Volume 16 — Louisiana Annual Reports

<p>Appeal from the Fifth District Court ol Now Orleans, Eggleslou, J.</p>

<p>The wife Is entitled Lg a rtivorco upon proof of adultery agaiust her husband.</p> <p>Positive or direct evidence is not necessary lo establish adultery. Where from the circumstances proven no other inference can be drawn, but that there was an improper intimacy or illicit connection between the parties* the fact of adultery or concubinage will be considered as substantiated.</p>

<p>Whore there was an actual delivery by the venders of a steamboat to the vendee, and the vendors, who -were the captain and cleric of the boat at the time of the sale, afterwards engaged their services to the vendee and took charge of the boat for him — Held: That it could nQt be considered possession of the vendors, by a precarious title, giving rise to the presumption of simulation.</p>

<p>"Where there are several joint obligees, an action to enforce the contract cannot he maintained in the name of one of the obligees only. It is a joint right of action which can only be exorcised in a suit jointly instituted by all the obligees.</p>

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

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

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

<p>The general denial admits the signature of the party sued as endorser oí a promissory note, but loaves open every other legal defence.</p> <p>An endorser residing in the city where the note was protested, is entitled to notice of protest in person at his domicil ; and where there is nothing to show that such domicil might not have been found on diligent enquiry, a note addressed to the endorser through the Post Office is insufficient.</p>

<p>Incapacitated persons, when seeking to be relieved from the effects of engagements contracted by them infraudem legis are entitled to show the real nature of the transaction, and persons so incapacitated are not bound to produce a counter-letter, but may use parol evidence to invalidate the contract.</p> <p>Where a contract was made, purporting to be a sale of a slave by a married woman, and it appeared that she retained possession of the slave for some time after the sale ; — that the price was inadequate; that the sale was redeemable ; that the very instrument itself showed that the price was not paid in presenee of the notary or of the witnesses, although the stipulation was for a cash sale, and lastly, that the so-called vendee was the creditor of her husband — Held: That this was not in reality, any contract of sale between the parties. Redeemable sales unaccompanied by delivery of the thing sold, of which the considerations are inadequate, courts are bound to consider, without sufficient evidence to the contrary as contracts for which the thing nominally sold stands as security and nothihg else.</p> <p>In such a case as that just mentioned the married woman would be entitled to the value of the services of her slave from the moment that she afterwards became dispossessed by her nominal vendee.</p>

<p>Privileges cannot be acquired by suits or seizures after a surrender made by a debtor to his creditors ; and the creditor on whose opposition to the tableau of distribution a reduction is ordered of the amount allowed by the syndic as counsel fees, cannot claim the exclusive benefit of such reduction.</p>

<p>The individual corporators may sue in their individual names when they have rights in the corporation to vindicate which relate to property or any intellectual gratification, the violation of which can he made the basis of a demand for money.</p> <p>The act of the majority of tho corporators is considered as the act of the whole. But as the individuals who compose a corporation do not directly own its property, so they act in the transaction of its -business primarily as agents ; and where the individuals composing one corporation formed a majority o£ another and separate corporation — Reid : That they could not, as agents of the first apply to themselves, as agents of the second, for a lease of the property of the latter, and then, as agents of the same, grant it on such terms as should please themselves as agents of the former, in opposition to the wishes and protests of their co-corporators ot the latter corporation, and to their exclusion. The co-corporators thus iujured may repudiate this act of the majority upon these grounds ; if they were joint owners, they could not he judges in their own cause, and if they were agents, they represented incompatible interests. The agents of a corporation when once appointed, or members acting in their stead, are subject to the same rules, liabilities and incapacities as agents of individuals and private persons.</p> <p>An agent cannot be permitted to assume duties and trusts incompatible with his agency, nor validly exercise such agency after he has acquired an interest averse to his principal.</p>

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

<p>"Where the shipper of goods look a hill of lading with the endorsement upon the margin “ weiyld and contents unlmown,” and on the arrival of the vessel at New Orleans they were condemned hy the Port Warden to he sold ns damaged goods — field : That under such a hill of lading, the common carrier has complied with his contract when he lias delivore 1 the box externally in good order and condition, and the burden of proof rests on the consignee to show that the content^ of the box were in good order and condition at the time of the shipment.</p>

<p>The principle, Unit notice of the acceptance of a guarantee must bo given within a reasonable time m unlor to fix the liability of a guarantor, cannot bo invoked where the acts and declarations of the guarantor amount to awaiverofsuch notice.</p> <p>The Article 2720 of the Civil Code, which declares “ If without any serious ground of complaint, a man should semi away a laborer whose services he has hired for a certain time, before that lime has expired, he shall be bound to pay suck laborer the whole of the salaries he would have been entitled to receive, had the full term of his services arrived,” is in the nature of a penal statute, mii«t be strictly construed, and cannot be applied to the ease of a contract for lotting and hiring entirely unperformed in all its parts. In such case only the actual damages sustained by reason of the non-performance ef tho contract can ho recovered.</p>

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

<p>A parly to a suit cannot bo received as a witness ii‘ l\e is liable i'or costs; he cannot in such case be considered as testifying against his interest.</p> <p>'J’ho judicial admission, in order to be divided against the party pleading the same, must be one in the nature of a confession and avoidance of the plamtili’s demand, or some portion, as in the plea of compensation, otherwise the admission cannot be divided.</p>

<p>The bond given by an intervenor claiming property attached in a suit between other parties, is a substitute for the property attached with regard to the plaintiff in the attachment, but not as to third persons claiming title to the property attached.</p> <p>Where property had been attached and bondod by an intervenor claiming title to it, and after judgment against the defendant in attachment, a suit being instituted against the intervenor by a third party claiming the property, the defendant cited in warranty the plaintiff in attachment — Etdd: That the liability of the intervenor in the attachment suit on his bond having become fixed by the judgment, plaintiffs could not be hold liable in warranty.</p>

<p>Tlie dissolution of a corporation cannot be effected by a resolution to that effect of a majority of its members.</p> <p>The majority of the members of a corporation may, by the abuse of its powers, commit an act which would justify the forfeiture of its charter, but they caimot make such act the basis of an action instituted by themselves against the minority, for the purpose, of having tho franchises of the corporation declared forfeited.</p> <p>A corporate body is a juridical b ung, separate and distinct in its rights aud obligations from the individual members who compose it, and while it exists, tho majority of its members caimot maintain an action against the minority, for the sale and distribution of the proceeds of the property belonging to it*</p>

<p>The appellant is not required to look beyond the record, and cite, on appeal, persons who were not parties to the judgment appealed from.</p> <p>Where an obligation is incomplete for want of the signatures of some of the parties who were to become jointly liable with those who signed, no aotion can be maintained on it.</p>

<p>Notice of the retirement of a partner from the lirm, published in a newspaper to which the customer of the firm is a subscriber} is not legal notice to such customer of the dissolution of the firm. As to persons previously in the habit of dealing with the firm, actual notice of the dissolution must be brought homo to them, which is usually done by circular letters addressed to the creditors of the partnership.</p> <p>Actual notice eaunot bo inferred from the more fact of the creditor being a subscriber to the newspaper in which the notice was published.</p>

<p>Tho answer of one of the parties to the suit to interrogatories on facts and articles may bo made use of as evidence by either party on the first or any subsequent trial of the cause.</p>

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

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

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

<p>Where the certificate of the clerk of the inferior court showed that documentary and record evidence which the parties were to furnish was not embraced in the transcript, because it was not furnished to the clerk, and a portion of the omitted evidence was offered by the appellant — Bdd: That the appellants were in fault for not furnishing a complete record, and on motion of the appellee, the appeal was dismissed.</p>

<p>A judgment creditor garnisheed a third person who had funds in his hands belonging to the defendant m execution ; but it appeared that prior to the commencement of the proceedings in garnishment, the judgment debtor had given an order to his attorney upon tho garnishee for all funds belonging to him in his hands ; that this order had been accepted ; and it further appeared that tho attorney was, upon the collection of the funds, to pay them over to the creditors of his principal, and that he had so informed the creditors. — Held: That the attorney to whom the order was given, being nothing moro than tho agent of the judgment debtor, the acceptance of that order by the garnisheo was merely an acknowledgment of a pre-existing obligation to pay to tho judgment debtor tho money in his hands ; that it created no obligation in favor of the creditors ; and that as the judgment debtor still had the money under his control, it was subject to attachment at the suit of a judgment creditor.</p> <p>The mere promise of a debtor to pay his creditor out of a particular fuud wlion collected, docs not operate a transfor of tho fund to the creditor, and vest in him a right of action for its recovery.</p>

<p>Where the charge of the District Judge to the jury is suchas to mislead the jury upon the facts, the verdict will ho set aside, and such judgment rendered on the appeal as the evidence justifies.</p>

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

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

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

<p>Appeal from tlie Sixth District Court of New Orleans, Howell, 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>The acceptor of a bill, when suod by tho payoo, has a right to call the drawoo of tho bill in warranty, in tho caso where tho drawee is requested to pay not unconditionally, but in accordance with a contract, and ho has been notified by the drawer because tho consideration of tho draft had failed.</p> <p>When cited in warranty by tho drawee, the drawer may plead the failure of consideration asa defence to the suit.</p>

<p>The rodhibitory action cannot bo maintaitfod where the latent defect or vice of character of the slave sold is brought home to the knowlege of tho purckasor, and the sale was made with a guarantee of title only.</p>

The counsel for plaintiff argue as follows : On the 19th February, 1855, the Grand Lodge of the State of Louisiana • granted a charter of incorporation to the Polar Star Lodge No. One. Held: at the sittings of the corporation of Polar Star Lodge No. One, of the 15th and 22d January, and 4th February, 1858 ? The summons for the meeting of the 15th January, 1858, is dated the 14th January, 1858; it does not state the nature of the business to be transacted at the meeting.

<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>Courts aro bound to give legal effect to all contracts, according to tlio true intent of all tlic parties. C. C. 1940.</p>

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

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

<p>Whore defendants were sued jointly and answered jointly, and an appeal was granted to both r on tí motion in open court, made in the name of both, by their- counsel of record, and the counsel signed the bond of appeal, as principal, in the name of his client — Reid; That such an appeal and such a bond is sufficient-</p> <p>The Clerk’s certificate to a record of appeal is good if stated as follows: í£ I do hereby certify that the foregoing fifty-six pages do contain a true and correct transcript of all the documents filed, testimony and evidence adduced and all the proceedings had upon the trial of the suit.”</p>

<p>%e Act of Congress, approved July 6tb 1842, entitled “ An Act confirming certain, land claims in Louisiana,” embraces — “that the confirmation made by virtue of the 7th and 9th sections thereof shall only operate as a relinquishment of the right of the United States, and shall not affect the right of third persons, nor preclude a judicial decision between private claimants for the same land.</p> <p>In cases of fraud and simulation it is a cardinal principle that great latitude in the introduction of evidence is allowed, leaving to the Court and jury to determine* from all the surrounding circumstances, the weight jind effect of such evidence. Thus, thd conversations and admissions of the parties, even when not made in the presence of each other j their acts and actions, are, under the above restrictions, admissible in evidence. Even in matters of conflicting settlements upon public lands, the acts and conversations of the parties are admissible ; the objection going to the effect.</p> <p>"Where the title to public land bas passed from Congress, and forms no longer part of the public domain, tbe pretensions of the litigants must be determined by our State laws and jurisdiction.</p> <p>In a petitory action the plaintiff must succeed on the strength of bis own title, and not on the weakness of the adverse title. But where a party obtained a quit claim by falsely and fraudulently attributing to himself certain rights, this Court will interfere and correct the error. It has been repeatedly decided in tbe Supreme Court of the U. S., as well as by this Court* that persons who-obtain patents by a suppression of a part of the facts of the case will not be permitted to derive any benefit thereby, but that such patente Will inuro to the parties entitled to recover the lands thus patented. Per cui'icm^ we can see no good reason why the' principle should not be extended to the case of a person obtaining a title in his own name, by fraudulently baáing his demand on the habitation and cultivation of another, when the equitable right of the latter would otherwise be without remedy.</p> <p>A purchaser in bad faith owes indemnity, and is entitled in law to no other claim for his improvements than those stated in the three first sentences of the C. C., Art. 500. 12 An. 545.</p> <p>Where the defendant does not urge in this Court any of the bills of exception taken by him to the rulings of the Court below, it is considered a waiver of those exceptions.</p> <p>Clerks of District Courts throughout the Slate have co-equal powers with the Judges thereof to issue commissions to take testimony. Act of 1846, p. 63 •, Act of 1850, p. 99 • 9 An. 69. '</p> <p>In respect to depositions, complete mutuality, or identity of all the parties is not required. It is generally sufficient if the matters in issue were the same in both cases, and the party against whom the deposition is offered has full power to cross-examine the witness.</p> <p>"Where a sale was made without any warranty or recourse whatever, the purchaser bought at his own risk and peril, and could not claim restitution. — Ergo, the vendor was a good witness and not interested in proceedings atiende. C. C. 2481 ; 3 An. 326.</p>

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

<p>The charge of adultery, preferred by the wife against the husband, to serve as a basis for a judgment of divorce, does not of itself amount to a defamation upon the failure of tho former to sustain the allegation by proof. If the accusation be not wanton, or malicious, although unfounded in point of fact, it cannot with propriety be said that there was a public defamation.</p>

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

<p>The title acquirod. by the vendor of property subsequent to tho time of the divestiture of bis interest inures to the beuefit of his vondoc.</p> <p>A salejrf property without registry is binding upon thoso claiming as doneos under a subsquent act of donation by tlie vendor.</p>

<p>Upon a motion to dismiss an appeal from a judgment rendered after answer filed,upon the ground of imperfection in the attestation of the record by the Clerk — Reid.: That in this form of appeal, the Clerk should certify unqualifiedly that the- transcript contains all the testimony adduced. If the Clerk cannot so certify, and there has been no statement of facts prepared, no bill of exceptions or special verdict taken, and no assignment of errors filed, the appeal must be dismissed,</p>

<p>Appeal from the Fourth District Court of New Orleans, Price, 3.</p>

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

<p>Appeal from the District Court of the Parish of Pointe Coupée, McVea, J., presiding.</p>

<p>Proceedings in garnishment under the Act of the 20th March 1839, p. 166, are commenced by petition and interrogatories; and the property and effects in the possession of the garnishee belonging to the defendant in execution, can only be decreed to be levied or seized by the Sheriff from the date of the service of the interrogatories on such garnishee; and if the plaintiff in execution relies upon a seizure under his writ, prior to the commencement of his suit in garnishment he must show an actual seizure of the property in the manner prescribed by law ; otherwise such seizure will be of no avail to him. C. P. Arts. 651-654</p>

<p>The presumption -which arises, under Article 2508 C. 0., from the appearance of a malady in a slave, within three days immediately subsequent to the sale, will give way to direct evidence or to opposite presumptions of a controlling character ; hut the vendor must make out more than a speculative and possible case — the opinion of a physician who never saw. the slave, as to the sudden appearance of the malady m most cases, and as to the probable e/Fecfc of the atmosphere, coupled with the apparent good health of the slavo on the day of the sale, is not sufficient to destroy the legal presumption created by this Article.</p> <p>Privileges are slricli juris, and can only exist by an express law creating them.</p> <p>Persons who have advanced money towards the purchase of slaves, or consignees or commission agents who have furnished funds for a like object, acquire no privilege thereby under Article 3214 of the Civil Code as amended. Nor do such advances per se create any privilege on slaves under our existing laws.</p> <p>The provisions of our own laws are to be alone consulted for the existence and enforcement of privileges.</p> <p>The effect of an Act passed in another State, to take effect in this, must be governed by our own</p>

<p>A surety who pays a judgment, and is thereby subrogated to the rights of the creditor against the principal debtor, may issue execution on the judgment in the name of the creditor for the recovery of the amount which, as surety, he has paid.</p> <p>Where a drawer gives two endorsers as co-sureties, the one that endorses first is liable to the other for the whole debt.</p> <p>Accommodation paper is governed by the same rules as other paper, in regard to endorsers.</p> <p>Strong evidence is required to vary the legal liability of endorsers as fixed by the lex mercatwia.</p>

<p>If the plaintiff in execution send a writ to another parish, the District Court of that parish’ has jurisdiction J;o issue"an-injunction on a third opposition, and to try the question raised by it, although the plaintiff in execution resides out of the parish where the injunction suit is instituted.</p> <p>A third opposition without an injunction, in order to have the effect of annulling the sale, must be commenced as an opposition with an injunction prior to the execution of the writ by a sale of the property seized under it.</p>

<p>Laborers who hire themselves out to serve on plantations, or to work in manufactures, have not the right of leaving the person who has hired them, nor can they he sent away by the proprietor, until the time has expired during which they had agreed to serve, unless good and just causes can be assigned. C. 0. 2719. In the latter case an action for breach of contract, according to articles C. C. 1920,1924, is the only remedy.</p>

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

<p>'j'boro cm bo neither increase nor diminution of price on account of disagreement in measure, when the object is designated by the adjoining tenements, and sold from boundary to boundary. C. C. 2471. • •</p>

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

<p>Whefe no complaint has been made in regard to the manner in which an agent’s duties have been performed, he is presumed to have acted within the sphere of his authority*</p> <p>Per curiam: The policy of our law is to discountenance all restraints upon the rights of the ownefi* of property to use and dispose of the same as he shall see fit.</p> <p>The abandonment of service, even, for a day, gives the employer a right to dispense with the employee’s further services.</p>

<p>Appeal from the District Court of the Parish of St. Charles, Burthe, J.</p>

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

<p>The owner of a building is not personally liable to a sub-contractor who has been employed by the contractor in making additions or works upon the building.</p> <p>The contract between the owner and contractor, while it is not binding on the sub-contractor, may still be used in evidence to show in what capacity the former were acting.</p>

<p>Sureties on. an attachment bond are not parties to the suit,, stricli juris, and need not be made parties • to an appeal.</p> <p>The general rule which requires that all parties interested in maintaining the judgment appealed from must be made appellees to the appeal, is limited in its operation to the parties to the suit, and does not extend to third persons interested in the judgment as rendered.</p> <p>Third persons may appeal from a judgment when they allege that they have been aggrieved by it, but the law does not require the appellant to make them (when not parties to the cause) appellees.</p>

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

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

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

<p>Appeal from the District Court of the Parish cf East Baton Rouge, Avery, 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 St. Bernard, Foulhouze, 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>APPEAL from the District Court of the Parish of Lafourche, Roman, J.</p>

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

<p>It is essential to the perfection of a sberilPB sale that the purchaser should Substantially comply with the terms of acjudication, which is the condition upon which the property is to ho his. The price tnust he paid or the proper sureties offered when the sale has been made on a credit, otherwise the Sheriff shall expose to sale anew the thing seized and adjudge it to another person. Therefore, every sale upon execution, which is not completed by the payment of the price to the Sheriff,</p> <p>Where a creditor enters satisfaction upon the execution to the amount of the bid, at the time of the adjudication, it might be regarded as a waiver of the right to insist upou payment in currency to the Sheriff.</p>

<p>The settled jurisprudence in regard to the wife’s paraphernal property is, that the husband is presumed to exercise administration until the contrary he shown ; and that in all eases the burthen of proof to the contrary is on those who have an interest to contest it.</p> <p>A mere discharge signed by both husband and wife, where the latter acknowledges the receipt of a sum of money, is not sufficient to shift the onus of a negative proof on the wife.</p>

<p>Priority of right gives priority of title in the case of a conflict between a preemption claim and the location of an internal improvement land warrant, on lands granted to the States by Congress.</p>

<p>In an action for a forced surrender "by judgment creditors, other creditors of the insolvent may object to the irregularity of the proceedings.</p> <p>To justify an order for a forced surrender, the Sheriff must return the execution endorsed specifically “No property found after due' demand.,J It is his duty to seize either partnership effects or property belonging to the individual partners, if he knew of any such.</p>

<p>Damages arising ex delicto cannot be recovered unless specifically proved.</p> <p>P&' curiam: A strict and rigid application of the articles of the Code on the title of predial servitudes would be destructive to agricultural industry.</p>

<p>The fact that a plaintiff has, in a previous suit, recognized defendants as forming a company, without any reference to its having been regularly incorporated, is not such an admission as will estop him from showing that the company has no legal existence as a corporation. In order to estop him there should at least be an admission that the company was entitled to exercise corporate rights and privileges.</p> <p>The fact, that a party is shown to have bargained with á company through its representative officers, may, in the absence of a stipulation to the contrary, give rise to the inference that he intended to look to the members jointly for the amount of their subscription; but if, instead of a corporation, the company should form no more than -a commercial partnership, such an inference should not prevail over the recognized legal rights' of the parties — particularly where it is not shown that he was in a situation to have known certainly as to the existence or non-existence of the corporation'.</p> <p>The failure of a company, in forming a corporation, to obtain the authorization or certificate of the District Attorney or Judge, and to have the act of incorporation duly recorded, is not a mere informality within the meaning of the 8th section of the Act of 1852, bufa substantial omission which strikes the act of incorporation with nullity.</p>

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

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

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

<p>"Where parties arrested for an offence punishable at hard labor appeared and waived the examination before the magistrate, whereupon the prosecuting witness — the magistrate refusing to force them to an examination — obtained from the District Court a writ of mandamus peremptorily ordering the magistrate to compel their appearance and examination, from which order the prisoners sought an appeal which was refused — Held: That under the Constitution the Supreme Court has appellate jurisdiction of questions of law in'criminal cases where the offence charged is punishable with imprisonment at hard labor.</p> <p>An appeal may be taken from a final decision of the District Court on any collateral question of law raised in a case on which the Supreme Court has appellate jurisdiction.</p>

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

<p>The death of a party to a suit is no cause for its dismissal: the survivors of the partnership or the legal representatives of the deceased may be made parties on petition.</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 Assumption, Roman, J.</p>

<p>No cerlioi'ari can issue in cases whore no appeal can be taken.</p>

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

<p>The husband has a vested interest in the dowry of his wife. He enjoys it as long as the marriage lasts, and is entitled to its administration exclusively. He is subject to all the obligations of the usufructuary. The property of dotal immovables, whether valued or not, can never be transferred to the husband even by express agreement; not only during the marriage, but by the marriage, contract; aliter as to movables and slaves.</p> <p>The husband, therefore, cannot become, even at forced sales, the adjudicatee of the wife’s dotal immovables, to her prejudice j and if he docs so purchase, the sale mures to her benefit and the property remains dotal; he becoming her creditor for the amount thus disbursed on her account out of his own funds.</p> <p>The waiver of the advertisement deprives the sale by the Sheriff of itsfcharacter of a formal sale.</p>

<p>Where the extra-judicial declarations of a party were offered in evidence against him, and it appeared that they were not necessarily called for when made, that they were in some instances made when in an inebriated condition and always boastfully — Held : that if admissive at all in a suit relating to his succession, they should be entitled to no weight whatever, unless strongly fortified by other and independent corroborating evidence.</p> <p>Where a man* married for the second time, purchases property belonging to the community which existed between himself and first wife at a sale to effect a partition between himself and tbe heirs of his wife — such property, unless he explain himself differently at the time of the purchase, will fall into the community then existing between himself and second wife.</p> <p>The neat proceeds of a crop growing, but ungathored at the time of the death of one of the spouses, belongs to the community.</p> <p>The heirs of a deceased spouse are entitled to receive one-half of the fruits and revenues of the community property from the survivor, when such survivor is not entitled to the usufruct.</p> <p>The charge for such fruits and revenues accruing before a second marriage is against the separate estate of the survivor ; but that accruing after a second marriage is against the community arising from such second marriage.</p> <p>In actions of partition involving a settlement of claims or accounts, no prescription is applicable except that which is a bar to the partition itself.</p>

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

<p>Appeal from the District Oourt of the Parish of Iberville; Avery, J.</p>

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

<p>Á Sheriff must make a return of the writ on. the return day, but he may rotain a copy in order to carry out his execution. Act of 1855, No. 199.</p>

<p>Appeal from the District Court of the Parish of Point Coupee, Roman, J.</p>

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

<p>Appeal from the District Court of the Pnrish of E. Baton Rouge, Avery, 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. Tammany, Wilson, J.</p>

<p>Tlio proceedings for the expropriation of property of an individual for the public use, (0. C. 2608) are summary in their nature : but the statute does not require that the District Judge shall sit in vacation for hearing them. The article 756 C. P. gives to the Court a discretion in relation to the trial of summary cases, with which the appellate Court will not interfere.</p>

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

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

<p>A mandamus will not lio against a Judge a qi¿o to compel him. to allow an appeal on a judgment refusing a mandamus to compel a Justice of the Peace to issue a commission to take testimony. The remedy is hy appeal to the District Court, and ultimately to this Court, when the amount gives such appellate jurisdiction.</p> <p>When a Court usurps jurisdiction the proper remedy is hy the writ of prohibition.</p>

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

<p>Ono who assumes to pay a mortgage debt by notarial act. is not, properly speaking, a third possessor who can discharge himself by abandoning the property.</p> <p>A tacit mortgage exists without any record in the office of the Register of Mortgages, and it binds the real property of the tutor in every parish in the State.</p>

<p>Where the incompetency and negligence of an overseer is put at issue in the pleadings on a suit for •wages, evidence must be admitted to establish that fact.</p>

<p>The fact that a party in an original action against the signers of a promissory note in which a judgment of non-suit had been rendered, had,sued them all as makers., does not estop him in a subsequent action against one of them from alleging that he had signed as surety on the note for the others.</p> <p>Whore a party by bis .original petition claims judgment in solido against several makers of a promissory note which in its form is merely a joint obligation, may by au amendmen1 allege that one of the signers intended to biQil himself as surety at the time of affixing his signature.</p>

<p>All agreements relative to personal property, and all contracts for the payment of money, where the value does rot exceed $500, which are not reduced', to 'writing,*., may be proved by any competent evidence ; such contracts or agreements above $500 in value, must be proved at least by one credible witness, and other corroborating circumstances. C. C. 2257.</p>

<p>Appeal from the District Court of the Parish of Ascension, Lames, 3.</p>

<p>The right of deciding into the sufficiency of the surety on an appeal bond, and of deciding whether the appeal shall be suspensive or devolutive, is exclusively within the province of the court from which the appeal is taken.</p>

<p>if a debt be contracted by one of tbe partners of an ordinary partnership, who is not authorized, either in his own name or that of the partnership, the other partners will be bound, each for his share, provided it be proved that the partnership was benefited by the transaction. Each is bound in proportion to the number of partners, without any attention to the proportion of the stock or profits each is entitled to. But where the recourse of the creditor is had on account of the benefit conferred by the partnership, by a contract not its own, the rule is different, and each partner’s share is to be fixed in proportion to the interest which he has in the concern and to the benefit which in consequence he has derived.</p> <p>The right of the creditor does not arise under the contract, which, as such is not binding on the partnership : his action against each partner has for its basis the benefit conferred. But to such a right springing from equity cannot attach a mortgage which is itself a matter of strict right. n</p> <p>Partnership creditors are not entitled to a mortgage on the partnership property, nor can a special mortgagee be compelled to seek payment on one rather than another part or portion of the property mortgaged. The right attaches to all the property.</p> <p>This Court is only seized of jurisdiction to amend the judgment as between appellant and appellee : not as between the appellees.</p>

<p>The widow is only the usufructuary of tho homestead conferred under the Act of 1852 • the naked ownership is in her children ; and, therefore, no debt due by the widow to the succession of her husband, can be offeetted against the homestead, so as to diminish the capital of the same.</p> <p>Where the succession is less than one thousand dollars a special mortgagee cannot oppose the allowance of a homestead to the children.</p>

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

<p>A mere dismissal of a rule cannot have any greater effect in the court before which the same has been rendered, than a judgment of non-suit.</p> <p>Therefore, when a rule has been dismissed and a second taken, the defendant cannot plead res judi-cata.</p> <p>The books of a liquidating partnership are in the guasi possession of the law, and must be placed in the hands of the Receiver under all circumstances.</p>

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

<p>A person employed to retain possession for the owner, cannot be permitted to defeat the object for which he was employed, and the moment he resists the entry of the owner he becomes a trespasser. 12 An., 687. #</p> <p>Per curiam,: It would be difficult to prove, as a legal proposition, that the tenant, after the termination of his lease, and after he had left the premises, could maintain a civil possession and prevent the entry of the owner by leaving a few effects and carrying away the keys ; for the possession of the tenant is that of the owner. C. C. 3396, 3404, 487. When, therefore, he abandons the property, it would seem he ceases to possess aud cannot prevent the lawful owner, his landlord, from entering</p>

<p>A contract must bo uuderstood in that sense in which it will have some effect, rather than in that in which it can have none. Vt res negis valeat quamipereat.</p> <p>The Act of Congress of the 19th of June 1834, reviving the Act of the 29th of May 1830, must bo considered as embracing provisions engrafted on the latter Act by the Statute of the 23d of January 1832, under which it was not legal to assign or transfer a certificate of purchase from the Register of the Land Office, previous to the issuing of the patent. 10 An, 597 ; 20 Howard, U. S. R,, 501.</p> <p>A patent, to whomsoever issued, inures to the benefit of him to whom the patentee would be bound to make conveyance of the legal title. 4 An., 266.</p> <p>Where a party purchases from another his interest in certain land, and a patent is obtained therefor, the former is merely an equitable owner, and as the patent by fiction of law refers back to the day of entry and takes date with it, the sale of his interest was the salo of the land itself. 21 Howard 240.</p>

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

<p>Police Juries of the several parishes of this State have not the power to CQnfiscate and sell cattle running at large and belonging to citizens residing out of the parish.</p> <p>The Police Juries in the assessment of taxes on personal and real property cannot discriminate between citizens and non-residents of the parish — they are not at liberty to tax the property of nonresidents higher than that of citizens of the parish — but, on the contrary, they.are required in the exercise of the power of taxation to levy an equal and uniform tax on every species of property and on all trades and professions, in their respective parishes, which have been made tbe subjects of taxation by tbe Legislature in behalf of the State.</p> <p>An ordinance of a Police Jury making such a distinction as afore-mentioned, between the property of citizens and non-residents of the parish, is absolutely null and void.</p>

<p>The exception of lis pmdem is only admissible when another action is pending between the same parties, for the same object and growing out of the same cause of action, before the same tribunal or one of concurrent jurisdiction. It is necessary that the parties to the suit pleaded as lis pendens should be the same, otherwise the exception should be overruled.</p> <p>In a suit between accommodation endorsers of a promissory note, where the second endorser sought to render the maker and first endorser liable to him in solido after payment of the note, and the first endorser alleged that he and the second endorser had signed the note as co-sureties — Held: That the maker was a competent witness to establish the contract of suretyship between the endor • sers of his note for his own accommodation.</p> <p>In a suit between the endorsers of a promissory note the fact that the second endorser was the endorser of a preexisting note for which this note was given in renewal, does not affect the liability of the first endorser on the note in controversy.</p>

<p>A third possessor of property which is subject to a mortgage and vendor's privilege — having been purchased ata probate sale of succession property — has no right to plead a want of registry of such mortgage where it appears that he was one of the subscribing witnesses to the procos-verbal of the sale of the property.</p> <p>At a sale of succession property, it was bought in and the purchaser gave notes for a portion of the price. This purchaser shortly afterwards sold the property and together with the administrator left the State. Another administrator having been appointed instituted a suit against the second purchaser to recover the amount of the promissory notes, and the latter answered alleging the payment of the notes, and on trial of the case produced the notes with the name of the original ven-dee erased. The Court helci: that where there was a charge of fraud made and substantiated as in this instance, against the administrator and original vendee, and where it also appeared that the latter was in indigent circumstances and without the means of paying the notes, in order to sustain this plea of payment, it was not sufficient for the defendant to produce the notes with the name of his vendee erased, but that he must also show an application of the price which he paid for the property to the extinguishment of the notes in the hands of the administrator, and the circumstances under which the notes came into bis possession.</p>

<p>Under articles 3191, 3192, and 3193 of the C. C. a riglit of pledge exists for the keeping and feeding of horses, and a privilege upon the proceeds of their sale.</p>

<p>Tlie incapacity of the wife to contract is removed, by the assent of the husband ; but this is true only in cases where she can legally contract. For example, she can only contract with her husband in certain cases ; she cannot, except in certain enumerated cases, dispose of her dotal property ; she cannot, when there exists a community of acquests and gains between her and her husband, acquire property for her separate account. To this last rule there are exceptions ; hereafter noticed.</p> <p>The declarations of a married woman, in the generality of cases, are not binding on her unless verified, or unless she has been benefitted by the contract.</p> <p>The husband is only responsible to his wife for the amount of her paraphernal property alienated, when it is proved that he has received the price or otherwise disposed of the same for his individual interest.</p> <p>All'the effects of the spouses, not satisfactorily established to have been brought into marriage, or acquired during the marriage by inheritance or by donation made to the one or to the other particu. larly, constitute the assets of the community or partnership of acquests and gains.</p> <p>Per curiam: We have no doubt that the wife may legally make an exchange of her paraphernal property.</p> <p>The right of the wife to administer her paraphernal property and to alienate the same implies the faculty of investing or re-investing her paraphernal effects.</p> <p>All the wife's property which is not declared to be dotal is paraphernal, and the wife has the administration and the enjoyment of it, but she cannot alienate it without the authorization of her husband or of the Judge.</p> <p>Under our Code the wife has an action against her husband for the restitution of her paraphernal property.</p> <p>A wife cannot invest beyond her means, and conveyances made to the wife, on her failure to show adequateameans, or maintaining similar conveyances by reason of such adequate means' will be set aside. Various decisions re-affirmed.</p> <p>The ability of the wife to acquire, during the marriage, property in her own name and for her separate account, is an exception to the general rule, and it must, therefore, be strictly and rigidly construed ; and consequently the wife is required, not only to prove that she bad paraphernal effects at her disposal, but also that they were ample to enable her, reasonably at least, to make the new acquisition, otherwise the contract will he treated as a contract of the community. The converse of the proposition is equally true.</p>

<p>Whore a partial payment lias been made on a judgment, and a settlement between the parties for the balance, and an alias writ of fieri facias sued out on-whicli the property of the plaintiff was sold— Held: that no action in damages could be sustained. So long as there was a balance due on the judgment, the defendant had a right to his execution for its collection.</p> <p>Where the writ issues for more than is due, the remedy is by Injunction, according totheBcvised Statutes, p. 246 sec. 3, 4.</p>

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

<p>In cases involving questions of fact, and where, usually, the evidence does not fully concord, no damages, as for a frivolous appeal, can be allowed.</p>

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

<p>The defendant undertook to transport for the plaintiff a car-load of live stock. It was bound to furnish a suitable and safe car, and it is responsible for any loss arising from neglect of duty in this particular. The mere presence of the owner did not lessen this responsibility if he had no power over the train, nor right to make any change in the disposition of the cars, which were necessarily under ths control of the agents of the Company.</p>

<p>Tho right of action on a letter of credit is prescribed by the lapse of ten years ; on account for moneys advanced it is prescribed by the lapse of three years.</p> <p>Tho factor, agent, or correspondent, to whom a letter of credit is directed, and who furnishes tho person named with the amount of money specified, stands in the relation of a drawee of a bill of exchange, to the merchant who gives said letter, and so soon as he advances or furnishes tho amount of money specified, the letter of credit, like a bill of exchange paid by the drawee, becomes extinguished, and the right of action lies upon an account for moneys advanced, and not on tho letter or order to furnish the money; and it is barred by the lapse of three years.</p>

<p>If a person contracting an obligation towards another, grants a mortgage on property of which ho is not then owner, this mortgage shall be valid, if the debtor should ever after acquire the ownership of the property, by whatever right. O. C. 3271.</p> <p>Future property can never be the subject of conventional mortgage. C. C. 3276.</p>

<p>The law does not require the registry of a tax collector’s sales in the office of conveyances out of New Orleans. The decision in the case of Baker v. Towle’s Administratrix et al.} 11 La. 438, re-affirmed.</p> <p>The Civil Code of 1825 requires a registry, as regards third persons, of only instruments made under private signature (Arts. 2242, 2417). The recording of other acts is provided for hy legislative enactments. Acts of 1855, No. 274 p. 335, and No. 285 p. 345. The first of these two acts is a substantial re-enactment of the 7th section of the act of 1810, p. 60 ; and of the 1st section of the act of 1813, p. 206. See to the same effect Revised Statutes of 1852, verbo Recorder, p. 475, $§1 & 2.</p> <p>The purchase of one’s own property is null. C. C. 2418.</p>

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

<p>Services imposed for the common or public utility relate to tbe space which is to he left for public uso by the adjacent proprietors on the shores of navigable rivers, and for the making or repairing of levees, roads and other public or common works. C. C. 661.</p> <p>All that relates to this kind of servitude is determined by laws or particular regulations. Ibid.</p> <p>The 5th section of the Act of 1829 provides : “ That the earth which shall be employed for the repairs and construction of a levee shall be taken at the distance of at least twenty feet from the base of said levee, on the side of the river. An exception is*made in regard to the parishes of Concordia and Ouachita, in which the Police Juries have plenary powers as to roads and levees. § 52.</p>

<p>Tho repeal of a repealing law does not revive the first law, unless it be so particularly expressed by the legislator. C. C. 23.</p> <p>The charges of a Sheriff for keeping property under a writ of sequestration,-so far as they are not regulated by the fee bill, are the subject of proof, and not of judicial discretion.</p> <p>The doctrine in the case of ¿forrar v. Rowley, 3d An. 276, re-affirmed.</p>

<p>ON the relation of Polar Star Lodge No. One, praying for a mandamus.</p>

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

<p>It is not in the authority of a court to appoint ex parte a Receiver of assets belonging to a partnership. A writ of sequestration, or a rule upon the defondants to concur in the appointment of a Receiver by the parties, would bo the proper remedies.</p>

<p>Appeal from the District Court of the Parish of Livingston, Ratliffe, J. •</p>

<p>A bill of exchange was put in circulation before its maturity; was protested five days after it had become due, and. was transferred to the plaintiff after its dishonor. The evidence also showing tlrt the acceptors had failed before the maturity of the note, and that the transferrers of the plaintiff had likewise suspended before the transfer. It appearing further that the acceptors had, prior to the maturity of the bill, disposed of land scrips amply sufficient to cover it (the bill being based on land scrips in the hands of the acceptors) ; and that the bill had. been made for the accommodation of the acceptors, although this last circumstance was not known to the plaintiff and his transferrers, Held: That the drawer was entitled to a seasonable notice, and is, therefore, by its omission, discharged.</p>

<p>A party plaintiff is only entitled to recover the actual damage sustained by him in consequence of the defendant’s violation of the contract of lease.</p>

<p>Heirs, or any party interested, can attack a legacy made in violation of Art. 1468 of the C. C. The right is not confined to forced heirs alone. Decision in the case of Lazere v. Jacques, 15 An. 599, re-affirmed.</p> <p>A woman having obtained a separation d mensa et thoro, four months afterwards goes with a co-resident of the State to Mississippi, and marrying him there returns to their domicil here — a judgment a, vinculo matrimonii never having been decreed — Held: That she was only a concubine, and not entitled to the rights of a wifo, in a last will and testament.</p> <p>The act of confirmation or ratification of an obligation against which the law admits the action of nullity or rescission, is valid only when it contains the substance of that obligation. The mention of the motive of the action of rescission, and the intention of suppplying the defect on which that action is founded. C. 0. 2252.</p> <p>A donation of movables motiis causa to a concubine is valid so far as it does not exceed one tenth part of the whole value of the estate. C. 0.1468.</p> <p>The nullity of a donation, or reduction in a will, inures to the benefit of all the legal heirs of the testator. Tbe property reverts back to tbe succession to be distributed by the law.</p>

<p>On the death of a partner his interest in the assets of the firm become vested in his heirs at law. and the surviving partners can only acquire that interest by transfer or assignment from the heirs, and thereby acquire a right to sue for a debt in their own jiame.</p> <p>The step-father is not an heir at law to the step-son.</p>

<p>A livery stable keeper who rents stalls to another, who finds his own,employee, and provender for his horses, is not liable if the latter be lost or stolen.</p>

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

<p>Where the plaintiff resides out of the State, or in the State, hut in a different parish from the defendant, the latter may institute against the former a demand in reconvention for any cause, even for such as are not connected with or incidental to the principal demand. Revised Statutes, p. 96.</p>

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

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

<p>When anote hears interest from maturity, the interest begins to run from the day of payment specified, without allowing for days of grace.</p> <p>The decision in the case of Weems v. Ventress, 14th An., re-affirmed.</p> <p>When a note is maclo payable at a particular place, it is not necessary to allege or prove, in an action against the maker, that a demand for payment was made at the place designated in the note, to enable plaintiff to recover.</p> <p>The decisions in 5th An., pp. 61 and 188, re-affirmed.</p>

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

<p>The answers ol‘ garnishees are taken to he true, until disproved or contradicted by legal evidence. Answers acknowledging no present indebtedness to defendant, nor any future indebtedness, except contingent upon an uncertain event, will not bind garnishees.</p>

<p>The widow is not hound, under the homestead Act of 1852, p. 172, to postpone her action until the final liquidation of the estate. Such a suit, however, must carry with it a virtual renunciation of the community.</p> <p>When the widow shows by proof her necessitous circumstances, it is not requisite for her to prove that her husband had no descendants from any prior marriage in order to bo relieved from giving the security required of usufructuaries under the Code. 5 An. 265.</p>

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

<p>Per curiam : Wo concede in proper cases, the right and propriety of an administrator to employ such agents as a collector and book-keeper, and to pay them out of the assets of the succession.</p>

<p>Ono who retains money deposited in his hands as Sheriff, after he has ceased to act as such, will continue subject to the summary process provided by law for the benefit of suitors where süch officers are concerned. N</p>

<p>The right of this Court to issue writs of habeas corpus extends only to cases where the parties are in actual custody under process, in all cases in which it may have appellate jurisdiction. It does not extend to the authority of taking a child from the custody of its parents.</p>

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

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

<p>Where it is stated in a nuncupative will that it was dictated to the Notary, yet in point of fact there was no dictation — Held: That it was valid as a private act.</p> <p>When a testator causes a will to be written, whether in the presence or in the absence of witnesses, and presents the instrument to them, declaring that it contains his last intentions, it is a full compliance with article 1574 of the Civil Code. The decision in the case of Prendergast v. Prendergast, ante p. 219, re-affirmed.</p> <p>Merrick, C. J., dissenting. In the nuncupative testament the testator must himself orally decrare his wishes, otherwise there 3s no dictation. The mode of drawing up nuncupative wills is directed ex professo by articles 1563 and 1575 of the Civil Code. “ Nuncupative ” ipeans to pronounce orally, or in words without writing, and the very nature of the will nuncupative implies a dictation.</p>

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

<p>A pardoned convict can testify in a criminal prosecution, but one who has served out his time of punishment caunot. The endurauco of the penalty does not remove the infamy.</p> <p>The decision in the case of the Stale v. Sarah Connor, f. w. c., 7 An. 379, overruled.</p> <p>In civil matters, under article C. C. 2260, those whom the law deems infamous arc not competent witnesses.</p> <p>Act of 1S55 permits convicts to testify for and against each other in lawsuits.</p>

<p>The ^voces-verbal of a survey made under the order of the Court is admissible in ovidonce as a plan connected with the surveyor’s testimony and essential to its explanation. 6 N. S. 339.</p> <p>Prescription ceases to run, whenever the debtor or possessor makes acknowledgment of the right of the person whose title they prescribed. So that where defendants aggravated a servitude within ten years, prescription was interrupted, and the plaintiff’s right acknowledged.</p> <p>The verbal declarations of a defendant may be given in evidence even to charge land with a servitude, when they tend to interrupt prescription.</p> <p>He to whom a servitude is due has a right to make all the works necessary to use and preserve the same. Such works arc at his expense, and not at the expense of the owner of the estate which owes the servitude, unless the title by which it is established shows the contrary. C. C. 768,769.</p> <p>If the proprietor of two estates between which there exists an apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, ’the same shall continue to exist actively or passively in favor or upon the estate which 1ms been sold. C. C. 765, 771.</p> <p>Per curiam: It does not appear to us that a person not a party to an agreement, nor representing real property to which it has relation, can maintain an action upon it, unless there is an express stipulation in his favor, or one which results by a manifest implication.</p>

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

<p>Where the entire furniture of a dwelling was sold but not delivered, and the key of the building was not given up to the vendee, or any equivalent act done — Held: That there was no constructive delivery, although the policy of insurance on the furniture was transferred.</p> <p>The consent to transfer vests the property in the obligee; yet this effect is strictly confined to the parties until actual delivery of the object. If the vendor, being in possession, should by a second contract transfer the property to another person who gets the possession before the first obligee (purchaser), the last transferee is considered as the proprietor, provided the contract be made on his part bona fide and without notice of the former contract. In like manner if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor (vendor) to seizure and attachment in behalf of his creditors. C. C. 1914,1915,1916,1917.</p> <p>Sales or charges of personal property are void against bona fide purchasers and creditors, unless possession is given before such bona fide purchaser or creditor acquire his right to possession. What is delivery of possession depends on the nature of the property ; it may be constructive or actual; the delivery of the key of the store in which it is contained ; or an order accepted by the person in whose custody it is held, if at the order of the vendor, is good evidence of delivery. C. C. 2243.</p> <p>The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer. The tradition or delivery of movable effects takes place either by the real tradition or by the delivery of the lcoys of the building in which they are kept, or even by bare consent of the parties if the things cannot be transported at the time of sale, or if the purchase" had them already in his possesion under another title. C. C. 2452, 2453.</p> <p>In all cases where the thing sold remains in the possession of the seller because he has reserved the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons the parties must produce proof that they are acting in good faith, and establish the reality of the sale. C. 0. 2456. This article is exceptional to articles 1917 and 2243.</p> <p>That possession is called precarious, which one enjoys by the leave of another and during his pleasure. . C. C.3522,No.27. The title which excludes the ownership, such asa lease, is also called precarious. Other definitions of precarious title will be found in this decision from various authorities).</p> <p>The sum of damages for the wrongful suing out of an injunction must be ascertafned by the amount, enjoined, and when that amount docs not appear of record, none will be allowed on appeal, b’-t reserved to the party enjoined.</p>

<p>A party cannot claim the payment of his demand out of the proceeds of the sale and also require that the sale shall he set aside and the land sold de novo for informalities in the sale. The plaintiff is not allowed to cumulate several demands in the same action, when one of them is contrary to or precludes another. C. P. 149.</p> <p>The parent cannot retain the usufruct of the estate of the minor which he may acquire by his own labor and industry, or which is left to him under the express condition that the father and mother shall not enjoy such usufruct. O. C. 242.</p>

<p>TIio paraphernal property, which is not administered hy the wife, separately and alone, is considered to he under the management of the husband, &c. 0. 0. 2362, 2363.</p> <p>The wife who took an active concern in the effects of the community cannot renounce the same.</p> <p>Acts which are simply administrative or conservatory, do not come here under the denomination of active concern. C. C. 2381, and authorities herein cited.</p> <p>Where the wife takes an active part in the effects of the community — JETeld : That she has shown a tacit acceptance of the same, and the consequence of her acts is to render her responsible for cnc-half of the claims on the •community. Neither can she, after having thus fixed her liability, bo exonerated by sinvply producing letters of tutorship and an inventory.</p>

<p>Provisional syndics are entitled to ono per cent, on tlio appraised value of the goods and efleets confided to thorn as such.</p> <p>The syndics of an insolvent estate may be entitled to an allowance for the hire of a clerk employed by them, where they allege and prove that extraordinary skill as an accountant was required to unravel complicated accounts, left in confusion by the insolvent. In the absence of such allegations and proofs, the hire of a clerk employed by them must bo paid for by the syndics themselves.</p> <p>A mortgage granted by the maker of a note, to ono who endorses the note for the maker’s accommodation, to secure him against liability, is not an accessory to the principal obligation, but simply a porsonal indemnity depending on the payment of the note by the endorser. The decision in the case of jBowman v. McElroy <& Bradford, 15 An. 646, re-afllrmed.</p> <p>Subrogation takes place of right for the benefit of him who, being himself a creditor, pays another creditor, whoso claim is preferable to his, by reason of his privileges or mortgages. C. C. 2157 ; 9 R. 476.</p> <p>When the receipt bears no imputation, the payment must be imputed to the debt which the debtor had at the time most interest in discharging, of those that are equally due, otherwise to tho debt which has fallen due though less burthensome than those which are not yet payable.</p> <p>If the debts be of a like nature, the imputation is made to the less burthensome; if all things are equal, it is made proportionally. C. C. 2162.</p> <p>No amendment can be allowed in an answer to an appeal, which is not made in the Court a quo.</p>

<p>An error of fact, whether proceeding from fraud or not, is alwajrs subject to re-examination at the instance of the party aggrieved by the error.</p> <p>Any remission made to heirs Js an advance on their portion in the succession, and is, therefore, subject to collation. C. 0.1307,1308,1309,1310,1311.</p> <p>A debt to the succession, not yet due, is susceptible of partition.</p>

<p>In caso the debtor refuse or neglect to accept an inheritance, to the prejudice of his creditors, they may accept the same, and exercise all his rights in the manner provided for under the title of successions ; and they are authorized, by virtue of the action given by this section, to exorcise all the rights which the debtor could do for recovering possession of the property to which he is entitled, in order to make the same available to the payment of their debts. C. C. 1985.</p> <p>An heir who subsequently accepted the succession of his mother, after his creditors had boon substituted, cannot be received to inquire, at least as against a third innocent possessor, into the legality of the proceedings which transpired before the acceptance. C. C. 1014,1024.</p>

<p>Appeal from the Dist. Court of the Parish of St. Helena, J.</p>

<p>In 1S44, the Secretary of Iho Treasury, Judge Bibb, decided that patent-! ought to Issue to those holding the Houmas claim for the lands between those already patented and the Manchac ; hut on the 7th of January following, Congress, by a Joint Resolution of both Houses, prohibited the issuance of evidence of title upon that “Spanish land claim.” For a history of this class of cases, vide Foley v. Harrison, 5 Annual, 75.</p> <p>In the case of Carroll v. Sajford, 3 Howard, 46, the Supreme Court of the United States decided that laods when sold, are no more the property of the United States than lands patented'</p>

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

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

<p>Appeal from the District Court of the Parish of Point Coupee, Far-rar, J.</p>

<p>Appeal from the Dist. Court of the Parish of EastFeliciana. Mo Vea, J.</p>

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

<p>_ This case was decided upon the same grounds as that of Drauglicn v. Ryan.</p> <p>A married woman may, with the authorization of her husband, become a surety for a third person when the debt for which she becomes surety is neither the debt of the community nor of the hn--band. Decisions in 5 An. 307 and 9 An. 903 re-affirmed.</p>

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

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

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

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

<p>Besides proving the genuineness of a lost or destroyed deed, it is incumbent upon the party, who holds under it, to prove its contents in a most satisfactory manner.</p>

<p>Appeal from tbe Fifth District Court of New Chileans, J.</p>

<p>Appeal from the Dist. Court of the Parish of EastFeliciana. Me Vea, J.</p>

<p>Wlioro there is a suggestion of the account and settlement of the administration, and discharge of the administrator, under the Act of 1855, page 78, the immediate dismissal of a suit against the administrator will not ho authorized. According to that statute, the proper practice seems to be, that the cause be continued for the making of the heirs parties, if that be practicable.</p>

<p>Appeal from the List. Court of the Parish of St. Helena, Wilson, J.</p>

<p>The Sheriff’s return in relation to sales made by him under execution, is only prima fade evidence of the facts stated in it between the parties, and is subject, like other presumptive evidence, to be rebutted by contrary proof.</p>

<p>It is no good ground for a dismissal of an appeal that garnishees were not made parties thereto. It does not in any wise affect their rights, being neither for nor against them.</p>

<p>Appeal from the District Court of East Baton J.</p>

<p>Where one-fourth of the owners of lota fronting on a street do not join iu a memorial to have the street paved, the Common Council have no right to contract for its paving ; and such a contract will bo in valid against the property-holders.</p>

<p>The affirmative answer of a testator to the question whether this was his will, is not equivalent to the “ presentation ” of the will to the witnesses as required by the second paragraph of articlo 1574 of the Civil Code. Without such presentation, the will must be declared void and of no effect.</p>

<p>A party may well ask the nullity of a will, and, in case he fails in that instance, sue for a reduction of excessive dispositions.</p> <p>The object of probating a will is .to procure its execution ; and when a judgment of homologation is obtained contradictorily with proper parties, the judgment, as between them, will bar a subsequent action in nullity.</p>

<p>Appeal from the Dist. Court of the Parish of St. Helena, Wilson, J.</p>

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

<p>An Appellant has tlie right (C. P. 595) to withdraw his appeal, on motion,at any time before the appel-Iüü lias been cited; and in such, a case he may renew it, according to that article and article 593, within a year if he reside in the State, or two years if he he absent therefrom.</p>

<p>Actions for torts, injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offences or quasi-oflfencos, are prescribed by one year.</p>

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

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

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

<p>■Where an under tutor acts collasively and corruptly to defraud the minor, it wilt justify his removal from office; and damages will be awarded against him on proof of the loss sustained by his fraudulent conduct.</p>

<p>Appeal from the District Court of Natchitoches, Ghaplin, 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 qf West Feliciana, Haralson, J.</p>

<p>Tho lessor has a right of pledge on the movable effects of tlie lessee, which arc found upon the property leaded, and may even seize them within fifteen days after they are taken away, if they continue to be the property of the Jesssee, and can bo identified, for the payment of bis rent.</p> <p>•On a re-hearing — Whenever the provisions in the Code of Practice are contrary or repugnant to those of the Civil Code, the latter shall be considered as repealed, and the former recognized as tho law of the case. 6 N. S. 93. But when laws in pari materia are to be interpreted, that construction is to be preferred which will give eilect to all their provisions, for the reason that the law does not favor repeals by implication. 5. An. 122.</p> <p>Article 288 of the Code of Practice may be incorporated into article 2679 of the Civil Code, and be consistent and harmonious with it-? provisions.</p>

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

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

<p>Where the record shows that there was no answer or judgment by default against one of tho sureties, and is otherwise defective, the ca^e will be remanded for further proceedings.</p>

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

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

<p>A party cannot be made to answer interrogatories it his answer will expose him to any criminal punishment oí’penal liability.</p>

<p>A jury trial will be refused in cases of executory process on an injunction sued out under articles 739 and 740 of the Code of Practice.</p>

<p>A garnishee cannot interfere in. the controversy between the original parties, nor plead other defences than those necessary to protect himself. No seizure in his hands can be made under the execution against him without notice to the defendant, who must, after notice, oppose the seizure, or lose all recourse against the garnishee for the payment made by him under the order of the court.</p>

<p>The force and effect of a judgment is to he determined by reference to the state of tliiugs existing at the time of its rendition.</p> <p>The plea of res judicata is to be decided by reference to the matters put at issue by the pleadings. So a general and pHma fade absolute judgment against the defendants is to be construed secimdum allé-gala., and where they are sued as attorneys in fact, such judgment does not bind them personally. 7 N. S. 432; 4 N. S. 496. In like manner a general judgment against parties sued as commercial partners is virtually one in solido. 3 L. 282 ; 5 L. 287. A judgment against a third possessor is not a judgment inpersonain. 4 L. 400, and other authorities herein cited;</p> <p>Where a causa supet'veniens, the severance of the marriage tie occurs, property (dotal) previously inalienable will be subject, like all other property of the defendant, to seizure and sale under execution. 8 Rob. 457.</p>

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

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

<p>Where an injunction was sued, out by the plaintiir restraining the defendants from selling her separate . property, seized as community property, for her husband's debt: and'where a legal separation of property had taken place, charged to have been obtained by collusion — Held: That the schedule of insolvent proceedings of her husband against his creditors, was proper evidence to show his embarrassed circumstances, and the' validity of her judgment against him.</p>

<p>Where letters of tutorship set forth that the party had “ complied with the requisitions of the law to entitle him to loiters of tutorship,” it is evidence that bond had been given.</p> <p>The origin of the title and the relationship of the vendor and vendee are matters of genealogy ; which is a proper subject of perol evidence.</p>

<p>ON the relation of Ernest Putnam, Ex’r, &e., praying for a mandamus.</p>

<p>Where a salt was commenced by attachment, intervenors claimed certain rights, and their intervention was dismissed, and thereupon said intervenors in open Court appealed — Held; That as they gave the bond only in favor of the plaintiff, the appeal must be dismissed ; the defendant must be named as an obligee thereon. He was a necessary party to the proceeding in the lower court and equally so to the appeal. 11 An. 409.</p>

<p>Appeal from tlie Sixth District Court of New Orleans, Ilowel l, J.</p>

<p>Where a transcript is incomplete by the fault of the plaintiff and appellee, who has withdrawn tbo instrument on which was founded the action, and which was annexed to and made part of the petition, the canso must be sent back for a new trial.</p>

<p>Presumptions are consequences which the law or the Judge draws from a known fact to a fact unknown. Presumptions, not established by law, are left to the judgment find discretion of the Judge. C. 0. 2263,2267. Presimptfa clicitur ex eo quod pUrumque fit.</p>

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

<p>Although tlie rule is that evidence of the commission of a feltuy distinct from the one charged in the indictment, is inadmissible, yet an exception lies when the purpose is to prove that the prisoner was actuated by malice.</p> <p>The testimony of a witness before an inquest, may be admitted to discredit his testimony at the time of trial.</p> <p>Confession is admissible in evidence where it has been elicited by questions put by a person having no authority, as whore the party asking them is a police officer.</p>

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

<p>Whoro equity seems to require it, the case will bo remanded for a now trial.</p>

<p>Where there is a special contract which fixes a contingent compensation, a party cannot recover on a quantum, met'uit.</p> <p>The principal may revoke Uis power of attorney whenever he thinks proper, and, if necessary, compel the agent to deliver up the written instrument containing it, if it be under private signature. C. C. 2997.</p>

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

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

<p>A party lias a clear right of action, ex contractu, under a bond given for a writ of arrest, to tlic same extent that would the owner of sequestered property have for the wrongful suing out of a writ of sequestration, the condition of the bond being the same in both cases. Hence it is not necessary, to entitle a party to recover special damages resulting from liis illegal arrest, that he should allege and prove malice and want of probable cause.</p> <p>Where the defendants in making or procuring the arrest, acted under the advice of counsel given in good faith, that they had a good cause of action against the defendant in said suit, and a legal right to hold him to bail therefor — Held .- That the defendants are not liable in damages.</p>

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

<p>Where the record of appeal contains neither bill of exception, nor assignment of errors apparent on tho face'of the record, and other proceedings are regular, the judgment of the Court a quo will not be disturbed.</p>

<p>Appeal from the Dist. Court of the Parish of Point Coupee, Me Vea, J.</p>

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

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

<p>Tho Acts of 1852 aod 1856 contain no express repeal of the former laws investing the Mayor with a concurrent criminal jurisdiction with the several Recorders; nor are the provisions of these Acte contrary to, or repugnant to those of the former statutes investing the Mayor with such jurisdiction.</p>

<p>A party may appeal from all interlocutory judgments when such judgments may cause him an irreparable injury. C. P. 566.</p>

<p>An action arising out of a contract of mandate is barred by tbe prescription oí ten years.</p> <p>The mandatory has a right to retain, out of the property of the principal in his hands, a sufficient amount to satisiy his expenses and costs ; creating a right of pledge.</p>

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

<p>The salary of a city assessor is oxompt from execution, lio being the o/Ticor of a political corporation.</p>

<p>Appeal from the District Court of St. John the Baptist, Berault, J.</p>

<p>Appeal from the Fifth' ^District Court of New Orleans, Dggles'ton, J.</p>

<p>T1)0 mlonlion to dedicate to public lue must be signified in a maimer not liable to doubt or misconstruction, by something more than symbols of uncertain import or fanciful adornments with which it has pleased a draughtsman to decorate a plan of property. JYenw facilepresnmilnr donar?.</p> <p>Words indicativo of an intention to give should be found on the plan in order to clotbc it with such an eíl'éct. The public should accept the dedication by using the ground for the purposes indicated.</p> <p>A market-house is not necessarily public property: it may be the-object of individual ownership.</p>

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

<p>Where the plaintiffs make out & prima, facie case, it is incumbent upon the defendant to show that they have made a fraudulent exaggeration of their loss, otherwise the verdict of the jury will not be disturbed.</p>

<p>A provisional syndic was condemned to pay to tlie syndic a certain amount over $300 in liis hands belonging to an insolvent estate, or be imprisoned until paid. — field: that lie could take a suspensive appeal according to articles 565 and 575 of the Code of Practice. The mere fact that proceedings are conducted in a summary manner has no influence on the right of appeal.</p>

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

<p>A tutor cannot proceed to sell succession property, by an order of the court, without the advice of a family meeting.</p> <p>Creditors have a two-fold remedy : to proceed against the tutor in the usual way, or to provoke the appointment of an administrator, a sale by whom does not require a family meeting.</p> <p>The heirs having a mere residuary interest in the estate thus administered, the payment of the debts must be effected even without reference to tho appraisement of the property to be adjudicated.</p> <p>On a re-hearing. — A purchaser will.not be made to comply with the terms oí sale with a cloud resting upon his title. It is a different thing where the purchaser complies voluntarily with the terms of sale and goes into possession.</p> <p>The mandate of the executor is primarily to seo that the intentions of the testator as expressed in the will are carried out. The administrator is appointed to pay debts and deliver the estate to the heirs. The curator of a vacant estate must sell, pay debts, and pay residue into the State Treasury. The mission of the tutor is to administer the estate of the minor, and he may administer any succession falling to him.</p> <p>A meeting of the family must declare that the sale or mortgage of a minor’s estate is of absolute necessity, or to his evident advantage.</p> <p>By the Court: — Where there is such irregularity in the decree ordering the sale oí minors’ property, as to render it liable to reversal on a suspensive appeal, which still appears to be open to the under-tutor, we will not compel the purchaser to comply wi$h the terms of sale.</p>

<p>Every person shall he allowed to make his full defence hy counsel learned in the law ; and the court before whom he shall be tried, or some judge thereof, shall immediately upon his request assign to him such counsel as he may desire. The counsel of any person accused of crime shall have free access to him at all reasonable hours.</p> <p>The right to be heard by counsel learned in the law is a precious one ; it is guarantied to all parties oven in civil causes. Where counsel fails to appear at the trial, without the connivance of the accused, the latter is entitled to a postponement of the case for the purpose of obtaining other assistance.</p>

<p>"When the policy compels the assured to labor for the protection of the goods, and they are injured or stolen in the attempt to avoid the fire, the insurer is responsible.</p>

<p>Whore a magistrate assigns counsel, under the statute, and another assists the one so assignod, the plaintiff cannot recover against the defendant where no contract mas made with him personally.</p>

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

<p>It is the sum demanded and not the amount of the judgment rendered which gives this court jurii diction.</p> <p>A plaintiff may remit a portion of his demand before judgment, even with the design of depriving th Supreme Court of its appellate jurisdiction.</p> <p>}n all matters not api>ealable, the inferior courts are 2>resumed to have decided according to law, an such judgments cannot he distinguished, as to their validity, from those of this court.</p> <p>On a re-hearing• — Where this court has jurisdiction for one purpose it has for all facts embraced i the record.</p> <p>Every proprietor whose levee shall have been broken by his own neglect to comply with the provision of the 25th section of the Act of 1859, p. 91, shall be liable towards the planters who shall suffer b it, for all damages and losses.</p> <p>Vooriiies and Duffel, Judges, dissenting.</p> <p>The general rule is that a party may, at every stage of the proceedings, previous to the rendition of tl judgment, discontinue the suit. In jury trials this motion may be made until the moment when tli jury is about to withdraw.</p> <p>Where the amount sued for was over $300, but before judgment was rendered in the lower court, tl plaintiff entered a remillilur, which reduced it loss than that amount — Ifeld: that an appeal in such, «ise should be. dismissed, it. not being appealable in amount.</p>

<p>Appeal from tbe District Court of Point Conpee, Mo Vea, J.</p>

<p>Sworn public officers not charged with, fraud must be supposed, until the contrary be shown by cogent proof, that they have properly exercised the discretion vested in them by law.</p> <p>Where a levee is erected for the benefit of and by the plaintiff himself, and of no peculiar benefit to the general plan by which the whole district was to be protected — Held: That there is nog round for a recovery against the Board of Levee Commissioners in the shape of compensation. Casualties arising from the partial failure of the levees at any point, cannot have the eifectof releasing the land owner ‘from the payment of the levee tax.</p> <p>A collector of levee tax is a public officer whom the District Judge is bound to know the identity of, and his signature. He acts as such without any pecuniary interest to disqua’ify him from the trust.</p> <p>In the absence of any special provision of law as to the maimer in which the levee-tax Collector should make the sales of the property of delinquent tax payors, recourse must be had to other laws in pari molería.</p>

<p>Appeal from the Dist. Court of the Parish of St. James, MoVea, J.</p>

<p>Iii order to bind tlio surety on an appeal bond, it is nccessaey to require the creditor to point out property on the neglect or refusal of the debtor to do so. The demand on both parties is essential.</p> <p>The loss of the obligation sued upon must be proven before secondary evidence can be received of its import.</p>

<p>The threats of a third person must not he allowed to militate against a prisoner, and when they do not constitute part of the res gestee are inadmissible in evidence to criminate the prisoner, and more especially in cases of murder, to prove on his part premeditated malice.</p> <p>A conspirator is not a third person, and vice versa.</p>

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

<p>The location of an Internal Improvement warrant, under the Act of Congress of the 4th September, 1841, on Jand to which a valid pre-emption right existed, is void and cannot be rendered valid by a subsequent approval of the land to the State. Priority of right gives priority of, title, in contests oí this kind.</p>