Volume 14 — Louisiana Annual Reports

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

<p>A judgment will he annulled, which was rendered against a party on whom no service of the petition and citation was made, hut for whom an answer was filed by an attorney at law without authority. By our law, which differs from the common law, the attorney in such a case is responsible to the plaintiff for having undertaken without authority to represent him in a court of justice.</p>

<p>Whon the widow in tho community, and natural tutrix of her minor children, having the possession and administration of the property of her deceased husbands succession during her life, enters into a partnership with the heirs who are of full age, and slaves and other property of the succession are employed and used by the partnership — Held: that tho minor heirs wore not, and could not be made by their natural tutrix, members of the partnership, and consequently, after her death, have the right to sue for, and recover from tho surviving partners, a debt due them by tho partnership, before a final settlement and liquidation of tho partnership aftairs. Held also : that the hire of tho slaves was a debt due the succession by the partnership, and that tho minor heirs aro ontitlod to recover from the surviving partners tho portion of the hire of the slaves due them, loss tho portion which was extinguished at the death of their mother by confusion, on their becoming her beneficiary heirs.</p>

<p>PPEAL from the District Court of the Parish of Plaquemines, Foulkouze, J.</p>

<p>When a party in settlement of a debt pays, through error, compound interest in addition to the amount and interest really due — Held: That he is entitled to recover the difference between the amount really due and the debt at compound interest as collected.</p>

<p>Tho private memoranda or projets of an agreement, unsigned and retained by tlie writer of them are not evidence of a contract obligatory upon him or his representatives, unless corroborated by other testimony.</p> <p>The heirs of a deceased partner are notbound by the rigid rules as to notice of dissolution of the partnership applicable to the withdrawal of a partner from the firm, who would still be liable if he permitted his name to remain in the partnership.</p> <p>The continuance of the deceased partner’s name, as part of the firm name, is not of itself a cause of continuing liability on the part of the heirs.</p>

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

<p>The functions of an executor are not limited to the execution of the legacies contained in the will, hut extend also to the payment of the debts of the deceased.</p>

<p>The acknowledgement by a married woman in an act of mortgage of her indebtedness, does not estop her from denying that the debt which her mortgage was given to secure had enured to her separate "benefit.</p> <p>The creditor is hound to show affirmatively that mortgage notes signed by a married woman were given for a debt which had enured to lier benefit, in order to render her liable.</p> <p>The burden of proof in such case rests on the creditor, although the wife is separated of property from her husband.</p> <p>A married woman, when properly authorized, may become security for any other person than her husband.</p>

<p>A defendant pleading prescription may be interrogated, as to any acknowledgments or promises lie may . have made, before prescription has been acquired.</p> <p>The Act of 1858, which, provides that parol evidence shall not be admitted to prove a promise to pay any writton obligation when prescription has already run, but that in all such cases tho promise to pay shall be proven by written ovidenco, is an Act affecting the remedy, and must be held to apply only to tho proof of promises made subsequent to its passage.</p>

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

<p>Since ttie statute of 1843,-a bare majority of the creditors of an insolvent have the power to grant a respite and thus postpone the payment of the debts of the minority.</p> <p>The vote-of a single creditor for a respite, is nota more offer to make a new contract between the creditor and debtor, but is a quasi judicial act by which the rights óf othor creditors are to be affected.</p> <p>Any agreement of the debtor to buy the vote of a creditor by giving security for the payment of his debt, must be considered as fraudulent, and the creditor whoso vote is thus bought, cannot recover the amount of his debt against the surety furnished by his doctor, as the contract must bo considered as a perversion of the course of justice, and a fraud upon the court charged with the homologation of the deliberations of the creditors.</p>

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

<p>Where ail officer in executing a writ of fieri facias against the husband, seizes property which he has good reasons to lenow is tho separate property of the wife, he is responsible to her in damages for such illegal seizure.</p>

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

<p>Proof of possession as owner is sufficient to maintain an action of damages for injury done to a slave. The authority given by law for the use of fire-arms by freeholders, in the arrest of slaves under certain circumstances, is not to be extended beyond the express terms of the statute.</p>

<p>An affidavit to obtain, an attachment, that the plaintiff really believes and has just grounds to apprehend that the defendant may depart from the State, &c., is insufficient. The affidavit must be positive as required by Art. 242 of the Code of Practice.</p>

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

<p>PPEAL from the District Court of the Parish of Pointe Coupée, Ratliff, J.</p>

<p>from tlie First District Court of New Orleans, Hunt, J.</p>

<p>A slava claiming to be a siaiu liber, whose master is a resident of another State, cannot have her rights judicially investigated in this State. She should resort to the courts of the State in which her master is domiciliated.</p> <p>Under our present law no slave can bo emancipated, and a slave’s right to freedom cannot be established here according to the laws of another State.</p>

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

<p>A partner cannot obtain judgment against his copartners for a debt due him by the partnership, when it is shown that the partnership accounts are unsettled, and that the judgment asked for will not have the effect of a final liquidation of the partnership aflairs.</p>

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

<p>■When a party is sued for damages, resulting from a Preach of contract in failing to deliver, as he had contracted to do, a specific number of molasses barrels — Held: That tho market price of barrels at the time of the breach of the contract, and not exceptional sales, is the proper criterion for the estimation of damages.</p>

<p>Tlxc arrival of a vessel at New Orleans, after refusing to obey tlio orders to remain in quarantine at tlie Quarantine Station, in tbe parish of Plaquemines, is an offence committed in the parish of Orleans, and triable in the First District Court of New Orleans. Session Acts 1855, p. 316, § 6.</p> <p>Tlio proclamation of the Governor is the only evidence admissible to prove that the port of departure of the vessel was an infected place ; but, being matter of ovidence, it need not be set forth in the information.</p>

<p>The lessee of mortgaged property holds his lease subject to a dissolution by the judicial salo, which may take placo to enforce the mortgage.</p> <p>If aftor the sale such lessee continues to enjoy the property, he will bo bound for the ront to tho purchaser, notwithstanding ho may have paid his negotiable notes, in tho hands of third persons, which were givon in consideration of tho ront at the time tho loase was executed.</p>

<p>APPEAL from the District Court of the Parish of Jefferson, Burt'he, J.</p>

<p>A creditor whose debt lias been secured by a conveyance of property to a trustee, with authority to sell, and pay the debt, cannot claim such property as owner ; and when attached, cannot set asido the attachment, upon giving bond, and take possession ofit during the pendency of the litigation.</p> <p>Such a conveyance would only give him the right to onforco the execution of the trust, and make him a creditor with a privilege.</p>

<p>Whore plaintiff sacs oat an attachment, and a third party intervenes claiming tho goods attached as vendor, having tho right of stoppage in transitu, and bonds tho property soized — 2-Idd: That if he fails in his intervention, although his bond may not bo made iu conformity to law, ho and.his surety are nevertheless bound to satisfy any judgment that may be obtainod against tho defendant.</p> <p>In such a cas3, the return of nulla bona upon an execution issued against the defendant, is sufficient to render tho suroty upon tho bond of the intervenor liable.</p>

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

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

<p>An appeal will lio from an interlocutory order dissolving an injunction in accordance witli tho provisions of Article 307 of tlio Codo of Practice, when the facts show that such an order will work irreparable injury to the plaintiff in injunction.</p> <p>Article 56D of tho Codo of Practice allows an appeal in all casos where an interlocutory order may work an irroparablc injury. Held: That an order which necessarily compels a party, in order to protect his rights, to institute another suit for the same cause of action, is one from which an appeal will lie under this Article of the Code of Practice.</p> <p>When an appeal is taken from an ex parte order, under Article 307 of the Code of Practice, dissolving an injunction, tho necessary consequence of maintaining the appeal is to revorso tho order dissolving tho injunction. ¡</p>

<p>A mandamus will not be granted by the Supreme Court, to compel a District Judge to rescind an order granting an appeal.</p>

<p>Where an appeal lias been taken by the defendant and warrantor, and tho defendant alone files an appeal bond, It is presumed that the warrantor has abandoned liis appeal, and in such a case the plainlifl: cannot complain, as ho has no judgment against tho party called in warranty. Objections to the sufficiency of the security on the appeal bond, should be made in the court below.</p> <p>No judgment having been rendered in favor of the plaintiff against the warrantor, there can be no objection to the warrantor signing, as surety, the appeal bond given by defendant.</p> <p>The law does not make it absolutely necessary for the Clerk to affix tho seal of the court, to his certificate attached to tho transcript of the record.</p> <p>Where plaintiffs bring a petitory action to recover a slave, alleging that their right of proporty in tho slave was derived by inheritance from their mother, and subsequently attempt to amend their petition by demanding in the alternative, if the court should be of opinion that the slave was the community proporty of their father and mother, that they be decreed tobo tho owners of one-half of the slave claimed, and at tho same time expressly adhere to their original demand. — Held: That tho two domands are inconsistent, and that the District Court did not err m rejecting the alternative demand.</p> <p>Parol ovidonco is inadmissible to show that a slave was received by tho husband, in lieu of money due his wifo from her father’s ostate.</p> <p>Proporty bought by the husband in his own name, and paid for with the separate funds of his wifo, is not tho proporty of his wifo, but tho fact of his having paid for it out of tho separate funds of his wife, gives to hor a mortgage for tho amount thus used, which in a proper form of action may be enforced on any property of tho husband.</p>

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

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

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

<p>APPEAL from the District Court of the Parish of Pointe Coupée, Ratliff, J.</p>

<p>The District Attorney is not bound, under tbe 15tli section of tbeAct of 1855 cc relative to criminal proceedings,” to enter a nolle prosequi in a case of assault and battery which has been compromised, the section not being imperative, but merely permissive.</p>

<p>PPEAL from tlie District Court of the Parish of Madison, Farrar, J.</p>

<p>The decisions of the Register and Receiver of the Land Office, and other federal tribunals, on questions involving the conilict of titles emanating from the federal government, are not subject to the revision of State Courts.</p> <p>The courts can look behind a patent, but not in all cases ; and the general rule, that nothing perfects the title to public lands, but a patent, as not without exceptions ; it has been held, that where an equitable right originated before the date of the patent, whether by the first entry or otherwise, and was assorted, such right might be examined into.</p>

<p>Tu aoriminal case the Supreme Court cannot assume jurisdiction over questions of fact decided by the court below on a motion for a new trial.</p>

<p>TSig notary who protested a bill of exchange certified that ho went to tho office of the acceptors of the bill in order to demand payment of it, and found the office shut, and, on enquiry, could not find the acceptors nor any one who could pay the bill — Held: That it will be presumed in the absence of proof to the contrary, that the notary had the draft with him, and that he went to make the demand within the usual office hours.</p>

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

<p>Tlie testatrix, E. II., made a will and died in Louisiana, the place of her domicil. By lier will she gave to one of her children the whole of certain immovable property situated in. Jackson county, Mississippi, and one-third of the remainder of her estate. The balance of her estate she directed to be divided among her other four children. Held: That the right of the testatrix to make such a disposition of immovable property situatod in another State, is to be determined by the lex rei sitas.</p> <p>That the laws of Louisiana, the domicil of tho testatrix, making her children forced heirs for a certain proportion of her estate, being in conflict with tho lex rei sitas, the latter must govern.</p> <p>Held, further, that an express declaration in the will, of the intention of tho testator to give the one-third of the estate to ono of tho children as an extra part over and above tho legitimate portion, was not indispensable, the intention being apparent on the face of the will.</p>

<p>Tlie lltli section of tlie Act of the Legislature of 1855, which provides that whenever the District Attorney shall not attend, the Judge shall have power to appoint an attorney to prosecute on "behalf of the Stato, (pro tempore,) is not a violation of Article 83 of the Constitution of 1852, which requires that the District Attorneys shall be elected by the people.</p> <p>Objections to an indictment for formal defects, apparent on tlie face of it, must bo taken by demurrer, or motion to quash the indictment before the jury are sworn, and cannot be mado afterwards.</p>

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

<p>PPEAL from the District Court of the Parish of Terrebonne, Roman, J.</p>

<p>The existence of the clause de non alienando in an act of mortgage, does not change the rule that a sale of succession property regularly made under a judgment of the Prohato Court discharges the mortgages on it given hy the deceased.</p>

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

<p>Tlio appointment oí' a dative testamentary executor should not bo made when there ave no debts of the estate to be paid, nor legacies to be discharged.</p>

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

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

<p>It cannot be objected to tbe confirmation of a land claim by Act of Congress, that the commissioner exceeded his powers by inquiring into and. reporting upon a claim not embraced in the instructions of Congress, when it appears that Congress, notwithstanding, accepted the report and confirmed the</p> <p>The American State papers published by order of Congress are admissible as evidence The copies which they contain of legislative and executive documents, are as good evidence as the originals are from which they arc copied.</p> <p>"When the proceeding was in rerti under tlio Act of the Legislature of 1829, relative to proceedings against lands for works dono upon the roads and levees of tbe same — Held: That the Act only requires notico to be given “ to any person whom it may concern,” and that when there has been a sufficient description of the land in the advertisements, and the proprietor, by the use of duodili-genco might have protected himself, tlio sale will not be annulled on the ground that the property ' was described as belonging to others than the real owner.</p> <p>The prescription of five years, under the Act of the Legislature of 1834, would cure such an irregularity in tlio description of tlio property.</p>

<p>The surety on the administrator’s bond will he hold liable for monoy set down on the inventory as part of the estate, although it is shown that the administrator received it in a fiduciary capacity before his appointment.</p>

<p>Wlien the name of the State in which plaintiff is domiciled is alone set forth in the petition — Held: that it is a sufficient compliance with Art. 172 of tlie Code of Practice.</p> <p>The authority of an attorney-at-law is presumed, and an affidavit to obtain an order of seizure and sale, made by him in the absence of his principal, is sufficient.</p>

<p>PPEAL from the District Court of the Parish of Terrebonne, Roman, J.</p>

<p>PPEAL from the District Court of the Parish of Lafourche, Roman, J.</p>

<p>from the District Oourt of the Parish of Pointe Coup sé,Haralson, J.</p>

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

<p>PPEAL from the District Court of the Parish of Lafourche, Roman, J.</p>

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

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

<p>Where the amount sued for was over three hundred dollars, hut before judgment was rendered in the lower court, the plaintiff entered a remittitur, which reduced it to less than three hundred dollars— Held: That an appeal in such a case will be dismissed, it not being appealable in amount.</p>

<p>IE an action against tlie city corporation to recover damages for injury done "by a mob, when the de-fence pleaded was a general denial — Held: That under the pleadings the city might prove in mitigation of damages that the plaintiffs had exposed their property in the public market, in violation of an ordinance of the city requiring the markets to be closed at the hour when the injury was done, but that such evidence, could not be received as a complete bar to the action.</p>

<p>Where a suit is brought on a promissory note, the property of the wife, in her name conjointly with that of her husbaud, the husband must be viewed as appearing therein only to assist and authorize his wife, and the judgment rendered in such suit Is the property of the wife.</p> <p>A Sheriff’s sale, not recorded in the Recorder’s office of the parish where the property is situated, is utterly null and void, except between the parties thereto.</p> <p>Where the judgment enjoined bears the highest conventional interest, the court on dissolving the injunction cannot add anything to that interest, but in a proper case will inflict the full penalty of twenty per cent, damages.</p>

<p>The report of the jury of freeholders appointed hy the Police Jury, under the Act of the Legislature “ relative to the building of levees in the parish of Tensas,5’ to estimate the amount of damage that may be done to a proprietor where a now levee is to be built, and also the benefit that may arise from the construction of the levee, is conclusive against the Police Jury, unless it is contested upon the ground of error or fraud. But to render it conclusive the formalities of the law must be strictly complied with.</p> <p>The prescription of one year against actions arising from offences and quasi-oifences is not applicable to an action for damages for the partial destruction of property occupied by the construction of a levee under legal authority.</p>

<p>A municipal'corporation is not liable for damage done to private property, unless tile act which caused the damage was done without the authority of law, or being authorized by law, was improperly or wantonly executed.</p> <p>Where a municipal corporation was sued for an act of omission or nonfeasance, in not repairing a draining machine erected for public utility, by which neglect plaintiff’s premises were overflowed, and his property damaged — Held: That as the act complained of involved the disbursement of the corporate revenues, it was a matter of discretion with the corporate authorities, and that if plaintiff was 'damaged, it was damnum absque injuria, and he was oonseguently without sufficient cause of action.</p> <p>lidia, also That a corporation in such a case may avail itself of this exemption from suit, under the plea <if. the general issue.</p>

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

from the District Court of the Parish of Pointe Coupee, Ratliff, J. This is a petitory action for a tract of land of which the defendant is in possession. It is claimed by virtue of a patent issued by the State of Louisiana, under a certificate of the Register of the Land Office at New Orleans.

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

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

<p>Where an instruction to the jury was asked for, which might have been understood by the jury as intimating the opinion of the Judge upon the facts of the case — Held: That such instruction was properly refused ; that the instructions of the Judge to the jury should be embodied in a form to avoid instructing the jury upon the facts.</p>

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

<p>A party claiming title to a promissory note under an order and sale made in proceedings in bankruptcy, is not bound to produce in evidence a transcript of all the proceedings.</p>

<p>JluluteifiEcutory ordorupon a party to a suit, to produce on a given day and hour the books named, and ¡file'the sanife with the Clerk, is not such an order as will work an irreparable injury, and, consequently, it cannot be appealed from.</p>

<p>'Sii© prescription of sixty days against ships and vessels, lias reference to the time of asserting the privilege hy suit. Tho right of privilege is fixed by the judgment.</p>

<p>from the District Court of the Parish of St. Tammany, Beale, J.</p>

<p>Proof that the owner of a slave intended he should be free, and that neither lie nor his heirs after his death claimed his services, will not entitle the slave to his freedom, it not being shown that he had ever enjoyed his liberty for the space of ten years.</p>

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

<p>Wliere the plaintiff has resided out of the State, he is entitled to the benefit of the double term of prescription up to the date of the promulgation of the Act of the Legislature in 1848, placing residents and non-residonts on tho same footing as to prescription.</p>

<p>PPEAL from the District Court of the Parish of Iberville, Wilson, J.</p>

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

<p>The father, although he has not been, confirmed as tutor of his minor children, may provoke a partition between himself and his minor children, by the appointment of a curator ad hoe to the minor, under Art. 116 of the Code of Practice.</p> <p>The inventory of the property to be divided, may be made after tho sale is ordered.</p> <p>Where minors arc sued for a partition, a family meeting is not necessary to authorize the suit, or to fix the terms of sale, and it is not necessary the property should sell for its appraised value to make the sale valid.</p>

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

<p>A credit endorsed on a bond at a time not suspicions by an officer of the bank in the regular discharge of his duty is sufficient evidence of the payment to interrupt proscription.</p>

<p>A notice sent to the Post-Office, where an endorser usualljr receives his letters, at the time the protest is made, is sufficient, although there he another Post-Office nearer his residence, at which he has not been m the habit of receiving his letters.</p>

<p>An administrator lias tlie capacity to stand in judgment in a suit by a slave, inventoried as part of the succession, to have her freedom established.</p> <p>It must now bo considered settled, that effect will be given to parol proof of the sale of real estate, if it is received without objection.</p> <p>Tho heirs and creditors of tho estate will be bound by the acts of tho administrator, as to the mode of proceeding in the dofenco of a suit and the reception and rejection of evidence.</p> <p>The child of a statu libet'a who, by Art. 196 ofthe Code, is to becomo free at the time fixed for the enfranchisement of the mother, requires the consent of the public authorities to her emancipation, and since the Act of the Legislature of 1857, the emancipation cannot be affected.</p>

<p>The recording of tlie proces verbal of adjudication of work to he done on the road and levee, without giving the name of the proprietor or a description of the land, will not create a privilege on the land on which such work is done.</p>

<p>The son-in-law of one of the parties to a suit is a competent witness. The interest of the mother of the witness in the property in disputo, as belonging to the marriage community, she not being a party to the suit, is too remote to exclude her son’s testimony.</p> <p>The title to slaves may be proved by parol when it is shown that, by the laws of the State where the , facts testified to took place, and where the slaves then were, they could be transferred by verbal sale and delivery.</p> <p>By the laws of Mississippi, among collaterals, the kindred of the whole blood are preferred to the kindred of the half blood in the same degree; and by effect of representation, nephews and nieces of the wholo blood will exclude a sister of the half blood.</p>

<p>An agreement was entered into by several commercial Arms, by which they bound themselves for the term of three months, not to sell any India cotton bagging, except with the consent of the majority of them. — Held: That it was a combination to enhance the price of the article, which is in restraint of trade and contrary to public order, and that the agreement could not be enforced in a court of justice.</p>

<p>Tho prohibition ill Art. 2¿12 of tho Code against the wife’s binding herself for her husband, or conjointly with him, for debts contracted by him before or during tho marriage, is, to a certain extent, one affecting tbe public order.</p> <p>Neither tho acknowledgment of the wife that the debt was contracted for the benefit of her separate estate, nor tho fact that the money was actually paid into her hands, will estop her from afterwards denying her indebtedness, and the creditor is then put upon proof that tho debt inured to the benefit of the wife’s separate estate.</p> <p>The doctrine of estoppels has no application to the contracts of married women, when they or their property are sought to bo hold liable for tbe debts of their husbands.</p> <p>An exception to tho rule in regard to tho wife’s incapacitiy to hind herself for a debt which does not inure to her seperato benefit, may exist when she has actually committed a fraud, but not when it has beon.impliedly or constructively committed.</p> <p>When there lias been no contract of letting and hiring of slaves, ‘aprivilege on the crop raised by them cannot he asserted.</p>

<p>A party who being himself the owner of property, points it out to be seized in execution for the debt of another, will be estopped from denying the title of the defendant in execution.</p>

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

<p>The Civil Code of 1825, does not contain the provisions of the old Code on tho subject of licitation.</p> <p>The sale to effect a partition under a decree of court, must he made to the highest bidder at public auction. It is a judicial sale which, under Article 1863 of the Civil Code, cannot he invalidated on account of lesion.</p> <p>Lesion will not invalidate a judicial sale to effect a partition even when the purchaser is one of the heirs of the estate to he divided.</p> <p>Article 1440 of the Code, which says, that acts of sale which tend to the division of property between co-heirs, are subject to rescission for lesion beyond a fourth, must be construed to mean an extra judicial sale, andnot one ordered by a court of justice, at which strangers as well as heirs may become purchasers for the purpose of effecting a partition.</p>

<p>The cumulation of a demand for the partition of succession property with a demand for the partition of property held in common, where there is no privity of estate between all the parties, plaintiffs and defendants, is not authorized by the rules of pleading.</p> <p>An heir who purchases at the sale of the hereditary effects is not obliged to pay the surplus of the purchase money over his portion of the succession, until the portion has been definitely fixed by a partition.</p>

<p>"When theappeal is from a judgment in favor of the defendant, in a representativo capacity, the appeal is defective and will be dismissed if the appeal bond is made in favor of the defendant without mentioning his representative capacity.</p>

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

<p>In a redhibitory action, the plea of prescription will be maintained if the term for bringing the suit has elapsed, although a demand is made in the petition that a note given as part of the price should be cancelled and annulled.</p>

<p>RPEAL from the District Court of the Parish of St. Helena, Beale, J., pre--CL siding.</p>

<p>Tlio 34tti section of the Act of the Legislature of 1857, which requires that before the sale of school lands there shall he an appraisement, and that in no case shall they be sold for less than one dollar and twenty-flvo cents por acre, means that the land shall bring its appraised value, but that in no case can it be appraised at less than $1 25 per acre. ,</p>

<p>from the District Court of the Parish of St. Helena, Beale, J., presiding.</p>

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

<p>A witness may be permitted to refer to accounts or memoranda made by himself to refresh his memory.</p> <p>Whore by due diligence it might have been discovered that a witness in the case, who had been examined on his voir dire and had testified that he had no interest, was security for the costs, a new trial will not be granted on the ground of such discovery being made after the trial.</p> <p>The Act of Congress declaring the Mississippi river to be a common highway, free to all citizens of the United States, was not intended to interfere with the right of the Stato to create and regulate ferries.</p> <p>A party who was present at the public sale of a ferry and bid against the purchaser, is estopped from asserting that he had an unoxpired lease to the same ferry, and that it had not been properly advertised.</p> <p>Damages may be recovered for an injury to a right of keeping a ferry committed by one who crosses passengers gratuitously, but receives compensation in whole or in part by keeping the horses of those crossing.</p>

<p>Where the plaintiff has recovered a judgment, the proceeding to render his property liable in execution for costs, is statutory, and the forms of the statute must be strictly pursued, under pain of nullity.</p>

<p>..1 PPEAL from the District Court of the Parish of Pointe Coupée, Ratliff, J.</p>

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

<p>Tho Article of the Constitution which declares w( the Judges both of the Supreme and inferior courts shall at stated times receive a salary which shall not be diminished during their continuance in office, exempts the salary of a Judge from taxation.</p>

<p>The name of the vendee in the body of the act of sale was omitted, the notary and one of the witnesses to the act were ottered to prove that H. T. 7F., whose name was subscribed together with that of the vendor to the act, was the purchaser — Held: that the omission could be supplied by such parol evidence.</p> <p>"Where it was proved that the original of an act of transfer and assignment had been deposited in the General Land Office — Held: that the registry of it in a book in the Recorder’s office, with the corti-cate of the Parish Judge appended, was competent evidence of the transfer and of its rogistry.</p> <p>Where it is impossible for a party to produce an original, which is on file in the Land Office as a part of the archives of the Government, a copy is admissible in evidence.</p> <p>Where the wife, as heir of the husband, applied for a patent which was issued to her as his assignee, a title in her, independent of her husband, cannot bo inferred, and the patent must enure to the benefit of the husband’s vendee.</p>

<p>It is too late after the delay has expired for the return of an appeal, to file in the lower court a second appeal bond to supply omissions in the first.</p>

<p>A judgment which decrees that a writ of attachment under which property has been seized bo quashed, and that the bond given for the release of property attached under the writ be cancelled and annulled, is ajudgment in favor of the surety upon the bond thus cancelled and annulled, and will become final and irrevocable by the lapse of two years from its date without any appeal being taken therefrom.</p> <p>A judgment afterwards rondored on. appeal, in subsequent proceedings in the same suit, by which the attachment is maintained, will not affect tho surety who was not a party to the appeal.</p>

<p>The law of the forum governs in matters of prescription.</p> <p>The statutes of limitations of the other States are engrafted upon our law as to judgments only when two conditions concur : 1st, where the judgment has been rendered between persons who reside out of the State, and to be paid out of the State. 2dly, where the defendant removes to the State of Louisiana, after he has become entitled to the benefit of the statute of limitations of the place where the judgment was rendered.</p>

<p>PPEAL from the District Court of the Parish of Lafourche, Roman, J.</p>

<p>PPEAL from the District Court of the Parish of Concordia, Ratliff, J., presiding.</p>

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

<p>The cause which, hinders a testator from signing his name when he knows how to sign, must he a physical cause. The existence of such a mental cause as delirium, incapacitates the testator from completing the will.</p>

<p>The Judges of the courts in New Orleans are vested with full power to regulate the police of their courts, and to prevent a disturbance of the administration of justice.</p>

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

<p>from the District Court of the Parish of Pointe Coupee, Harralson, 3.</p>

<p>Prescription against an action for the recovery of money collected by a Sheriff under a writ of fv. fa., will only commence to run from the date of the demand by the judgment creditor, and non-payment by the Sheriff.</p>

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

<p>The creditor of an insolvent cannot litigate his demand for a privilege in a separate suit against the syndic. The privilege must he settled contradictorily with all the creditors upon a tableau of distribution filed by the syndic.</p>

<p>Tho appeal will be dismissed by tbe court ex officio, when it appears tliat the judgment appealed from was rendered in a suit by attachment, and the record does not show that any property or credits of tho defendant wore attached.</p>

<p>from the District Court of the Parish of Pointe Coupee, Ratliff, J., presiding.</p>

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

<p>The Treasurer of the State is not vested with the same powers as the Auditor to audit, adjust and settle claims against the State. He cannot refuse to pay a warrant drawn upon him in a legal form by the Auditor, if there are funds in the treasury appropriated by law for the purpose specified in the warrant.</p> <p>The writ of mandamus is the proper remedy to bo exercised by the holder of a warrant drawn by the Auditor on the Treasurer, to enforce the performance of the duty imposed by law on the latter officer.</p>

<p>PPEAL from the District Court of the Parish of Pointe Coupeé, Ratliff, J., presiding.</p>

<p>Tiloso who possess not for themselves, but ill the name of another, cannot change the nature of their tenure so as to acquire the legal possession which is the basis of a title by prescription.</p>

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

<p>The petitory action can only he maintained by one in. whom the legal title is vested, or by his legal representative.</p>

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

<p>PPEAL from tbe District Court of tlie Parish of Iberville, Beale, J.</p>

<p>A statement by the Clork, in his minutes of the testimony taken on the trial, that certain evidence was objected to, does not dispongo with the necessity of a bill of exceptions to tho reception of the evidence.</p>

<p>The obligation of the security on an administrator’s bond can be enforced at once without proceedings against the estate of tbe principal, which is shown to be insolvent by a tableau of distribution filed in the due course of administration.</p>

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

<p>The verdict of a jury in those words, “ Verdict in favor of plaintiff,” is not sufficient to form the basis of a judgment.</p>

<p>A suspensive appeal does not lie from a judgment, removing from office the liquidator of the affairs of a partnership.</p>

<p>from the District Court of the Parish of Pointe Coupee, Ratliff, J.</p>

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

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

<p>A judicial sale to enforce a mortgage for the security of a stock loan by a bank, does not release the mortgage for the security of the subscription of stock.</p>

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

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

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

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

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

<p>Where it is stipulated, in an act of sale, that the note given for the price, shall remain deposited with the parish Recordor, until a certificate of non-mortgage is furnished, its possession by the plaintiff, is prima, fade ovidence, that it was delivered to him by the depositary after a certificate furnished.</p> <p>If the plaintiff came into possession of the note improperly, the defendant’s remedy would have been by injunction, not by anappoal from the order of seizure and sale.</p> <p>Where a note boars interest from maturity, the interest begins to run from the day of payment specified, without allowing for days of graco.</p> <p>Parties against whom executory process is issued for an amount which exceeds in some particular tho sum shown to be due by tho documents filed, ought to address themselves to the Judge who issued the order, to have tho error corrected, instead of making such error the pretext for an appeal involving vexatious delays.</p>

<p>PPEAL from tire Pifth District Court of New Orleans, Eggleston, J.</p>

<p>PPEAL from the District Court of the Parish of Livingston, Wilson, J.</p>

<p>The evidence of a single witness to establish acknowledgements of indebtedness on the part of a deceased person, is held to be the weakest species of evidence known to the law, and will be received with disfavor. Such cvideuce hold in this case to be insufficient to defeat the plea of prescription.</p> <p>An action for the recovery of money loaued is prescribed by three years. #</p>

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

<p>PPBAL from the District Court of the Parish of East Feliciana, Haralson,</p>

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

<p>There may be cases in. which the husband ought not to bo allowed interest on debts of the wife paid by him, as where the payment has been fraudulently deferrod by him for the purpose of injuring her ; but where the debt has been paid in good faith, the interest, as an incident of the debt, is chargeable to the person who owes the same.</p> <p>By giving the husband the administration of her paraphernal property, the wife relieves herself of her portion of the marriage charges.</p> <p>In the absence of proof of the wife’s seperate administration of her paraphernal estate, it will be presumed to have been under the management of the husband.</p>

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

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

<p>PPEAL from tlie Third Justice’s Court of New Orleans.</p>

<p>The testator provided for the emancipation of a number of his slaves as follows : “As soon as possible after my decease, I wish all my negroes freed that I will name, and sent to Pennsylvania, and bread and meat found them for one year, all at the expense of my estate.” Held: that it was the in tention of the testator that the negroes should be freed in this State and then be removed to Pennsylvania, and that it was not competent for the court here to grant an order authorizing the executor to remove them and to pay the expenses of their transportation and maintenance, after the Act of March 6th, 1867, preventing their emancipation here.</p>

<p>Tlio power of the municipal corporation, to make contracts for tlie pavement of streets at the expense partially of proprietors, is clear.</p> <p>In the absence of proof of fraud, the acceptance by the corporation of work which it was authorized to contract for, is prima facie evidence against the defendant, so far as relates to its completion and the manner in which it was done.</p>

<p>The common carrier owes indemnity to the shipper of goods for delay in the transportation, and legal interest npon the price of the goods during 1 he period of the delay may be recovered, as the measure of such indemnity.</p> <p>The shipper cannot recover, as damages, the premium paid by him for insurance upon the goods, while the vessel was lying in a port to which she was driven for repairs, by reason of her unseaworthiness. The carrier in such case becomes the insurer.</p>

<p>The general rule is, (hat the defendant must be sued at the place of his domicil or usual residence, and a suit for freedom has not been made by the lawgiver an exception to this rule.</p> <p>To obtain a sequestration, both an affidavit and bond are required, and the lawmaker has made no exception in favor of negroes held in slavery, who may sue for their freedom.</p>

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

<p>A party who bid j for land at a public land sale, is estoppod from denying the validity of the sale on the ground that it was land liable to private entry, which he had unsuccessfully applied to the Register and Receiver i)f the Laud Office to enter.</p>

<p>Where an appeal is taken by the defendant in a suit, brought by the city to recover a tax or license less than $300 under a city ordinance, it is the duty of the defendant to bring up with the record the ordinance alleged to be illegal or unconstitutional, otherwise the case presents nothing for the decision of the court and the appeal will be dismissed.</p>

<p>l'u matters relating to the interests of minors much discretion must be exercised by the Judge of the Second District Court, but a judgment of nonsuit only, should be rendered in a case where the representative of minors has improperly dispensed with the production of the proof necessary to establish a claim against them.</p>

<p>i PPEAL from the District Court of the Parish of Iberville, Wilson, J., presiding.</p>

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

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

<p>PPEAL from the District Court of the Parish of Livingston, Beale, J.</p>

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

<p>Where a promissory note has been transferred, by a verbal contract, without the indorsement of the payee, such verbal transfer cannot have the effect of an indorsement and give the paper a character of negotiability.</p>

<p>The warrantor is not liable for the fees of the attorney omployed by the party evicted.</p> <p>Attorney fees cannot be recovered as either costs of the suit or as damages, under Art. 2482 of the Civil Code.</p> <p>The party evicted from real estate, cannot recover the difference between the costs of tho improvements made by him, and the enhanced value of tho soil.</p>

<p>In cases whore it is admissible to dispense with personal service of a notice, tho notice ought in genor. al to be served in. the form, required for citations and other analogous proceedings.</p>

<p>Where, during tho pendency of charges against him, the Clerk of a court resigns lus offleo, the appointment made of a Clerk pro tempore terminates with the resignation.</p> <p>A vacancy in the office thus occurring, mu}* be filled under Art. 79 of the Constitution, by the Judge presiding in term time where the vacancy occurs, in place of the Judge of the District in which tho court is held.</p>

<p>An appeal will be dismissed when all the parties interested in maintaining the judgment appealed from are not made parties.</p>

<p>from the District Court of the Parish of East</p>

<p>A mandato is gratuitous, unless there lias been a contrary stipulation.</p> <p>The dismissal from office of a curator, does not involve the forfeiture of his commissions.</p>

<p>APPEAL from the Fifth District Court of New Orleans, Eggleston, J.</p> <p>The question in this case is one of construction, and its solution depends upon the proper application of principles which have been repeatedly recognized as controlling the subject.</p> <p>The city of New Orleans derives its power of taxation from legislative grant. As was said of the corresponding power in the late general council of the city, the authority exercised by it in levying taxes, is derived from a special grant of power, and there is no warrant for extending this power beyond the objects specified. 4 An. 408.</p> <p>The g'rant under which the city now exercises the right of taxation, is embodied in the Act of 1856, amending the Act consolidating the city of New Orleans. That Act provides for the taxation of property and the taxation of persons. The 36th, 38th and 42d sections determine the extent, and provides for the manner of levying taxes upon property. The 102d section gives the authority and provides the manner of taxing persons.</p> <p>]jag tills grant of the right to levy the personal tax conferred by section 102, been exceeded in the present instance, by the municipal authorities ? This ques^tion has been solved by the decision of the court in favor of the city ; but in so doing, it is submitted with all due respect, that the court has not allowed sufficient weight to several considerations which have an important bearing' upon the controversy.</p> <p>The particular manner in which the Legislature has authorized this personal tax to be laid, is in the shape of licenses on trades, professions, callings and other business.</p> <p>No form of tax can be devised more strictly personal, than that of the license to pursue a particular trade, profession or calling.</p> <p>It acts only on actual residents within the territorial limits of the taxing power, and is impotent by reason of this personal nature of the tax, to affect the interests of absentees in the occupation or business carried on within those limits.</p> <p>It is so exclusively personal, that if he to whom the license has been granted should die, the right is not transmitted to his heir, to use it during the unexpired period. Neither can it be transferred to another by sale or otherwise, not even as an appurtenance to the business for which the license was taken out.</p> <p>It is levied without reference to the amout of capital engaged, of property employed, or of revenue derived from the particular occupation or calling, which is the subject of the license. Thus the recently admitted attorney whose income barely reaches hundreds, pays the same license as the long' established counsellor, whose professional emoluments are measured by thousands ; and so one merchant with limited capital and stock, contributes precisely the same amount to the treasury, on receiving his license, as another whose business and property may be an hundred fold greater.</p> <p>This distinguishing feature of the license was not lost sight of by the Legislature, when it vested the power in the city to raise a portion of its revenues by this means. It was distinctly provided, that the tax was not to be construed to be a tax on property.</p> <p>But in the ordinance complained of, the license which every billard table keeper is required to procure, as a condition precedent to the exercise of his calling, loses all the characteristics of a license or personal tax, and becomes in terms, as it is in fact, a tax on property.</p> <p>For the 34th section provides that the whole tax of sixty dollars shall be “ levied on each and every billiard table.” This is in as plain terms as language can express the idea, a tax upon the thing, upon property, possessing the peculiarity of the property tax ; which is, that it increases in amount according to the quantity of the property employed, and wanting, consequently, in the distinguishing- feature of the license or personal tax, which is, that it should be a sum fixed, not variable according to the amount or value of the property used in the calling or business licensed.</p> <p>This fatal antagonism as it would seem to the undersigned, between the idea of a license and the assessment in this particular case, is reconciled by the court, on the hypothesis that the Legislature has vested in the municipal authorities, the exclusive right of determining what are trades, professions and callings, within the meaning of the 102d section ; a right which it is supposed they have exercised with respect to the billiard table tax, by holding every billiard table keeper to pursue a separate and distinct occupation as to each and every table he may have under the same roof or in the same room. The language of the court is, “ the power conferred upon the Common Council by Art. 102 of the Charter, to levy license taxes upon trades, professions, callings, and other business carried on, is without exception or limitation ; and in the exercise of this power, it is necessar ry to determine what is a trade, profession, calling, or other business carried on, and the determination of these matters previous to the assessment of the taxes, has been left by the Charter to the wisdom and discretion of the Common Council.</p> <p>The Act of 1856 has been examined with care, for the purpose of ascertaining upon which of its provisions the court has formed its conviction, that the Legislature has either in express terms or by limitation,-delegated to the city this unusual power of fixing, by its own interpretation, the nature and extent of the grant conferred upon it. Has it been left to the Common Council to decide as in the last resort, what is a trade, profession or calling; or was not the use of words having a known, definite and well ascertained meaning, intended to limit the grantee to the subjects fairly included within the definition of the terms employed ?</p> <p>We hold the latter of these propositions to be indisputably the true one. As was said in the place in 4th Annual already quoted, the right of taxation is derived from special grant, and there is no warrant for extending it beyond the object specified. What these objects are, is a question like every other question regarding the legislative will — purely of judicial construction. To hold that this power of interpretation, and of consequent extension of the grant, is vested in the grantee, is, it is respectfully submitted, to destroy all the safe guards which the Legislature of the State has so wisely enacted, to anticipate and to prevent the abuses growing out of an irresponsible and unlimited power of taxation.</p> <p>The jurisprudence of this court abounds in instances of its interference to restrain the abuses of the taxing power. It had always proceeded upon the assumption, that the power is a delegated one, and that the grant was to be construed strictly. In 1851, it refused to sanction the interpretation which the municipal authorities placed upon tho legislative grant, and it held that the right to tax capital was not included in the general right to tax personal estate ; and yet with such a canon of interpretation as the court seems to recognize in the present case, the counsel could have triumphantly insisted, that the right of determining what constituted personal estate was left entirely to their wisdom and discretion, and was not a proper subject of judicial inquiry or determination.</p> <p>Undoubtedly, if this exclusive right of deciding what the Legislature meant by trades, professions and callings, belong to the Common Council, the exercise of this right, however extravagant, would not be the subject of review, and the plaintiff would be without remedy. But the undersigned are not without hope in view of the serious evils which may ensue from the recognition of this right, that the court will pause before it yields its final sanction to this doctrine. In the hands of a body disposed to extend its power of taxation, or to disregard the restraints to which it is subject, it would be a facile means of increasing the burdens of the citizens, without measure and without control. The sale of every package of merchandise, the call of every new patient, might be created into a distinct and separate occupation, and made the occasion of exacting a separate license. The collection of one’s own income might thus be created into a trade, profession or calling, and the tax demanded for its pursuit. These may be extreme cases, but they afford a fair means of testing the soundness of the principle which could possibly result in such consequences.</p> <p>If, then, it does not belong to the Oommon Council to determine without appeal, what subjects are included in the language of the 102d section of the city charter, we are thrown back upon the ordinary sources of interpretation, for the purpose of fixing the true limits of the power it vests in the city ; and in this view, the decision of this cause ought not to present serious difficulty ; because we have but to appeal to the common understanding of men upon these matters, to justify us in saying that the keeper of a billard saloon is considered to pursue but one occupation, whether he has two or a dozen tables in his rooms. No one would speak of such a power as multiplying his pursuits or occupations upon each addition which the wants of his customers or his own enterprise, might induce him to make. With more propriety might the grocer be considered as pursuing different occupations with respect to the infinite variety of articles he vends, and be required to increase the number of his licenses with every new article he adds to his stock.</p> <p>These views are fully supported by the decision in tho case of the Police Jury v. Nenegues, 11 An. ; a case quoted in the original brief, though not noticed in the opinion of the court. The analogy between that case and the present, seems to the undersigned to be so striking, that the court will pardon them for again calling its attention to tho identity of the question then discussed and decided, with that now before the court.</p> <p>The Police Jury of the parish of Orleans had imposed a tax or license upon all- dairymen carrying on their business within certain limits; the amount of tax being two dollars lor every cow. It is true the tax was liable to the objection which does not exist here; that it was not uniform, inasmuch as it was not levied upon all dairymen in the parish, but only upon those pursuing their occupation in a limited district of the parish. But the court will observe that with respect to tho point, whether, what was there called a license or tax on the person, was not in disguise a tax on property; the two cases are absolutely undistin-guishable. There, as here, the right to tax persons pursuing any occupation, trade or profession, was held to be resident in the Police Jury. There each and every dairyman within the limits, was taxed two dollars for each and every cow. Every keeper of a billiard table is taxed sixty-five dollars, the tax being levied on each and every billiard table. It was the circumstance that the tax was levied on the property, though in the shape of a license to the person, which induced the court to consider it, notwithstanding its name, to be a property and not a personal tax. The same reason should prevail here to induce the court to say that while professing to tax the occupation, the ordinance really imposes a tax upon billiard tables.</p> <p>The change of legislation effected by the Act of 1856, may not be without its influence upon the question. The Charter of 1853, gave the city specially the right of imposing an uniform rate of taxes upon all billard tables ; the Charter of 1856 took away this privilege, and placed billiard tables upon the same footing as all other personal property. It is not to be supposed that this change was made without object or motive ; but under the operation of the decision in this case, it will be entirely ineffectual, since precisely the same result is attained, by the mode in which the personal tax on the calling of the billiard table keeper is permitted to be levied.</p>

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

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

<p>The oath of tho party cauuot bo received to prove the deposit of his baggago or other articles of valuó at an inn.</p> <p>When proof aliimde, establishes the fact of the possession by the party of the articles alleged to have been stolen, and their deposit in the inn, and that the room had been entered by thieves, the declaration of such party at the instant of discovering tho theft may be givon in evidence as part of the res gestee — not as proof of a deposit, but as a fact to bo1 connected with other facts tending to prove the loss.</p> <p>The inu-kdoper will be liable for the necessary baggago of tho traveler, his watch and personal apparel, and for money which ho has about him for his personal use when stolon, notwithstanding a regulation of the inn requiring travelers to deposit certain articles of value in tho safe at the office.</p>

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

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

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

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

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

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

<p>Whon property is sold at Sheriff’s sale, and the party causing the sale to ho made is not able to put the purchaser in the enjoyment of the premises, nor of the rents, he has a right to refuse payment of the price.</p>

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

<p>The wife was bound in solido with her husband in an act of mortgage to secure a subscription to the capital stock of the Clinton and Port Hudson Pail road Company, to which mortgage the State of Louisiana was subrogated. The State afterwards causod the property to be sold under execution against the husband, as a defaulting Tax Collector, and the wife, through the intervention of a third person ? became the purchaser at the sale. Meld: that such a sale did not extinguish the mortgage of the State.</p> <p>Where the production of a certificate of mortgage is waived, notice of mortgages existing of record will be presumed.</p>

<p>When tlie price of property is made payable in instalments, tlie vendor may sue for recession of the sale at once, upon tlie the failure of vendee to pay the first instalment.</p> <p>The original vendor seeking to rescind the sale, is only compelled to reimburse tlie value of improvements made by a possessor in good faith. Improvements made after the institution of the suit to rescind the sale, must be considered as made by the possessor in bad faith.</p>

<p>Tho substitution of a new lessee to the old. one, accompanied by the discharge of the latter, is a novation, under the second section of Art. 2185 C. C.</p>

<p>A person in possession under tlie first recorded title intlie parish where the land is situated, must ho quieted in his possession, unless the claimant have a superior title.</p>

<p>from tho Sixth District Court of New Orleans, Ilowell, J.</p>

<p>Whore a party purchases an interest in a commercial house, entitling him 11 to an equal undivided onc-third interest aud ownership, and to all stock of merchandize, hills receivable, and debts in book accounts on hand, due or owing to tho firm on a given day, (over and above the payment of the liabilities of said firm/’) he is responsible for the debts of the house existing at the time of purchase. C. C. 2782.</p> <p>Tho phrase “ over and above their liabilities ” does not exclude responsibility from those liabilities.</p>

<p>■Where an insolvent has given an unjust preference to one creditor over the others, it is for the syndic to bring an action to annul the contract by which such preference is obtained.</p> <p>A person not a creditor cannot complain.</p> <p>An executor is authorized to collect claims until the estate is closed, or he is discharged.</p>

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

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

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

<p>A lease mado by a third party and defendant, is properly rejected when offered in evidence in a suit, as between a plaintiff not a party to the lease and defendant. And so is testimony tending to prove facts not alleged.</p> <p>On an allegation of a written lease, no evidence can be offered to prove one by parol.</p> <p>An amendment should be presented before going into trial.</p>

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

<p>Property found among that of the deceased is properly inventoried among his effects.</p> <p>The true owner thereof can claim the proceeds only of sales of his property made hy an administrator in good faith.</p> <p>Having neglected to claim his property both before and at the time of the inventory, there was nothing to prevent the administrator from selling them according to law. If the requisitions of law, in malting the sale, were not complied with, the creditors alone would have recourse against the administrator, if they suffered by his unlawful act. The owner of the property would have no right to complain, particularly when he suffered no damage thereby.</p>

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

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

<p>The State has the right to appeal, provided it is limited to the class of cases found in the precedent, to-wit: those where the indictment has been quashed before a trial, or held bad upon a demurrer j and where it purports to charge an offence punishable with death or imprisonment at hard labor.</p> <p>Prosecutions must be by indictment or information ; and the State has the right to choose either mode, but cannot prosecute by both at the same time.</p> <p>After prosecuting under an indictment which has been ignored, the State is not barred, in new proceedings, from selecting indictment or information, as provided by the Constitution.</p>

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

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

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

<p>In an attachment suit, the garnishee has the right, even after the interrogatories have been taken pro confcsso, to ask of the court, at any time before judgment, that the order taking the interrogatories for confessed may be set aside, and that he may bo allowed to answer. And it is within the sound discretion of the court, and also its duty, to grant the request, if the ends of justice would be thereby attained.</p> <p>■Where the garnishees answer that they have no property, the court is without jurisdiction.</p>

<p>In the contract of pledge, the mention of the amount of tho debt intended to bo seenvod, roquivotl by Article 3125 of tho Civil Code, is in no sonso a formality. It is essential to tho contract, and as such not abolished by section 2d of the Act of 1855 relative to pledges.</p>

<p>Article 1481 0. 0., wlitcli declares that “ donations inter vivos or mortis causa, cannot exceed two-tliirds of the property, if tho disposer, having no children, leave a fathor or mother, or both,” would clearly govern in cases where the ascendant, whether fathor or mother, ivas tho solo heir at law to the inheritance.</p> <p>Articles 899 and 900 which make tho disposable portion three-fourths, apply to cases whore tho testator leaves other heirs who would be entitled to a share in tho inheritance, in tho absence of a will.</p>

<p>"Where a slave has "been purchased with warranty, and is afterwards sequestered while in the possession of a lessee, against whom suit is brought for his recovery, and immediate notice is given by the lessee to the vendee, who likewise gives immediate notice to the vendor, of tho institution of said suit, with a request that he defend it, or furnish the vendee tho necessary means for maintaining his title to the slave, and tho vendor promises to defend the action himself, which lie fails to do, and tho suit goes by default against the lessee, if neither the vendee nor tho vendor is a party to the suit, it is the fault of the latter, and as against his vendee ho cannot protect himself by claiming, “that an eviction of property can only be on final judgment, where tho vendor or vendee is a party to the suit, and where the title to the property is directly drawn in question.”</p> <p>In order to establish that a commercial partnership is not bound by the act of one of tho partners, in auy particular matter, it is necessary expressly to deny his authority, and to disclose by evidence, the nature of their commercial business.</p>

<p>The decision in the case of Gray v. Traflon, 12 M. 702, reaffirmed — to the ciToct that an order given on an attorney at law for the amount of a claim placed in his hands for collection, is sufficient evidence of a transfer.</p> <p>Where an administrator contests the consideration of such an order, the burden of proof is certainly upon him to establish want of consideration.</p>

<p>Under the 11th section of the Act of 1806, which embraces every species of criminal homicide known at common law, and the subsequent legislation on the subject, a slave may be found guilty of manslaughter.</p> <p>The Act of 1857 notices only the crime of willful murder committed by a slave, but is silent as to any other species of homicide. It cannot, however, be supposed, that it was intended to do away with the prosecution of criminal homicides short of willful murder.</p> <p>The 35th section of the Act of 1S57 provides, “That in all cases where a slave is charged with a crime punishable with death, or imprisonment at hard labor for life, the jury shall have a discretionary power to commute the penalty and inflict a lesser punishment.</p> <p>Section 29th, Act of 1857, declares that, “ Whenever the punishment is left by law to the discretion of the court, it shall in no case extend to the privation of life or limb.</p>

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

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

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

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

<p>A surety on a sequestration bond cannot be proceeded against by rule or on motion.</p> <p>The failure on the part of a surety, against whom a rule has been taken, to answer the rule, cannot be construed as a waiver of his right to except to such proceedings.</p>

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

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

<p>Alterations in a -warehouse receipt after its delivery, are presumptive evidence of fraud ; and the authenticity and importance usually attached hy the law to those instruments mado in good faith, do not attach to such an instrument.</p> <p>The bona fide possession of a warehouse receipt is legal evidence of possession ; and where different parties are in possession of such receipts, the earliest must prevail.</p>

<p>Where a cause has boon previously put at issue, and the object oí' filing interrogatories is simply to procure proof, and not to bring tlie party into court, the consent to a continuance by defendant, and tho declaration of plaintiff’s counsel that he will amend Ins petition and propound interrogatories accordingly, is not an agreement that binds the party to amend, if he subsequently finds that he has sufficient proof without, he is not bound by such consent to propound interrogatories in order to be permitted to obtain judgment.</p> <p>In such a case the want of service of the interrogatories is not one of those vices of form which give rise to the action of nullity.</p> <p>A party acting in good faith cannot be deprived of a judgment on such grounds.</p> <p>A deputy Sheriff who has not made the service of a petition and citation, or other proceeding, has no authority to make the return.</p>

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

<p>"Where the execution of a judgment has been enjoined, and defendant admits, upon being interrogated, a partial payment of such judgment, the injunction should be perpetuatod for the amount admitted to have been paid, and dissolved for the remainder still due.</p> <p>The plaintiff and his surety on the injunction bond are bound in solide to defendant for damages only on the amount for which the injunction is dissolved.</p>

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

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

<p>In an action of damages for libel and slander, tlie truth of the words written or spoken, may be given in evidence as a defence to the action under such a plea.</p>

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

<p>Where tho judgment does not liquidate the sum due by the party against whom it is rendered, it wants an essential requisite of a judgment final.</p>

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

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

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

<p>from the District Court of the Parish of Point Oo’upeé, Haralson, J.</p>

<p>A witness is properly excluded on account of interest, where lie lias a liope of gain, although it he uncertain whether any advantage can arise to him, even if the decision he favorable.</p> <p>Where the owners of a steamboat acknowlege to have received into their custody property which they agreed to deliver to a particular house, and they failed to do this, hut delivered it to another house, the burden of proof rests on them, to show that they made this delivery for the account of the shippers.</p>

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

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

<p>Where a third opposition has been notified to the Sheriff, only after property has been seized, sold and the proceeds distributed among the judgment creditors, the third opponent’s privilege will not entitlo him to be paid out of the proceeds of the salo thus judicially made.</p>

<p>Whoro a judgment lias been rendered, accepting a surrender made by an insolvent debtor, and granting a stay of proceedings, according to the provisions of the 6th and 7th sections of the Act of 1855, and the Articles of the Civil Code 3051 et seq., the notice given to creditors in compliance with the above mentioned law, cannot, m case of informality in the return of the officer, as to the mode of making the service, prejudice or affect the shay of proceedings granted by the court.</p> <p>If a creditor wishes to question the legality of such proceedings, he cannot do so unless by a direct action to that effect.</p>

<p>The administrator is entitled to commissions only on the amount which comes into his hands, and for which he is responsible.</p> <p>The surviving partner who liquidates the concern, is not entitled to a judgment for any apparent balance in his favor, until he shows a full and entire settlement of the partnership affairs.</p>

<p>Accommodation accoptors are not creditors of the drawer of a draft accepted by.tlicm, until after it has matured, and they have been obliged to pay it, andan attachment issued by them before maturity is not rendered valid by subsequent payment of the draft, which makes them creditors of the drawer</p> <p>An attachment must stand or fall according to the state of facts existing at the date of its issuing, and cannot be cured by a subsequent event.</p>

<p>Aresolutovy condition is implied iu all commutative contracts, to talco effect in case either of tho parties do not comply with their engagements.</p> <p>The dissolution of tho contract for non-complianco with its obligations, may be demanded by suit or by exception.</p> <p>The rights of property of an insolvent are vested by law in the syndic of his creditors.</p> <p>There is nothing inconsistent in a demand for the dissolution of a lcaso, being coupled with a demand for the rent up to the time that possession is delivered to the lessor.</p> <p>In a suit brought by a lessor against the syndic of an insolvont lessee, although tho lessor’s privilege can only be regularly considered upon a tableau of distribution, yet a prayer for gonoral relief 111 the petition, will enable tho court to reserve tho rights of all parties interested in tho matter.</p>

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

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

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

<p>PPEAL from tlie Fifth District Court of New Orleans, Eggleston, J.</p>

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

<p>The holder of a note made payable to the maker’s own order, Tyy 7dm indoi'sed, and secured by a notarial and authentic act of mortgage, may recover without any authentic evidence of transfer further than that contained in the act itself.</p>

<p>Where a debtor has resorted to a simulated sale, for the purpose of defrauding creditors, it is not necessary that a judgment creditor should proceed by the revocatory action, in order to have the sale annulled; he is entitled to consider the sale as without reality and to seize the property, thus sold, as that of the vendor.</p>

<p>The ordinary partnership creditors of the owners of a steamboat have no right to bo paid by preference to the individual creditors, out of the proceeds of the boat, whether these proceeds result from sales or have been received on policies of insurance.</p>

<p>from the District Court of the Parish of Pointe Goupée, Haralson, J.</p>

<p>Whore the Federal Court was resorted to on a false allegation of tho citizenship of the parties, in order to obtain possession of property by attachment, and tho proceedings were then dismissed and simultaneously process of attachment sued out from a State Court, on the affidavit that the defendant in the attachment, who was represented in the Federal Court to be a citizen of Louisiana, was a non-resident — Held: That the allegation of the non-residence of the defendant being at direct variance with the allegation previously made by the same party in the Federal Court, the attachment could notbe maintained.</p>

<p>Where a broker or agent sells a note, with a forged endorsement upon it, without disclosing the fact of his agency, or tho name of his principal, ho is responsible for the amount, with legal interest, which was paid for the note.</p>

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

<p>PPE AL from the District Court of the Parish of Livingston, Beale, J.</p>

<p>Where the defendeut was indicted for an assault with an attempt to commit a rape, and after having pleaded to the indictment, was released upon a bond, in which he and his securities hound themselves that he should appear and answer to the charge of rape. Held: That such a condition under the circumstances of this case vitiated the bond.</p>

<p>The city, as a corporation, has control over the public places and highways within its hounds, and it is the province of the corporation, and not of a judicial tribunal, to determine what improvements shall be made in the streets and canals of the city.</p>

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

<p>An exception taken by a defendant to a petition, on the grounds that his name has been incorrectly stated, will be regarded as frivolous, when his true name is not disclosed.</p> <p>A frivolous exception cannot prevent a cause from being put at issue, when an answer has been filed! with the exception.</p>

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

<p>A draft taken in part payment of the price of property sold, does not novate the debt so as to cause tli seller to lose his privilege upon the property sold.</p> <p>Checks are assimilated to bills of exchange, and the same rules governboth ■with regard to the necessity of demand, protest, and notice of protest.</p>

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

<p>An opinion formed and expressed by a juror in ft criminal case, which is based wholly upon rumor, and when there is no bias or prejudice in the mind of the juror, is not a disqualification.</p> <p>The jurisdiction of the Supreme Court being limited to questions of law in criminal cases, it must appear clearly by a bill of exceptions to the refusal of the Judge to sustain a challenge of a juror for cause, that no question of fact but one purely of law was presented for decision.</p> <p>Tho statutes regulating the arrest and commitment of persons accused of crimes and misdemeanors, do not require the previous examination of a prisoner before a commuting magistrate, in ordor to authorize the Grand. Jury to inquire into the matter and find a bill of indictment.</p> <p>Where the regular session of a court is adjourned over by order of the Judge at chambers, the jurors summoned for the first week of the court, are bound to attend, and servo for the first week of tho actual session of the court thus adjourned over.</p> <p>Tho accused, in a criminal case, is not entitled to service of the list of talesmen.</p> <p>Where a juror can be challenged for cause, the right must be exercised before the juror is sworn, and a verdict cures tho defect.</p> <p>Where the jury cannot be completed by talesmen from among tho bystanders, recourse may be had to other persons not within the presence of the court.</p> <p>The objection was stated in the bill of exceptions to the refusal of the Judge to grant a new trial, that such talesmen were summoned during the time the court was adjourned — Held: That there was no error in tho ruling of the court below, and that if any complaint was made by the accused against the Sheriff for want of impartiality in summoning such talesman, it was a matter of fact to be submitted to the Judge, and rested in his sound discretion.</p> <p>The Judge may properly refuse to charge the jury as requested by counsel, on tho ground that the charge asked for is tho same in substance with that alreadv given, with the only difference of being shaped in a manner calculated to mislead the jury.</p>

<p>from the District Court of the Parish of West Feliciana, Haralson, J.</p>

<p>Article 1983 of the Civil Code, which obliges a creditor who has been preferred, to share the loss rata-bly with the complaining creditors, gives the right to compel them so to do, only to those creditors whose debts were either due or would fall duo before that of which the payment was anticipated by the debtor in insolvent circumstances.</p> <p>In order to succeed in a suit to make the preferred creditor contribute ratably, the actors must specially allege the nature of their debts, and prove themselves to have been creditors within the meaning of the Article,</p> <p>The syndic of an insolvent cannot bring such a suit.</p>

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

<p>A bank is liable to the payees of a check made payable to their order, when the check is paid on a forged endorsement made by the collector of the payees, who receives the check in payment of a bill of merchandize intrusted to him for collection by his employers.</p>

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

<p>Tho 129th Article of the Constitution which requires that the laws of this State shall ho promulgated in the English and French languages, is not violated by section second of the Act of the Legislature of March 16th, 1859, entitled “ an act to change and regulate the terms of the District Courts in the Eighth Judicial District,J> which declares that the Act shall take effect from and after its passage.</p> <p>There is no prohibition in the Constitution, against the repeal of laws, in any form, in which the Legislature can give a clear expression of its will.</p>

<p>■Whore in a redhibitory action, brought to rescind, the sale of a slave, and recover back the price paid, it was established by parol evidence received without objection, that upon being informed of the sickness of the slave, the vendor had consented to his return — Held: That effect must be given to the evidence, and thatafter its reception, it is too late to raise the objection, that the fact of such consent on the part of the vendor, should have been established by written proof, in order to rescind the sale.</p> <p>Where the consent of the vendor to take back the slave has been given, and in accordance with it, the slave has been returned to bim. by the vendee — Held: That in a suit brought to rescind the sale, and recover back the price paid for the slave, the consent of the vendor throws the burden of proof upon him, and he cannot be relieved from it, without showing fraud or concealment on the part of the vendee in procuring such consent, or somo negligence in returning the slave.</p>

<p>In a contest of boundary between two parties who have purchased adjoining tracts from a common vendor, tho line which their vendor had caused to be run as the dividing line between the two tracts before ho sold them, will he recognized as the dividing lino between the two parties deriving title from him.</p> <p>Under such circumstances, if either party has not tho quantity of land called for by his title, ho must seek it from his vendor, and not from the proprietor of the adjoining tract, who does not claim or possess hoyond the line established by their common vendor.</p> <p>In such a case, the plat of a survey, and the proces verbal of a parish surveyor, arc admissable in evidence after the death of tho surveyor, to show that the lino was run by him at the request of the common vendor, and that he considered it the boundary of the two tracts which had been divided by him, and also to show that the parties bought the land in accordance with the lines established by the survey, and that the defendant took possession and cultivated his tract according to it.</p> <p>In an action of boundary, a division lino which has boon long established by surveyor’s marks, a canal and fence, and under which both parties bought, and which, is referred to in tho act of salo, will be taken as the true line, in preference to a new one, which gives to one of the parties a larger boun-</p>

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

<p>The property of insolvent corporations, when sold by a commissioner for cash, must be appraised, and bring two-thirds of its appraised value, as in tho case of property sold under execution.</p>

<p>When a shipper has shipped goods to his factor in the usual course of business, and has sent forward with the shipment, or by mail, one of the bills of lading consigning the goods to him, the shipper cannot destroy the lien and privilege that the factor and consignee will have for advances upon tho goods, by transferring other bills of lading to secure other debts.</p>

<p>Where cotton, consigned to a commercial house, had been sunk and damaged, and re-shipped, the party re-shipping paying the freight and charges for salvage, and consigning it to another house, who paid the charges for freight and salvage, the original consignees refusing to pay them, on the ground that they wero exorbitant — Held: That where there is no evidence of any bad faith on the part of the second consignees, or of a combination to commit extortion by the shippers, the consignees were justifiable in paying the charges, and that the payment of such charges should bo considered as advances, for which a privilege is given by Article 3214 of the Civil Code and the statute of 1841.</p>

<p>Unitor tho operation of Articles 2203 and 2204 of tho Civil Code, compensation does not talco placo between partnership and individual debts.</p> <p>During the existence of tho partnership, suit must be brought against the firm, and not against individual partners.</p> <p>An exception to this rule has been recognized in the case of a Louisiana creditor, attaching the interest of a non-resident debtor in property belonging to a foreign firm, of which he was a member, for a debt duo by him individually.</p>

<p>The decision in the case of Yealman v. Cmndéll, 11 An. 220, reaffirmed.</p> <p>An assessmentfor levee purposes is not a tax within the meaning of Article 123 of the Constitution.</p> <p>An Act of the Legislature authorising the assessment of an annual tax on alluvial lands, “ specifically upon each and every acre,” for the purpose of building or making and repairing levees, is not in violation of the Constitution.</p>

<p>PPEAL from tho Fourth District Court of Now Orleans, Strawbridge, J.</p>

<p>"Where the goods of third persons are placed, with their consent, in a leased houso or store, they become subject to the pledge of the lessor.</p> <p>Where a Constable has property under seizure, he cannot bo deprived of possession by a writ of sequestration, even by a superior court. The proper mode of procedure is by injunction.</p>

<p>The writ of proliioition is only issued to a court which takes cognizance of a cause that does not belong to it, or which it is incompetent to decide.</p> <p>The writ should not bo issued to a court which grants an order of sequestration, only as a conservatory measure to insure the jurisdiction of another court in which the action is to be instituted.</p> <p>To maintain an application for a writ of prohibition there must be a clear usurpation of jurisdiction.</p>

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

<p>A party is concluded by the first bill which he presents for work done under a contract. 'Without showing error he cannot be permitted to recover the items added to that bill since it was rendered.</p>

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

<p>The action for delivery of merchandise, or other effects, shipped on board any kind of vessels, is prescribed by one year.</p> <p>This prescription begins to run from the day of the arrival of the vessel, or that on which she ought to have arrived.</p> <p>The party pleading this proscription should show that the vessel either did, or ought to have arrivod one year before the suit was brought — an omission to do which is fatal to his plea.</p> <p>Art. 3212 C. C., fixing the time at which a ship is considered to have made a voyage, refers alone to the privileges, given by the Articles which precede it, to creditors upon a ship, and does not govorn the time when a shipper may bring an ordinary action (asking no privilege) for the delivery of goods.</p>

<p>Charts of fraud in an opposition to the application of an insolvent to be allowed the benofit of the the laws of this State in favor of insolvent debtors, should be clearly enunciated and specifically</p>

<p>The right of a party purchasing real estate, in good faith and for a sound price, from one in whom the legal title is vested, as shown by the records of the country, cannot be impaired or affected by a previous simulated sale.</p>

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

<p>Article 78 of tho Constitution of 1852 vests Justices of tho Teace “ with such criminal jurisdiction as shall be provided by law.”</p> <p>According to sections 21, 22, 26, 27 and 28 of tho Act of 19th March, 1857, relative to tho trial of slaves accused of capital offences, Justices of the Peace act. m the trial of slaves, not only as jurors, but also in an official capacity, and cannot bo excluded from the trial of a slave, because they have presided and taken part in a previous trial of the same slave, for the same offence.</p> <p>Before a confession is allowed to go to the jury, the witness to whom it was made should be interrogated as to whether it was voluntary.</p> <p>If ho testifies that the confession was voluntary, then the counsel for tho accused may impeach his testimony by his former statement to the contrary.</p> <p>Although the laws relative to the organization of the tribunals for tho trial oí' slaves, in the country parishes, do not contemplate that the presiding Justices of the Peace should charge the jury on points of law, yet it would not bo illegal if they thought proper so to charge them.</p> <p>*n a case of rape, the evidence of witnesses to prove the details of the complaint made by the prosecu-trix against the accused, immediately after the commission of the offence, is admissible as part of the transaction, and not as proof of the truth of the statements.</p> <p>Slaves are prosecuted as persons, and their right to have all the testimony that may establish their innocence, is superior to the principle which would exclude their owners, on the ground of interest, and their testimony ought to be received, subject to the credibility which the jury may attach to it.</p>

<p>There is a distinction to bo observed between those effects of a traveler, which arc not immediately requisite to his comfort, and which the law requires him to deposit with the inn-keeper or his servant, in order to hold such inn-keeper responsible for their loss, and those which arc essential to his personal convenience and which it is necessary to have constantly about him. So that if a guest had been personally notified to deposit at the offlco of the hotel or inn, his watch and other personal effects necessary to his comfort, this would not liberate the inn-keeper from responsibility, if they were not so deposited.</p> <p>But where the traveler contributes by his own act or negligence to the loss of such things, the innkeeper is released from liability.</p>

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

<p>The Act of 1855, regulating tile duties and powers of administrators, being highly penal, should be strictly construed.</p> <p>An executor or administrator, if he has funds to distribute before the expiration of a year from his appointment, may be called upon to distribute them after the time of delay provided by law has expired ; but if ho fails to obey the order of court, he cannot be subjected to the penalties of the Act of 1855, as he does not, under the Act, so far as relates to filing an account, become liable to its penalties until the expiration of twelve months.</p>

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

<p>J. conveyed to 2? a house and lot for the sum of $5,500, which the purchaser obliged himself to pay to the seller in one year from the date of the contract, with the express agreement, howover, that the purchaser, his heirs or assigns, should have the right to prolong the payment of the sum of $5,500, indefinitely and at their will, on paying the vendor or his heirs or assigns, interest annually in advance, at the rate of seven per cent, per annum — Held: That such a contract is not a contract of sale, but one of “ rent of lands,” rente fonciére ou bail a rente.</p>

<p>Tbe formal probate of a will cannot be disregarded by parties claiming as heirs of the testator, but never in possession, and they cannot institute a petitory action without seeking to annul such probate.</p> <p>■When heirs-at-law have once acquiesced in a will, by accepting some bequest under it, neither they, nor those claiming under them as heirs, are at liberty afterwards, to contest its provisions or assert its nullity.</p>

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

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

<p>The failure of a lessor to maintain premises lea.-eel in a tcnantablc condition dissolves the lease, although such lessor he not at fault.</p>

<p>On the removal of a tutor from one parish to another, the Judge of the new domicil of tho tutor is the one having jurisdiction over the affairs of tho minor.</p>

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

<p>PPEAL from the District Court of the Parish of Terrebonne, Roman, J.</p>

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

<p>When a supplemental petition is filed, in which a larger amount is claimed than was demanded in the original petition, such amendment is material, and should be served upon the defendant, and regularly put at issue; and when this is not done, it will be presumed that plaintiff has waived or abandoned it.</p>

<p>from the District Court of the Parish of Lafourche, Roman, J.</p>

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

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

<p>Where one renders services for continuous years to another on his promises to provide in his will for the party rendering such services, and ho dies without making such provision, an action may he maintained for the value of the services.</p> <p>The promises in such a case having reference to the period of the promissor’s death, prescription is suspended until that time.</p>

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

<p>A holder of a note given in payment of tho price of property sold for the purpose of defrauding creditors, and secured by mortgage upon the property sold, cannot enforce his mortgage to the prejudice of creditors whose right of mortgage originated before the fraudulent sale and execution of the</p> <p>The recording of a judgment against a debtor, in a parish whore he has negroes attachod to a plantation, of which ho is part owner, creates a judicial mortgage upon the slaves, whon the owner is not domiciliated in the State.</p> <p>Slaves under seizuro cannot be hired out by the Sheriff, unless by tho consent of parties, and the mortgagee is not entitled to receive hire for the slaves, during the time that they may be under seizure.</p> <p>A deed of trust executed in Mississipi and recorded in this State, which expresses that it was given to secure a certain amount, and also to secure future advances that might be made, cannot be enforced hero, against the property mortgaged, to tho prejudice of other mortgage creditors, except for the amount specified.</p>

<p>from the Third Justice’s Court of New Orleans.</p>

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

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

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

<p>The husband is prohibited by law from purchasing the property of his wife in a direct sale, and he therefore cannot bo permitted to acquire a title to her property indirectly for a price fixed beforehand by the machinery of legal proceedings against the wife, resulting in the sale of her property.</p> <p>The relationship of the husband to the wife forbids an arrangement by the husband with the creditors of the wife, under which tbe title of the wife is to be divested by judicial proceedings against her, and the property transferred to the agents of the husband.</p> <p>The purchaser of the property of the wife, under an agreement between the husband and the purchaser, that when the debts of the wife assumed by the purchaser should be paid off from the revenues of the property, the property should be conveyed to the husband or his heirs, will not divest the wife of her title, or enable the husband or his heirs to hold the property adversely to the wife and her heirs.</p>

<p>Where a promise to sell to two persons jointly, contains the stipulation that such purchasers are to fur* nish a reliable city acceptance by a certain time, or the contract shall be null and void, the tender of the accepted draft of one of the purchasers is not a performance of the stipulation.</p> <p>A party seeking to compel the specific performance of a contract of promise to sell, must himself show a specific compliance with his own obligations.</p>

<p>Where a commission to take testimony is specially directed by name to a person in another parish, his authority to administer oaths will be presumed.</p>

<p>Whore by an evident clerical error, a different name from that of the defendant in the suit has been inserted in the prayer of the petition, the suit should not he dismissed, hut leave granted to correct the error by an amendment instante)'.</p>

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

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

<p>"Where in a suit to compel tho defendant to render an. account, an order to file the account has "been made, and a judgment by default taken on the petition for want of an answer, the refusal of tho defendant to comply with the order, although a good ground for his arrest and punishment, for contempt of the authority of the court, will not deprive the defendant of tho right to file his account at any time "before the judgment by default is made final.</p>

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

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

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

<p>Tho voluntary separation of husband and wife does not prevent their acquisitions during the period ou-tlie separation, from falling into the community undor Article 2371 of the Civil Code.</p> <p>"When the property of the wife described in the marriage contract, is not declared to be given in dower? it remains paraphernal.</p> <p>"Where property purchased during the marriage is paid for out of the separate funds of the husband, a charge exists in favor of the separate estate of the husband against the community for tho amount of such purchase.</p>

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

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

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

<p>The validity of a judgment confirming tho mother as natural tutrix of her minor children, cannot ho called in question collaterally.</p>

<p>from the District Oourt of the Parish of Rapides, Cullom, J.</p> <p>Three distinct and separate issues are presented to the court by the pleadings, non.e of which the court say can they decide upon till all the preliminaries for making a partition have been pursued.</p> <p>First. The plaintiff, as a particular legatee, under the will of Mrs. E. R. Williams, claims from the defendants, her heirs, the sum of twenty-five hundred dollars ; the amount and validity of the legacy is not traversed, but the defendants say, that whilst the plaintiff was as yet unmarried and a minor, this sum of twenty-five hundred dollars was paid to the father and mother, that the payment was a good and valid one, because the father was the administrator of the plaintiff’s property at the time. 0. C. Art. 265. And because the father and the mother had, by law, the usufruct thereof. See C. C. Art. 239. They therefore deny the plaintiff's action as against them, saying that she should apply to her father first, and call upon him to render an account. If the payment to the father was in violation of law, then the defendants may have to pay the money over again, but that point can now be decided, and does in no manner depend on a partition of the estate; it may be replied, that no proof of payment was offered, which perhaps, is itself true as regards the whole legacy of fifteen thousand dollars, but it is shown that the father and mother have been paid by defendants an amount much larger than the claim of the plaintiff, and that as regards the brothers and sisters they are not before the court either as plaintiffs or defendants on this point; further, if the legacy was loaned out by the father, he acted conformably to law, for he was entitled to the usufruct of the legacy. 0. 0. 239. And that usufruct was interest. 0. 0. 536, 531. He was bound by law to lend it (the legacy) when received, on interest, and to take security. See 0. G. Art. 556. He has done so, and therefore the issue was fully and fairly presented to the court: 1st, whether the plaintiff, an emancipated minor, was not bound to call upon her father for payment before calling upon defendants; and 2d, whether the settlement of the legacy made by the father with the defendants could be on any ground attached collaterally. It is reasonable to ask that these questions be disposed of before we arrive at the point of partition, for until it is decided, it will be a contest for the money, one party asking and claiming- it, the other averring it has been paid, or otherwise settled, with a party legally authorized at the time to make the settlement. If the estate were sold and the money in court, we should be compelled, before division, to ask this tribunal to decide this issue.</p> <p>Second. The plaintiff alleges that certain legacies made by the testatrix to her children are null and void, “ because not specially stated to be, over and above their legitime, nor as an anvantage over the other heirs.” She further alleges that the will contains no other legal dispositions than those made in her favor, and in that of her brothers and sisters; ” these allegations are again traversed by the defendants, and the question is fully and fairly presented to the court, whether the legacies are good and valid or null and void. On this point it is not necessary to wait for a decision until the estate is ready for partition, if there be not enough to pay them, who is to complain, not the plaintiff, nor her bothers and sisters, for her legacy and theirs has been paid to her and their father and mother, but what I presume the plaintiff no/less than the defendant desire to have the decision of the court on is, are the legacies given to Maria, Frances, Laura and John, amounting to $100,000, good and valid in law. If the estate is insufficient to pay the whole, then a ratable deduction must be made; but the court will see, as in the first issue, that if the estate were already sold, and the money before the court, no partition of much or little could be made until the court decided whether Mrs. Williams had legally and validly given to her children the particular legacies. We should be then, exactly where we are now.</p> <p>Third. Residuum or not, I admit that before it can be decided positively and beyond the shade of a doubt, whether there be a residuum it may become necessary to sell the whole estate, but that necessity may be removed by this court deciding now whether the legacies made by Mrs. Williams to her children, are good and valid, not in amount, but, had she a right to make these legacies, supposing her estate to be amply sufficient to meet them ; for it may be, that when the plaintiff is informed that these lagacies must first be paid in full, before we can say there is a residuum, that she, her brothers and sisters, will desist from pursuing a shadow which can be of no profit to them, and must cause immense loss and inconvenience to the defendants.</p> <p>Has the plaintiff instituted her action for her proportion of the $15,000 legacy, correctly against the defendants, when it is shown that she is still a minor ; and whilst yet a minor and unmarried, her father being her administrator, did settle and adjust the said legacy, its payment, &c, with defendants ? Has she brought her action correctly, when the evidence discloses that the father has received from defendants in money, an amount far exceeding plaintiff’s claim ?</p> <p>Had she a right to attack collaterally her fathers acts, if injurious to her, ought she not to have first called upon him to render an account, and then failing in her pursuit there, might she not have adopted the direct action ?</p> <p>Has the father, during the marriage, the right to receive and enjoy the use of money belonging to his minor children, whilst they are minors or not emancipated ?</p> <p>If the father has so received the money of his children, is he not bound by law to lend it on interest and with security ?</p> <p>Has not the father of plaintiff during her minority, and before her marriage in effect, loaned the plaintiff’s money out on good interest ?</p> <p>If the lending was illegal, then has not the father received money on account of the legacy due his daughter, and must he not account for the same to her ? In fine, has the plaintiff shown, as she was bound to do, that she had asked her father and administrator for her money, and that he could not, or would not pay it ?</p> <p>The appellees further pray for a decision on the issue as to the legality and validity of the particular legacies made by Mrs. E. R. Williams, to her children.</p>

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

<p>The under-tutor of a minor may resign his office, without being compelled to allege and prove his excuses.</p>

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

<p>When a person dies leaving property in two or more States or countries, his property in each State is considered as a separate succession for the purposes of administration, the payment of debts and the decisions of the claims of parties asserting title thereto. And when the property consists of immovables or slaves, it may be considered as a separate estate for the purpose of inheritances,</p> <p>An heir-at-law may sue in our courts for the recovery of immovable property, and its revenues, even when his ancestor, who was domiciliated in another State, had made a will which had been probated, and ordered to be executed in a foreign jurisdiction, and which here may not be valid and sufficient to defeat his inheritance.</p> <p>If immovable property in this State is in the possession of a foreign executor, and a testamentary disposition has been made of it, not in accordance with our laws, the legal heir may sue such executor directly for its recovery in the courts of this State, and is not obliged to resort to the tribunals of the testator’s domicil, to ascertain the validity of the disposition intended to deprive him of his right to immovable property within our jurisdiction.</p> <p>When a suit is brought by the heir of one of the members of a partnership against the heirs of the other member, claiming a certain sum, and giving, in his petition, a detailed statement of the property belonging to the partnership, and of its annual revenues — Held: That if plaintiffhas any right to the property described in his petition, and is, therefore, entitled to an account from the heirs of the surviving partner, his right, and the rendition of an account of the partnership affairs, can be determined in such a form of action as well as any other. Held: That such a suit is in the nature of an action for the settlement of partnership affairs, and a partition and division of the partnership effects.</p>

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

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

<p>The beneficiary heir cannotstand in judgment for the succession.</p> <p>Where the succession is accepted with the benefit of inventory, the appointment of an administrator becomes necessary, except when the heirs are all minors represented by a tutor, which case is made an exception to the general rule, the tutor having the right to administer, if the creditors do not require the appointment of an administrator.</p> <p>Where a suit is improperly brought against the beneficiary heir as such, for a debt of the succession, and is dismissed on the exception of the hoir, leave should be granted to the plaintiff to amend, by making the proper parties.</p>

<p>The surviving widow of It. W. sold a tract of land belonging to the community, of which property her minor children owned an undivided half. The salo was made by the mother for herself, and as tutrix of her minor children, and with full warranty. Ina suitby one of the children to recover his portion of the property from one holding under a title from his mother’s vendee — Held: That although the defendant had not obtained a subrogation to his vendor’s rights of warranty against tlio mother of plaintiff, the action could not he maintained, the fact of the price of the property having gone into tlio succession of the mother, of which the plaintiff was heir, making it against good conscience for him to recover.</p>

<p>from the District Court of the Parish of Rapides, Cullom, 3.</p>

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

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

<p>lu a suit for tlie recovery of money, the defendant having made a surrender, his syndic was made a party, and judgment rendered in favor of the plaintiff — Held: That it was irregular, that all further proceedings should have been suspended, and the plaintiff’s claim cumulated with the insolvent proceedings.</p>

<p>TVliere a slave was prosecuted under the Act of 1857, u relative to slaves,” for having struck a white man, so as to cause the shedding of hlood, and tho jury acquitted him of any capital offence, hut sentenced him to receive corporal punishment — Held: That the accused, in such a case, is not debarred the right of appeal; and that Article 62 of the Constitution of this Stato, which grants the right of appeal in all criminal cases, where the offence charged is punishable with death, or imprisonment, at hard labor, does not make that right depend upon the nature of the verdict,or the punishment that may he inflicted hy the jury, hut upon the nature and punishment of the offence charged as fixed hy law.</p> <p>Section 28th of the Act of 1857, relative to slaves, empowors tlio court to inflict- corporal punishment, only when the accused has not been convicted or acquitted of an offence punishable with death, and where a slave has been acquitted by the court of any capital offence, corporal punishment cannot be inflicted on him.</p>

<p>from tlie District Court of the Parish of Caddo, Cresxvell, J.</p>

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

<p>When property is sold under execution, tho adjudication is made without reference to the amount of legal and judicial mortgages to which the property may be subject.</p> <p>A forced sale of property, made under execution of a judgment, secured by a judicial mortgage, does not discharge concurrent judicial mortgages.</p>

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

<p>A law partnership is an ordinary one, and the partners are hound jointly, and not in solido.</p> <p>Objections to the authority of the plaintiff to sue, and to the non-joinder of the heirs and representatives of. one who was hound jointly with the defendant, cannot he made after an answer has been filed, pleading a general denial.</p> <p>■When a receipt has been given by an attorney-at-law, for a claim, placed in his hands for collection, the prescription of one year, provided by Art. 3501 of the Civil Code, cannot be applied where an action is brought on the receipt to make him liable for having allowed the debt to be lost by his neglect ; the receipt creates a personal obligation which is only prescribed by ten years, as provided by Article 3508 C. C.</p>

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

<p>Tho exclusion of warranty in an act of salo, cannoí availthe vendor, when it is fraudulently made,, as ho is hound to disclose redhibitory vices and defects in the thing sold, when ho knows of their existence; and the vendee is not precluded by such exclusion, from showing that previous to tho date of tho sale, the vendor was aware of the existence of redhibitory defects, whioh ho fraudit lently concealed from him.</p>

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

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

<p>A party who permits property in his possession to be seized under execution and sold as the property of another, without objection on his part, and at the sale purchases the property, does acts inconsistent with the idea of ownership on his part, and which generally have the force and eftcct of an estoppel.</p> <p>The claim of a surety against his principal, for re-imbursement of the amount of a note taken up by the surety, is barred by the prescription of ten years only.</p>

<p>PPEAL from tlxe District Court of the Parish of Union, Richardson, J.</p>

<p>When it is apparent that a party intended to offer in evidence a paper, or document, hut failed to do so through inadvertence, or mistake, and the document is copied in the transcript of the record, the Supreme Court will consider and give effect to the evidence, as if it had been formally introduced, if it is admissible.</p>

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

<p>When interrogatories on facts and articles are annexed to a petition, and an exception is made to the vagueness of the petition, and sustained with leave to amend — ; That the interrogatories not being pertinent to the issue, the defendant should not be compelled to answer them.</p>

<p>The syndic of an insolvent may plead in his answer to oppositions filed to his tableau of distribution, any legitimate defence against the claims of the opposing creditors, such as usury and want of consideration, &c.</p> <p>The opposition in such case is a suit to establish a money demand, and the defence cannot be barred by prescription.</p>

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

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

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

<p>The appraisement of notes and accounts in the inventory of the effects of a succession, is required by</p> <p>An administrator is not bound to attempt the collection of bad debts.</p> <p>Where notes and accounts due the succession are numerous and small in amount, and constitute, as it were, a mass of bad debts, the discretion of the Judge of Probate in ordering their sale at public auction, will be considered as legally and properly exercised.</p>

<p>The Act of 1858, making it the duty of the District Judges to cmpannol the Grand Jury on thejfirst day of the term, is merely directory, and if any sufficient obstacle exists to prevent the empannelling on the first day, it may be done on a subsequent day.</p> <p>Slaves are regarded, in our law, both as property and persons, and the 9th section of the Act of 1855, relative to crimes and offences, which punishes an assault upon a person by “ willfully shooting at him,” &c., applies to an assault upon a slave, as well as a free person.</p>

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

<p>The liquidating partner of a commercial firm may sue in his own name, by representing the claim sued on as arising out of the business of the late firm, so as not to deprive the defendant of any means of defence to which he would be entitled in a suit in the name of all the partners.</p> <p>The liquidating partner, to whom the assets have been assigned, cannot, by a release in favor of his late partner, render him a competent witness in his favor.</p> <p>In a suit on an account, a special denial by defendant of the correctness of the charges for interest, discount and commissions, is restrictivo of the genoral denial, and proof that no other objection was made to the account when presented, when thus corroborated, will suffice.</p> <p>When the defendant offers in evidence the credit side of an account copied from the merchant’s books, the whole account must be taken together, but the defendant is not excluded from showing the incorrectness of particular items of debit.</p> <p>In the absence of a written agreement to pay eight per cent, interest on an account, legal interest only can be recovered from judicial demand.</p> <p>Compensation cannot be allowed for services rendered, when the procuration is gratuitous.</p> <p>Whore a draft is drawn by a planter on his factor, for the benefit of the latter, the former is entitled to commissions at two and a-half per cent, for the risk incurred as drawer of the draft, according to the mercantile usage established in such cases.</p> <p>In the absence of any allegation or proof of fraud, the acknowledgment of payment and release of a partnership debt by one of the partners, by an act under private signature, during the existence of the partnership, will be binding on the liquidating partner.</p>

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

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

<p>1 PPEAL from the District Court of the Parish of Union, Richardson, J.</p>

<p>An agreement to transfer personal effects vests the property in tho transferee, hut the effect of tlio transfer is strictly confined to the parties to it until the actual delivery of tho object.</p> <p>Personal property transferred by contract, but not delivered, is liable in the hands of the transferror to seizure and attachment by his creditors.</p> <p>An assignment without delivery is conclusive against the assignor and his legal representatives.</p>

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

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

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

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

<p>PPEAL from the District Court of the Parish of Caldwell, Mayo, J.</p>

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

<p>It is no objection to a slave’s right to manumission by act inter vivos or mortis causa, that she was the concubine of her owner at the time the act was passed.</p> <p>An acknowledgment by the father of natural children by his own slave, has no legal or binding effect.</p> <p>Where a will was made prior to the passage of the Act of 1857, prohibiting the emancipation of slaves, in which a slave was manumitted by his master — Held: That under the will the slave acquired only an inchoate right to his freedom, to be perfected in accordance with the existing laws and regulations upon the subject ; and that when the slave, who had acquired this right under the will, did not perfect it under the existing laws, he cannot be a party to the suit, nor have his rights under the will enquired into, since the passage of the Act of 1857.</p>

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

<p>A promissory noto not transferred by endorsement and delivery in the usual mercantile mode, is subject to seizure, under the rule which governs the sale of movables not accompanied with delivery. The doctrine of notice is not applicable to the sales of personal or movable property, and the creditors may seize and sell when there is no delivery of possession, although informed of an agreement to sell.</p>

<p>The wife, although separated ill property from her husband, cannot be made liable on anote signed by her with her husband, which did not enure to her separate benefit.</p>

<p>Article 2417 of the Civil Corle, which provides that a sale of immovables or slaves by act under private signature, has effect against creditors only from the day of its registry, awl the actual delivery of the thing sold, controls Article 2242, which declares such sales to bo valid from the date of their registry or from the time of the actual delivery of the thing sold.</p> <p>Property cannot be seized by a judgment creditor of the vendor, when the privato act has been recorded previous to the issuance of execution.</p> <p>If the property remains in the hands of the vendor, the legal cousequence resulting therefrom would be a presumption of simulation, which it is incumbent on the vendee to rebut.</p> <p>The plaintiff in an injunction suit cannot claim from the defendant the amount of fees paid his counsel.</p>

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

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

<p>Prescription does not run on a merchant’s account for advances made in the shape of acceptances of drafts, and disbursements for necessary supplies, insurances, freights, &c., upon each separate item of the account, but the account as a whole is prescribed in three years.</p> <p>In regard to an account for goods sold, by the terms of the law, each item of the account is subject to its own prescription.</p> <p>The evidence of one witness, without corroborating circumstances, is not sufficient to establish an item in account of over $500, for amount of a draft paid by the merchant, which is alleged to be lost or mislaid'.</p> <p>Articles 2258 and 2259 C. C., in regard to lost instruments, do not apply to an action for reimbursement of money paid by a merchant upon an accommodation acceptance, when the draft is lost or mislaid.</p>

<p>The misnomer iu the petition for administration of a succession, by calling it a vacant one, will not affect the proceedings which have been regularly conducted as in a succession not vacant, and administered with the benefit of inventory.</p> <p>Although a judgment of homologation, recognizing the verity of claims set up against the succession, may not bo technically, as to the heirs, res ju&icala-, yet it constitutes prima facie proof, and imposes upon the heirs the burden of establishing fraud and deception in obtaining it.</p>

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

<p>from the District Ooui-t of the Parish of Claiborne, Eagan, J.</p>

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

<p>Among the apparent defects which do not, under the Civil Code, give rise to the action of redhibition, must be classed the mental weakness of a slave approaching imbecility.</p>

<p>Where a suit was instituted on the obligation of a married woman, and after the joinder of issue a peremptory exception was flled to the petition, on the ground that it was not alleged that the defendant was separate m property from her husband, or that the obligation enured to her separate bene-ñt — Held: That the exception was properly sustained.</p>

<p>PPEAL from the District Oourt of the Parish of Ouachita, Richardson, J.</p>

<p>An appeal from a judgment rendered on a written, consent signed by the attorneys of the parties to the suit, will he dismissed when it is not pretended that the action of the attorneys was fraudulent, or that thej- wero not employed in the suit.</p>

<p>Before the institution of an action for the rescission of a sale, the party seeking relief must offer to placo his adversary in the same situation that he was before the act of sale was passed.</p> <p>The plaintiff, in an action for rescission, must establish the loss of the whole or part of the thing sold; the loss must be certain — it will not suffice if it appears probable.</p> <p>The loss will bo considered as certain, if a perfect outstanding title in a third person is shown to exist.</p> <p>A statement of the Commissioner of the General Laud Office in a letter, to the effect that he has canceled a certificate, docs not amount to an eviction which should rescind a sale between thirdper-</p> <p>Whon, in an action for the rescission of asale, it appears that the plaintiff has not suffered any actual disturbance, but it is shown that he is in danger of being disturbed in his possession — Held: That under the prayer for general relief, the court may order the defendant to give security as provided in such cases, by Art. 2535 of the Civil Code.</p>

<p>The Act of 1819, making it a crime to harbor and conceal a runaway slave, is not repealed by the repealing clause of the Act of 1855, relative to crimes and offences.</p>

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

<p>1 PPEAL from the District Court of the Parish of Morehouse, Richardson, 3.</p>

<p>The provision in the 16th section of the Act incorporating the Vicksburg’, Shreveport and Texas Kail-road Company, to the effectil that no transfer of alack shall exempt the party transferring it from the obligation of paying installments afterwards called, for, witil fifty per cent, on each share shall have been yaid,” exempts from liability to the companjr only those who have transferred their share of stock after the payment of fifty per cent, on each share, before the installments have matured, and payment has been demanded.</p>

<p>When the record shows that the defendant appeared and defended the suit, by filing a peremptory exception, and taking bills of exception to the introduction of evidence, he cannot claim a reversal of the judgment rendered against him, on the ground that the record does not show that issue was joined by a judgment by default.</p> <p>In an action against a defaulting 'fax Collector and the sureties on his bond, who are bound each for a specific sum, the case may be continued as to some of the defendants.</p> <p>The principal and sureties on a Tax Collector’s bond cannot set up, by way of defence to an action brought on the bond, the fact that it had not been approvod, or received by the proper officer, and recorded, as provided by law.</p>

<p>The doctrino of Üu cuse of JDmm v. MorrUon, 13 An. 379, in relation, to the money of the wife received by the husband during the marriage, which constitutes a charge against the community, is applicable to the share of the husband, who, in the partition of the community, is entitled to a credit for his separate funds applied to the uso of the community.</p>

<p>When the minutos of tho court and the judgment show that the sureties on an appearance bond were regularly callod to produce the body of thoir principal, previous to a judgment of forfeiture, it cannot be objected that there is no evidence oí the fact.</p> <p>The entry on the minutes is in the nature of a citation, and need not be offered in evidence.</p>

<p>from the District Com't of the Parish of Bossier, Egan, J.</p>

<p>from the District Court of the Parish of Lafayette, Martel, J.</p>

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

<p>PPEAL 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>The foes of counsel employod by the wife to prosecute a suit for a divorce and a partition of the community property, must be paid by her out of her separate estate ; the community cannot be lield liable for them.</p>

<p>A judgment by default taken in a suit on a note, by a party claiming tbe ownership of it by the blank endorsement of the payee, does not relieve the plaintiff from the necessity of proving the endorse-</p>

<p>"When a judgment of forfeiture has boon rendered on a bail bond, in which there is no mention of any offence for which the principal was answerable, and it does not appear from the record that there was any indictment against him, the judgment will be reversed.</p>

<p>"When a survey is ordered, the costs of making it must be taxed with those of the suit, and paid by the party cast in the action.</p> <p>On the dissolution of an injunction, the Judge may allow damages to the amount of twenty per cent, on the judgment enjoined, without proof.</p> <p>But when counsel fees are proven and allowed, exceeding twenty per cent., the Judge cannot, in addition to such allowance, award twenty per cent, as damages.</p>

<p>Counsel fees will not be allowed as special damages where an injunction is maintained against a seizure-of property, and the case is not a proper one for the allowance of vindictive damagos.</p>

<p>The action of one partner, or his representative, against the other partner, for an account, is prescribed m ten years after the dissolution of the partnership. The amendment of a petition for an account by praying for a partition of property held in common between the partners, is allowable.</p> <p>The moaning of Article 2861 of the Civil Code is, that the rules of partition among heirs, apply to partitions among partners; not that the rules governing the action of partition among heirs, apply to all actions which may be exercised by one partner against another.</p> <p>When the action is one for partition of property, and the liquidation of partnership affairs, the settlement of the accounts being an incident to the partition, the prescription of thirty years only is applicable to the case.</p> <p>An opposition to the report of auditors, must specially mention the items of credit objected to.</p>

from the District Court of the Parish of St. Landry, Martel, J. The judgment of the District Court is so vague, that we are left to the inference, and the inference only, that the legacy to the slaves having lapsed, it inures to the benefit of the universal legatees instead of the heirs. First. Because they have forfeited any claim under the will, (if declared valid) having failed to comply with the conditions attached to the legacy to them.

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

<p>Where a suit is brought by a merchant on an account rendered against minors for supplies furnished, advances, &c., aud a privilege claimed upon their crop, and it appears that he had dealt with tho tutor in his individual capacity, and the account was made in his name, and no contract is shown to have been made with him as tutor on behalf of the minors — Reid: That he can only recover so much as is shown to have enured to the benefit of the minors, and then only to tho extont of their revenues.</p> <p>Article 343 of the Civil Code, which provides that tho expenses incurred in the support and education of minors, shall not exceed the amount of their revenues, without the authority of the court, on the advice of a family meeting, applies also to expeuses incurred in tho management and preservation of their estates.</p>

<p>The community cannot be allowed more than the actual cost of improvements made on the separate estate of one of the spouses, during the existence of the marriage, although the property had increased in value during its existence.</p> <p>One partner in the community will not bo permitted to question the title of the other partner to property possessed by such partner prior to the existence of the community.</p>

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

<p>from the District Court of the Parish of Calcasieu, Martel, J.</p>

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

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

<p>The District Courts out of the parish of Orleans have neither appellate nor original jurisdiction in the trial of slaves accused of crimes or offences, nor can they interfere for the purpose of carrying into effect the sentence of the tribunal established by law for their trial.</p>

<p>A judgment creditor of ail estate cannot sustain a petitory action against one who possesses property alleged to belong to tlio succession, when there is no administrator to whom delivery of possession of the property can he made.</p> <p>The insufficiency or want of advertisement in a Sheriff's sale is an informality within the purview of the Act of 1834 (reenacted in 1855), and under that Act is prescribed against after the lapse of five years from the date of the sale.</p>

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

<p>from the District Court of the Parish of Lafayette, Martel, J.</p>

<p>■Where the facts show that the Sheriff was authorized by the committing magistrate to talco the bond of an. accused, and the sureties ou the bond were approved by him, and the bond is clothed with the formalities required by law, the sureties on it will be bound, on the failure of the principal to appear.</p> <p>In calling upon the sureties on a bail bond to produce in court the body of the principal, the words “ instante)'” and “ in open court,” are not sacramental terms ; it is sufficient when the accused has failed to appear, after having been called at the courthouse door, to call upon his sureties.</p> <p>The failure of the Clerk to endorse a document as filed, which was offered in evidence, is of no consequence when the document is actually filed in the records, and is contained in the statement of facts.</p>

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

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

<p>The proper construction of Art. 593 C. P. is that the tutor of a minor, like every other person who is sui jwis} can only appeal within. the year which follows the signature of the judgment: hut the minor whose interests are affected hy a judgment, has a year after attaining the age of majority, in a case where no appeal has been previously taken, to deliberate whether ho shall appeal from it or not.</p>

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

<p>A motion maclo to order tho plaintiff to make a choice of his causo of action, and declare whether he sues on a contract, or a quantum meruit, is in its nature dilatory and can only he made in limine</p> <p>When a party sues on a quantum meniit, and tho petition disoloscs an express contract, he can only recover on tho contract, although he may bo permitted to prove the value of his services.</p> <p>Tho dato is not of the essence of a contract of lotting and hiring, and proof of tho fact that it was made on a day different from that alleged, is sufficient to sustain it.</p>

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

<p>When an open policy of insurance is made out in the name ofZ>. L. S. “ for account of whom it may concern,” and a clause is iuserted to the effect, that the “ insurance is on merchandise) to cover all shipments to the address of the ttssured} from time of shipments, and risJcs to be reported as soon as lenown” —Held: That to recover under such a policy the valuó of a lost shipment, it must ho shown that it was made to the address of tlio assured, or if made to the address of anothor person, that the risk was reported hy him.</p>

<p>When a judgment on a rule passes finally upon the merits of a controversy between parties, it will have the same effect as a decree rendered in any other form of proceeding.</p>

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

<p>District Courts cannot dissolve attachments issued hy Justices of the Peace, except on appeal.</p> <p>When a party has a claim exceeding in amount the jurisdiction of a Justice of the Peace, and bearing a privilege upon property attached by another party in a Justices' court, his remedy is by a suit in the District Court, claiming his privilege and enjoining the officer having the writ of attachment issued by tlio Justice from proceeding with its execution, and paying over the proceeds to the attaching creditor ; or by a rule taken upon the attaching creditor, to show cause why he should not be paid by preference out of the proceeds of the sale of the property attached.</p>

<p>The Act approved March. 19th, 1856, entitled u An Act to authorize the City of JSfew Orleans to tax real and personal property,” is not repealed by the general repealing clause of the let approved March 20th, 1856, amending the Act incorporating and providing a government, &c., for the City of Now Orleans.</p> <p>The formalities of assessment and collection of City Taxes, as prescribed by the Act of the 20th March, 1856, did not apply to the taxes for that year, as the Act of the 19th March, 1856, authorized an assessment for the year which had not then expired, in accordance with its provisions.</p> <p>The meaning of the word income, under the Act of 19th March, 1856, is money received in compensation for services, such as wages, commissions, brokerage, &c., and is totally different from the fruits of capital invested in merchandize, stocks, &c.</p> <p>The Act of 1856 makes no allowance for commissions or compensation to be paid by the tax payer to the Assistant City Attorney ; the Act of 1853, which allowed him a commission of Ave per cent., has been repealed.</p>

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

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

<p>To exempt tile proprietor and undertaker from the charge of negligence and liability for damages caused by the falling of the wall of a house in course of demolition, the notice of danger required by law to be given in such cases must be of such a character as to put the party injured in fault.</p> <p>When it is contended that a bairicade lmd been erected, it must be shown that it was an actual obstruction to passage, in order to constitute sufficient notice or warning of the impending dangor, and thereby exonerate the proprietor from responsibility in case any one is injured by the falling of the wall, or any part of the materials composing it.</p> <p>When in such a case the proprietor, through an error of judgment, had not given sufficient notice, vindictive damages should not be allowed.</p>

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

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

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

<p>from the District Court of the Parish of East Baton</p>

<p>"Where the liability of a stockholder ill an incorporated company; oil a mortgage given to secure his , subscription to the capital stock, depends on a future contingency, prescription will not begin to run until the contingency has happened, which was to make the payment of the subscription domand-</p> <p>"Where property encumbered with a mortgage to secure the subscription of a shareholder to the capi ■ tal stock of a corporation, is sold with shares of stock, for a certain price, and without guaranty against the mortgage, the purchaser is liable to the original stockholder who, when called on for payment of the subscription, may call in warranty his vendee, although there had never boon any transfer of the stock on the hooks of the company.</p>

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

<p>Whore an exception is filed with an answer to the merits, what is admitted by the exception for the purpose of testing the plaiutiff’s petition, may he denied by the answer, and if the exception be overruled, final judgment can only be rendered after a regular trial on the merits.</p>

<p>The warrantor is not liable for tlie fees of the attorney employed by the parly evicted.</p> <p>The warrantor cannot object to the admissibility of evidence regularly taken by commission, previous to his being made a party to the suit.</p>

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

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

<p>.The bitten or verbal statements of a prosecutor, "are considered as merely hearsay evidence, and ' *n not//admissiblo, excopt to rebut his declarations on the witness stand, or when received after his ” dsath in a case of homicide, as dying declarations.</p>

<p>Judgments are interpreted witli reference to the pleadings and the nature of the obligations on which they have been rendered.</p> <p>When parties are sued on an obligation .on which they are jointly and severally bound, judgment will be rendored accordingly against them, without any allegation or prayer in the petition for a judgment in sólido.</p> <p>Whore a suit is brought against persons bound jointly and severally according to law as commercial partners, a judgment rendered against them carries soMdaHty with it even when not expressed in it.</p> <p>Where a promissory note made payable to the order of a firm, is endorsed by each member of the firm separately, in the absence of proof to the contrary, the payees will be presumed to be commercial partners, and each bound by his endorsement for the whole amount of the note.</p>

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

<p>Where a party is interrogated on facts and articles, and his answer is ambiguous, but the fact sought to be established is rendered reasonably certain by the circumstances to which the party interrogated refers in his answers, it will be considered as sufficiently proved.</p> <p>The want of belief on the part of one who has been informed of the existence of an unrecorded title to property, does not impair tho effect of the notice thus received.</p> <p>Creditors are as much bound by the actual knowledge of a prior unrecorded title as subsequent purchasers are, tho law having made no distinction between them as to the effect of notice or knowledge derived from the registry of an act of sale or mortgage.</p> <p>Actual knowledge of an unrecorded title on the part of a creditor is equivalent to Icnowledg cor notice resulting from tho registry of such a title.</p>

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

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

<p>An. appeal will lie from an ex parte order setting asido an injunction, upon giving bond, under Article 307 C. P.</p> <p>TVliere the dissolution of an injunction is calculated to work an irreparable injury, by depriving members of a corporation of privileges, the value of which, cannot be estimated in dollars and cents, the injunction cannot be set aside upon giving bond.</p>

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

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

<p>■NVliere tho tutor of a, minor has created an indebtedness, without authority of law, which exceeds tile revenues of the minor, the creditor, to recover, must show that the indebtedness was absolutely necessary, either for the support of tho minor, or the preservation of his property, and that the supplies furnished enured to the benefit of the minor.</p>

<p>The principle enunciated in the case of Municipality Mo. 1 v. Wheeler <£ Blake, 10 An. 745, to the effect, that an ex 2>od facto law which does not relate to crimes and offences, and does not impair the obligations of contracts, nor divest vested rights, is not unconstitutional, reaffirmed.</p>

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

PPEAL from tlie Third District Court of New Orleans, Duvigneaud, J. 1. Under the marriage contract, the sums to be received by defendant for plaintiff were paraphernal, and did not enter into the community. The reasons given by the District Court for adopting this interpretation are conclusive. The same construction has invariably been given to the contract by the defendant.

<p>It is not nocessary to state in the affidavit for a writ of arrest, where the defendant resides or has his domicil.</p> <p>If the case comes within the exception in favor of non-residents, the defendant may plead the exception, and in proof of it, the proceeding in arrest will be sot aside, if it was not alleged in the affidavit that the defendant had absconded from liis residence.</p>

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

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

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

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

<p>Since the Act of tlie Legislature of 1858, ordering hack into the treasury all funds in the hands of Swamp Land Commissioners, proprietors whose levees have caved in or have been destroyed hy the action of the current of the river, cannot require the Commissioner to proceed under the 10th section of the Act of the Legislature of the 16th of March, 1854, to construct said levoes without a special appropriation hy the Legislature for that purpose.</p> <p>The general appropriation to the Swamp Land Board, hy the Act of the Legislature of 20th of March, 1856, is in contravention of the 94th Article of the Constitution, which declares, “that no money shall be drawn from the Treasury, hut in pursuance of a specific appropriation made hy law, nor shall any appropriation of motley he made for a longer term, llum two years.1’</p>

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

<p>"Where a defendant is sued as silent partner in a commercial firm, service of citation on the Cleric ot' the firm is not sufficient.</p> <p>"Where there is no proof of the authorization of an attorney to defend a suit, and such authorization is denied on oath by the defendant who was not legally cited, a judgment against the defendant will be annulled.</p>

<p>from tlie District Court of the Parish of St. Bernard, Foulhouze, J.</p>

<p>Suit being brought against B. B. and G. TF., as composing the commercial firm of R. F. & Co., and the petition and citation served on R. F. alone — Held: That the service of citation was sufficient as to both partners.</p> <p>In a suit against the maker of a promissory note, in continuing a judgment by default, it is not necessary that the signature of the maker should be proved.</p> <p>Where the name of one of the partners, who is sued on a note of the firm, does not appear either in the firm name or in the return of citation, the fact of his being a partner must be proved, to entitle the plaintiff to confirm a judgment by default against him.</p>

<p>A market, though destined to a public use, is not necessarily public property.</p> <p>A dedication to public use is inchoate only, until after its acceptance, which acceptance may be shown by authentic act or the use of the property in the manner and for the object designated.</p> <p>The designation for a public purpose of a space of ground upon a plan is not of itself evidence of an intention to dedicate, the essence of the dedication consisting in such case in the assent of the proprietor to the use designated.</p>

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