Volume 15 — Louisiana Annual Reports

<p>An attachment will lie in an action for damages, arising ex contractu wheu the claim does not rest upon such uncertain elements of damage as absolutely to preclude the plaintiff from making an affidavit to the amount of the debt.</p>

<p>A clccreo rendered by the Vice Chancery Court of Mississippi, upon default, and without notice or Oitatalion, or appearance of the defendant, is absolutely void.</p>

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

<p>By Articles 402 or the C. C. and 962 of the C. the law oil the subject of tutorship is made applicable to the curatorship of interdicted persons m respect to many matters, and particularly in reference to the oath, the inventory and tho security.</p> <p>By this law, tho District Judge is vested with a discretionary power in fixing tho bond of a curator of an interdicted person, over a portion of the amount, which is to constitute the sum of the bond, and tho law makes it his duty to embrace in the bond : 1st. An amount equal to the active debts ; 2diy. The money and other movable effects stated in the inventory ; and, 3dly. Such other sum as he shall deem sufficient to cover any loss or damages which the curator may occasion the interdicted person bjr mal-administration of his estate.</p> <p>This discretion vested in tho District Judge, is a legal discretion, and may, in a proper case, bo revised by tho Supreme Court on appeal; but if parties wish to question the exercise of this discretionary power by tho District Judge, they should place on file testimony to show that the Judge was governed by an unnecessary caution towards the party giving bond.</p>

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

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

<p>The sale of property bounded by an avonuo, in a plan of a town, which is referred to in the act of sale, as designating the position of the property sold, is a dedication of the avenue to public use., and the vendee, together with the public generally, have the right to use the whole width of the avenue.</p>

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

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

<p>“When, in an assessment of a lot of ground, neither the number of the square, nor tho number of tho lot, nor the name of the street on which the lot fronted is given, such assessmont is wanting in particulars essential to the identification and description required by the 26th section of the Revenue Act of 1847, which requires tho tract or lot of land to bo designated at least by its boundaries.</p> <p>When the assessment is not made in the manner required by law, a sale of the property assessed for taxes by the Collector, will bo null and void.</p> <p>An illegality in the assessment of property sold for taxes is a radical defect, and not a mere informality which may be cured by the lapse of five years from the date of the tax sale.</p>

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

<p>The Act. of the Legislature of the Otli March, 1852, which allows legal interest on all debts from the time Ihoy become due, unless otherwise stipulated, does not apply to debts due before its passage.</p> <p>An agent for tho collection of monoy is only liable for interest on tho monoy collected from judicial demand, unless it be shown that he employed the money for his own use, or that he was put in do-fault prior to the institution of tho suit.</p>

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

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

<p>A judgment appointing a tutor to a minor, rendered "by a court of competent jurisdiction, cannot be attacked collaterly by a debtor of the minor ; so long as the judgment stands unreversed, it constitutes a full warrant for the demand and collection of the debts due the minor, by the person named theroin as tutor.</p> <p>Such a judgment cannot bo attacked, directly or collaterly, before any other court, than the one by which it was rendered.</p>

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

<p>When a Constable has seized property under a writ emanating from a Justice of the Peace, bis posses • sion is that of tho law ; ho may protect his possession of tho property seized by calling to his aid the judicial power, when needed ; and when, by an order of a District Court, an attempt is made to deprive him of his possession, he is entitled to appeal from such an order, if tho case be au appeal-able one.</p> <p>When an appeal in such a case is refused him, his remedy is not by a writ of certiorari.</p>

<p>When it is alleged in the petition, that the claim sued on has been reduced to a judgment in a foreign country, the plaintiff canuot establish it by parol evidence; the original cause of action being merged in the judgment, the suit must bo considered as brought upon it.</p>

<p>The power to endorse hills of exchange and promissory notes, must be express «and special.</p> <p>An authorization to endorse other promissory notes, cannot be inferred from the fact, that the party whoso name was forged on them, did not publicly denouuco the forgery which first came to his knowledge ; this neglect on his part to denounce the crime to the public authorities, does not make him responsible for other forgeries of his name, which were then unknown to him, or give rise to an action for damages under Articles 2294 and 2295 C. C.</p>

<p>Tho overruling of an exception before issue joined, is not res judicata on tho matters at issue ; in tho mean time tho court may reviso interlocutory decrees rendered in tho course of the proceedings.</p> <p>'Flic rule that the surety cannot plead matters personal to the principal obligor, cannot bo applied to a case where tho principal is alleged to be a slave, and consequently incapacitated from contracting, from motives of public policy.</p> <p>When in a contract of lease, it was acknowledged that the lessee was a freo woman of color, by the parties to the contract — Held: That the sureties arenotestopped,by such acknowledgment, from alleging and proving the fact that the lessee and principal obligor was a slave.</p>

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

<p>The law creates a legal presumption that a promissory note has been given for a valuable consideration, but this presumption may be rebutted, and the payee required to prove the consideration. When the existence of the consideration is expressly put at issue, and doubt or suspicion cast upon its reality, the burden of proving it is thrown upon the payee.</p>

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

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

<p>The Articles of the Civil Code which give a privilege for expenses incurred for the preservation of the thing, apply only to movables.</p> <p>Privileges on immovables and slaves are treated of under a distinct head, and there is no privilege given as such, for expenses incurred for the preservation of a slave or immovable.</p>

<p>The presumption arising from facts whicli toui.1 to establish the status of marriage is not conclusive, but subject to be rebutted by testimony negativing the fact of marriage.</p> <p>Tlio declarations of the parties, to tho effect that they had never been married, will, under certain circumstances, outweigh the presumption of marriage arising from tho fact of the parties having lived together as mail and wife, and having been publicly recognized as such.</p> <p>Where it is charged that the legatee was tho concubine of the testator, such a legacy being in contravention of public policy, tho legal heirs of tho testator will be permitted to prove an illicit connection between the deceased and the legatee.</p> <p>An olographic will written in pencil is valid.</p>

<p>Where a party called another a rogue in the hearing of bj'stanrlers, in a moment of irritation, and in reference to his unwillingness to settle a debt due him, and no injury resulted from such transient expression of angry feelings — Held : That such a case of defamation is not actionable.</p>

<p>Unless it is expressly agreed, that a draft given is given in payment, it does not operate a novation of the dobt.</p> <p>An account which is signed and rendered by the debtor, is not an open account, and as such proscribed by throe years.</p>

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

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

<p>Where the injunction is dissolved by rule, on the ground of insufficient security, the defendant is not precluded thereby from claiming, on the trial of the merits, a judgment for damages against the principal and surety on the bond.</p> <p>The Act of the Legislature of 1855, authorizing the court to allow damages on the dissolution of an injunction, applies to the case of an.injunction where the Sheriff is only restrained from seizing specific property.</p>

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

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

<p>When, "by agreement of counsel, all the evidence taken in writing on a previous trial was to be received, subject only to the exceptions that might bo made to its admissibility, on appeal, the Supreme Court will not notice bills of exception which wore taken on the previous trial.</p>

<p>"Where, by the terms of a will made in Arkansas, certain slaves were to be set free as soon as two-thirds of their appraised value had been paid to the heirs of the testator for their hire — Held : That one of the slaves sold in this State was entitled to his freedom, upon showing that the amount required to be realized by him had been realized.</p>

<p>A notice oC protest served on tlio endorser at his residence in Now Orleans on the day after the protest is sufficient.</p> <p>The holder of several notes of the same maker, has aright to impute apartial payment mado on them to part of the notes, and is not hound to make the imputation to all pro rata.</p>

<p>■When the heirs, hy an act under private signature, regulate "between themselves the mode or partition of the estate, and authorize the curator to pay certain claims, and. further verbally authorize him, m order to save expense, to settle the affairs of the estate out of court; Held: That the surety of the curator is not discharged from liability by such acts of the heirs, but will be held responsible on the failure of the curator to account or pay over money which he may have received.</p>

<p>An immovable, bought with dotal funds, is dotal.</p>

<p>Where the record, of appeal is not complete, in consequence of the failure of the plaintiff to file with the Clerk certified copies of records offered in evidence, a writ of certiorari will not enable the defendant who is appellant to complete the record, and in such case, the judgment of the lower court will bo reversed, and the cause remanded for a new trial.</p>

<p>A garnishee who pays over tlie funds attached in his hands to the Sheriff, after the return of the writ of attachment, without an order of court, or the consent of the plaintiff, docs not thereby release himself from the plaintiff's claim.</p>

<p>The sale of a slave will be rescinded on account of the redhibitory defect of insanity, the existence of which was known to the vendor at the time of the sale.</p>

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

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

<p>An injunction should bo dissolved, with damages, when it has been taken out to enjoin the execution of an entire judgment, on the ground that the defendant is indebted to plaintiff in a sum bearing an insignificant proportion to the amount of the judgment.</p> <p>Where tho defendant in a suit sots up a roconventional demand, the plaintiff is not permitted to discontinue his suit when defendant opposes it. And if the plaintiff has discontinued the suit, without opposition on the part of defendant, the latter has the right to prosecute against him his claim in reconvention, notwithstanding the discontinuance.</p>

<p>Communications made by a prisoner to bis counsel in tlio course of professional employment, and documents placed by him in the charge of his counsel, are not admissible as evidence against him in a criminal prosecution.</p>

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

<p>Although in a petitory action the plaiutifT must recover on the strength of Ins own title, yet when the defendant has no title at all, he cannot, asa trespasser, take advantage of an}*- defect in the muniments of title shown by the plaintiff; in such a case, a title apparently good, is sufficient to main tain a petitory action.</p> <p>When the land sold is described in the act of sale, by reference to adjoining tenements, and sold from, boundary to boundary, no action can be maintained for a diminution of price, on account of deficiency in quantity</p>

<p>Where tlio masters of two boats agree to go to the assistance of a ship that is grounded, for the purpose of getting her off, and to share the profits of the expedition equally between them, but before they reach her discover that she is afloat, and one of them turns back and the other pursuing her course, accidentally discovers passengers belonging to the distressed vessel and aflbrds .them relief — Held : That the adventure terminated when the first boat turned back ; and that her demand for the division of salvage in this case should be rejected.</p>

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

<p>The 9th section of the Act of 1S55, relative to steamboats, gives a privilege upon the boat, to the person who may have suffered damage by the want of skill, or carelessness m the management of the boat, for the amount of damages awarded him.</p>

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

<p>Where by the charter of a bank the default of a stockholder to pay one of tho installments of the stock loan at maturity,renders the whole amount of tho loan immediately exigible, and deprives the stockholder of the delays to which he was originally entitled, tho bank has a right to waive the enforcement of this entire obligation of its defaulting debtor ; and where such waiver has been made, tho Clerk of the court cannot, by his order of seizure and sale give greater relief than has been sought in tho petition.</p> <p>If the plaintiff show injury to himself by the sale of property under such an order, oven the bona fide purchasers’ title is not valid.</p>

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

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

<p>In the absence of allegations and proof to tlie contrary, the presumption is, that a tutor has done bis duty in defending a suit against a minor, and he must, therefore, be allowed a credit for the payment of the judgment, as well as counsel fees for defending the same and rendering the tutor’s account. The tutor cannot, even for the necessary maintenance and education of the minor, expend more than the revenues of his estate, without the advice of a family meeting.</p>

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

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

<p>Whore the plaintiff in execution is the purchaser of property sold under execution, of a judgment subsequently reversed on a devolutive appeal, he is obliged to restore the property itself, and place the defendant in the same condition he would have occupied if no such judgment had been obtained against him. It is a proper case for the restitutio in integrum.</p>

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

<p>The common carrier may restrict his liability by express special contract.</p> <p>It is not necessary that the contract of affreightment should be in writing, and parol evidence of any special agreement is, therefore, admissible.</p> <p>A common carrier is, notwithstanding a special agreement, liable for the carelessness or unskijlfulncss of his crew. The injury being proved, tho burden of proof is on the carrier to show that it was caused by accident or vis major, or where the shipper has, by contract, undertaken tho exclusive management of the things shippod during tho voyage, then it must bo shown that the injury has occurred by the fault of the shipper or his servants.</p>

<p>The thirty days notice required by law to be given to the debtor, is a prerequisite to the institution of the hypothecary action.</p>

<p>RPEAL from tlie District Court of the parish of Terrebonne, Roman, J.</p>

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

<p>A copy of an assignment under private act which is in existence, and under the control of the party in whose favor it is made, is not admissible in evidence.</p> <p>An intervenor must always be ready to exhibit his evidence ; he cannot be permitted to retard the principal suit.</p>

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

<p>"Where there is only a passive violation of a contract, "by the contractors leaving the work before it was conipleled.accordiDg to the terms of the contract, and the proof shows that the work could have been completed at no groat expíense, the putting in default is a prerequisite to the recovery of damages.</p>

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

<p>APPEAL from the Magistrates’ Court of the Ninth Ward of the Parish of Pointe Coupée.</p>

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

<p>Although the day fixed for execution by the magistrates before whom a slave has been tried for a capi - tal oironce has elapsed, pending an appeal, on the judgment being affirmed, it is the duty of the Sheriff to execute the sentence.</p>

<p>An action cannot be maintained by a railroad company against the owner of cattle, for damages occasioned by the cars coming in collision with the cattle on the road, while it remains uuinclosed.</p>

<p>Property acquired during the marriage, although purchased in the name of the wifo, belongs to the community in tho absence of proof that it was paid for out of the wife’s paraphernal funds.</p>

<p>On an application for a writ of certiorari to the Judge of the Third District Court of New Orleans.</p>

<p>The Act of 1855 was intended as a relief to tutors, by allowing the homologation of thoir accounts, and giving to sucha decree certain efficacy. But this Act does not free them from the control which the Probate Court exorcises over them by virtue of Art. 350 of C. C. They are bound to render an account whonevor they receive orders to that effect from tho court, upon the suggestion of the under-tutor or any one elso; or they may, at their option, render an account annually, aud have the same homologated contradictorily with tho under-tutor.</p> <p>The court cannot render a judgment against tho tutor, in favor of the under-tutor, for any specific amount.</p>

<p>The 117th section of the Act of 1856, which was intended to amend an Act entitled “ an Act to consolidate the city of New Orleans, and to provide for the government of the city of New Orleans, and the administration of the affairs thereof,” contemplated that the special railroad tax should ho levied after the assessment roll was completed.</p>

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

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

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

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

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

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

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

<p>■\Vhcn the principal demand is not appealable in amount, and the evidence shows that there is no real foundation for the demand in reconvention for an amount over three hundred dollars, nor any legal ground for supposing such amount could be recovered, the appeal will be dismissed.</p>

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

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

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

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

<p>Confessions made by an accused to the persops who arrested him, and who were not public officers, are not admissible in evidence against him.</p> <p>Confessions made under such circumstances are not admissible even when, in a case of larceny, the person to whom they are made is directed by the accused to the place where the stolen goods arc to be found, and ho finds thorn in the place designated • the fact of finding the goods may be taken into consideration by the jury, hut not the admission of the accused that he had stolen and put them there ; this fact must be collected from the circumstances of the case.</p>

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

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

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

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

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

<p>Tlio husband, when appointed curator of his wife interdicted for insanity, is bound to give security for the faithful ad-ministration of her estate confided to his caro.</p>

<p>The Sheriff is only liable for such damages, arising in the discharge of his official duty, as shall b© proved to have been actually sustained.</p>

<p>Where a tutor presents a petition to the court, praying that a special mortgage which he tenders to secure the rights of the minors may he accepted, and the tacit mortgage annulled, he is entitled to a formal judgment on his petition, and this judgment must he entered on the minutes of the court j and reduced to writing and signed hy the Judge.</p>

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

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

<p>An insolvent cannot recover from the syndic, tools of his trade, which ho, of his own accord, permitted to be included in his schedule.</p>

<p>A suit brought against the acceptors of a bill of exchange does not interrupt prescription as lo the drawer and endorser.</p>

<p>In a petitory action, the plaintiil*, to recover, must show a title which can be traced back to an author, who had in himself the right of property in the thing sold.</p> <p>Whore it is shown that the plaintiff’s vendor acquired his title to the property in dispute, by an amicable act of partition made of the effects of a succession of which he was an heir, it will not suffice, to sustain a petitory action, to produce alone the act of partition — the plaintiff must, in addition, show that the succession of the person from whom his vendor inherited, was the owner of the property which he acquired under the act of partition.</p>

<p>Whore it is shown that a person claiming an estate is the legal heir of its deceased proprietor, in the absence of proof that there are other heirs, he will bo considered tho sole heir.</p> <p>The transfer of tho offocts of a succession to tho widow in community, in usufruct, made by the legal heir, is an act of heirship which vests tho whole succession unconditionally in such heir ; it is an acceptance of the succession purely and simply.</p> <p>Under such circumstances, the property is vested in the heir, and not in the succession, and the administrator cannot disturb the heir, or those holding under him, in their possession.</p>

<p>APPEAL from tho District Court of the Parish of Pointo Coupee, Haralson, J.</p>

<p>It is no part of the duty of the Clerk of the Court to prepare the appeal bond, and when the appeal bond was left with the Clerk in blank, to bo filled up with the names of the proper obligees— Held : That the omission to insert the proper names, is not an irregularity from which the appellant may be relieved under the statute of 1839.</p>

<p>A minor cannot claim a legal mortgage on tho property of a person who interferes with the administion of Ins estate, unless tho person so interfering was domiciliated in Louisiana, and tho property within its jurisdiction.</p> <p>After tho removal of a minor to Louisiana, through the agency of one who had intermeddled with the minor’s estate abroad, a legal mortgage attaches to protect the minor against an unauthorized administration of his property situated here.</p> <p>Where there is a question of imputation of payment, the pajunent will be imputed to tho debt bearing a mortgage, rather than to those which do not bear a mortgage.</p>

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

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

<p>In casos of fraud and simulation parol evidence may be introduced by third person?, to contradict, or vary the content? of written instruments.</p> <p>Conversations or admissions of the parties implicated in the fraud or simulation, may be offered l>y creditors, the objection to such evidence going to the effect or weight of it, when the declarations nre not made in the presence of the other party.</p> <p>Where a sale j? clearly a simulated one, a subsequent a? well a? an antecedent creditor majr treat it as a nullity.</p>

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

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

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

<p>On ilie dissolution of an injunction restraining an execution on a twelve months bond hearing eight per cent, interest, damages can only be awarded at the rate of .twelve per cent.</p>

<p>It is too late, after a judgment by default, to except to llio jurisdiction of the court, on the ground of commorancy.</p> <p>A party interrogated on facts and articles may state any facts intimately connected with the subject of the interrogatorios, and necessary to an explanation of part of his answer.</p>

<p>A motion in arrest oí' judgment lies only for defects apparent on the face of the record.</p>

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

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

<p>Where «i parly consents lo go to trial on the. merits, without insisting on the previous action nr the court on his exceptions, ho is presumed to liare waived the same..</p>

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

<p>Tho Legislature have the right, under tho Constitution, to confer upon the Recorder’s court ill Now Orleans, suoh criminal jurisdiction as may bo necessary for tho punishment of minor crimes and oflbnces, and as the police and good’order of tho city may require.</p> <p>Tho Articlo 103 of tho Constitution, which guarantees to an accused the right of trial by jury, and requires that there should bo an indictment or Information, has no application to that class of of-fences which arc to bo tried summarily and without tho intervention of an impartial jury from the vicinage.</p> <p>Such eases as fall within the jurisdiction of tho Recorder, Mayor or Aldermen, under Article 124 of the Constitutioh, form an exception to tho general rulo as laid down in .Article 103, with regard to tho right of trial by jury.</p> <p>Tho Legislature is vested with absolute right of legislation, except when restricted by the Constitution.</p> <p>Tho 3d section of the Act of the Legislature of 1859, entitled u an Act for the prevention and punishment of selling liquor to slavos,” which requires that the Recorders in trying such oilencos, should bo assisted by a jury of three slave-holders, is not unconstitutional.</p> <p>A jury formed before the Recorder’s court, under a special statute, docs not fall under the constitutional clause in respect to an impartial trial by a jury of the vicinage, and any number of jurors may compose tho jury that tho Legislature may deem proper to fix.</p>

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

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

<p>APPEAL from the District Oourt of the Parish of W. Feliciana, Haralson, J.</p>

<p>Under a marine policy of insurance, there must bo a technical total loss to entitle the assurocl to abandon the vessel, ancl when the insured have not the right to abandon, the captain cannot bo considered ns the agent of the insurers.</p>

<p>Where a party sold a slave, with full warranty, which he had previously purchased without any warranty, against the vices and defects proscribed by law — Held: That in an action brought against him by Ins vendoo to vesuiml the sale on the grounds of the existence of a redhibitory disease in the slave, the fact of the exclusion of warranty in the act of sale from his vendor, is not per fte evidence of knowledge of the existence of the disease, and the fraudulent concealment of it on his part, at the date of the sale to the plaintiff.</p>

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

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

<p>The statute oí' 185(5, conferring judicial functions upon the Mayor of Batou Rouge, is not unconslilulional.</p>

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

<p>Where a contractor delivers and puts up defective machinery as good, and loss is occasioned by such defect, it must be viewed as an active violation of the contract, and damages may bo recovered without a formal putting in default.</p>

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

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

<p>■\Vhevo tlui amount ui controversy is less than three hundred dollars, the Supreme Court cannot look into the facts, to seo whether the lower court has, or has not made a false application of a legal ordinance or a constitutional law ; all they can do in such a case, is to examine the legality or consti tutionality of the ordinance, or the constitutionality of the statute under which a tax or impost, or municipal fine has hecn imposed.</p>

<p>When au appeal has been taken from a judgment rendered in the District Court, ponding the appeal, the Sheriff cannot, by an exparle motion, obtain judgment and issuo execution for his costs against the party cast; he should toko a rulo and notify the party before having his compensation fixed.</p>

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

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

<p>Where a party, on the trial of a cause before a .jury, is taken by surprise by tlie loss of evidence, his remedy is either a continuance or postponement of the trial on a proper showing, and he should not be permitted to take the chances of a verdict in his favor, and afterwards claim the benefit of a new trial.</p> <p>A party who has violated his contract to erect buildings for another is not entitled to exact a specific performance, but can only claim the value of his work and materials.</p>

<p>Whore a promissory note or a judgmont has "been transferred to a third person, for the purpose of defeating the legal pursuits of creditors, and the transfer is a simulation, a creditor may disregard such transfer and attach them, without resorting to the revocatory action and making the transfer-roe a party to the suit.</p>

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

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

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

<p>The father ant! mother cannot borrow money in the name of their minor children, nor can they bind them by confessing judgment in a court. Umt has no jurisdiction over their donneil.</p> <p>Consent judgments decirle nothing.</p>

<p>In a petitory action brought by the administrator of the husband’s estate against the widow, for slaves which she has in her possession and claims, as her paraphernal property, parol evidence is admissible to prove that she possessed the slaves prior to her marriage, as owner.</p>

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

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

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

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

<p>Where money raisodby contributions to relieve tho sufferers from a destructive fire was loaned out by tho committee to the sufferers without interest, for a certain period, they giving their notes payable to the holder — Held: That the makers of the notes having made a special contract with the committee, could not plead want of consideration , and not being owners of the fund themselves, were precluded from inquiring how the committee obtained the raonej7-.</p>

<p>Where an. instrument was attested by two witnesses, and aftorwarcis acknowledged by the parties</p> <p>, before the Parish Judge, when no witnesses were present — Beld: That it was not an authentic act, and the copy was inadmissible in evidence, until an effort had been made in vain to obtain the original.</p> <p>When the subscribing witness to an act under private signature, resides out of the .State, proof of the genuineness of the signature of the party to the act, and of the absent subscribing witness, should be received jireparatory to the introduction of the act in evidence.</p> <p>An uncertainty in the description of the property sold forms no objection to the admissibility of the act of sale in evidence.</p> <p>An objection to an act under private signature, offered in evidenco, that it has no date except that of the day when it is offered, goes only to the effect of the evidence.</p>

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

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

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

<p>An authority given to an agent to collect a debt carries with it the authority to sue for it, and issue execution upon the judgment obtained.</p> <p>In an action brought against a party for damages for au illegal seizure of property pointed out by a person acting as his agent, judgment will bo rendered against him if in liis answer lie denies only the authority of the agent (o issue execution; he must deny the whole agency to relieve hinisolf from responsibility.</p>

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

<p>A stipulation in a contract, that the property of the debtor shall be sold without appraisement, in the event of non payment at maturity, is a pact which ought not to he recognized by a court in the decree rendered upon such comtract.</p>

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

<p>APPEAL from the District Court of the Parish of East Feliciana, Ratliff, 3.</p>

<p>Where the decree of the court recognizes the necessity of a sale of the property of an intestate, to pay debts due by his succession, and the purchaser is in good faith, his title cannot be questioned, although the debts might have been paid by the future revenues of the crops.</p> <p>In an action for the partition of the effects of an ordinary partnership, brought by tho surviving partner as administrator, where tho deceasod has left minor heirs, they cannot properly be represented by an attorney for absent heirs, and it is not competent for such administrator and attorney, without other parties, to obtain a valid decree for a partition, and they are not proper parties to represent the succession in a sale to effect such partition.</p> <p>The administrator has the right to apply in good faith for the sale of property to pay debts, but he has no right to incumber such sale, by requiring the purchaser to buy other property than that of tho deceased, nor to demand a larger proportion of cash than the wants of the succession may require ; and if he, himself, become the purchaser at such a sale, it cannot be maintained.</p> <p>Whero the surviving partner in an ordinary partnership, is the administrator of the deceased partner’s succession, ho has tho capacity, by the express provisions of the Act of 1854, to purchase at a succession sale of his effects.</p> <p>Where property has been sold by an administrator, and for want of proper parties the sale is re scinded, it cannot be taken from the administrator, but must be left in his hands to be administered according to law.</p> <p>Where the representative of a succession claims a partition of property m which minors are inter-rested as boniiiciary heirs, whether residents or non-residents, they should be made parties or represented according to tho rules prescribed for partitions.</p>

<p>During the pendency of a suspensivo appeal, the power of the District Court to order the sale of property, is superseded, and such a sale would he void.</p> <p>"Where the court has ordered the sale of property on terms of credit, and it is sold for cash, the sale would be void for want of an order of sale.</p> <p>The executrix being invested by law with powers of administration only, could not ratify a sale which was void for want of a proper order to sell.</p>

<p>Although the voudee may have good cause for suspending the payment of the price, in order to relieve himself from the payment of interest, which was stipulated, he is required to make a deposit of the price.</p>

<p>Where a note payable to order is transferred by special endorsements, the party who sues on it must prove the special endorsements to entitle him to recover.</p>

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

<p>It is not sufficient that the creditor, in a proceeding to arrest a debtor, should swear that all the facts, and allegations in the petition arc ti'WG to the best of his Icnowleüge and belief; lie must swear positively lo the specific claim on which lie sues, and to his belief of the truth of the other allegations in his petition.</p>

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

<p>In the redhibitory action, where it is shown’ that the slave was so sick at ajiospital as to render a bodily tender impossible, it is sufficient to show, that an offer, in writing, bad been made to return the slave.</p>

<p>Where the testator had directed his slaves after a certain period to be emancipated and sent to Africa, and some of them were held in indivisión with his partner, who refused to give his consent to tho emancipation, and became the purchaser from the heirs of their undivided half of the negroes— Held: That tho provisions of the will in regard to such of the testator’s negroes became inoperative.</p>

<p>A party seeking to recover must make his claim certain, it is not sufficient to render it probable.</p> <p>The acts of a principal will not amount to a ratification of a contract, when they arc entirely based upon the representations of the agent, who was himself deceived as to the real existence of the thing which was the object of the contract.</p> <p>There can be no valid ratification when the contract is without an object.</p> <p>■Where a factor, acting as the agent of another party, has employed a broker to make a purchase, and such broker, without seeing the merchandise, acknowledges a constructive delivory on a simple inspection of an entry in the books of the vendor and constituted depositary, it is such an act of imprudence as will render the factor liable for any loss that may occur from the bad faith of such vendor.</p>

<p>Wlioro a suit lias been brought by a bank to recover tlio price of property sold, and during tho pendency of the action, a third party is subrogated to tho rights of tho bank, such third party will bo competent to stand in judgment as mtorvenor, although the deed of sale under which ho claims, was not accepted by him until after the expiration of the hank's charter — provided, the legality and sincerity of the transaction is not otherwise questioned.</p>

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

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

<p>Whore ii woman at tlie timo of her marriage was in possession of certain lots, as lessee, upon which she had constructed houses, and derived a profit by sub-leasing them, and there was an agreement that at the termination, of the lease it might be renewed — Held: That if by the marriage contract this continued paraphernal property, and was administered by her through her agents, and at its expiration, the lease was renewed by her in her own name, it remained, after renewal, paraphernal property, and was not liable for debts of the community.</p> <p>A married woman is not a public merchaut within the moaning of the Code, unless she carries on a separate business from her husband.</p>

<p>APPEAL from the District Court of the Parish of WestBaton Rouge, Beale,o.</p>

<p>Whore the contract of deposit stipulates no reward for the preservation of the thing deposited, and tile depositary acts at the request of the owner, he is not bound to use more than ordinary prudence.</p> <p>Tile proof of negligence on the part of a depositary is sufficient to render him liable for the loss of cash deposited with him; but in order to establish Ins liability for a draft that has disappeared, it is necessary that the depositor show some lops he has incurred by its disappearance.</p>

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

<p>Where property, upon which a privilege exists, has been purchased at Sheriff >s sale, and after tho privileged creditor has obtained judgment against tho formor owner of the property and a recognition of his privilege, the purchaser pays the amount of the judgment — Held: That by Art. 679 of C. P., he was bound to extinguish' the judgment, and the fact that he was the vendor of the property, and that it was sold at his suit to pay the purchase price, would not release him from the obligation, and that his payment does not give rise to any subrogation, by operation of law, to the rights of the judgment creditor against the former owner of the property.</p>

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

<p>Whore the tutor or a minor dies out of the State in hopeless insolvency, leaving no property whatever upon which to administer, the minor cannot be required, under the circumstances, to sue for a rendition of accounts, as a condition precedent to the institution of tho hypothecary action.</p> <p>Where property lias boon sold to satisfy a mortgage claim, as a gonoral rule, tho payment to tho Sheriff will not exonerate the purchaser, for tho latter is required to retain the balance in his hands in order to satisfy special mortgages of subsequent dato. The Sheriff has no right to collect this surplus ¡ but at the same time, if tho funds are paid over to him, and ho pays the special mortgage, the purchaser is thereby exonerated.</p>

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

<p>An appeal will not lie to tlio Supreme Court in an injunction suit arresting tlio execution or a jnrtgmont for less than three hundred dollars, although tlio property seized is wortli more than throe hundred dollars, and an unreal demand for a larger amount of damages is claimod in the petition.</p>

<p>It is nota cumulation of inconsistent demands for a party seeking to recovor his slave, to ask his value in the event of not being able to recover the slave himself.</p> <p>Where the ancestor of a party has parted with a slave, for the express purpose of defeating the rights of creditors, an action will lie to recovor the value of the slave thus sold or removed.</p> <p>As a general rule, the powers of tile syndics of creditors are only those of administration ; but under the authorization of the courts, he may make sales of property, aud by their aid may recover damages for property destroyed or abstracted from the mass, when otherwise there would be a failure of justice.</p> <p>Tile adjudication of a slave woman at Slieriff’s salo does not pass the title to her child under ten years of age who has been neither seized, advertised nor sold.</p>

<p>Where it appears that no oflort was made m the lower court to correct a supposed error in Uio judg- • moni with regard to tlio costs, and the plaintiff has judgment for a part of his demand, the Supreme Court will not disturb that part of the judgment which awards him his costs.</p>

<p>A copy of an Act of tlie Legislature of another State cannot be properly authenticated without having affixed to it the seal of the State.</p>

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

<p>TIio Act of tlio Legislature relativo to slaves, approved March 19th, 1857, does not contravene Art. 115 of the Constitution, which declares that “ every Act of the Legislature shall omhraco hut one object and that shall be expressed in the title.”</p> <p>The State is not bound to iurnish the accused with a list of the talesmen as they are summoned.</p>

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

<p>Evidence called for ex officio, by the Judge, after tlio case is submitted and under advisement, is unauthorized, and will bo disregarded on appeal.</p> <p>TYJioro a natural drain exists on one estate in favor of another, the mere fact that the owner of the estate in favor of which such servitude exists outs a ditch or canal leading such water into the drain, as would, if left in a state of nature, find its way by a slow process, is not such an aggravation as would bo unauthorized, whore it has for its object the interest of agriculture, and does not tend to redeem swamp lands, or to turn the natural coarse of water into another direction.</p>

<p>A direct action is indispensable in order to defeat a fraudulent contract; and only in cases of fictitious contracts, or puro simulations can the creditor cause tbe property to bo seized and sold in utter disregard of the deed of transfer.</p>

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

<p>Tlio Act of Congress, entitled “ An Act for the better security of the lives of persons on vessels navigated in wholo or in part by steam,” may be invoked, as the basis of a civil action, to remedy a private grievance or wrong, caused by a failure to comply with its provisions.</p> <p>The neglect to provide the tackle, apparel and furniture required by law for the equipment of a vessel is the fault of the owner himself, and ho is, therefore, responsible to the master of a slave, hired on board his boat and lost through such neglect, for the value of such slave.</p> <p>The admissibility of evidence given of facts not alleged in the petition, should bo objected to when offered, and the point reserved; otherwise it will be considered as if it had been responsive to an allegation in an amended petition, filed with consent of the opposito party.</p>

<p>Whoro it was sought to make parties liable for the price and debts of a boat, as owners, under a title derived from the plaintiffs at a certain period— BOU: That evidence of a different title could not bo received.</p> <p>A variance in the bill of sale as to tho names of the vendors, is a variance in the substance itself, and will exclude it as evidence.</p> <p>In actions upon contracts and deeds, if any part of the contract proved, or deed described should materially vary from the contract or deed, as stated in the pleadings, it will be fatal. '</p>

<p>Where a child claims property in the possession of his natural father, oil the ground that it was acquired by the joint labor of the deceased mother with that of the father, courts of justice are bound to discountenance pretensions based upon such an immoral connection, by demanding strict and conclusivo proof, bofore affording relief.</p>

<p>The right of the owners of a boat to recover from their officers, through whose neglect damage lias been done, tho amount paid by them on account of such damage, is not prejudiced by the fact that instead of contesting the demand, they compromised it.</p> <p>The pilot or any other officer of a boat should not be held responsible to tho owners unless it bo clearly shown that ho 1ms been guilty of negligence, by which the loss was occasioned — but ho cannot escape responsibility when such negligence is shown, simply because other persons are also culpable. In such case, he is bound in solido with the other negligent parties.</p>

<p>APPEAL from the District Oourt of the Parish of E. Baton Rouge, Beale, J.</p>

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

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

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

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

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

<p>Tho drawer of a bill of exchange is entitled to notice of protest upon the refusal of the acceptor to pay the amount, and cannot bo held liable unless such notice is given.</p> <p>Where a suit is brought against a firm, tho name of one of tho partners composing which is alleged to bo unknown, a judgment cannot bo rendered against the firm so far as concerns the unknown partner ; but where the other partner, not having been personally cited, appeared and filed a general denial, and upon judgment being rendered against the firm, appealed as a partner — Held: That lie was bound by tho decree.</p>

<p>Tho maxim, qiti fac'd per alium, fácil per se, applies with equal force to owners of steamboats, who are liable to third, persons in civil suits for tho frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances, and omissions of duty of their agents in tho course of their employment, even if they forbade tho acts or disapproved of them. In all such cases the rule, respondeat superior applies.</p> <p>Tho rule, that the master is not responsible to one agent, for the injury he has sustained through the negligence or omission of duty of another agent, does not apply to the case of hired slaves. And where a slave was hired, as deck-hand, toa steamboat and drowned through want of care on tho part of the mate — Held: That the captain and owners were responsible.</p> <p>The 9th section of the Act entitled “An Act relative to steamboats,” approved March 15th, 1855, embraces all cases of loss or damage arising from oarolessness, neglect or want of skill in the direction or management of any steamboat and cannot be restricted to cases of collision. Nor is it under the act necessary to swear as to tho names of tho owners in order to proceed by provisional seizure.</p>

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

<p>In the absence of special notice brought home to the holder of a hill of exchange, as to the objects for which a credit or authority to draw is given, it is no defence to an action on a bill drawn under an unconditional authority, that the authority was intondod to have been used in a particular form.</p>

<p>Powor is vcstftd by tho Code of Practice in the Clerks of District Courts, to grant orders of injunction in the absence of tho Judge from the parish, or when lie is interested in the cause ; but they are in all cases required to talco bond and security from tho party at whose suit tho order of injunction is granted.</p> <p>Where a party obtained an injunction to arrest tho execution of an order of seizure and sale, without giving bond and security, as required by Articles? 739 and 740 of the Code of Practice — Held: That, the injunction being dissolved, the party against whom it was wrongfully obtained is entitled to recover from the party obtaining it five por cent, damages on the amount of tlie judgment enjoined.</p>

<p>Tbe Act of the 20th of Mircli, 1856. entitled “An Act relative to tbe rate of interest ” had in view tbe sale of notes and other written obligations, their discount or sale for the purpose of raising money, and nothing more. The wórds interest or discount, m.the sense in which they are taken m the Act, are synonimous, meaning the per centage deducted on the sum expressed in tho note or bond, &o. The provisions of tho Act cannot be so extended as to authorize and legalizo all transactions between debtors and creditors wherein usurious interest is added to tho sum really due, as a consideration for an extension of time, or for the indulgence of tho creditor.</p> <p>The penalty attached by tbe Act of 1855 to tho charging of usurious interest, is a forfeiture of the entire interest contracted for.</p>

<p>A party having issued an execution agaiust his judgment debtor, may propound interrogatories to a garnishee, where the object of the proceeding is to ascertain whether he has money or other funds in his hands belonging to the debtor *, under such circumstances, it is not necessary that the plaintiff should resort to the revocatory action.</p> <p>Where interrogatories were addr'rssod to an attorney, to ascertain who was his client, when that relationship commenced and ended, and what money had been received, and what paid over, and to whom paid — Held: That none of these matters aro privileged communications within the meaning of Article 2262 of the Civil Code.</p> <p>An attorney may be asked through whoso agency, or in what manner, or at what time, he was retained.</p> <p>An attorney should bo excused from answering interrogatories, when he declares on oath that he cannot answer the same, without disclosing matters confided to him by his client, or advice given by him to his client concerning business about which he was retained.</p>

<p>Necessary expenses paid by the parent for one of tlie children, or by the administrator after the parent’s death, should be deducted from the share of that child, upon the partition of the succession. Tlie party who pleads prescription is bound to prove the facts necessary to sustain the pica.</p>

<p>TTherea judgment on a debt, arising ex contractu, decrees interest, but is indefinite as to the time when it commences to run, tho interest decreed must bo considorcd as commencing on the day that the suit was instituted.</p> <p>Until a party has executed his bond in such sum as is ordered by the Judge granting an appeal, llis appeal is not perfect, either as a suspensive, or a devolutive appeal. But where the appellant lias complied with the Judge’s order, and given bond in the sum fixed, if the bond is insufficient for a suspensive appeal, still it is good for a devolutive appeal.</p>

<p>APPEAL from the 5th District Court of New Orleans, Eggleston, J.</p>

<p>No appeal will lie from an interlocutory judgment refusing the removal of a case, on the application of dofondant, from a State to a Federal Court. The only remedy the defendant has in the Supremo Court is by appeal from the final judgmont which may bo rendered against him in the cause. Upon such appeal, he may assign as error the refusal of the District Court to remove the cause.</p>

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

<p>A marriage celebrated between a free white person and a free person of color, in violation of Art. 05 of the Civil Code, is an absolute nullity. 3STo suit is needed to declare the nullity of such a union.</p> <p>[ Either party may disregard it and neither can pretend to derive from it any of the consequences of a lawful marriage. Such a marriage maybe attacked collaterally and in every form of action in which it is set up against either of the parties.</p>

<p>Tho mortgage and privilege given by the Act of 1835, entitled “An Act to provide for tho draining and clearing of tho marshy grounds and cypress swamps situated betwoon the city of Now Orleans, its incorporated suburbs, and Lake Ponchartrain,” does not create a mortgage or privilege with a potestative condition on tho part of tho property holders; the potestative condition was in favor of the Draining Company, and tho Act of the Legislature by its terms declares, that “such privilege and first mortgage” shall take precedence over all other mortgages whatsoever, and shall attach to the property.</p> <p>■\Yhoro a party purchased certain lots of ground, in 1847 and 1850, situated within the Second Draining Section, and, after the drainage had bocn completed, the tax assessed, tho tableau confirmed by a final judgment, and an order of seizure and sale issued upon the mortgage and privilege given by the Act of 1835 against the property, he paid the tax and brought suit against his vendor to recover tho amount — Held: That, in the absence of a special warranty against the mortgage and privilege of tlio Draining Company, the action canaot he maintained.</p>

<p>Where a noto is secured by an act of hypothecation, which imports confession of judgment, the suit may bo brought in the parish where the property is situated.</p> <p>Where a note, payable to order, and secured by mortgage, is transferred by endorsements, and sued on by the holder, it is unnecessary to allege the transfer of the mortgage m the petition, as the transfor of the note, which is an evidence of the debt, includes a transfer of the mortgage, which is the accessory of the debt.</p> <p>Where a mortgage to secure a note is made in favor of the payee, or any holder of the note, a formal subrogation-is unnecessary to enable the endorsee to enforce the mortgage.</p>

<p>Proceedings under the Act of 1859 entitled u An Act relative to free persons of color coming into the State from other States or foreign countries,” are of a criminal nature.</p> <p>In criminal prosecutions, the Supreme Court is without jurisdiction, unless the offence charged he punishable with death, or imprisonment in the penitentiary, or a flue exceeding three hundred dollars has been actually imposed. And then there must bo a final judgment before an appeal can be taken.</p> <p>In matters of habeas coijms, the jurisdiction of the Supreme Court is original, and not appellate. The original power to bail precludes the idea of the exercise of an appellate jurisdiction m relation to the same subject.</p>

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

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

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

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

<p>Iii an action against the acceptor of a draft, where the defence sot up is want of consideration, tlio burden of proof rests upon the defendants to show such want of consideration.</p> <p>"Whore an agreement had boon entorod into between parties, to ship flour from Cincinnati to How Orleans, to bo sold for a profit, and it appeared that such agreement had originated in a conversation, in which one of the parties urged, as a reason for the safety of such a transaction, the fact of his having English ordors in hand, into which he could put the flour m case the market should have declined, on its arrival at Hew Orleans, to a point that would pay no profit — Held: That there is nothing necessarily immoral in such an agreement, within the meaning of Articles 1887 and 1889 of the Civil Code.</p>

<p>The Act of the Legislature approved March 19th, 1857, entitled “ An Act relative to elections in the parish of Orleans,” which provides for the appointment of a Superintendent and other officers, is in violation of the Constitution.</p> <p>This Act pertains to the body of laws for the internal government of the State, and does not form a part of tho police or government of the city of New Orleans, and does not, therefore, contravene Art. 124. of the Constitution.</p> <p>The clause in this Act which requires the city of New Orleans to pay one-half of the expenses incurred to carry into effect the provisions of the same, is not in violation of Art. 123 of tho Constitution, which provides that11 taxation shall be equal and uniform throughout the State,” &c.</p>

<p>Tho doctrino in the case of the same plaintiffs v. McCall, 13 An., p. 215, affirmed, to tho oilocl that, wlioro, in a forced sale of property, a change in the terms of the sale more favorable to tho seized debtor, is made, such change will not invalidate tho sale ; it will be presumed to have been made at tho instance of the debtor, and he is cstoppod from contesting it.</p>

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

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

<p>In a suit by attachment the garaishee in his answers having acknowledged, himself indebted to the defendant in the amount of sundry noteá and judgments, which were not seized, being in the State of Mississippi, the plaintiff, instead of having judgment entered up against the garnishee for the amount claimed in his petition, obtained judgment against the defendant ivitli privilege on the property attached, and under a writ of fieri facias, caused the right, title and interest of the defendant in the notes and judgments to bo seized and sold — Held: That'thc sale was null for want of an actual seizure, by the Shoriff, of the notes and judgments.</p> <p>A certificate of division of opinion of the Judges in the Circuit Court of the United States, accompanied by a statement of facts to serve as the basis for an appeal to the Supreme Court of the United States, is not a final judgment which will support the plea of res judicala.</p>

<p>When, by tho contract of lease, tlio lessee undertakes to pay tlio taxes to bo thereafter assessed upon tho property leased, if lie fails to do so, tlio lessor, having au interest, as owner, in discharging the debt, would, upon paying tho same, become legally subrogatod to tho rights of tho State or city against such lessee.</p> <p>But where the lessor, thus legally subrogated, has failed to prosecute his rights, until, by the lapse of time, the privilege of tho State or city has been lost, he would have no privilogo, since ho cauuot claim a higher right than theirs.</p>

<p>Whore a suit is brought on a promissory note, and want of consideration is set up as a defence, if the note on Us face purports to have been made for a valuable consideration, and it is shown'that the parties have dealings together, and that the plaintiff lent money out on interest, the burden of proof rests upon defendant, to show a want or failure of consideration.</p>

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

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

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

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

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

<p>Tho curator ad hoc appointed to defend a non-resident lias tho right of appeal.</p> <p>Tho 2d section of tho Act of 1855 authorizes commissioners, appointed in other States by tho Governor of tho State of Louisiana, to take the acknowledgment and proof of any deed, mortgage, &c.; and tho 8th section gives to all acts thus acknowledged the force and effect of authentic acts executed in this State. Tho commissioners are thus vested, by express provision of law, with all tho powei s of our Justices of tho Peace and Notaries. Where an act of salo, mortgage, assignment, &c., is passed before a commissioner, therefore, it requires two witnesses in order to mako it authentic, otherwise it is an act under private signature.</p>

<p>APPEAL from the Dist. Court of the Parish of St. John the Baptist, Duffel, J.</p>

<p>Iu tho partition of a succession, where tlioro arc minor heirs, If tlioy have opposite interests to each other, although represented by tho samo tutor, tlioro should ho appointed to each of them a special tutor, or tutor ad hoc. Butin a partition by roots, where tho minors form but one root, their interests inter se do not clash, but on the contrary, aro ahito, and tho necessity for tho appointment of special tutors does not then arise.</p>

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

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

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

<p>Where plaintiff sought to hold defendant liable for money lent, and defendant’s books were offered in evidence, in which all the entries were made by plaintiff, as his book-keeper, during defendant’s absence from the country — Held: That unless defendant objected to the entries on his return, and had his books corrected by counter entries, he will be presumed to have acquiesced in those made, and they will bind him</p> <p>Where money has been exponded in carrying on another person’s business, he is bound to account for the same, although some other party may have hold his power of attorney.</p>

<p>Tho foreign debtor is entitled to avail himself of our laws of proscription, just as though ho had always boon subject to tho jurisdiction of our courts.</p> <p>Whoro there is no allegation or proof that tho foreign debtor had changed his domicil, and that the same was unknown to tho creditor, or that tho creditor could not, on account of some other obstacle, have instituted an action at the domicil of tho debtor, tho maxim, contra non valentón ago'c non cun -it prescriplio, will not apply.</p> <p>Whatever may be thought of tho policy of the law, the courts havo no power except to enforce it.</p>

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

<p>Whore an action was brought to recover on a note given by the defendant, to make up a loss, as a partner of tho plaintiff and others in a faro banking game — Held: That such an association is not only against good morals, but highly criminal, and courts of justice are not open to litigation of that</p>

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

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

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

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

<p>The appointment of a judicial factor or administrator, by a foreign court of justice, confers no power upon such judicial factor to act in Louisiana, upon the simple registry of the decree of the foreign tribunal for his appointment.</p>

<p>A party is entitled to au appeal from a conviction in a Recorder’s Court, where a fine of more than three hundred dollars has been imposed.</p>

<p>The qualities of mortgagee and owner of the same thing cannot exist in the same person at the same time.</p> <p>Although the purchase of property by the mortgagee extinguishes the mortgage, yot there is nothing illegal in the insertion of a condition in the sale, by which it is arranged that the price is not to be collected until the mortgage has been satisfied.</p> <p>The courts of this State are vested with an equitable jurisdiction in cases where the laws aro silont.</p>

<p>A demand for a certain sum of. money, as commission on an amount collected "by plaintiff for defendant, gives the latter the right to reconvene for the sum of money in plaintiff’s hands, on which he charges his commission.</p>

<p>Where parties undertake to disturb third persons in the possession of real estate acquired at public sale, at a time when the pretensions of such parties wore either unknown or considered as wanting in validity — they must make their case legally certain.</p> <p>A party seeking to recover property, from a third person, as belonging to the community, should establish the marriage as conclusively as any other fact.</p> <p>The suppositions and beliefs of a witness arc not admissible in evidence; but the witness may state the facts from which such inference may bo drawn by the court.</p>

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

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

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

<p>An action against a notary, to render him responsible for negligence, in omitting to give notico to a drawer or endorser or a draft protested by him for non-payment, is based on the Articlo 2296 of the Civil Code, and falls under the prescription of one year established by Article 3601.</p>

<p>"Whore a commission hacl been obtained to procure the evidence of a witness, and on a rule taken on the opposito party to show cause why the depositions should not be read on the trial of the case, the objection was made that they were not sigued by the deponent, and this objection was sustained by the court — Held: That in the absence of any neglect attributable to the party taking out the com-' mission, he was entitled to a new commission, and to a continuance of the cause in the moantimo.</p> <p>The object of taking a rule to show cause why «testimony taken by commission should not be read on the trial, is to enable the party, in case of irregularity or informality, not attributable to himsolf, to remedy the defect before trial.</p>

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

<p>To maintain an action for a malicious prosecution, tho plaintiff must prove: 1st. That he lias "been prosecuted l>y the defendant either criunnally or in a civil suit, and the prosecution is at an end. 2d. That it was instituted maliciously and‘Without probable cause. 3d. That he has thereby sustained damage.</p> <p>Malice is a principal ingredient in the offence, and its proof is indispensable as a prerequisite to a recovery.</p> <p>The proof of malice need not be direct, it may bo inferred from circumstances ; and the want of probable cause is presumptive evidence of malice, subject, however, like all presumptions, to be rebutted.</p>

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

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

<p>"Where an affidavit is made, that a debtor has left the State with the intention not to return, his subsequent return will not alone be sufficient to dissolve a writ of attachment, where there are circumstances which render it probable that the original intention was not to return.</p> <p>After an affidavit has beeu made for an attachment, some prima facie proof must be made by the defendant, that the facts sworn to aro untrue, in order to throw the burden of proving their verity on the plaintiff. The affidavit has a greater effect than merely enabling the party to obtain process against defendant.</p>

<p>An administrator pro tempore of an interdicted person cannot bind the interdict for tbe payment of any specified amount, in order to effect a liquidation of partnership affairs.</p> <p>A mistake in the special prayer ought not to prejudice a party’s right to recover on the averments of his petition, when they are sufficient to sustain the proper action, and are followed by a prayer for general relief.</p>

<p>Where the right to open a canal on a certain tract of land, was. transferred to a company , who allowed thirty years to elapse, after the contract was made, without attempting to avail themselves of their rights, but, 'on the contrary, by their own acts rendered the servitude impracticable — Held: That the right was extinguished, and the transferror entitled to receive back the land free from the servitude created thereon.</p>

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

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

<p>Where a slave, belonging to a party residing in Kentucky, was hired as fireman on board a steamboat running as a packet between Louisville and New Orleans, but occasionally making trips to St. Louis, and upon the boat’s making one trip to Cincinnati the slave disappeared — Held: That although she was advertised for Cincinnati to the knowledge of the lessor at the time he hired the fireman to the boat, yet there was a great want of prudence and care in proceeding to Cincinnati with the slave on board, and that under the common as well as civil law the lessees are responsible for the value of the slave.</p> <p>The fact that the boat was in the habit of landing at points in Indiana and Illinois does not change the case, so long as it is not shown that there was equal risk of losing a slave there as at Cincinnati.</p>

<p>A judgment awarding a privilege on a steamboat, by virtue of an attachment, although entirely binding between the parties to it, may nevertheless he questioned by another creditor who was not a party to the judgment, by way of third opposition.</p> <p>If an attachment of a steamboat be bad as to some of the owners, on the ground that they are residents of this State, it must he set aside in toto.</p> <p>By the Act of the 18th of March, 1858, which was in force from its dato, the prescription for privileges on vessels was extended to six months.</p> <p>This court is only seized of jurisdiction to amend tho judgment as between appellant and appelloe ; not as between the appellees. Articlo 800 of tho Code of Practico declares that if the appellee demand the reversal of any part of the judgment or damages, lie shall file his answer at least three days before that fixed for the argument, otherwise it shall not bo received. This clause has inference to tho flrst fixing for trial in this court.</p>

<p>Whoro Hour was stowed upon a vessel, either improperly, or m such proximity to an offensive and injurious oil as to snifer damage, and it was sliowa that the common carrier had boon, put on his guard, as to the danger from such oil to the flour — Held: That ho was responsible for the damage sustained by tho flour.</p> <p>The first obligation of the common carrier is to indemnify the shipper for the loss or injury of goods committed to his charge, unless occasioned by accidental and uncontrollable events.</p> <p>A custom is without forco in opposition to a positive law.</p>

<p>Where a cargo of goods, deposited in a government warehouse, is sold, the sale is perfect by the consent of the parties, the price having been paid, and the delivery made, fictitiously, by the transfer of the warehouse receipt.</p> <p>The Forleral Government does not recognize the validity of a transfer of property deposited in one of its warehouses, before the payment of the Customhouse duties; but the importer is not debarred from disposing of property in the meantime, although it remains in the warehouse for the purpose of securing the collection of the duties.</p> <p>Where property so situated was sold, but for the mutual convenience of both vendor and vendee, was suffered to remain in the warehouse, the vendee not requiring the importer to pay the duties and perfect the delivery, for a certain time, at the end of which time it was found that the warehouseman had made away with a portion of the goods — Held: That the property was at the risk of the vendee, and that in the absonce of auy want of care on the part of the vendor, he is not responsible.</p>

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

<p>The ordinance of the city of New Orleans, approved April the'7tb, 1858, relative to the assemblages of colored persons, free or slave, in violation of law, is not unconstitutional in its provisions.</p> <p>The Act of the Legislature of March 20th, 1850, entitled “An Act to amend the fourth section of an Act providing for the organization of certain corporations in this State, approved April 30th, 1847,” is a mere legislative interpretation of the word “ persons ” in this Act of 1847.</p> <p>"Where a number of free colored persons had associated themselves together as a corporation, for purposes of public worship, and purchased property m their social capacity — Held: That although such a corporation has no legal existence, yet the members, considered as individuals, are entitled to their rights of property in what may have beon acquired in the corporate name.</p>

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

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

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

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

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

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

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

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

<p>APPEAL from the District Oourt of the Parish of Winn, Richardson, J.</p>

<p>Whore the destruction, of an'instrument is shown by direct testimony, the oath of the party is not required by Art, 2258 of the Civil Codo. '</p> <p>It is only necessary, by Art. 2259, that the loss of an instrument he advertised within a reasonable time, and this may he done in a proper case as well after, as before suit is brought.</p> <p>Where the paper is shown to have been destroyed, no advertisement is required.</p> <p>Where the defendant does not ask for security against the future appearance of an instrument alleged to have been lost, the plaintiff is not bound to furnish it.</p> <p>By the Acts of 1852 and 1855, all debts hear interest, at five per cent., from maturity.</p>

<p>A slave cannot be sentenced to punishment after he has been acquitted by the finding of tho jury and the magistrates.</p>

<p>Where an election was contested upon the ground, that after the commissioners had made their return they proceeded to count the votes over again and found that there was a difference which would have changed the result — Held: That where it does not appear that the mistake was committed on the first, any more than on the second counting, full effect must be given to the official returns of the commissioners.</p>

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

<p>Where a party in the capacity of Shorilfhas the custody of slaves, the more fact of his removing them from the Parish Prison, to his own iliaco, will not make him Iiablo for their hire. Ho only becomes responsible for their forthcoming and for the value of such services as ho might derivo from their labor.</p>

<p>Where heirs at law bring a suit to recover from tho administrator of the succession of their deceased ancestor, tho price paid for tho property of tho succession, at a sale made by order of court, although in the petition they may claim to bo recognized as heirs, yet their action is a personal one.</p> <p>Whore the property of a succession has,by ordor of court, been sold and the money paid into tho hands of the administrator, although such administrator, on account of the fiduciary and quasi official relation which exists on his part towards tho court and succession, cannot prescribo against tho demands of tho heirs, yot tho heirs of such administrator, after his death, are entitled to tho plea of proscription. Prescription, thoroforc, commences to run in favor of the heirs of tho administrator, from tho death of tho latter.</p>

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

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

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

<p>A law partnership is an ordinary one, and the partners are hound .jointly but not in solido.</p>

<p>Wlioro a party enjoins a soi2ure, upon the ground, that the judgment under which it issued is null and void, because it was rendered and signod at chambers, he should deny under oath that cither he or his counsel consented to the submission of the case to the Judge to ho decreed at chambers, before ho attempts to avail himself of the omission of the clerk to onter such submission upon the minutes of the court, or complains that it was not reduced to writing and signed by the parties and their counsel.</p> <p>The signature of the Judge affixed by conseut, in vacation, is a sufficient authentication of a decree in an ordinary action to authorize an execution.</p> <p>The uniform practice is to issue executory process on decrees rendered and signed at chambers.</p>

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

<p>Section fourth of the Act of 1855 provides. “That estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.” The true intention of the Legislature in the passage of this Act was, that the contemplated improvement and the expropriation were to follow immediately upon, each other ; and, in this sonso, the fourth section is not unconstitutional.</p> <p>In a suit brought by a railroad company to expropriate land — Held : That the defendant has no right, in addition to the price of the laud expropriated, to claim payment for damage which may be dono the rest of his property, when it is shown that such damage is more than compensated by advantages derived from tho project.</p>

<p>A promise to sell does not place tlie thing at tho risk of the promissee, nor doos it transfer to him the ownership or dominion of it.</p> <p>■Where a party has made a promise to sell property to one person, and sells it to another, such sale will operate a translation of the property to the latter, although he may have had knowledge of the existence of the promise of sale to the other, unless a fraud has been committed by the vendor and vendee upon the promissee, in order to defeat his title.</p> <p>Parol evidence, although inadmissible to establish title to land, is yet admissible to prove fraud practised in the transfer of land.</p> <p>Although a witness does not recollect the whole conversation of a party, he may nevertheless he allowed to testify to what he does recollect. Any objection to testimony on this score goes to the effect, and not to the admissibility^ tho evidence.</p>

<p>Where a suit is brought upon a drait drawn by a married woman and her husband, the burden of proof is on the plaintiff to show that the draft is valid as to the wife. A party cannot be bound as surety for a debt which is not due by reason of a failure of consideration against the principal.</p>

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

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

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

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

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

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

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

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

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

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

<p>Although the grounds or an exception bo vaguely and indefinitely sot forth, yet whore they are sufficiently certain to apprise tho plaintiff of the nature of the legal bar intended to be pleaded against his demand, evidence is admissible to sustain them.</p> <p>Where property has been adjudicated, upon tho death of tho husband, to the wife, as the surviving spouse in community, on tho advice of a family meeting, homologated by the decree of a court of competent jurisdiction, and whore tho child of the deceased was a party to the proceedings, and represented in tho mode pointed out by law, such adjudication is conclusivo upon tho child as a party to the proceedings, until it shall bo reversed or annulled, either by appeal or by a direct action of nullity.</p>

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

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

<p>Where it is shown that an act of donation was not simulated, but a real contract entered ‘into between the parties, and carried by them into effect, the judgment creditors of the donor cannot disregard this transfer and proceed by execution.</p> <p>The distinction which is recognized between fraudulent and simulated contracts, — limiting in the former case the creditor defrauded to a direct action in revocation, and in the othor instance allowing the creditor to seize the property at once, — obtains in regard to donations.</p> <p>A judgment emancipating a minor cannot be attacked collatterally.</p> <p>An emancipated minor has not the right to donate his property.</p> <p>The nullity of such a donation is not however absolute, but relative ; it is intended for the minors protection, and whon ho becomes of age, he may ratify or confirm the obligation.</p> <p>When such a contract is entered into with sincerity, while the emancipated minor might seek protection from it on account of his legal incapacity to make such a donation inter vivos, yet creditors whose claims have sprung into existence since the douation was passed and executed, cannot avail themselves of this defect, where it is not a contract made in fraud of their rights, nor has proved injurious to them.</p>

<p>A party cannot be liold liable for the notes and obligations of a firm, of which he became a member while a minor, and from which he withdrew before he was emancipated, when it does not appear that he had been benefited by the concern, nor that he had committed a fraud upon the plaintiff.</p>

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

<p>Whenever the plaintiffiii an action dies, after an answer has been, filed, the suit must be revived by the appearance of the legal representatives ; but this is not a new suit, and when the executor files an amended petition merely for the purpose of making himself a party to tho proceedings, tho defendant, although entitled to notice, cannot claim the legal delays allowed for answering tho original petition. He has the right to file an aswer lo tho amendment 5 but it must be done immediately, unless the amendment bo of such a nature as to induce the court, upon his motion, to grant further time for answering tho same.</p>

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

<p>Whore a defendant desires to avail liimsolf of admissions contained in the original petition, lie should except to the amended petition, filed for tlie purpose of explaining the admissions made in the original, instead of answoring the same. When, an auswor is made to the amendment and the case tried, both petitions are to ho taken as a whole and construed together.</p>

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

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

<p>The flisriffcannot bo held to show the validity of a judgment which ho has been, commanded to execute, and to satisfy with moneys that may come into his hands. It is his duty to pay the proceeds of his sales ovor to the seizing creditors, shown to be entitled to them by the certificate qf mortgages and by the writs of fieri facias in his hemds. And if concurrent seizing creditors intend to contest each other’s right, or mortgage, or privilege, they mustdo so contradictorily with each other,whilst the proceeds remain with the Sheriff, and cannot afterwards hold him responsible for the payment of such proceeds to the parties shown by the writs and certificate of mortgages to have been entitled to the same. The creditor’s romedy is by third opposition, or action of nullity, to avoid the judgment recognizing the mortgage or privilege, aud ordering it to be enforced against the debtor’s property. Where a Sheriff, after having satisfied all the prior mortgages, pays over the entire balance of the proceeds of the sale, to one of several seizing creditors whose mortgages are concurrent, he is responsible to the others, for the amount, or pro rata of the proceeds, to which they were entitled at the time of the sale and distribution.</p>

<p>Actual dispossession is not always required in order to constitute an eviction. A purchaser maybe evicted, although ho continues in possession of the property, if that possession be under a different title ; as, for instance, if the vendee should subsequently hold under the true owner, either by inheritance or otherwise.</p> <p>These principles are not applicable to the case of purchasers under the “ Maison Rouge Grant,” who have availed themsolves of the Act of Congress passed for their reliof, and havo acquired the superior title of the United States. Such purchasers cannot be considered as having been evicted by the superior title of the United States, and have not the right to demand a repetition of the amounts paid by them on their purchases, from a party holding title under the grant. The title from the government must be considered as enuring to the benefit of their vendor, in aid and completion of the imperfect title transferred by him, on payment of the entrance money, and legal interest thereon, from the date of the receiver’s receipts.</p>

<p>APPEAL from the District Court of the Parish Catahoula, Mayo, 3.</p>

<p>Attorneys’ Tees cannot be recovered as damages, in a redhibitory action.</p> <p>Tho plaintiff in a redhibitory action is entitled to recover, as damages and interest, five per cent, per annum on the price paid for the thing affected with the redhibitory vice, from the date of the sale.</p> <p>Tho defendant in such an action is entitled to five per cent, per annum interest, from his warrantor, from judicial demand.</p>

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

<p>Where a marriage is null and void no community can ever exist between the parties to it.</p> <p>Where a party legally married, before tho dissolution of such marriage, contracts another, tho latter contract is absolutely null, and is not susceptible of confirmation or ratification whether express or implied. Nor is it necessary that a direct action be instituted for the purpose of sotting it aside : its nullity may be demanded by way of exception or defence.</p> <p>In a suit for the settlement of tho community, tho surviving spouse may set up, for purposes of defence, tho nullity of tho marriage, arising from the fact that the decoasod was at tho timo of the marriage, legally married to another person; even though he was awaro of her condition at tho timo of their marriage. A party cannot avail himself of his own turpitude as tho basis of a domand; yet ho is not estopped when he resorts to it for purposes of defence.</p> <p>The admission by a defendant, in bis original answer, that bo married the deceased, will not estop him from amending his pleadings by alleging the absolute nullity ot such a marriage-</p> <p>A marriage absolutely null may produce civil effects ; but this takes place by special provision of law, and only in favor of the party who has actod in good faith, and in favor of tho childron born of tho marriage. The contract itself has in other respects no vitality.</p>

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

<p>The form of tlie contract or instrument by which a surety binds himself for the payment of tho debt, in case the debtor should not himself satisfy it, does not affect tho surety’s right to plead, in bar of the action against him, bis discharge in consequence of a prolongation of tho term of payment, without his consent.</p> <p>There is no distinction between the surety who has bound himself in solido with the debtor, and the surety who has not so expressly bound himself.</p> <p>The release of one of the principal debtors, by the surety, from all liability to himself as surety, renders such debtor a competent witness for the surety.</p> <p>One witness is sufficient to prove tho payment or extingivislimmt of an obligation exceeding in amount or value live hundred dollors, without tho aid of coroborating circumstances, although his testimony se, would not be sufficient to prove a contract not reduced to writing, for the payment of money not exceeding that amount.</p>

<p>The decision in the case cf Nbuvet v. Arma/nt, 12 An. 72, affirmed, to the effect that, whore tho appeal hend was insufficient at tho timo the appeal was brought up, the substitution of a now bond cannot euro tho dofect.</p>

<p>Where it is sliown that a party depends entirely upon his trade as a printer and editor for means of support, his printing press and materials necessary for the exorcise of his trade are exempt from seizure under Art. 644 C. P.</p> <p>Tho tools and instruments, exempted from seizure by law, must be necessary and not merely convenient for tho exercise of the trade by which tho debtor gains a living.</p>

<p>A contract to run a hovso race is not prohibited by law, and money lost on such a vaco may be recov crcd by action in tho courts. But such a contracts, although permitted, aro regarded with suspicion by tho law, and the Judge is authorized to reject tho entire domand, when the same appears to him excessive.</p> <p>The obligation arising out of a contract to run a horse race, is hcreditablo between the heirs of the contracting parties.</p> <p>In all aleatory contracts permitted by our law, under Art. 2952 of tho Civil Code, the personal qualities of the contracting parties must, more or less, form a material part of the motive to tho contract, and the contract is not thoroforo asignable by one of the parties, without tho consent of tho other.</p>

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

<p>Decision in the caso of Stewart v. Stewart et al.. 13th An. 398, reaffirmed to the effect that, under tho Act of 1852, entitled “ An Act to provide a homestead for tho widow and childron of deceased persons,” if tho widow and children had collectively tlio sum. of $1000 ; belonging to all ov either of them, nothing could be withdrawn from tho estate, oven should it happen that the widow cr one minor heir was in necessitous circumstances and did not possess $1000.</p>

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

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

<p>The effect as regards creditors, of a judgment annulling a sale made by their debtor as fraudulent is the same, whether pronounced in a direct revocatory action, or in an injunction suit arising out of the seizure of the property by one of the creditors.</p> <p>If no objection is made to the form of proceeding, the sale may be declared fraudulent in one form as well as the other. v</p> <p>Where a creditor has treated with the transferree of his debtor }s property, as the real owner, he will be estopped from contesting the validity of the sale.</p>

<p>Where a physician purchased a slave, whom he had examined, some lime previous to the purchase, for other parties, and had pronounced diseased, and it was shown that since the purchase lie liad treated the slave, and had declared that the disease was tho same with which he was afflicted before — Held : That under such circumstances, where the slave died, the speculative opinions of physicians who had never seen the negro, were insufficient to establish that he died of any other disease, of which the purchaser was ignorant.</p>

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

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

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

<p>It is sufficient for a party sued on a promissory note, to obtain a trial by jury, to swear that all the allegations in bis answer are true, where want or failure of consideration are substantially set forth in the answer.</p>

<p>The decision in the case of Martin Crane v. W. Beatty, ante p,'329, affirmed, to the effect that the provisions of the Act of March 20,1856, cannot he extended so as to authorize, and legalize transactions between debtors and creditors, wherein usurious interest is added to the sum really due, as a consideration for an extention of time, or indulgence to the creditors.</p> <p>In such cases the penalty prescribed by the Act of 1855, regulating interest, will he applied, and the forfeiture of all interest he decreed.</p>

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

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

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

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

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

<p>The title to the proceeds of a noto, bill of exchange, or account, does not pass by virtue of an order to pay over to a creditor the proceeds, when collected, given by the holder and owner to his attorney, and accepted by the attorney, but they are subject to attachment as the property of the holder, as long as they remain uncollected in the hands of the attorney.</p>

<p>The engagements and stipulations made in favor of a slave are not absolutely null and void, and cannot bo utterly disregarded aud treated as pure and simple nullities by all mankind, but only by such persons as have an adverse interest.</p> <p>A purchase made by a slave.cannot be inquired into and disturbed by one who is not affected by it; for as to such a one, if the object of the contract of sale does not belong to the slave, it enures to the benefit of the master, who alone is at liberty at any time to claim the object; aud the fact that, apparently, the owner has not exorcised his right, will not enable a party, who has failed to show any adverse interest in himself, to disturb the purchase made by a slave.</p> <p>Where the seizure of land was enjoined, upon the ground that the plaintiffs in injunction had acquired such land at a Sheriff’s sale, and the defendant raised the objection of want of registry of such sale in the Recorder’s Office — Held: That, where the evidence discloses no title in the seized debtor, the defendants having no interest in the matter, this objection cannot be urged by them.</p>

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

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

<p>Whore work to be done on roads, levees and ditolies oil a party’s land, had been regularly adjudicated to an undertaker, according to the provisions of the Act of 1855, and upon their completion, the Road and Levee Inspector issued his certificate to the undertaker — Held: That in case of non-payment, the undertaker was not entitled to an order of seizure and sale, unless the petition was accompanied by his oath, showing the amount due.</p>

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

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

<p>Tho Stato’s attorney, in a public prosecution, is entitled to tlio opening and the close of the argument, altliougli the prisoner offers no evidence.</p> <p>A juror cannot be heard to impeach tho verdict which he has rendered. Ho is not allowed to prove the misconduct of his fellow jurors, nor to show that they erred in the formation of their verdict, cither by disregarding or misconstruing tho charge of the Judge.</p> <p>In a criminal prosecution, no defect of form, either in tho proceedings or in the indictment, however apparent on the face of the papers, will bo a good ground for a motion in arrest of judgment.</p> <p>The offence of willfully or maliciously setting fire to, and burning a crib of corn, falls within the provisions of the 3d section of the Act approved March 18th, 1858, entitled “An Act to amend and reenact certain sections of an Act entitled ‘An Act relativo to crimes and offences/ ” approved March 14th, 1855.</p>

<p>B. contracted with the Police Jury of the parish of Avoyelles for the establishment of a public road from a certain point in the parish to his landing on Red River, for the purpose of carrying on the receiving and forwarding business — Held: That the private.interest of B. was a sufficient consideration for the agreement on his part, and the incidental public advantage to the parish authorized the action of the Police Jury in the establishment of the road as a public highway.</p> <p>Where an act, authorized by law, gives rise to damage, it is danmum absque injuria.</p>

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

<p>The Act of 1839, amending Article 275 of the Code of Practice, which establishes the cases in which a sequestration may be ordered, forms part and parcel of that Article, and the legal effect of the amendment is the same as if the Article were reenacted, with the words of the amendatory Act inserted in its text.</p> <p>The decision in the case of Wells v. St. Dizier re-affirmed, to the effect that, an affidavit for a sequestration embracing several of the alternatives of Article 275 of the Code of Practice, as amended, is sufficient in law.</p> <p>The addition, in such an affidavit, of another of the legal alternatives contained in the Article, will not vary the principle.</p>

<p>Iii au hypothecary action to enforce a judicial mortgage, the certificate of the Recorder, that the judgment has been recorded in Ins office, has the same effect as evidence, when drawn up on a duly certified copy of the judgment, as it would have on a separate and distinct paper.</p> <p>The Recorder’s certificate is onlj*- prima facie evidence of the facts stated in it, and if untrue, may be contradicted by proof.</p> <p>The right of action given by Art. 69 of the Code of Practice to the mortgage creditor against the third possessor of the mortgaged property, depends, first, on the giving of notice to the third possessor, of the “ amicable demand,” and secondly, on the non-payment of the hypothecary debt by the third possessor, for the space of ten days, to be computed from the date of the service of the notice. Those two conditions must he accomplished, before a right of action can be completely vested in a mortgage creditor against the third possessor ; and, consequently, any action instituted against the third possessor prior to the expiration of the ten days delay, is premature, and subject to legal exceptions.</p> <p>The law has not mado it the duty of Sheriffs to serve notices of amicable'demand in hypothecary actions, and however convenient the practice may bo, he acts in such cases as a private individual, and must be called as a witness to prove his acts, and cannot certify to them in his official capacity for the purposes of evidence.</p>

<p>The Sixth District Court of the Parish of Orleans has no.jurisdiction in criminal matters, and is without authority to talco a bond from a prisoner, upon an application for a writ of habeas corpus, oven with the consent of the parties. Its jurisdiction is entirely civil, the whole criminal jurisdiction in tho Parish of Orleans being vested in tho First District Court,</p> <p>The State is not entitled to judgment on a bond, taken by tho Sixth District Court of Xew Orleans, in in a criminal proceeding.</p>

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

<p>Evidence of the voluntary confession, made by a prisoner to the officer having him in. liis legal custody, is admissible.</p> <p>All confessions made by a prisoner, except when they have been obtained by duress or through ^ inducements or promises, aro legitimate evidence, whether made to private individuals or to persons in authority. Such is the common law rule, and even our statutes provide that the voluntary declaration of the accused before the committing magistrate, is evidence.</p>

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

<p>ON an application for a mandamus to the Clerk of tho District Court of the</p>

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

<p>Public places within the limits of a corporation cannot bo appropriated to private use, and individual corporators, as well as the officers of the corporation, have the right to prevent such appropriation, and to sue for the demolition and removal of buildings erected on them by individuals.</p> <p>Where a party, with the sanction of the Mayor and Common Council of the Town of Franklin, erected a wharf and warehouse upou the banks of the Bayou Teche, in front of a public square — Held; That such improvements were authorized by the Act of 1857, entitled “An Act authorizing front proprietors on tho Bayou Teche to erect wharves and warehouses upon the forty feet from the bayou, which are dedicated to public use.”</p> <p>This Act of 1857 is not unconstitutional. It does not confer unlimited power upon the municipal authorities to transfer the public property, to the exclusive use and control of individuals. The erection of the wharves and warehouses therein authorized must be subservient to commerce; otherwise the privilege is abused, and the courts will grant the public the adequate remody.</p>

<p>The true consideration of a contract may always be questioned by one who was not a party to it, and who has an interest in showiug that the consideration expressed was not the true one ; and if such third party offers one who was a party to the Act, to make such proof, the objection that this witness was a party, goes to his credibility, and not to the competency of bis evidence.</p> <p>A fund deposited by the principal debtor with one of two co-sureties, as collateral security, should onuro to the honofit, proportionally, of the other co-surety.</p> <p>In a suit to recovor money paid in error, the plaintiff is entitled to five per cent, interest from judicial domand.</p>

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

<p>The curator of an estate, as third representative of the creditors, has the right to attack a sale of property made by the deceased, as being simulated, where the succession would bo insolvent if such property is abstracted from the mass.</p> <p>The revocatory action may be instituted by a syndic, or administrator, without regard to tlio date or origin of the claims of the creditors.</p> <p>Where the vendor remains in possession under a clauso in the contract of sale, tho vendee, in order to recover the property, must rebut tho presumption of simulation, by establishing the reality of the transaction.</p>

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

<p>The settled, construction of Article 1520 of tlio Civil Code is, that a reservation of the usufruct to the donor of immovable property renders the entire donation radically null, and not simply the illegal reservation of the usufruct.</p> <p>A party may legally make a partition, either of the whole or of a portion of his estate, among his descendants, during his lifetime, by a notarial act; such a partition is, however, subject to all the formalities and conditions of donations into' vivos.</p> <p>A partition must be considered as one act, although it contain many dispositions, and it cannot subsist for one while it is annulled for anothor.</p> <p>An heir who has alienated his*share in a partition, or a part of it, is not permitted to bring the action of rescission against such partition, where there has been no fraud, violence, error or lesion.</p>

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

<p>APPEAL from the District Oourt of the Parish of Vermilion, Simon, J.</p>

<p>Where an order is granted by the District Judge, allowing a devolutive appeal to all parties, upon giving bond, and ono of them only avails himself of the order in time, the others will bo considered as having abandoned their right of appeal.</p>

<p>Where a party obtains a suspensive appeal and fails to take it up, if there is nothing to show an inability on his part to perfect such appeal by giving the bond required, he will be held to have abandoned it, and cannot afterwards take a devolutive appeal.</p>

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

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

<p>A police juryman is not an officer, in the intendment of Article 122 of the State Constitution j there is no reason, thereforo, why a party who holds a civil office of emolument should not he at the same time a police juryman.</p>

<p>Ia a suit to liquidate the rights of a wife against the estate of her deceased husband, although the evidence shows that her paraphernal property was administered by her husband, this fact is not sufficient to entitle her to a judgment for the value of such property. She may resume the administration of whatever of her paraphernal property may still exist in nature, hut she is a creditor for the value of such only as may have been disposed of by him or for his benefit.</p>

<p>The tutor represents tlie minor so completely, tliat when lie lias once brought a suit for him, or answered ail action against him, no further petition or answer can be required on the part of the minor ; and a judgment rendered in the namo of his tutor, so long as his tutorship lasts, is a judgment for or against the minor himself.</p> <p>A suit properly brought by tho tutor for a minor, may üe prosecuted by the minor after attaining majority, without any new citation, or formal chango in tho pleadings.</p>

<p>A natural son is not a competent witness in controversies which, relate to the succession of his deceased natural father,</p> <p>A donation of immovable property made by a man to his concubine, is, under the prohibition contained in Article 1468 G. 0. radically null and void, and not susceptible of ratification or confirmation. Such a contract being absolutely null, all parties interestéd, such as all the heirs of a deceased party who has made such a donation, have a right to sot up this nullity for the purpose of defeating the fraud practised upon the law. This right is not confined to the forced heirs only.</p> <p>In suing for tho-property illegally donated, the heirs aro not required to produco a counter-letter, but are allowed to prove the violation of the law by every species of evidence oral as well as written.</p> <p>Parol evidence is admissible whenever the obligation is one contracted infraudem legis: it is immaterial what form may have been given to the reprobated contract.</p>

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

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

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

<p>A real servitude, to bo valid, should express and describe tlio estate in favor of which it is established, especially whore it is shown that llio party claiming such servitude was the owner of several estates at tho time tho servitude was acquirod.</p> <p>XJndor tho Spanish law, tho usufructuary had only tho right to grant leases of tho proporty hold by him, and tho usufruct terminated if ho alienated his right, and it also terminated at tho death of tlio usufructuary, as under our law.</p> <p>A olauso, in an agreement establishing a usufruct, by which it is provided that such usufruct shall bo licriditablo, must be considered as not written.</p>

<p>Articles 1795 and 1796 of the Civil Code, must be construed to mean, that the assent to a proposition, in order to ho binding upon the proposer, must he made at once, without any intervening separation of the parties, unless an intention, on the part of tho proposer, to grant timo for consideration to tho opposite party, appears evident, either, 1st, from tho situation of tho partios, or 2ndly, from tho nature ef the contract.</p> <p>Article 1798 C. C. is not inconsistent with Articlo 1796 ; the former refers to tho case statod in tho Article preceding it, where one party proposes and the other assents, without an immediate signification of dissent from the proposer : — where the conversation or correspondence terminates with the assent of the party to whom the proposition has been made. But Article 1796 refers to its own immediate preceding Article (1795) aud to tho state of facts of that Article — to-wit, a proposition, an assent, and an immediate signification of chango of intention on tho part of tho proposer.</p> <p>Where one partner in a commercial firm made a proposition to his co-partner, that lie would either sell his own interest in the concern, on certain terms, or purchase that of such co-partner on tho same terms, and the partner, to whom the proposition was made, failed to signify his assent at tho timo, but went off, and three days afterwards notified tho proposer of Ins determination to purchase — Held: That an immediate signification of change of intention by the proposer released him from the obligation which lie would have otherwise incurred, from his proposition, unless it appears from the situation of tho parties, or from tire nature of the contract., that it was the intention of tho proposer to allow several days for reflection ‘ainrdocision upon his proposition.</p>

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

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

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

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

<p>The declarations of tlie vendor made after the salo, though out of the presence of the vendee, acknowledging that the sale was simulated, are admissible against the vendee to prove fraud in the vondor ; but such evidence alone is insufficient to establish fraud in the vendee The appreciation of the circumstances showing complicity on the part of the vendee, in the fraud practiced by his vendor, is a matter peculiarly within the province of the jury, and whero the record of conviction of fraud and simulation in a contract of sale discloses the fact that the property remained in the possession of the vendor after the sale, the Supreme Court will not disturb the verdict of the jury.</p>

<p>At a Sheriff's sale of real estate, according to the terms of the sale, as announced and entered on the Sheriff's books, the credit price of tho sale was to bear six per cent, interest per annum to maturity, and eight per cent, eventual interest; the purchasers having given their notes to bear eventual interest only, the Sheriff, some time afterwards, took a rule upon them to show cause why they should not comply with tho terms and conditions of the sale as announced — Held: That after tho Sheriff had made a sale of the property, executed the deed, delivered the notes of the purchasers to the party entitled to them, and returned the writ into court, he was without further interest in the controversy, and, consoquontly, the rule taken by him could not be maintained.</p>

<p>Whore a defendant is interrogated by the plaintiff for the purpose of proving the liability or indobtod • noss set forth in the petition, and the defendant, in answering, states facts which tend to establish his liability, he may also in the same connection state other facts, which show that such liability has been discharged.</p> <p>A plaintiff cannot he permitted to establish by proof a cause of action not alleged in his petition, without the consent, express or implied, of the defendant.</p> <p>A suit by sequestration is a lawful act, and, according to the general rule of law, the plaintiff would l not bo liable at all in damages for the exercise of this right, — but is made liable in such a case for any actual damage, in the event of his failure in the suit, which the sequestration may have occasioned ; this is an exception to the general rule.</p>

<p>Tho conjectures of medical men as to the probable duration of a disease have not, per se} the weight of proof of the fact of duration.</p>

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

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

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

<p>A party’s appearance by attorney to move for the dismissal of an attachment and to except to the jurisdiction of tho court over him. cannot he construed into a submission to the jurisdiction which would authorize a judgmont in personam.</p>

<p>Where one of two residuary legatees incurs an expense in protecting their joint interest, and the evidence shows that his aci proved beneficial to both, justice requires that he should he reimbursed by his co-legatee to the amount of the expense incurred on his account.</p> <p>An executor is never entitled to receive more than his commissions, which the law fixes as his exclusive remuneration, for services rendered in the mortuary proceedings.</p>

<p>The interpolation of words accidentally omitted in a will, made in the nuncupative form by public act, cannot be considered as an interruption or turning aside to other acts.</p>

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

<p>Before a purchaser evicted from property purchased under execution can demand a reimbursement of the price from the seizing creditor, lie must first have failed to recover it from tho seized debtor, oil execution sued out for that purpose.</p> <p>A stock mortgage given to secure the payment of stock to a property bank is prior and superior to a loan mortgage, although given in the same act, or hypothecary contract with tho corporation, and a sale of the property mortgaged, under a decree to satisfy the amount of the loan, will not extinguish the stock mortgage, unless the amount of the adjudication shall oxceod tho amount of the stock mortgage.</p> <p>The rule requiring the ro-insoription of mortgages at the expiration of ten years, does not apply to mortgages given by stockholders to tho property hanks to secure the amount of stock subscribed.</p> <p>In a judicial sale of laud mortgaged to secure the payment of stock, where tho amount of the adjudication does not exceed tho amount of the stock mortgage, the sale is null — such a defect is not a mere informality, which can be cured by the lapse of five years</p>

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

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

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

<p>Whore a hill of sale of a slave did not declare that tlic property was delivered, hut contained the declaration that it was bargained and sold to the vendee, and concluded with tho usual warranties — Held: That such a contract of sale was complete, and the property was at the risk of the buyer.</p> <p>What was said m Smoot v. liusscll, 1 isT. S. 528, was in relation to the construction of an instrument.</p>

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

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

<p>A mortgage granted by the maker of a note, to one who endorses the note for the maker’s accommodation, to secure him against liability, is not an accessory to the principal obligation, blit simply a personal indemnity depending on the payment of the note by the endorser.</p> <p>The endorser, in such a case, would have no cause of action, until he had paid money on his endorsement ; and the holder of the note, after judgment against the endorser, could claim no better right under the mortgage than the endorser possessed.</p>

<p>A general and special powor of attorney given by a wife to her husband, from whom she is separated in property, is not sufficient to authorize him to bind her as a member of a commercial partnership, where it does not appear that she was over a public merchant, or interested in any commercial house, nor that she ever took any part whatever in the concern for whose liabilities it is sought to make her responsible.</p>

<p>In criminal cases the verdict of the jury may be given orally, but whether returned orally, or in wri ting it must bo recorded on the minutes in the English language.</p> <p>The court cannot after the jury are discharged order the translation into English, of the record of their verdict, which was made in French.</p>

<p>Before the passage of the Act of the LogislaUu'c approved April SOth, 1853, there was no term of prescription in the law applicable to domestic judgments.</p> <p>Domestic judgments rendered anterior to the passage of the Act of the Legislature of 1853, cannot bo barred, under that statute, before tlio lapse of ten years from its promulgation.</p>

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

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

<p>The transfer of a draft, m order to be binding as regards third persons, must be made by delivery of such draft to the transfcrree, and notice, to the debtor, of the transfer.</p> <p>The sale of personal property is void as to creditors, unless possession is given before they acquire rights on the same ; and if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor, to seizure and attachment in behalf of his creditors. This rule of law extends to the sale of a promissory note or bill of exchange.</p> <p>Where the holder of a draft, having placed it in the hands of an agent for collection, transferred the receipt of such agent to a third person, and after such third person had notified the agent of the transfer, but before the delivery of the draft, or notice of transfer had been given to the debtor, the creditors of the holder brought a suit by attachment against the agents, and by process of garnishment caused the draft to be seized*~-j2eZfZ .* That the attachment must be maintained and the rights of the creditors, to an anlount sufficient to satisfy their claim against the transferror, recognized as against the transferree.</p>

<p>A party to a suit, interrogated on facts and articles, may state, iu addition to such matters as arc intended to bo elicited by the interrogatories, an}7 other matters, by way of defence, provided they are closely allied to those facts sought to be drawn from the party by the interrogatories.</p> <p>An employer is the sole judge of the competency of those whom lie chooses to employ ; and so long as the employee is on trial, the omployer has the right to determine for himself whether he possesses the proper qualifications and habits for his business.</p>

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

<p>In «a redhibitory action, where the judgment of the District Court awarded the plaintiff the price ho had paid for the thing affected with the redhibitory vice, but did not rescind the sale’, and the defendant appealed — Held: That the plaintiff, the appellee, could not throw upon the defendant the costs of the appeal by a prayer to amend the judgment by rescinding the sale, even if the judgment be modified in no other respect.</p> <p>The fact, that the purchaser of a slave allowed him to hire his own time, and even permitted him to sleep away from home, is not a forfeiture of the action of redhibition on account of the vice of running away. The question is, was the slave at the time of the sale in the habit of running away, and not, has he acquired the habit since?</p> <p>Where the vendor of a slavo was aware at the time of the sale, that he was in the habit of running away, and did not communicate the same to the vendee — Held: That the latter was not bound for the use of more than ordinary care in guarding the slave against running away, and that he was entitled to reimbursement for the expenses incurred m recapturing the slave.</p>

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

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

<p>' Where the principal matter in dispute is the title to property shown by affidavit to be worth over $300, an appeal will lie to the Supreme Court, although the money demand and judgment in the case be for a less sum than $300.</p> <p>The validity of a title claimed adversoly to a succession administered by a curator cannot be inquired into in the form of a rule taken by the curator against such adverse claimant, to show cause why a sale of the property provoked by tho curator should not be confirmed ; a direct action is necessary.</p>

<p>The right to intervene by way of third opposition is a privilege granted by law which the court cannot refuse when the right is logally exercised.</p> <p>Where a judgment has been rendered, declaring tho sale made by a debtor of his property to be simulated, the record and judgment will be receivod as full and conclusive proof of simulation.</p> <p>In an opposition by a third party, to regulate the effect of a seizure in what relates to himself, he is bound to assert all his pretensions at tho same time ; and the judgment of the court in such proceeding, determining tho rights of the creditors growing out of the seizure, cannot afterwards be disturbed on a new claim set up by such third opponent.</p> <p>Where one of tho parties to a suit has more moans of knowledge concerning a matter to be proved than the other, the onus is on him.</p>

<p>A special mortgage, with tho pact de non alienando, granted on a plantation does not preclude the mortgagor from employing an overseer..</p> <p>In case of a forced alionation of a plantation, the overseer is not bound to pursue his privilege on the proceeds of the salo in the hands of the Sheriff. No sale can destroy the privilege which the law creates in favor of overseers, as loug as the crop hangs by the roots, or the proceeds, when gathered are not beyond the reach of the overseer.</p> <p>In case of a forced alienation of a plantation with the crop in the ground, the overseer has not a privilege on such crop, for his whole year’s salary, but simply for the proportion of the year elapsed at tho date of such sale.</p> <p>Article 2720 C. C. accords to the laborer the whole salary contracted for, when he js discharged by his employer without sufficient cause, before the expiration of his time of service ; but this is, as to the unexpired time, by way of penalty or damages. The privilege granted by Article 3184 is for a specific object, in tho words of the Article, for 11 the appointment of salaries of the overseer for the year last past, and so much as is due of the current year.”</p>

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

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

<p>Where a paper was offered in evidence, purporting to contain a dispatch received at a telegraph office, and no proof was made that it was in the handwriting of any person employed in the telegraph office at the time the dispatch purported to have been received, and no other proof of its authenticity was given — Held: That it was inadmissible as evidenco.</p> <p>Where a contract is entered into by one assuming to act as agent of another, without having been authorized to make the contract, such pretended agent is by law responsible personally in the precise terms of the contract.</p>

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

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

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

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

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

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

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

<p>The proprietor of the upper estate has no right, in the exercise of the servitude of drain which exists in favor of his estate upon the lower, to divert the flow of waters from their natural course, upon the ground that it is beneficial to the lower estate : this is a matter which concerns only the proprietor of such lower estate. If he prefers that the servitude be exercised at a spot more or less injurious or beneficial to himself, it is his own look out; and the only question is, how the waters naturally flow.</p> <p>According to the provisions of Article 656 of the Civil Code, the proprietor of the upper estate is not prevented from cultivating his fields and facilitating their drainage on the lower estate; but the act of draining other land than that belonging to his estate, upon the lower estate, is a violation of this Article, which declares that “The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome. ”</p> <p>The proprietor of the lower estate has no right to erect a dam or levee by which to prevont the exorcise of the servitute of drain duo the upper estate, although such servitude may have been aggravated. In such a case, the proper remedy is by injunction.</p>

<p>If a slave sold with fall warranty dies of a disease contracted from exposure while a runaway, the vendor will be liable to return the price, on proof that he had requested the vendee not to send the slave back, if caught, until at a specified timo, wheu he would either give another one in his place, or return the price.</p> <p>It is sufficient, in the execution of a commission to take testimony, if the caption and procos-verbal show that the witnesses were duly sworn, and whore, when and by what authority the commission was executed, and it is not necessary that it should appear by whom the deposition was written.</p>

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

<p>Under the provisions of the Act of 1855, relative to the Mechanic’s Lien, it is necessary to submit an arbitration in writing, and if, in point of fact, there was not a written submission, the award is not binding.</p> <p>The statute above mentioned requires that the contractor should signify his assent or dissent to the owner, within ten days aftor being notified of the claim of his journeyman, or other person, for work performed; but this is a matter which concerns only the contractor and the owner. A payment made lo a claimant after the lapse of ten days, and before the contractor has notified his dissent to the owner, will be binding as between the two latter, the law presuming assent from the silence of the parties. This presumption, however, is not absolute, and, at any tune before payment, the contractor may object to the correctness of a demand.</p>

<p>Where the Sheriff of Orleans, having a steamboat in custody, insured, her “against harbor risks in the port of New Orleans,” and she sank in port — I-Ield: That in an action by the Sheriff to recover the amount of insurance, neither of the parties litigant being able to assign the specific cause of the disaster, the law will presume the nnseawortliiness of the boat, and the burden of proof is on the owner to show the contrary</p>

<p>T!ic obligation contracted by tlio vendor, to cause a mortgage resting on the property sold to be erased within a speciiied time, is a condition precedent to the collection of a note given for the price, and it is not incumbent on the vendee to put the vendor in default by a formal demand on him to erase the mortgage.</p> <p>The existence of an incumbrance on property sold, for a loss amount than an installment of the price which has become due, justifies only tlio suspension of the payment to the extent of the encumbrance, to which extent the injunction should be limited.</p> <p>"Where previous to the obtaining of an order of seizure and sale for the price secured by mortgage on the property sold, the vendee had commenced an action of qumli minoría against the vendor, which ii successful would absorb the amount of the executory demand — Held: That an injunction against the order of seizuro and galo should be porpetuated without prejudice to the eventual rights of the defendant in injunction.</p>

<p>A letter considered as the evidence of an obligation, must be construed according to the ordinary rules of interpretation prescribed (or contracts in general, and its contents determined by tho meaning of the words in which it is written.</p>

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

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

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

<p>The moro absence oí' the tutor and under-tutor at tlie talcing of an inventory of property bold in common between a minor and another party, for the purpose of effecting a partition by sale, after they have been duly notified to attend, or their refusal to sign tho procos-verbal, without a formal protest, can afford no ground upon which to annul the sale.</p> <p>Thirty days notice is requisite to the validity of a judicial sale of landed property and slaves.</p> <p>Where lots of ground have been separately appraised, the Sheriff should, unless otherwise directed by the judgment, sell them separately.</p> <p>Where a minor is interested, the Judge, if satisfied that the property cannot be divided in kind, should not only decree the sale of such property, but ghould likewise order the convocation of a family meeting to fix the terms of the sale as to the share of the minor.</p> <p>The Judge should require proof, that property cannot be divided in parts of equal value, without the cautling of tenements to an injurious extent, before ordering a partition by licitation.</p>

<p>The possessor in good faith is entitled, in case of eviction, to be reimbursed the amount expended by him for improvements.</p>

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

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

<p>Where excessive damages are awarded by a jury for an injury received, they will be reduced by this court.</p>

<p>Tho syndic of an insolvent estate, in. filing an account of liis administration, must malee an acurato statement of the active mass of the estate, and also of the passive mass ; mention must be made of tho privileges and mortgages, as well as tho ordinary debts.</p> <p>Where real property belonging to an insolvent estate was adjudicated to a certain person, and in consequence of his failure to comply with tlio terms of the first sale, the property was re-adjudicated to tho same person for a lessor amount, and suit being brought against such purchaser for the difference in the prices of the two sales, and the matter was .compromised by his paying a certain amount, which fell short of the deficiency — Held: That this sum was due by him as part of the price which he had stipulated to pay for the property, and must therefore be classed on the syndic’s tableau, as the proceeds of immovable property.</p> <p>The fees paid by the syndic of an insolvent estate, to counsel, for tho prosecution or defence of suits for the estate, are entitled to bo classed as law charges. But it is the duty of tho syndic not to burthen the estate with onerous charges for the remuneration of such sorvices, for they are paid on the hypothesis that they enure to the benefit of the estato.</p> <p>Subrogation cannot take place, by effect of law, beyond the amount actually disbursed.</p> <p>Where parties are liable jointly as principal debtors, and one of them discharges the debt, subrogation takes place only for the share of his co-debtor.</p>

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

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

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

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

<p>An express subrogation is necessary to enable the purchaser of a tract of land to exercise the rights of liis vendor against the party from whom the title was acquired, arising out of a deficiency in the quantity of the land, which would have entitled his vendor to the action of quanti minoris.</p> <p>The vendees of a tract of land enjoined an order of seizure and sale sued out to enforce the payment of notes due by their vendors to his vendor, and secured by mortgage on the property. The petition for injunction stated that the vendors of the plaintiff became parties to the suit, and adopted tho allegations of the petition — Held: That plaintiff’s vendors could notbe considered parties to the suit, as they had neither taken the oath, nor givon the bond required by law to obtain an injunction.</p>

<p>Where a party brought a suit by attachment against a vessel for damage done to freight, and the attachment was released upon the execution of a mortgage by the master of the vessel upon the ship to secure the payment of such judgment as might be rendered in the suit — Held: That the acceptance of the mortgage instead of the bond which should have been given to release the attachment, deprived the attaching creditors of their remedy upon the vessel in the hands of bonafide purchasers for value and without notice, since the mortgage was a nullity under the laws of .Louisiana.</p> <p>Where a vessel had been thus attached and released, and upon a final judgment decreeing her to be liable, was again seized, she having in the mean while passed into the hands of different owners— Held: That the presumption was, that she belonged to the same owners with whom the contract of affreightment had been made, and that her registry not being recorded in our custom house, her owners at the time of the last seizure were bound to make proof of the change of ownership, and the seizing creditors could not be held liable for more than nominal damages.</p>

<p>Where a diminution of the record is suggested, the Supreme Court will order a certiwari to perfect it, although the case has been submitted for judgment.</p> <p>Where suit was instituted for damages alleged to have boon sustained by the plaintiff in consequence of the closing of the ditches on his plantation by tbe building of a railroad, and no evidence was given on the trial from which an estimation of the damages could bo formed, and the jury found a verdict for the plaintiff, the court remanded the case for a new trial.</p>