litis, pursuant to the provisions of this Code.”</p> <p>O. P. Art. 358, “ when the defendant pleads some declinatory exception, without answering to the merits, there is no issue joined.”</p> <p>C. P. Art. 359, “ the joining of issues is in fact the foundation of the suit, as citation is that of the action. It is only after this is done that the suit begins; the parties are then in a situation to discover what evidence is necessary in support of their respective claims.”</p> <p>C. P. Art. 360, “ when the defendant suffers judgment by default to be taken against him, the issue is joined tacitly, etc.”</p> <p>In the case of Prevost’s Heirs v. Johnson, et al., 9 Martin, Judge Martin in construing a provision in the Old Code, similar to Art. 2623 of the present Code, says : “ It seems that a suit brought does not alone suffice, that it is not enough that there should be a petition, that a copy of it and a citation should be served on the defendant, it is necessary there should be an answer, perhaps any plea will not suffice. In the words of the statute there must be a contestation."</p> <p>In Pearson v. Grice, 6 An. 137, Judge Preston said : “ that the Article 2623, and sec. 22 of Art. 3522 were not inconsistent, and that the impossibility of exercising the right without undergoing a lawsuit is never ascertained until the lawsuit is commenced,” which, according to Art. 359 of the C. P. is only after issue is joined, and the term litigious right being-particularly defined in Art. 2623, Art. 3522 if inconsistent with it must yield.</p> <p>Provisions similar to Articles 2622 and 2623 of our Code are found in Articles 1699 and 1700 of the Code Napoleon. In fact the language of the two Codes is exactly the same. Let us, then, see what interpretation has been placed on these Articles in France.</p> <p>Répertoire G-énéral, volume 5, page 910, sections 70, 71 et 72 :</p> <p>“ Pothier enseignait que ces expressions comprenaient toutes les créances qui sont contestées ou peuvent l’etre, en total ou en partie, par celui qu’on pretend débiteur, soit que le procos soit déjá commence, soit qu’il ne le soit pas encore, mais qu’il y ait lieu de l’appréhender. Au contraire, le Président de Lamoignon, n’admettait le retrait que lorsqu’il y aurait litige engage, ce qui était également. professé par Rousseaud de La Combe et par Mornac. Les rédacteurs du Code ont adopté cette derniere opinion, et ils ont déclaré dans l’Art. 1700 que la chose est censée litigieuse des qu’il y a procés et contestation sur le fond du droit.”</p> <p>It was decided by the Cour de Cassation in the case of Besserve v. Langlomé, 5 juillet 1819, that Article 1700 C. N. was restrictive of Article 1699, and was adopted to define accurately what rights were subject to the provisions of Art. 1699, and put an end to all uncertainty on that subject. See also Cour de Cassation, 24 janvier, 1827, Soujjlet c. Héritiers Collin ; Troplong, de la vente, vol. 2, p. 493 ; Dalloz, Jurisprudence du Royaume, vol. 12, p. 926.</p> <p>Marcadé, vol. 6, p. 352, says: “Il faut d’abord qu’il y ait actuellement proces, et il ne suffirait pas des lors que ce proces parüt imminent, inévitable, et que le droit ait été qualifié de droit litigieux dans l’Acte méme de cession, puisque cette qualification n’a pas alors le sens de notre Art. 1700.” Duvergier, Vente, vol. 2, No. 362.</p> <p>Guillaume, Code Napoléon, p. 579 : “ La chose n’est censée litigieuse que quand il y a proces sur le fond du droit. La loi a voulu qu’il fut certain que le droit est contesté, c’est-a-dire, qu’il y a des chances douteuses sur son principe et son existence. Ainsi le déclinatoire ou la nullité d’exploit proposée contre l’action ne suffirait pas; mais il en scrait autrement si Pon contestait la validité du titre du demandeur méme sous le rapport de la forme.”</p> <p>The Court of Cassation, in Guirail c. Epoux Bavancens, 11 fév. 1851, held that Art. 1700 O. N. did not apply to Art. 1597, which corresponds with Art. 2422 of our Code, prohibiting transfers of litigious rights to public officers connected with courts of justice and others.</p> <p>Journal du Palais, vol. 1,1846, p. 127, in the case of Grassiere c. Abeille, the court held, “ Attendu que l’Art. 1699 du Code Civil est une exception au droit eommun en matiére d’achat et de vente, que des lora il doit, dans 1’application, étre restreint au cas qu’il a prévu.” See also Guyonné c. Fallampin, 5 mai, 1836.</p> <p>In Grejfulhe et autres c. Mille, 7 juillet, 1837, the court held, “ La chose cédée est réputée litigieuse dfes qu’il y a proces et contestation sur le fond du droit. Que d’aprés cette définition, qui reproduit les principes du droit remain, que Pancienne jurisprudence avait modifiés, il est certain que la loi n’imprime au droit cédé Ie earactfere litigieux que lorsqu’au moment de la cession le droit est déjá l’objet d’un débat judiciaire entre le cédant et le débiteur.” See also Journal du Palais, vol. 1,1840, p. 657 ; Reden c. Chazal, 16 mai, 1839.</p> <p>Journal du Palais, vol. 1,1841, p. 461, the Court of Cassation held : “ Attendu, en droit, que le retrait autorisé par l’Art. 1699 du Code Civil ne peut, suivant l’Art. 1700 du méme code, étre exercé que lorsqu’il existe, au moment méme de la cession, proces et contestation sur le fond du droit. Que cette derniére disposition est limitative. Qu’ainsi il importe peu que le droit ait été cédé comme litigieux, que la vente ait été faite aux risques et périls de l’acheteur, et qu’elle ait un caractére aléatoire, parceque ces circonstances ne constituent pas le proces et la contestation impérieusement exiges par l’Art. 1700 du Code Civil.” See also Cour de Cassation, 20 mars, 1843 ; Journal du Palais, vol. 2 of that year, p. 194; also, Journal du Palais, vol. 9,18 Dec. 1811, p. 787.</p> <p>Marcadé, vol. 6, p. 404 : “ 11 faut d’abord qu’il y ait proces ; il ne suffirait pas des lors, ni d’une citation en conciliation, puisqu’elle n’est qu’un acte tendant a empécher le proces, ni méme du proces-verbal de non-conciliation, puisqu’il n’y aurait alors qu’imminenco d’un procSs et non proces existant. Il n’y aurait pas non plus proces légalement, si le défendeur ópposait une exception de chose jugée, et qu’elle füt admise, puisqu’il serait ainsi décidé que le litige n’était pas possible. Si une simple nullité d’exploit était opposée á Faction intentée la veille de l’expiration du clélai de prescription, la circonstance de fait que l’annulation de l’exploit entramera par contre-coup l’extinction du droit, n’empéche pas que le proces est étranger au fond du droit, puisque la question n’est pas l’existence du droit, mais seulement la validité de Pinstance actuelle.</p> <p>Rogron, Code Erangais Expliqué, Art. 1700 : “ Bien que le boAdroit du vendeur soit évident, il suffit qu’il y ait proces et qu’on le lui conteste, pour que la chose soit censée litigieuse et que l’acheteur puisse étre écarté. Ainsi, il faut qu’il existe non-seulement une contestation, mais encore proces né sur le fond du droit. Be dominio causa movetur, comme le voulait la loi romaine.”</p> <p>Now, tested by these principles, the right purchased by Long was not a litigious one, subject to the provisions of Art. 2622 Civil Code. It is a mistake to suppose that that Article was adopted to prevent litigation; it was adopted for the purpose of putting an end to litigation already commenced. Now, Long acquired his rights by the Act passed on the 25th March, 1849, at which time no suit had been brought. The Billiots did not sue until the 31st March, 1849, six days after Long had acquired these rights, and this suit was afterwards abandoned. It is true that a subsequent act was passed by the Billiots, but not signed by Long, on the 26th April, 1853, five days after the petition in the present case was filed, but long before any default was taken or answer filed ; so, whether we consider the act of 26th March, 1849, or the act of 26th April, 1853, there did not exist the “ suit and contestation on the some," necessary to constitute a litigious right.</p> <p>In France it was once held that the Art. 169.9 O. N. did not apply to transfers of land. It seems now to be settled, that one in possession and contesting the right of a claimant, can avail himself of the right to purchase, from one who buys the claimant’s litigious rights, at the price of the cession. See Cour de Cassation, 24th Nov., 1818 ; Commune de Laroche, Canilhac c. Ipcher ; Bourdeaux, 20 juin, 1819, Ponter c. Duplan; Cour de Cassation, .28 janvier, 1836, Perez c. Commune, etc.; Journal du Palais, vol. 1, 1853, p. 557 ; Journal du Palais, vol. 1,1840, p. 421; Répertoire Général, vol. 5, p. 912.</p> <p>We might object that the administrator of Moore’s estate is not in possession, and we do object that it is only Robinson, the defendant, who could under any circumstances require us to surrender to him our rights. The Billiots had no claim and brought no suit against Moore’s estate; their claim was against Robinson alone, and it is Robinson, and not the Billiots, who brings the suit against Moore’s estate. If Robinson should transfer his rights against Moore’s estate to a third person, after the call in warranty had been made, and after a contestation should arise in that call, then Moore’s estate could claim and exercise the right provided in Art. 2622. Our claim is against Bobinson and Robinson alone, but if your Honors should decide differently, then we say, that when the Billiots transferred their claims to Long, in 1849, no suit was pending in regard to the ownership of the land between any parties, and that when the Billiots signed the act of 1853, ratifying and confirming the act of 1849, do suit and contestation existed between any parties ; a petition had been filed by the Billiots against Robinson, but no default had been taken Dor answer filed. And the administrator of Moore’s estate, who claims that a litigious right against him had been sold, had not even been mentioned.</p> <p>2. If the right was a litigious right, has the requisite legal tender been made ?</p> <p>If the right acquired by Long was a litigious right, (which it clearly was not,) and Robinson’s warrantor might avail himself of the privilege of substituting himself to the purchase of the said right, has he placed himself in the legal position to do so, by actually tendering and depositing, at once, the real price of the transfer, together with the interest from its date, and instantly ceasing all judicial contest as to the validity of the original claim.</p> <p>The first transfer or promise of sale was made to Long on the 25th March, 1849, and recorded on the 6th of April, of the same year ; this was known to Moore’s administrator on the 22d October, 1851. (See his intervention in suit No. 35G.) The last transfer was passed on the 26th April, 1853, five days after the filing of the Billiots' petition. And if the right or title of the Billiots became a litigious one, simply because this petition had been filed, then from that instant the penalty imposed by Art. 2622 might have been invoked, and no subsequent transfer by Long to a third person could have defeated the right of substitution to Long’s purchase of the land in controversy.</p> <p>On the 2d December, 1853, the warrantor filed his answer in this suit, and therein sets up against the Billiots and Long, whom he makes a party to the suit, a controverted defence against the original claim for the land, thereby defeating the very object of the law, instead of abandoning the litigation and asking to be substituted to Long’s purchase, of which he certainly then had full knowledge, as he actually refers to it, and claims the benefit of it in his answer.</p> <p>When the warrantor filed his answer, on the 2d December, 1853, and asked to take Long’s place, why did he not then do effectually what he absolutely attempted to do when the case was called for trial four years afterwards, make a legal tender of the price of the transfer and deposit the money in court, and at once cease all further contest? For the very plain reason, that he thought he might perhaps defeat the Billiots’ claim and thus rid himself of Long, and save the price paid by Long to the Billiots, And if he failed in this, then he would be legally substituted to Long’s transfer.</p> <p>This is a stronger case than any previous one submitted to and decided by this court, among which are those of Pearson v. Grice, 6 An. 338; Winchester v. Cain, 1 Rob. 424; Leftwich et al, v. Brown, 4 An. 104.</p> <p>But if the warrantor was in time to make the tender, did he make it according to law ?</p> <p>He proved that he had offered to the attorney of Mr. Long, on the — day of -, 1857, $227 78, being $150 principal, $34 40 interest, and $43 70 costs. Interest at five per cent, per anmim was calculated to the date of the tender from the 26th April, 1853, the date of the confirmatory act passed by the Billiots.</p> <p>This tender was held sufficient. If it was, we must disregard entirely the agreement between the Billiots and Long in 1849 ; for, if we consider that Long acquired the rights of the Billiots at that time, the amount tendered is not sufficient, as interest should have been calculated from the date of that agreement.</p> <p>The law requires the defendant in such cases to reimburse the plaintiff his entire outlay. It may be true that Long did not pay the Billiots the price until the 26th April, 1853 ; but Art. 2622 O. 0. expressly provides that interest must be allowed from the transfer. Besides, Long agreed to pay the fees of counsel, and all other expenses, and we contend that a sum sufficient to cover these fees and expenses should have been tendered.</p> <p>Nor can the administrator contend that he was not notified of the agreement of 1849, for in his intervention in the case No. 356, filed 22d October, 1851, he expressly mentions that agreement, and prays to be released on paying Long the price paid by Km. This conclusively shows that it is to the agreement of 1849 that we are to look both for the purpose of considering whether the right was a litigious right and for the purpose of calculating interest on the amount paid by Long.</p> <p>We contend further that a tender to Long’s attorney was not sufficient. O. P. 404, 407 ; O. 0. 2164 ; Mudd v. Stille, 6 La. 19.</p> <p>The administrator cannot contend that Long being absent he could only tender the amount to his attorney, for he had been informed ever since the 22d October, 1851, that Long had purchased the rights of the Billiots, and he had six yeais in which to make the tender to him personally, most of which time Long was present in the parish.</p> <p>Both a tender and deposit should have been made. 0. 0. 2161; Benton v. Roberts, 2 An. 243 ; Degoer v. Hellen, 2 An. 496 ; Small v. Zacharie, 4 Rob. 144. It is true that the administrator asked and obtained leave to deposit the amount in court, but non constat that he did it.</p> <p>We, therefore, respectfully contend that the judgment of the District Court should be reversed ; because—</p> <p>1. The right purchased by Mr. Long was not a litigious right.</p> <p>2. Even if the right was a litigious one, the tender was insufficient; because— First. The amount was not sufficient. Second. The tender should have been made to Long, and not to his attorney. Third. The formalities of the law were not complied with in making the tender.</p> <p>This suit was instituted as a petitory action, on the 21st of April, 1853, to recover a tract of land in the parish of Terrebonne; and the facts are as follows : Plaintiffs claim title to section 102 in township 20, range 18 East, then and now in the possession Of the defendant, Robinson, who holds by virtue of a purchase from S. G. Moore, dated February 5th; 1846. Defendant answered on the 23d of November, 1853, 'by a general denial, setting forth his title as derived from Moore, and calls in warranty James L. Cole, administrator of the estate of Moore, on the 2d of December, 1853. Cole answers by a general denial; avers that Moore had sold to Robinson two tracts of land, one of which is that now in dispute ; that when the price fell due, Robinson refused to pay the same ; that being sued, he answered, on the 2d of October, 1848, that D. A. Long claimed a part of the land and threatened him with eviction; that afterward, Long, being then Robinson’s overseer, agreed with the Billiots to pay the expenses of a suit against Robinson to recover section 102, and on the establishment of their title, to buy the land for one hundred and fifty dollars ; that on the 31st of March, 1849, suit was accordingly instituted against Robinson in the name of the Billiots, which suit respondent verily believes was instigated by Robinson himself—but which suit was dismissed without ever having been brought to a trial. That on the 26th of April, 1853, (after the filing of this suit) Long bought the land from the Billiots for one hundred and fifty dollars ; that from all the circumstances of the ease respondent believes that D. A. Long is an interposed perspn by Robinson, who stirred up this suit in order to avoid paying the price of the land; and that Long having really purchased for Robinson, said Robinson has thus quieted his own title. He further alleges, that if Long be really a purchaser for his own account—he was knowingly the purchaser of a litigious right, and that respondent has the right to 'release himself from this suit and quiet his title, by paying to Long the sum of one hundred and fifty dollars, paid for the land, with interest and costs. The answer closes with a prayer that Long be made a party to this suit, &e., &c. Such was the state of the pleadings up to the 6th of October, 1857, (the case having already been fixed for trial,) when Long first makes his appearance in court, by filing his answer and petition in intervention, in which he admits the two acts under private signature, described and referred to in the answer of J. L. Cole, said acts bearing date 25th of March, 1849, and 26th of April, 1853, and duly recorded, avers himself to be, in virtue of said acts, the sole owner of the land in dispute, as transferree of the Billiots, whose allegations and averments he adopts and makes his own, and prays that he be declared owner of the tract of land in dispute.</p> <p>The court will observe the confusion and uncertainty prevailing in our original answer, on the part of Cole, warrantor; that uncertainty concerning the nature of Long’s transactions with the Billiots, resulting from his relations towards Robinson, and irom all the circumstances of the case, which made it doubtful whether he was not the mere cat’s paw of Robinson, who would thus have covertly quieted his own title. That uncertainty was only removed by Long’s appearance in the suit, and positive claim of title for himself, personally. His appearance dispelled all legal doubts as to the position of the parties; and we were then, and only then, clearly given to know who was the real claimant— who was our real adversary. It was only when he had assumed this fixed identity, that we were in a position to use all the weapons of the law in our defence. We chose to avail ourselves of the wise and equitable provisions of Article 2622 of the Civil Code, and on the 5th of October, the very next day after the filing of Long’s petition in intervention, we made a tender to Long’s attorney of record, of the sum of $227 76, the amount of the principal, interest and costs of the purchase from the Billiots, which being refused, we deposited in court.</p> <p>It is objected:</p> <p>1st. That this is not a case of the purchase of a litigious right.</p> <p>2d. That the offer of payment comes too late.</p> <p>A right is said to be litigious, when there exists a suit and contestation on the same. 0. C., 2625. Litigious rights are those which cannot be exercised without undergoing a law suit. C. 0. 3522, No. 22.</p> <p>Judge Preston reconciles the apparent inconsistency of these definitions, by saying that “ the impossibility of exercising the right without undergoing a law suit, is never ascertained until the suit is commenced. And it becomes a litigious right by the commencement and existence of the law suit.” Pearson v. Grice, 6 An. 137. The question of the litigiousness of the rights purchased, is then to be decided by a simple comparison of dates. The second agreement made by Long, with the Billiots, by which he became the purchaser of their title, bears date April %Uh, 1853. This suit was “ commenced and existed,” on the 23d of April, 1853. Robinson had accepted service of the petition. It would seem that this simple statement would put the question at rest; but the plaintiffs insist that the mere inception of the suit was not sufficient to render litigious the rights which it asserted; but that they only became litigious when their validity was put at issue by defendant’s answer, filed on the 25th of November, 1853.</p> <p>In support of this view of the subject, they cite the case of Prevost’s heirs v. Johnson et al. 9 M. 123. Tour Honors will observe, that the question before the court in that case, was not whether the commencement of a suit rendered the rights which it enforced, litigious, but whether “ the right purchased by the defendants can be said to be a litigious one, although no suit was ever instituted for the recovery of the premises.” That is a very different question, and no one will impugn the propriety of the negative decision of the court. It is true that the court declare arguendo, and for the purpose of preparing an argument a fortiori, that “ it is necessary there should be an answer.” But such obiter dicta are not entitled to any weight as authority. However that may be, the present case is to be decided under laws different from those which prevailed at the time the case referred to was decided. The Code of 1825 presents, with regard to the question at issue, a marked difference from the Code of 1808. The latter of which contains no supplemental definition as that contained in Article 2522, No. 22, C. C. That Article modifies and enlarges the definition previously given in Article 2625, and gives a broader scope and application to one of the wisest and most salutary rules of the civil law. The authority of Judge Preston, which we have already invoked, gives a simple and sensible interpretation of the apparent conflict between the two Articles, which, taken together, show no contradiction, but rather the fuller development and extension of a principle whose operation was too much restricted under the former Code. According to Marcadé, vol. 6, p. 351, there was great diversity in the ancient jurisprudence of France, as to what was necessary to constitute a litigious right. “ Les parlements de Paris et Toulouse, s’arrétant au fait matériel, déclaraient droits litigieux tous ceux et uniquement ceux sur lesquels il y avait litige au moment de la cession. Mais cotte idée était vivement critiquée,” &e. The parliament of Bordeaux, on the other hand, determined by an appreciation of the circumstances of the case, the character of the ceded right. The Code Napoleon has adopted and consecrated the former system as being the best calculated to relieve the courts from long and interminable inquiries : “ II a trouvé plus sage de s’en teñir au fait matériel. The legislators of our present Code, adopting the jurisprudence neither of the parliament of Paris nor that of Bordeaux, have taken a middle ground between the two. N ot requiring, like the former, that there should be actual contestation of the right in order to render it litigious; nor permitting, like the latter, an inquiry which would, of itself, be a lawsuit. The commencement of the suit, according to the result of the two Articles of our Code, on the subject, taken in conjunction, renders litigious the right asserted by the suit.</p> <p>The plaintiff urges that even if the right is litigious, it is too late for us to claim the right of purchasing it. There is no provision of law limiting the time within which parties may avail themselves of the privilege conferred by Article 2622. But we submit, that the offer and tender of payment to Long of the price of his purchase, with interest and costs, was made as soon as it could possibly have been made. It was made the very next day after he had appeared in court and demanded the enforcement of the right. Up to that time, we were totally in the dark as to the real ownership of that right; we thought, and the circumstances of the case justified the belief, that Robmson was the real purchaser. But so soon as Long appears and asserts liis right, we offer to pay him the sum for which he bought it. How then can it be said we are too late ? “ II a été jugé que le retrait litigieux pent étre exereé pour la premiere fois en appel, alors surtout que c’est seulemont depuis l’instance ouverte devant la cour que celui qui l’exerce a en connaissance des clauses et conditions de la cession. Cette action constitue en efíet une simple défense a la demande principale.” Répertoire G-éneral, vol. 5 ; Droit’s Litigieux, Nos. 138 and 143. For further elucidation of this case we refer to the able opinion of the Judge of the lower court in this case, and respectfully ask that the judgment of said lower court be affirmed.</p> <p>Plaintiff denies the validity of the tender made by us of the purchase price of the litigious right. There is no law or rule of practice requiring a legal tender in such a case, and the mere word “ tender” used by the court in the decisions cited, cannot introduce a rule not contained in the Codes. The word “ tender” is not there used (in the decisions) in its strictly legal sense, but only to signify offer to pay—not “ offres réelles.”</p>

<p>from tbe Fourth District Court of New Orleans, Price, J.</p>

The plaintiff claims a slave, relying upon a title given by R. W. Long to “ W. C. Pope and Eliza Pope, his wife, and to John Haggerty, their adopted child and the survivor of them, in consideration of $350 to him paid by William C. Pope and Eliza Pope.” It is stipulated in the deed, that “ if the said John Haggerty (who is now an infant of about the age of two years) should happen to die, or be taken away by his relations, or go away from the said William C. Pope and Eliza…

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

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

<p>The vendor of a steamboat is not a competent witness for his vendee, in a suit in which the title to the boat is involved,</p>

<p>PPEAL from the District Court of the parish of St. Charles, Burthe, J.</p>

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

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

<p>Tho refusal of a common carrier to take goods for a particular consignee is a violation of an obligation to the shipper and not to the consignee,—an action of damages in favor^of tho consignee yyill not lie in such a case.</p>

<p>The Fourth. District Court of New Orleans has no jurisdiction in matters of succession.</p> <p>A curator of a vacant succession who has been regularly appointed by a court of competent authority, cannot be called upon to account for any funds of the succession in his hands, before any other court than the one in which the succession has been opened.</p> <p>When the amount of a debt due the succession by the curator has been inventoried, he is thereby charged with so much money in his hands due tho succession—he cannot be sued for such a debt • the proper remedy is to call upon him to account for it as funds in his hands, before the court in which the succession has been opened.</p>

<p>Tho priority of application, has weight principally in tho appointment of curators to vacant successions, or to application by creditor^ to bo appointed, administrators, and then only among persons otherwise having egual rights.</p> <p>A Judge is not bound to appoint two beneficiary heirs, oven with equal claims, administrators of a succession, the law leaving it discretionary with him to appoint one or two, regard being had to tho solidity of the appointee.</p> <p>Allegations of fraud cannot bo noticed in an opposition to an application for administration, as thoy form the subject of an independent litigation, and should not be triod collaterally.</p>

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

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

<p>Where the judgment of the lower court amended the tableau of distribution and charged the administrator with sums of money so as to give an additional amount to each of the heirs, and the administrator appealed, making only those heirs who had called on him to render his acoount parties to the appeal—Held: That the appeal should be dismissed, as all the heirs should have been made parties to it, bciug interested in maintaining the judgment appealed from.</p>

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

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

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

<p>If the order granting an appeal does not mention tbe return day, and the appeal is filed after the next return day had passed, the appeal will he dismissed.</p> <p>It is the duty of the Supreme Court to notice, ex officio, irregularities in the proceedings of the court below.</p>

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

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

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

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

<p>The defendants wore indicted for inflicting inhuman and cruel treatment on a slave, tlio property of one ol* them—Held: That the sections of the Act of the Logislaturo of 1806, callod tho Black Code, under which the indictment was framed, aro not repealed by the Act of 1855 relative to crimes and ollbnces, nor by the Act of 1857 relative to slaves.</p> <p>The terms conviction and offence used in the Act, imply a prosecution by information or indictment, and not a proceeding by suit to recover a flne.</p> <p>The appellate court has no powor to reverse the judgment of tho lowor court on tho ground, that the jury disregarded the instructions of the Judge.</p>

<p>PPEAL from tlie District Court of the Parish of St. Mary, VoorMes, J.</p>

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

<p>A party, after having movocl for tho homologation of aj*eport made by auditors, cannot go behind tho same and demand judgment for maltors submitted to them, but not allowed by their report.</p>

<p>Whore a reconventional demand founded on a promissory note was set up, and "by a consent judgment the plaintiff’s suit was dismissed—Held: That it was a voluntary abandonment of the reconventional demand and did not interrupt the prescription on the note.</p> <p>An admission by a party, that a person holds a note against him is*not, of itself, an admission that he justly owed to such person the amount of the note; there must bo an acknowledgment of the creditor’s rights.</p>

<p>A new trial will not be granted on the ground of newly discovered evidence, when tho party applying for it fails to show in his affidavit that ho had used due diligence to procure or discover the evidence. Where no bill of exceptions has been taken to the ruling of the Judge in refusing to grant a continuance, the Supremo Court will not notice such refusal.</p>

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

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

<p>APPEAL from tlie District Court of the Parish of St. Landry, Martel, J.</p>

<p>Whon a servitude is due by an estate below to receive the waters of the ostato above, the proprietor below is not at liberty to raise any dam, or to make any other work to prevent the running of Iho water, and the proprietor above can do nothing whereby U\o natural servitude duo by the estate below maybe made more burdensome.</p> <p>To acquire the right to a continuous and apparent servitude by prescription, the enjoyment of it must bo absolute and uninterrupted during ten yorrs,and not dependant only upon a precarious permission from the debtor.</p> <p>Whore the creditor of the servitude, to stifle the complaints of the debtor and prevent a law suit, himself erects works totally obstructing the servitude, at the roquest of, and by agreement with, the debtor. Held : that lie thereby makes a tacit renunciation of the servitude.</p>

<p>An executor under a will is bound to pay tlie costs and attorney’s foes for presenting tlie will for probate and defending it wlion attacked by the heirs, if there should be judgment against him annulling the will, on account of the agency which ho had in its dictation.</p>

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

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

<p>The husband is tho head and master of tho community, and tho dohts which ho contracts as a general rulo outer into tho community 5 tho casos in which the wife is bound are exceptional, and tho party seeking to hold hor responsible, must mako the proof which renders her liablo.</p> <p>Tho mere fact that tho goods furnished during tho existence of tho community aro for the family uso, does not, in gcnoral, rondor tho wife liable, although tho husband has no soparato estate, and no other property except tho revenues of tho wife’s property and his own industry, which fall into the community.</p> <p>Tlio wife is not responsible for supplies furnished to the husban’d for his own use, particularly when it is not shown that tho revenues of tho wife’s property were not ampio to pay tho ordinary expenses of the family.</p>

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

<p>Tho decision in tho case of Curtis v. Blaclceler, just decided, re-afflrmcd.</p> <p>When an answer to au intervention, in which title to property attached is set up, alleges simulation and fraud in such title, and asks that the sale to the intervenor bo annulled on these grounds, and no exception is taken to the irregularity of such proceedings, tho court will inquire into and examino the questions raised in such answer, and will not reverso a judgment setting aside the sale, on tho ground that it should have been attacked directly in a revocatory action, and not collaterally m tho attachment suit.</p> <p>When a party purchases property from an absconding debtor, it is presumed that ho must have known, that his vendor’s object in selling his property was to deprive his creditors of their recourse upon it.</p> <p>A sale made under such circumstances is fraudulent, and subsequent payments made by tho purchaser cannot cure the defects of his title.</p>

<p>A drawer of a bill of exchange is entitled to notice of protest for non-payment, whore it appears that such bill was not given for his accomodation, hut that of tho acceptors, who had specially contracted that tho bill should bo paid at maturity.</p> <p>The fact that tho bill was payable by tho acceptors, at a particular place, did not dispense the holder, who wished to fix a liability upon the drawer, from tho duty of notifying him of the protest for nonpayment.</p>

<p>Where a slave was sold, on the condition that the purchaser should emancipate her as soon as it could ce done—Held: That the Act of the Legislature of 1S57, prohibiting the emancipation of slaves in this State, renders the fulfilment of the condition impossible, while that Act remains in force.</p>

<p>A defendant who has allowed a judgment hy default to he mado final against him, is incompetent to testify upon tho trial of tho caso as to liis co-defendant, who has answered, ho being interested in tho question of costs.</p>

<p>Where the title to property, seized by the creditors of the vendor, was decreed to be fraudulent and simulated, in a suit to which the vendeo was a party—Held: That such judgment is res judicata, as to tho vendee’s claim to the title, but not as to his other claims upon tho property ; and if he have any privilege or right to claim any portion of the price, he should have an opportunity of showing it</p> <p>Held, also, that ho was not entitled to enjoin tho salo of the property,but his privileges should have been enforced upon the proceeds of the sale.</p> <p>It is not necessary that an affidavit for injunction made by an agent, should set forth the absence of the principal, it is sufficient to prove on tho trial that he was absent at the time the affidavit was made.</p>

<p>APPEAL from the District Court of the Parish of S. Martin, Voorlues, J.</p>

<p>Where the appeal "bond recites the judgment, and sets forth the fact that the appellant has taken a suspensive appeal from such judgment, and a blank is left for the amount to be filled up, it will be presumed that the blank was left in order to ascertain by calculation the amount fixed by law for a suspensivo appeal, and the parties signing the bond will be bound for that amount.</p>

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

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

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

<p>APPEAL from tlie District Court of the Parish of St. Mary, Voorkies, J.</p>

<p>Where in a marriage contract it was stipulated, that in case of the death of either party, the property should return to the estate of the person to whom it had belonged—Held: That there is nothing in such a contract to provent a widow in necessitous circumstances from claiming her marital fourth under Article 2359 of the Civil Code.</p>

<p>"Whore tlie proper officers of the land department have ordered the survey of a confirmed grant, after holding up the claim for many years, on the ground of a suspicion of its "being fraudulent and forged, such objection to the title cannot he raised afterwards by an adverse claimant.</p> <p>It is not necessary to trace such a title to the original claimant j if it is traoed to tbo confirmee, whoso existence is not contested, it suffices.</p>

<p>The dictum In Williams v. Close, 12 An. 877, that the confirmation of a Spanish, grant inures to tho benefit of the original owner, was said, arguendo ; the decisions in Pui'vis v. Ilarmanson, 4 An. 422 ; Thomas v. Phillips, 7 An 546 ; and. Farmer's Heirs v. Fletcher, 11 An. 142, affirmed.</p> <p>The title to public lands being in the government of tho United States at the time certificates of confirmation are issued, the land department at that time is vested with the exclusive jurisdiction to settle and fix tho boundaries between the claimants.</p> <p>When the department has acted and fixed tho boundaries, in the absence of fraud on the part of the party claiming under such action, or any particular equity in favor of any other party, effect must be given to the action of the department.</p> <p>Boforo patents are issued for public lands, the judgment in a suit between parties involvingt he validity of their respective confirmations, can only maintain the party in whose favor the judgment is rendered, in provisional possession of the land in dispute.</p>

<p>■Where the appellee has not been cited, and the fault is not imputable to the appellant, further time for service of the citation of appeal will be granted under the Act of the 20th of March, 1839.—Buchanan, J.</p> <p>Where a suit was brought by a slave, who caused herself to be sequestered, and when an appeal was taken from a judgment rendered in her favor, she could not be found to be served with the citation of appeal—Held: That service of the citation upon her counsel must be considered as good as if she had departed from the State.—Cole, J.</p> <p>A person to whom a statu liber owes service, has the right, on moving from one State to another, to take such statu liber with him, and thus change the domicil of the statu liber.</p> <p>The status of a slave, or statu liber, is governed by the law of his domicil.</p> <p>Where a statu libera domiciliated with the person to whom she owed service in Louisiana, fled from such service to the State of Kentucky, from whence she had been removed while a statu libera, and there obtained a judgment in a court of Kentucky (by whom counsel was appointed to represent the absent defendant) against her owner in Louisiana, recognizing her right to her froedom—Held: That in a suit afterwards brought by her, on her return to Louisiana, against the owner from whom she had fled, the judgment so obtained would not be recognized as binding on the defendant. The domicil of both plaintiff and defendant being in Louisiana, the courts in Kentucky could not assume jurisdiction over the status of plaintiff, nor render a judgment binding on defendant, without notice to him.</p> <p>Where the statutes of another State are not offered in evidence, the law there will he presumed to be the same as our own.</p> <p>Since the Act of the Legislature of 1857, prohibiting the emancipation of slaves in Louisiana, the right of a statu liber to freedom cannot be recognized.</p>

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

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

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