Volume 17 — Louisiana Annual Reports

<p>The law requires the proof of sale of immovable property to be 'in writing; 'but when actual delivery has been made, a verbal sale or other disposition of such property may be proved by interrogatories propounded to either vendor or vendee, 'the reply to whioh would be a confession of title. No other •kind of questions are permitted. •- ' • " '</p> <p>Answers to interrogatories are not require^ to bo mado in any peculiar set phraseB,.so that they are responsive.</p>

il. PPEAL from the Fourth District Court of New Orleans, Allen, J. The captain of the Vanderbilt was wrong in attempting to execute a manoeuvre which was improper and dangerous. The Thames, 5 Hob. Ad. 345. ' The Shannon, 2 Haggard, 173. It is for the owners of the steamer to prove that the collision could have been avoided. Beloso v. U. Á Mail Go., 9 An. 268.,. Martino v. Boggs, 1 An. 75. Sparks v. Salladin, 6 Ann. 764.

from the Sixth District Court of New Orleans, Howell, J, The question resolves itself into this : What evidence of agency is required under Art. 276 C. P., to authorize a writ of sequestration based on the agent’s affidavit ? It will be noticed that Art. 276 does not declare that any evidence as to the fact of agency beyond the affidavit itself is necessary; and it is respectfully submitted that such affidavit is sufficient.

<p>Commercial partners are bound !n wU<lo, and where sucha partnership existed, oral testimony will he received to establish it.</p>

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

<p>Damages will be allowed for a frivolous appeal, when prayed for by appellee in his answer.</p>

<p>Where there is positive evidence of the loss of an instrument in writing parol testimony will bo received proving its contents,</p>

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

<p>Where a firm makes advances on consignments, they cannot bo required to forward them to third persons subsequently, and thus be deprived of their privilege.</p>

<p>"When a person dies, leaving property in two or moro States or countries, his property in each State is considered as a separate succession, for the purposes of administration, the payment of debts and the decision of the claims of parties asserting title thereto.</p> <p>It is the deliberate opinion of this court that the powers of administrators, appointed in different States, extend only to the limits of the sovereigns creating them, and that neither allows the other {0 intermeddle with any assets within their respective jurisdictions.</p> <p>Fiduciary agents cannot transfer negotiable assets without an order of court.</p>

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

<p>Where fcne appéllés dee, not claim damages hi/ hif; ansu cr for a frivolous appeal, none can be granted,</p>

from the Sixth District Court of New Orleans, Sowell, J. Lord Tenterden laid down the rule, in the case of Venderplank, et al. v. Miller, et al., 22 English Common Law Reports, p. 280, as follows : “If there was want of care on both sides, the plaintiffs cannot maintain their action ; to enable them to recover, the act must be attributable entirely to the fault of the crew of the defendant’s vessel. ” The Supreme Court of this State has recognized and applied this rule to…

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

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

A PPEAL from the Sixth District Court of New Orleans, Howell, J. In a contract of lease, three things are absolutely necessary, to wit: The thing, the price, and the consent. C. C. 2640. And, by C. C., Art, 2639, the price must bej&ed Art. 2641. The price should be certain and determinate, and, if left to a third person named and determined * * * if he cannot or will not do it, there is no hiring.

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

from tlie Sixth District Court of New Orleans, Howell, ;7V This is a rule upon the sureties on an appeal bond; and they have taken this appeal from a judgment condemning them to… Held: it is not sufficient to call upon his attorney to point out property. A. D. Grieff & Co., the creditors of Kirk, lived in New Orleans; and it was “not using the diligence required bylaw, or a compliance with the textual provision of Art. 727, C. P., for the sheriff to call on their attorney.

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

<p>Where articles of greater value are packed in the same box with ordinary freight it does not change their character, and will not relieve the common carrier from liability for their loss, if those more valuable goods are not lost.</p>

from the Second'District Court of New Orleans, Bumgneaud, J. The petition alleges that, on the 7th May, 1860, the defendant, being then under arrest for killing-one Peter Boach, employed plaintiffs to defend him on said charge ; that they informed him they would charge him $1,000, to which he made no objection; that they immediately undertook his case, prepared affidavits, and obtained his discharge from the “lock-up” on bail, and continued to act as his counsel until 18th…

<p>Where the parties to a contract, by mutual consent, enter into a new agreement, as regards some narfc of it. nroof of the latter agreement may be made by parol.</p> <p>A party must be put in mora in order to be made liable for a suit in damages on a contracl.% And this applies to reconventional as woll as to direct actions.</p>

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

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

<p>The judgment of the Court a quo will not be disturbed, unless good reasons are assigned therefor.</p>

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

<p>Where evidence was received without objection by way of reconvention, it will be sustained as if a formal plea to that effect had been filed.</p>

<p>Tlie laws establishing the order of successions, and those which treat of their administration are essentially different.</p> <p>An inheritance remains without an heir and in abeyance until the rightful heir accepts or rejects it, according to the Article 1026, O. 0., giving him time for deliberation. Such an heir has but a residuary interest. Ü.O. 1066.</p>

<p>The acquiescence of the principal in the conduct oi the agent, is a clear ratification of his action.</p>

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

<p>Where an. abandonment for a total loss is notified, by the master, to the underwriters, and accepted by their agent, it is binding, and passes the property to the insurers; if otherwise valid.</p> <p>The necessity for a sale of a vessel cannot be denied, when the peril, in the opinion of those capable of forming a judgment, make a loss probable, though the vessel may, a short time afterwards, get afloat.</p> <p>A bill of lading can have no effect until its delivery to the consignee.</p> <p>The ratification of an abandonment to the agent of the underwriters dates back to the time of the' act or contract ratified.</p>

-O. PPEAL from the Sixth District Court of New Orleans, Howell, J. 1. The right of action arose prior to the adoption of the present Constitution. It was a legal right under the Constitution and laws of the State then existing; and no subsequent change in the organic or statutory law could modify or destroy it. ‘/No State shall pass any ex post fació law, or law impairing the obligation of contracts.” Constitution of the United States, Art. 1, § 10. 2.

PiJBAL from the Fifth District Court of Hew Orleans, Eggleston, J. It is a well settled principle that the occupancy of property, without the consent of the owner, entitles the latter to the estimated rents of the property, as damages for the tresspass or illegal detention. 11 Bob. 280, Fish v. Moores. Defendant has urged as one of his grounds of defense that he has the right to use the plaintiff’s battupe, which is dedicated by law for public Use.

from the Sixth District Court of New Orleans, Howell, J. —On the 16th day of September, 1857, the Sixth District Court of New Orleans, in the succession of Elkaniah Reed, ordered a sale of certain property, falling to the widow and to the heir of- deceased, situated in the Eourth District of the city of New Orleans.

<p>Dlie failure to declare in the act of mortgage the exact.amount of insurance, does not invalidate the</p> <p>The order of the court directing the executory process must be strictly in accordance with, the authentic act ; items not embraced therein will be stricken out, and the decree sustained for the express conditions of the mortgage.</p>

from the Third Judicial District Court of Jefferson, Burthe, J. The defendant offered in evidence his declaration of change of domicil from the parish of Jefferson to the parish of St. Helena. If this was & judicial declaration of the change of domicil, it could not avail the defendant under the evidence in this case; because the declaration must be combined with or followed by an act of residence in the parish of St. Helena. O. C. 43.

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

<p>Malicious slander will be punished by damages, and the verdict of the jury and judgment of the court below sustained. ■</p>

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

<p>from the Third District Com-t of New Orleans, Fettowes, J.</p>

<p>from the Second District Court of the Parish of Jefferson,</p>

<p>If any one sells or alienates a piece o£ land, from one fixed boundary to another fixed boundary, tlie purchaser takes all the land between such bounds, although It give him a greater quantity of land than is called for in his title, and the surplus exceed the twentieth part of the quantity mentioned in his title.</p> <p>There can be neither increase or diminution of price on account of disagreement in measure, when the object is designated by the adjoining tenements, and sold from boundary to boundary.</p>

<p>A bill of indictment for manslaughter will not lie unless brought within one year after the of-fence shall have been made known to the public officer having the power to direct the investigation.</p> <p>And so as regards ail criminal offences, except wilful murder, arson, robbery, forgery and counterfeiting.</p>

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

<p>The only verdict, in a criminal case, that the jury can render, under the law, is a general one: a ver-diet of guilty or not guilty, whicli is a decision both on the law and the facts.</p> <p>By the Court. — It, doubtless, would be a safe rule for the jury to take the law from the judge as their guide ; but they are not bound to do so. They have the right to judge of both the law and the facts in forming their verdict.</p>

<p>Where a party is guilty of laches by not urging his claim in due time and place, he cannot complain, in this court.</p>

<p>Foreign laws must be provod a3 facts; and, in the absence of such proof, the rights of parties who claim, and the effect and validity of instruments executed under the laws of another State, must be determined by our own, which will be presumed the same.</p>

<p>from the Sixth District Court of New Orleans, Howell, 3.</p>

<p>Where there is no prayer for a citation of the appellee, and he is not cited, it is a good ground for a dismissal of the appeal.</p>

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

from the District Court of the Parish of Placqueminea, Upon the motion to dismiss the appeal: 9 M. 285; 1 N. S. 713; 2 N. S. 388; 5 L. 446; 3 R. 429; 5 R. 127; 6R. 362; 16 L. 466; 17 L. 336. The above decisions of the Supreme Court, affirming the principle that judgments of inferior tribunals, founded on verdicts of juries, should never be brought before the Supreme Court without showing that an attempt had been made to obtain a new trial. 2.

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

XS. STEAL irom the Second District Court oí New Orleans, Morgan, J. The plaintiffs, a commercial firm in New Orleans, brought suit by attachment against H. Jacobs, a resident of Mississippi, on a promissory note of @1,078 98. A quantity of merchandise was attached in the hands of Thomas McKenna, a warehouseman.

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

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

from the Eiftb Distriot Court of New Orleans, Eggleston, J. Plaintiffs having seized the property of defendant cmfi.fa., were about selling it by the sheriff, when they were enjoined by John-Robertson, claiming ownership. The property was declared not Robertson’s, but the execution debtor’s. Ingram attempted to make a cession and thus to deprive plaintiffs of the effect and fruit of their execution. From a judgment sustaining this opposition plaintiffs have appealed.

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

A IlL PPEAL from the Sixth District Court of New Orleans,* Howell, J. The plaintiff sues the defendants for damages on a'n alleged refusal to deliver a portion of sugar confided to them, as depositees or bailees. There is no allegation in the petition, either of want of good faith, or of reasonable care, or of ordinary diligence.

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

<p>Where a, debtor waiv.es an appraisement, when called upon by the sheriff, of a,sale of his property on ft. fa., and purchases part of the property himself, he cannot complain of the irregularity of the proceedings.</p>

from the Fourth District Court of New Orleans, Price, J. The plaintiffs, who are vendors of the property described in the petition, sue for the amount due them, and ask for judgment as claimed, with the privilege of vendors upon the property sold.

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

<p>from the District Court of St. Bernard, FouThouze, J.</p> <p>Upon reading the brief by counsel for defendant and appellee, your honors will perceive that the grounds upon which they rely to maintain the judgment of the court a quo, are substantially as follows:</p> <p>I. This honorable court erred in concluding that the tender of land was an admission that the thing itself is due.</p> <p>H. That the plea of tender was rightfully 'withdrawn.</p> <p>HI. That the sale from defendant to plaintiff was one per aversionem, '■ and therefore does not give rise to an action for a dimiwtion pf price,</p> <p>IV. That, if the sale was one non per aversionem, the action of diminution will not lie, because “the value of the deficiency in the land sold is not one-twentieth of the total price stipulated in the act of sale, for all the objects sold.”</p> <p>L “This honorable court in concluding that the tender of land was an admission that the thing itself is due.”</p> <p>We have carefully read the brief of J. M. Dueros, Esq., which is solely directed to the solution of this point; but, we halve to confess, that we find in the argument nothing calculated to inspire us with the belief that the position is well taken.</p> <p>In his pleadings, the defendant alleged that, on the 19th of July, 1859, he purchased about two hundred and fifty acres of land, in the rear of that portion of the plantation which lies on the right bank of the bayou, and this lie tendered to the plaintiff, to be considered as forming a parcel • of his plantation, in lieu of the deficiency set up as a basis for recovery in diminution of price.</p> <p>Your honors, in considering the legal effect of that plea, held “that the plea of tender was an admission of a deficiency in the quantity of land sold, and was inconsistent with the plea of the general issue.”</p> <p>In what respect, was there error in the judgment of your honors ? Could the court have held otherwise than it did ? Was not the tender of land to supply a deficiency antagonistic to the idea of no deficiency ? Is not an offer to pay an admission that the sum offered is due ? Was not the offer, or tender to make good the deficiency, a legal admission that • there was a deficiency, and that defendant was bound to make it good ? And this, too, notwithstanding he declared “he did not intend to waive the benefit of the plea of the general issue.” Can the offer be regarded as a gratuitous donation, when no one, by law, is easily presumed to donate ? It seems to us a work of supererogation to. attempt to strengthen the position which this honorable court has taken in relation to the plea of tender; and we think your honors will long hesitate before overruling the opinion expressed in 14 Annual, 869, and adopting a conclusion, not only opposite to that opinion, but at war with reason and precedent. Conceding, however, for the sake of argument, that the plea of tender in this case did not admit a deficiency in the quantity of land sold, and that this court fell into an error in thus interpreting that plea, the question arises, can that error now be corrected ? We submit unto your honors that the effect of the plea of tender was directly presented for decision when this case was first brought up on appeal to this court; that it was then expressly decided; and the case was remanded to the lower court to be proceeded in upon the principles enunciated in that decision. The defendant did not think it necessary to apply for a rehearing ; the only mode prescribed by law, in which to have corrected the error, if the court had fallen into error. Under such circumstances, the opinion of this court, in 14 Annual, relative to the legal effect of the plea of tender, has become a res judicata, and that question cannot now be inquired into between the parties to this cause. In another and a future case, the court may lay down a different doctrine; for, as to such pase, the opinion in 14 Annual is but a precedent. It is otherwise, how-fever, with reference to the cause now before the court: it is a thing] adjudged.</p> <p>Would it not be strange did this court possess the power to determine • certain questions at issue between litigants; remand the cause to be tried upon the view enunciated by the court; and after trial, and upon second appeal, to reverse the former opinion, and a,dopt a conclusion directly opposite to the first decree ?</p> <p>2. “The plea of tender was rightfully withdrawn'.”</p> <p>Counsel for defendant, in their argument upon this point, have committed a two-fold error: one relating to the facts, the other to the law.</p> <p>They say, on page 3 of their brief: “The revocation was made under an order of court, which permitted the filing of the supplemental and amended answer, by which the withdrawal of the tender was made, and must, therefore, be considered as having been made with the assent or approbation of the judge a quo. Again, said withdrawal was effected ■without any objection or opposition from the plaintiff, who is, consequently, presumed to have acquiesced in it.”-</p> <p>In reply to this assertion on the part of defendant’s - counsel, we repeat the language of our origipal brief: “The withdrawal was an ex parte proceeding ; was in no way brought to the notice of plaintiff’s counsel, except by filing the record, and was not concurred in by him; nor was it allowed by the court.”</p> <p>It is contended by counsel for Millaudon, that the tender of land was-not accepted by plaintiff; that, until an acceptance was manifested, a judicial contract was not formed; and, therefore, the plaintiff possessed the right to retract and withdraw such tender. Decisions of the Court of Cassation and other French authorities are cited for the purpose of sustaining this position.</p> <p>We do not understand these authorities- as covering a judicial admission made under the circumstances connected with the plea of tender filed in this Case; nor do we think the French law can possibly go so far as to declare that a plea of payment or tender is ineffectual against the party thus pleading, until his adversary manifests an acceptance - thereof. Be this as it may, the rule which prevails under the jurisprudence of Louisiana is declared in Art. 2270, C. C.: “The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding. It amounts to full proof against him who has made it. It cannot be revoked, unless it be proved to have been made through an error in fact. It cannot be revoked on a pretence pf' error in law.” Art. 2264, C. 0., No, 4; 6 An. 719.</p> <p>Under Article 2270, no acceptance is requisite. A judicial confession once made, constitutes per se, not merely a-presumption, but amounts to full proof against him who has made it, and cannot be revoked, unless proved to have been made through an error in fact.</p> <p>3. ‘ ‘ The sale from defendant to plaintiff was one per aversionem, and therefore does not give rise to an action for a diminution of price.”</p> <p>The characteristics of the act of sale in question were laid before your honors upon the first appeal, for the purpose of obtaining a decision from the court, whether the sale was one per aversionem, or not. This court-held that it-was not a sale per aversionem, and remanded the caiise to enable the plaintiff to establish his demand in diminution, based upon the deficiency of land. The judgment of your honors upon the question per aversionem, like your opinion upon the plea of tender, forms res judi-cata; and the character of the act of sale in controversy is no longer open to inquiry. If, however, the court takes upon itself to investigate the nature of the present sale, then, in order to show that it is not one per aversionem, we refer to'our brief filed upon the first appeal.</p> <p>4. “If the sale was not one per aversionem, the action of diminution will not lie, because the value of the deficiency in the land sold is not one-twentieth of the total price stipulated in the act of sale, for all the objects sold.”</p> <p>We deem it unnecessary to take issue with counsel for Millaudon upon the question of law presented on page 5 of their brief. We may admit that the action for diminution of price, on account of a deficiency in the land sold, -will not lie, unless -the value of such deficiency equals one-twentieth of the total price stipulated in the acts of sale, for all the objects sold; or, we may assert, that the action guanti mmoris will lie, wherever there is a deficiency of one-twentieth in the land sold, regardless of the sum given for the totality. In both views, plaintiff’s action is fully made out by the evidence. If, as we have supposed in our original brief, the latter be.the correct principle, then this action is established by the act of sale showing 1,520 acres sold, and the report of the surveyor fixing the deficiency at 193 acres; 193 is more than one-twentieth of 1,520. If, on thecontrary, the rule of law has been properly expounded by counsel for defendant, and the view first above taken governs, then this demand is sustained by the act of sale, showing 1125,000, the price for the totality of property sold, and the testimony and pleadings in this case, fixing the value of the deficiency from $10,000 to $16,000. 10,000. is more than one-twentieth of 125,000.</p> <p>There is a wide difference in the value of the deficient land, as calculated by the counsel for the respective parties; but, in examining those calculations, your honoris will at once perceive that counsel for plaintiff has presented that which should be adopted by the court.</p> <p>Counsel for Millaudon have, unauthorizedly, located the deficiency in a particular part of the Davis plantation; isolated, as it were, from the rest of the place; regarded it as naked, and unimproved of itself, and deriving no value from the improvements of the plantation; and in this light has presented it for valuation. Counsel for Davis, however, gives no particular locality to the deficient land; regards it as making a part of a large-sugar plantation; reflects upon it a proportionate degree of the improvements made upon the plantation as a whole; views it in the exact condition which it was supposed to have, at the time of the sale, and by au average estimate, with the price of the entire land, determines the proportionate value of the 193 acres of which there is a deficiency. He. places the quality of the 193 acres upon an average basis; and, having thus fixed the character of the land, he arrives at its value by ascertaining the sum given per acre? at the time of the purchase by Davis, and muL tipíyifig that amount by 193. Ibis is, essentially, an avei-agé computa-' tion throughout; and, in cases of deficiency, that mode o'f ascertaining the damage sustained by the purchaser is the only one which can be Mooted. Where there is an eviction, it might, perhaps, be otherwise, The land from which the party maybe evicted can be examined; its condition, quality and value shown; and, under such circumstances, the relative instead of the average value of the-evicted premises might be the true criterion whereby to measure the damages sustained. Not so, however, where diminution of price is claimed on the ground of deficiency in the land sold.</p> <p>Chancellor Kent, in his Commentaries, p. 477, vol. 4, edition 1848, lays down the rule of computation in cases of eviction and deficiency, and in relation to the latter he says : “The measure of compensation for a deficiency in the quantity of land, in the case of a sale by the acre, unattended by special circumstances, has been assumed, in some cases, to be. the average and not the relative value. But, in cases of eviction, justice evidently requires that the relative instead of the average value be taken as the rule of computation. ” Such, likewise, seems to be the view taken by your honors, in the opinión reported in 14 Annual, 869. The language of Mr. Justice Land is : “If a vendor has the right to tender other lands in satisfaction of a vendee’s demand for a reduction of price, in consequence of a deficiency in the quantity of land sold, the tender should be of lands of the same quality and value as those actually conveyed, * And the same rule necessarily applies, when the deficiency is supplied otherwise than by a tender.</p> <p>The nature of this suit is well stated by the appellant’s counsel, as follows :</p> <p>“ This is an injunction suit, to arrest the execution of an order of seizure and sale, sued out for the collection of a mortgage note, given in part payment of the price of a plantation and slaves, purchased by the plaintiff from one Benjamin L. Millaudon. The ground upon which Davis now claims to maintain the injunction is a deficiency in the. quantity of land sold, exceeding one-twentieth, and which, he avers, has diminished the value of the plantation in the the sum of, at least, $16,000.”</p> <p>The answer of the defendant denies the right of the plaintiff to call upon him for a diminution of price, for various reasons. The principal reason is that the sale from the defendant to the plaintiff, being one from boundary to boundary, is a sale per aversionem, and therefore gives no right of action for a diminution of price.</p> <p>Article 2471, C. C.: “ There can be 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.”</p> <p>The property sold is thus described in the act of sale, to wit: “ A certain sugar plantation situated on the Bayou Terre aux Bceufs, in the said parish of St. Bernard, known by the name of Ooiron’s estate, at about three miles from the river Mississippi, said parcel or tract of land being and lying on both sides of the said Bayou aux Bceufs, and measuring 1,620-arpents, and being bounded on both sides of the said bayou, on the up-¡ per line by land belonging to the heirs ol Joseph Ramirez, and on the lower line by land belonging to the estate of Joseph Sanchez.”</p> <p>Such is the description given of the property sold, and the question arises: Is this not a sale from boundary to boundary? It is impossible to imagine a case more in point than the present one for the illustration of what is termed in our jurisprudence a saleper aversionem.</p> <p>In O. H. Bavis v, Laurent Millaudon, the same point being raised for the same object, the court was called upon to determine the nature of this sale, and the court held : “The sale from B. L. Millaudon to Davis is a sale per aversionem. ” 14 A. 808; G. li. Bavis v. Laurent Millaudon.</p> <p>This case, however, has been once already on appeal before this court, and is now presented to your honors for the second time ; and the counsel for the appellant says, at page 5 of his additional brief : “ The characteristics of the act of sale in question were laid before your honors upon the first appeal, for the purpose of obtaining a decision from the court, whether the sale was one per aversionem., or not. This court held that it was not a saleper aversionem, and remanded the cause to enable the plaintiff to establish his demand in diminution, based ujdou the deficiency of land. The judgment of your honors upon the question per aversionem, like your opinion upon the plea of tender, forms res judicaia; and the character of the act of sale in controversy is no longer open to inquiry.”</p> <p>Thé counsel is clearly mistaken.</p> <p>This court has not held, in the judgment referred to, that the sale was not one per aversionem.</p> <p>The decision rendered upon the first appeal involved only matters incidental to the main issue; and the cause was remanded, not as the counsel says, “to enable the plaintiff to establish his demand in diminution, based upon the deficiency of land,” but, in the very terms .of the. decree, “remanded to the lower court for further proceedings according to law.” The record shows that, in the course of the first trial in the court below, the defendant filed a supplementary answer, in which, amongst other pleas, the following is to be found ;</p> <p>“ That, though denying the right of the plaintiff to call upon him for a-diminution of price, for the various reasons set forth in this and the original answer, yet, this respondent has purchased from the government, on the 19th day of July last, some two hundred and fifty acres of land, in the rear of that portion of the plantation which lies on the right bank of the bayou, which this respondent hereby tenders to said plaintiff, to be considered as forming a portion and parcel of his plantation.” .</p> <p>A fundamental error is in confounding as identical the plea of payment and the plea of tender.</p> <p>Payment is one of the modes by which obligations are extinguished. Art. 2126, C. C.</p> <p>It is a cardinal rule that every payment pre-supposes a debt. Art. 2129, O.O.</p> <p>It follows, of course, that whenever a plea of payment is entered it admits the pre-existence of the debt which it assumes to have extinguished.</p> <p>Hence, the Supreme Court has invariably held that the plea of payment $8 a peremptory exception; it is a plea going to extinguish the action. It must therefore be pleaded specially, and of course it assumes the preexistence of the claim, because a thing that was not could not have been, extinguished. 6 L. 457, Gleises v. Faurie.</p> <p>A tender, on the contrary, is a totally different plea. It is surely an admission of something, but a material inquiry arises as to the essence of the offer, in order to ascertain what is admitted. If it be an unconditional tender of the thing demanded, it is at once an admission of the right and a satisfaction of the claim of the other party. But if it is made without prejudice, in a manner showing the party is willing to submit to a sacrifice and to make a concession, the circumstance of such an admission cannot be disconnected from it. It is a most lamentable mistake to say that an admission, thus made, is inconsistent with g plea that the thing demanded is not due. The declarations and qualifications accompanying the tender, on the contrary, are most essential to give it its true character.</p> <p>“ The judicial confession is the declaration which the party makes in a judicial proceeding. It cannot be divided aginst him.” Article 2270, C. C.</p> <p>“A distinction is taken between the admission of particular facts and an offer of :a sum of money to buy peace. For, as Lord Mansfield observed, it must be permitted to men to buy their-peace without prejudice to them, if the offer should not succeed; and such offers are made to stop litigation, without regard to the question whether anything is* due or not. If, therefore, the defendant, being sued for £100, should offer the plaintiff £20, this is not admissible in evidence, for it is irrelevant to the issue; it neither admits nor ascertains any debt; and is no more than saying he would give £20 to be rid of the action.” 1 Greenleaf, \ 192.</p> <p>In a case where an offer to pay a portion of the debt was urged as an assent to the interruption of prescription, this court said :</p> <p>“We consider the conversation, taken as a whole, as a proposition by the defendant to buy his peace, as an offer of partial payment, .upon condition that the note should be given up to him, which proposition was declined, and so the position of the parties remained unchanged.” 9 A. 17, Lackey v. MacMurdo.</p>

from the Sixth District Court of New Orleans, Howell, J. The defendant, Courcelle, undertook to build a verandah to a house situated on Marais street, between Customhouse and Bienville. He gave the contract for furnishing- the iron work to Bennett & Lurges, and the contract for slating to J. B. Brown, who employed the plaintiff as a slater.

<p>Where the record does not show a transfer of a right to the plaintiff, the case will he remanded.</p>

<p>where, in complicated accounts between the syndic and the creditors, the court a quo appointed an umpire to decide, and an accountant to investigate the accounts, the judgment will be affirmed.</p>

from the Third Judicial District Court of Jefferson, Burfhe, J. -Our Code, Article 1915, says that, in cases, however, of contracts, which purport to transfer immovable -property, they are avoidable oil a charge of fraud, by persons acquiring bona fide immediate rights by contract with the debtor. The 13 Annual Reports, in the case of A. Qiraud el ah.

<p>WheTe a married woman is separated from her husband in property, and doing business as a public merchant, she cannot plead that the draft accepted by her did not inure to her personal benefit.</p>

<p>Article 2199of the Civil Code applies when there is a solidarity as between the co-debtors; and can only be invoiced when a creditor, by discharging one, deprives tile co-debtor of his recourse upon the one discharged.</p>

<p>Riscllnbitifift is called the avoidance of a sale on account of some vice or defect in tfie thing sold, which renders it absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice.</p>

<p>from John D. Kemper, Esq., Parish of Jefferson.</p>

l'rom the Second District Oourt of New Orleans, Morgan, J, The incapacity of the wife to contract is removed by the assent of the husband (O. 0. 1775, 2420, 1779); but this is true only in eases where she can legally contract. For example, she can only contract with her husband in certain cases. 0. 0. 2421. She tcan not, excepting in certain enumerated cases, dispose of her dotal property. 0. 0. 2337.

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

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

<p>The statutes and regulations which corporations enact for their police and discipline, are obliga1 tory upon all their respective members, who are bound to obey them, provided such statutes contain nothing contrary to the laws of public liberty, or to the interest of others.</p> <p>There is one principle oommon to the trustees of all incorporated churches. They have the possession and the custody of the temporalities of the church. They are considered virtute oj/icii entitled to the possession, and are lawfully seized of the grounds, buildings, and other property belonging to the church. Though they hold the church property in trust for the congregation, still, it is their possession, and the courts are bound to protect them against every irregular and unlawful intrusion, made against their will, whether by the pastor, members of the congregation, ■or by strangers.</p>

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

from tlie Fourth District Court of New Orleans, Price, J. Cigars are goods very liable to be missed at a fire; such things cannot be avoided. Michal Deggan, witness for plaintiff, says: That the roof of the building was burnt considerably, and also the openings and corner windows were all scorched; the engines played on the building.

<p>Heirs, while they are not concluded by a tableau of distribution, have yet the right to appear and oppose it.</p> <p>A rule is not the proper mode to dispose of an opposition, when excepted to.</p>

<p>JL.L PPEAL from the Fifth District Court of New Orleans, Eggleston, J.</p> <p>This suit began by attachment. Lewis & Oglesby, a commercial firm of the city, were made parties as garnishees and questions propounded to them. They answered, admitting they had funds in their hands to the credit of defendants, Garrett & Wynne, amounting to $620 71. The garnishees admitted in their answers an unconditional liability for the amount to defendants, and urged no plea of defence whatever. The defendants, Garrett & Wynne, confessed judgment for the amount claimed against them; and judgment was accordingly entered in favor of plaintiff, recognizing his privilege upon the sum of $620 71, in the hands of Lewis & Oglesby, and ordering them to pay over to plaintiff the amount so Attached in their hands. It will also be noticed that defendants consented, in writing, that the sum attached in the hands of garnishees be paid over to the plaintiff. This judgment was rendered and signed on the 8th of June, 1861.</p> <p>The garnishees have apxDealed from this judgment. The special errors set forth by them in their motion for an appeal, are : 1. The courts were, by formal decree, adjourned previous to the 8th June, 1861, and consequently no decree could be rendered against them. 2. That the judgment was improperly signed on the 8th June, the same day it was rendered ; when, by law, it could not be signed except after three days. The third ground is a general one, that the .judgment does him an irreparable injury.</p> <p>The record does not furnish any specific evidence in relation to the adjournment of the court. The only testimony in relation to the matter is found in the opinion of the judge of the court below, on the motion to set aside the appeal We are satisfied to’ submit that point on the opinion of the judge below.</p> <p>In relation to the second ground, that the judgment was prematurely signed, it is sufficient to answer that this did not injure in any manner the party. He could still have applied and obtained a new trial. The Supreme Court has recognized the doctrine that applications for new trials can be made after the signature of the judgment, if done before the expiration of three days. See Marigny v. Stanley, 2 L. 322; Hubbell v. Clannon, 13 L. 496.</p> <p>• The judgment has not operated to the injury of the garnishees. The rule is, that garnishees are merely stakeholders. The only issue they can raise is for the purpose of protecting themselves in relation to the validity of the payment by them to the attaching creditors. In this case no issue whatever was raised by the garnishees ; they simply came into court and admitted they owed plaintiff a certain sum of money. This was, to all intents and purposes, a confession of judgment, which estops the party from appealing. 5 R. 447; 0. P. 567; 14 L. 523; 5 A. R. 598.</p> <p>Had the garnishees any valid defence to paying this money, it was their duty to urge it in the answers they made to the interrogatories. Having admitted an unconditional liability, it is to be presumed they had no just ground with which to defend themselves.</p>

<p>Evidence of fraud, etc., in an action on a policy of insurance, can only be admitted when specially pleaded; it is not admissible under the plea of tho general issue.</p> <p>"What third persons said out of court, and oral testimony of criminal proceedings, is not the best evidence, and inadmissible.</p> <p>"Where a criminal ebavge is to be proved by circumstantial evidence, the proof ought not only to be consistent -with the prisoner’s guilt, but inconsistent with any other rational conclusion.</p> <p>Where the testimony, as to the amount of a certain portion of the goods destroyed, is vague and uncertain, that part will be reserved for further action.</p>

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

<p>haroi testimony cannot be received to establish a contract of sale of immovables, or show damages resulting from the non-compliance of the vendor in refusing to pass the act of sale. Even a promise to sell must be proved in writing.</p>

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

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

from the Sixth District Court of New Orleans, Howell, J. 1. The appeal was granted on a rule to show cause, moved by defendant, for the purpose of quashing the writ of seizure and sale, and after all the proceedings in the cause were closed. Such judgment was not a final judgment, nor an interlocutory judgment, nor a judgment in the cause; but was a judgment posterior to ail these. C. P. 565, 566. 2.

<p>Conventional interest will not be allowed upon a contract unless expressly stipulated.</p>

<p>'When goods, produce, or other objects are not sold in a lump, but by weight, by tale, or by measure > the sale is not perfect, inasmuch as the things sold are at the risk of the seller, until they be weighed, counted or measured; but the buyer may require either the delivery, or damages, in case of the non-execution of the contract.</p> <p>If the object to be given is uncertain, it is at the risk of the creditor only from the time he is in legal default for not receiving the thing after it has been tendered.</p> <p>Damages are properly assessed by the judge a quo at the time the defendants were put in default.</p>

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

from the Sixth District Court of New Orleans, Duplaniier, J. Any one having an interest may intervene. C. P. 390. The court cannot refuse the intervention. C. P. 394.

<p>Until goods have been received and reshipped, or until the receiver had notified the eventual consignees that they would be forwarded according to instructions, they must be considered as under the control of the receiver, and, of course, liable to attachment by their creditors.</p>

<p>Masters and employers are answerable for the damages occasioned by their servants and overseers in the exercise of the funtions in which they are employed.</p> <p>The Article’522 O. P. is directory, and a substantial compliance -with its provisions will be sustained, if the verdict is not objected to at the trial by the defendants.</p> <p>Where no interest is given by the verdict the judgment should give none.</p>

from the Second District Court of New Orleans, Morgan, J. On motion to dismiss the appeal, the transcript not having been filed within the time prescribed by law. The appeal, if filed on the third judicial day, will be in time, otherwise it will be dismissed. 5 N. S. 192; 8 N. S. 184; 4 L. 68; 3L. 261; 6 L. 348; 7 L. 344; 10 L. 600, 603; 6 A. 31; 2 A. 769; 3 A. 226; 6 A. 42, 716, 744; 6 A. 274; 9 A. 66, 638 and 21; 16 Am. 712.

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

<p>where the note sued on hears eight per cent, interest, and the judgment below is for the same rate of interest, no damages will be accorded as for a frivolous appeal.</p>

<p>Where a. road, once dedicated to publio use, ha3 since ceased to be used for public purposes, and. is not required by front proprietors thereon, its soil reverts to the owners.</p>

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

<p>The slave who has acquired the right of being free at a future time, is, from that time, capable of receiving by testament or donation. Prop erby given or devised to him must be preserved for him, in order to be delivered to him in kind, when his emancipation shall take place. In the meantime it must be administered by a curator.</p>

<p>Where the defendant is cited personally, and as president of a company, and answers for himself alone, there is no issue joined, and the case will he remanded.</p>

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

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

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

<p>The city’s acceptance of the work, for which it was authorized to contract, is prima fade evidence of its completion and mode of execution against the front proprietor, who becomes thereby bound.</p> <p>In contracts to be performed at a future period, the obligation which grows out of the contract arises at the very moment of making it, but the right of action growing out of it arises only when the stipulated term has arrived.</p> <p>Execution of a judgment against a warrantor will be suspended until the warrantee shall have paid the amount thereof to the plaintiff.</p>

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

<p>W'hero the appoal is takon within tho usual delay, and security offered, a mandate will ir.sue compelling the judge a quo to send up the appeal, if the case is not within the exceptions men- • tioned in Article 680 of the Code of Practice.</p>

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

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

from the Sixth District Court of New Orleans, Howell, J. The act creating the corporation of the Commercial Bank of New Orleans was passed by the Legislature of Louisiana ■ in the year 1833. Acts, p. 151. It is stated in the preamble of the act that the chief object of the company is to be the conveying of water from the river into the city of New Orleans and its faubourgs, and into the houses of the inhabitants.

ÍX PPEAL from the Second District Court of New Orleans, Sandlin, J. 1. The amount in dispute is tested by the sum claimed in the petition. McKee v. Filis, 2 An. 163; Succession of Stafford, 12 Rob. 178; Gerber v. Marsoni, 3 Rob. 370. 2. The plaintiff cannot give jurisdiction by fictitious claims, even when embodied in his petition.

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

<p>ÍJL PPEAL from tlie Sixth District Court of New Orleans, Leaumonl, J.</p> <p>The verdict of the jury in this case is equivalent in law to a verdict on the defendant’s reconventional demand in favor of this plaintiff; that, in error, the judge of the lower court reserved the right of defendant to sue respondent in a new action ; and though a fair trial has been had before the jury on this reconvention, and a virtual verdict thereon rendered, permission is given to renew the same litigation hereafter, contrary to well settled principles of law. Interest rei publicas, ul sil finis litium.</p> <p>Wherefore, respondent prays that the judgment appealed from be amended, and final judgment rendered in his favor on the defendant’s re-conventional demand ; that, in all other respects, the judgment be affirmed, with costs and general relief.</p> <p>The judge, before whom the case was tried, erred in charging the jury that, “if the defendant accepted and used, without objection, the steamboat Bella Donna when she came from the hands of the plaintiff, he cannot recover, in reconvention, damages for failure of plaintiff to perform his duty in the premises.”</p> <p>In support of this doctrine, the judge cites the ease of Loreau v. De-clouel, 3 La. p. 1, and Dyerr v. Seals, 7 La. p. 134.</p> <p>The illustration, in the opinion of the judge, drawn from the art of portrait painting, is not in point. The plaintiff did not make and deliver to us a steamboat; if he had, we might, after a fair trial and acceptance, have been bound to pay him its real value; but no such state of facts is in this case. The facts are, that the plaintiff, as lessor of his professional skill, undertook to superintend the construction of the defendant’s steamboat, built upon the defendant’s barge with the defendant’s materials, and with labor paid by the defendant. The boat has always beenlthe defendant’s. The plaintiff has furnished to her nothing but his professional supervision, and this has proven to have been an injury. With what reason, then, can it be said that becairse the defendant has retained in his possession and use a boat which has always been his and always in his possession, he cannot maintain an action against the plaintiff for malpractice in his professional employment.</p> <p>So with the case of an apparatus for a broken leg, instanced by the judge below. That is not in point. The real illustration is a broken leg itself. If a surgeon sets my broken leg, and sets it so unskillfully that it is unduly distorted, can he reply to my claim for damages (precisely similar to the claim in reconvention in the case at bar), “you cannot recover because you have accepted and used your leg since I had it under my charge?” We think not. But the doctrine of the judge below, if carried out fully, would require me to abstain from walking (or limping) until my suit should be decided. It is equivalent to saying to the defendant in this ease : “You had no right to try or use your steamboat at all. You shoidd have abandoned her and let her rot until your case could have been tried. The fact that you are in possession of your own boat precludes you from suing' for damages to the boat. ”</p> <p>The cases of Lorenzo v. Declouel, and Dzjer v. Seals, then, merely establish this: that a plaintiff who has delivered incomplete work, which has been accepted, may recover its actual value, but they by no means decide that the dei'endent, in the same action, may not recover, in rcconvention, damages against the same plaintiff. On the contrary, when construed with the case of Overton v. Simozi, and tlio other cases cited ■ under the first point of this argument, they clearly show the contrary. . The spirit of these cases, as stated by Mr. Hennen with precision in his Digest, edition of 1861, p. 1025, No. 4, as follows :</p> <p>“In commutative contracts, a partial performance authorizes a recovery to the amount to which the other party is benefited, after deducting the damages sustained by a failure to perform the other parts of the agreement. ” 3 L. 1, 4 L. 465, etc.</p> <p>The jury neglected to make any. finding upon the claim of the defendant. Whether this arose from the erroneous charge of the judge, or from ignorance on the part of the jury, is impossible to determine. But the fact remains that the claim of the defendant was pleaded, proven and submitted to the jury, and yet remains undecided by them. It should be sent back to a jury for decision. Johnston v. Bagley, 4 La. p. 334; Welsh v. Baz'row, 9 R. p. 520.</p> <p>The cases cited by the judge below, in opposition to this view, are not in point. The first, Kelly v. Galdwell, 4 La. p. 40, was .a case where damages were claimed by plaintiff, an actor, for breach of contract, and the defendant reconvened and charged the breach to have been occasioned by the plaintiff. There was but one question, one breach of contract, in the case, and the court very justly decided that a verdict in favor of the latter was a verdict against the former.</p> <p>But, in the case at bar, as in tlio case of Overton v. Simon, it is not impossible for both parties to recover, the plaintiff for his labor, and the defendant for his damages; and the rule, in Johnston v. Bagley, applies, namely: that the defendant cannot be put out of court with the pleasing assurance that he may bring a new suit, but that he is entitled to have a finding upon its pleadings and evidence.</p> <p>The other cases cited by the judge below are equally inapplicable. M'win et al. v. Bissell el at, 17 La. p. 92, was an action to compel compensation of a judgment, and the question we are considering, coming up quite. indirectly, was disposed of thus: “Admitting that it might have been assumed as error that the jury took .no.notice of the reconvention, yet no objection was made to the form of the verdict on the appeal, and in our opinion the judgment forms the authority of the thing adjudged.”</p> <p>The case of Theriot v. Henderson, 6 An. 222, is based by the court upon that' of Kelly v. Galdwell, and should be limited to the state of facts 'reported in the latter.</p>

Ü. l’PEAL from the Second District Court oí Now Orleans, Morgan, Plaintiff, a'married woman, alleging her domicil in Virginia, sues the succession of her husband’s father, on the following contract, and makes her husband’s mother a party to the suit : “Whereas, a marriage was consummated in the year 1852, between Nemours Pecquet, late of New Orleans, in the 'United States, and Catherine Ambler Moncure, daughter of Henry W. Moucuro, of the city of Kichmond, in tho State of…

<p>xA PPEAL from the District Court of Parish of Placquemine, Foulho 'ize, J.</p>

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

<p>No appeal will lie, except as regards minors, after a year lias expired, to he computed from the day on which the final judgment was rendered.</p> <p>A second appeal may lie granted when the first has been dismissed without a decision on its merits.</p> <p>Where an appeal was taken in the court a quo, the fact that no appellate court existed would not interrupt the prescription. It might be otherwise if there had been no judge in the lower court to grant an appeal.</p>

<p>from the Second District Court of New Orleans, Moi'gan, J.</p>

from the Third District Court of New Orleans, Duvigneaud, J. As to plaintiffs being .negoliorum ges-tores, the law is plainly against them. Defendant had no need of a nego-liorum gestor; he was here in town, and had the matter been communicated to him, which there was nothing to prevent, he could have attended to it himself. ■ See Dig. b. 8, tit, 5. Hoc edicium neeessarhvm, etc. Inst. b. 3, tit. 28.

1 -Li PPEAL from tlio Sixth District Court of New Orleans, Howell, J. This is an action for damages, brought by the father of a child tilled at the Carrollton railroad depot, on. the 31st of January, 1860, from being knocked down by a locomotivo engine and run over. Both legs of the boy were crushed, and amputation ineffectually resorted to to save his life.

<p>li. PPEAL from the-Fourth District Court of New Orleans, Price, J.</p> <p>We have before remarked that there is no evidence to show that the plaintiff was bound to account for the proceeds of tho note in question. But even if he were, Ms obligation was not that of a depositary. Tho relation between Mm and the defendant was simply that of 'debtor and creditor. Few Orleans & Car-rollton Railroad Company v. T. B. Harper, 11 A. B. 212; Matthews, Finley & Co. v. Their Creditors, 10 A. R. 342; Sims v. Blean, 10 An. 346.</p> <p>Nor can the plea of prescription be defeated by the rule “yuca tempo-ralia sunt ad agenchm sunt perpetua ad excipiiendum. ” That rule only applies where the claims sought to be compensated are connected together and grow out of the same affair. Boeto v. Laine, 3 An. 141; Girocl v. His Creditors, 2 An. 546; Troplong, de la Prescription, No. 833.</p> <p>The judgment of the court below was for the amount demanded by the plaintiff in his petition. We respectfully refer to the judgment and opinion of the lower court.</p> <p>We respectfully pray for an affirmance of tho judgment and costs.</p> <p>There is a paper pasted on the first page of the transcript, wMeh, your honors will perceive, forms no part of it. This paper bears no date, but was filed in this court on the 13th of November, 1861, the day after the transcript was filed. And the certificate. of the clerk, bearing date the 29th of October, 1861, certifies that the transcript contains a full and complete transcript of all the proceedings had, documents filed, and testimony adduced, on the trial of the cause. No statement of facts was therefore admissible, and if so, it was not made in the manner, nor within the time required bylaw. O. P. 602, 603; 8 N. S. 305; 3 L. R. 455; 16 L. R. 137; 10 An. 554.</p> <p>This plea of prescription is untenable. L. MiUaudon was either a depositary or an agent. If depositary, the law does not allow him to set up the plea of prescription. If an agent, he is in no better condition.</p> <p>The Civil Code, Art. 3476, says: “Those who possess for others, and not in their own. name, cannot prescribe, whatever may be the time of their possession; thus, former tenants, depositaries, usufructuaries, and all those generally who hold by a precarious tenure in the name of the proprietor, cannot prescribe on the thing thus held.”</p> <p>Commenting upon Art. 2236 of the Napoleon Code, which corresponds to the above quoted article of the Louisiana Code, Troplong says:</p> <p>“ Lo mandataíre a une possession précaire, puisqu’il reconnait un mai-tre ii qui il doit rendre compte.</p> <p>“Mais une possession ammo domini courra-t-elle pour lui h compter de la cessation légale du mandat, .ou. bien a compter de la reddition de compte?</p> <p>“ Je pense que pour que le Yice de précarité soit purge, le mandataire doit presenter une décharge de son mandant. ALors seulement il y a intervention par le fait d’un tiers, conformément a l’article 2238 (Lord-siana Code en 3478), sans quoi la possession continue á rester une possession pour autrui.</p> <p>“S’il n’y avail pas eu une reddition de compte, on se déciderait par les principes exposes au numéro precedent. Trente annees écoulées depuis la cessation légale du mandat feraient supposor que le compte a été rendu a lo moment, ot que le mandant s’en est contenté; on en conclurait done que la possession bonne pour précaire, apres son point initial, parcequ’il y a eu interversión réelle ou présuméo par le fait de celui qui y était intervene. Troplong, Prescription, p. 490.</p> <p>Thus, as your honors perceive, a mandatory who, under our laws as well as those of Prance, has a precarious possession of what belongs to his principal, can only plead prescription in two cases, viz:</p> <p>1. When he can show a discharge from his principal.</p> <p>2. When thirty years in Prance and ten years in Louisiana have elapsed since the cessation légale of the mandate, and no account has been rendered; and in this latter case, prescription is based upon a supposed interversión, originating from the silence and inaction of the interested party (that is the principal) during the time fixed by law; which necessarily implies that the principal was aware of the cessation of the mandate.</p> <p>Your honors’ predecessors have adopted these views of Troplong, and even have gone further in the much litigated case of McDonogh v. DeLas-sus et at, 10 R. R.; they say, on page 487:</p> <p>“It seems to us that the law does not, by the contract of agency, establish at once the relation of debtor and creditor, between the agent and principal. That the former may easily become a debtor and the latter a creditor is undeniable; but not, wo suppose, until the dissolution of the contract, and the neglect or refusal of the agent to account and pay over the funds and property in his hands.”</p> <p>And on page 488 : “We are not prepared to establish, as a general rule, that the relation of principal and agent is that of creditor and debtor; as soon as the latter receives money or property for the former, we regard it as something more. It is a trust, and the receipt of money or property does not give the agent a title to it, which would be the case if he be regarded as a debtor alone.”</p> <p>Now, if the mandatory does not become the debtor of his principal upon receiving money or property belonging to the latter; if he is a mere trustee and acquires no title to the money or property thus received by Mm, the inevitable consequence is that Ms possession continues to be precarious, and be cannot set up the plea of prescription, whatever maybe the time of that possession.</p> <p>But it may be objected that the prescription, nevertheless, runs according to Troplong, from the cessation legale of the mandate ; and, according to the Supreme Court, from the dissolution of the contract; and that, in this particular case, the cessation legale or dissolution of the contract had taken place more than ten years before our plea of compensation was set up. There might be some force in the objection, if the mandate in this case had had, either by the will of the law or the agreement of the parties, a fixed period of duration ; for then, it might very properly be contended, that the principal know or was bound to know the precise time when the contract was dissolved, or. had legally ceased to exist. But, in this case, the mandate had, neither in law nor by the will of the parties, any determinate period of duration; until the note was collected, the agency was in force. It only ceased to exist when the money was received by L. Millaudon. In other words, the mandate ceased to exist upon the happening of a fact, that of payment, which Millaudon was necessarily aware of, which it was his duty to bring home to our knowledge, but which he concealed from, or, at least, failed to communicate to us.</p>

<p>A party cannot be callod into court ancl then have his capacity to stand in judgment questioned.</p>

<p>A judge cannot exercise his discretion relative to the time of the trial of cases. The legislature has established the terms of the courts. Neither can he refuse a judgment by default at the proper time; or grant a continuance, without the forms of law being strictly complied with. The judiciary is not invested by the constitution with legislative powers, and cannot deprive the citizen, by its rules, of his legal rights.</p>

<p>Where a party comes into possession of property by dation en gaiement, places his own clerk and other employees upon it, although he retains his transferror as a manufacturer, the contract will be valid, and it cannot be seized for the debts of the latter,</p>

from the Second District Court of New Orleans, Morgan, J. 1. Obligations are extinguished by payment, novation, prescription, etc. O. 0. 2126. A mortgage is ■accessory to a principal obligation. 0. 0. 3252. Hence, it follows that, when the obligation is extinguished by prescription, the mortgage is gone. 3253, 3374, Nos. 4 and 6, 1 Hen. Dig. (new ed.) p. 959; No. 1 and p. 960, No. 17; LeBeau v. Gage, 8 An. 474.

<p>In tile transfer of debts, rights or credits to third parties, the dciivcry tabes place between the trans-ferror and transferree by the giving of the title.</p> <p>The transferree is only possessed, as it regards third persons, after notico has been given to the debtor of the transfer having taken place. The transforree may, nevertheless, become possessed by the acceptance of the transfer by the debtor in an authentic act.</p> <p>The property of the debtor is always held liable to his creditors until a full and complete transfer and tradition is made to the purchaser.</p> <p>The creditors of a consignor can attach merchandize, or its proceeds, in the hands of the consignee, until the instructions, verbal or written, to pay the proceeds of sale to a third party have been communicated to, and the stipulation in his favor accopbed, by him. The principle is, that the consignee must come under direct obligation to tho assignee.</p> <p>Thore is no such interest shown in a third party as to roquire him to bo cited; nor to make it unsafe for garnishees to pay as ordered.</p>

Ü. PPEAL from the Sixth District Court of New Orleans, Leaumont, J. 1. A stim of money deposited with a banker is not a real deposit. L. C. 2904. The only real deposit. L. C. 2934. 2. Money thus deposited is “a loan for use” to the banker. See L. C. 2883, 2884; Story on Bailments, g 64, p. 65; Matthews, Finley & Go. v. Their Creditors, 10 An. 342; Sims v. Bean, 10 An. 346; Grant on Banking, page 1. 3. Loan for use transfers the property to the loanee.

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

<p>from the Sixth District Court of New Orleans, Howell, J.</p> <p>This is a suit to recover damages by reason of a breach of the contract of affreightment. Plaintiffs, on the 21st of December, 1859, shipped on board the Oleopatra, at Marseilles, for the port of New Orleans, a certain'quantity of walnuts, to bo delivered in the port of New Orleans.</p> <p>P. E. Gaillot deposes that, as a merchant at Marseilles, he shipped the walnuts in good order and condition. The shipment began on the 16th, and was completed on the 19th December, 1859. The vessel was first advertised to leave from the 5th to the 10th day of December. The vessel sailed on the 8th February, 1860. She was first advertised to sail on the 8th of November, 1859. In consequence of the captain delaying or refusing to depart, he made a protest. He was informed by the ship brokers that the Cleopatra would sail at Christmas, the farthest; the weather was not unfavorable; parcels of walnuts, proceeding from the same lot, purchased and shipped at the same time, among which twenty-five bales sent to New York, by the Ella Cooper, arrived in good condition.</p> <p>Carrier bound to deliver within reasonable time. Rathbone v. Neal, 4 An. 563. .</p> <p>1. The master of the vessel was in default; ho should have sailed on the day advertised. No custom, attempted to be proved, can exonerate him from the responsibility; he was bound to keep his promise, made in the advertisement. On the 5th day of December, a protest was made by the shippers, ■wherein it is established “ that he shipped goods on board of the Cleopatra, On the 1st day of December, on the promise made by the ship’s agents, that she would sail positively on the 5th day of Decern-ber; that, instead of sailing on that day, she remained in port till the beginning of February, 1860.</p> <p>There was a special promise made to the shipper, as to the time of departure, otherwise he would not have shipped them.</p> <p>The weather did not prevent the Cleopatra from sailing, as it will be seen by the testimony of Alby. The ships are named that sailed in December and January. See also Aicard, who deposes substantially to the same facts, and adds: “ The Cleopatra might have taken her cargo in twenty-five or thirty days; the weather was not the cause of the delay. ”</p> <p>The judge of the lower court errs in saying: “There was a delay, beyond the anticipated time, of about 18 or 20.... He forgot that the testimony of the witnesses, who swear that the special promise m'ade was the 5th of December! This is not contradicted. From the evidence it appears the Cleopatra was detained upwards of two months.</p> <p>2. Was there any excuse for this delay? The judge says, it is accounted for by wind, bad weather, difficulty in shipping a crew, and sickness of the captain, and in the further difficulty of immediately procuring a full miscellaneous cargo in the port of Marseilles.</p> <p>We think that the evidence shows a different state of facts. As to the weather, the fact of the departure of other vessels shows that there was no such cause. The difficulty in shipping a crew is hard to believe, in such a port as Marseilles. There is no evidence substantiating this in anything of a satisfactory manner; it is an after-thought. Sickness of the captain? How is this proved? The further difficulty in procuring a cargo ? But the vessel was advertised to start on a particular day, and it does lie in the mouth of the master to say, that he did not mean it. Our witnesses are the well known and respectable business men of Marseilles.</p> <p>The first witness of the defendant is the mate; and the bias of this man, in the employment of defendant, is apparent. He talks of the inclemency of the weather! forgets the departure of other vessels. He makes the statement that the walnuts arrived in New Orleans, in apparent good order; flatly contradicted by witnesses Gb-aus, Gazaire, Trinchará. Their next witness is Olivari; also Bartolomeo Olivari. What they say is exaggerated, as to the time it takes a vessel to load in Marseilles, and has no bearing on the point at issue here. The master undertook to sail on a day fixed. Their other witnesses are Gv.eralamo, Lavarelli and Bartholomo, sailors, like the others, and attribute the delay to stress of vreather.</p> <p>If this was the fact, how is it that the master did not prove it by witnesses of known respectability in Marseilles, instead of resorting to biased sea-faring men ? We have established a different state of facts by persons residing in Marseilles.</p> <p>8. Had the master departed at the time promised, the walnuts would have arrived here, sound, in the port of New Orleans. It was all the fault of the master; he is bound to repair the damage. The amount of damages sustained will appear by the testimony of Gb-aus, Gazaire, Trin-chará, Gi-egorio. The walnuts, when they arrived, were heated and rancid. They had no appearance of being damaged by salt water; they were full of worms. The sale was properly advertised.</p>

<p>No bailee is responsible for nob insuring goods under bis charge, unless he has instructions so to do.</p>

it PPEAL from the Fifth District Court of New Orleans, Eggleston, J. The plaintiff claims $510 and interest, for services of her minor son, Constance, rendered to defendants. The judgment of the lower court is fully supported by the evidence and the law, and should be affirmed. As to defendant’s plea to the jurisdiction, see C. P. Art. 285, § 3, and Art. 289; 5 An. R. pp. 349 to 353. Plaintiff’s privilege : See C. C. 3204, par. 6, and Acts 1858, p. Ill, 81.

from the Fourth District Court of Now Orleans, Theard, J. This application is based upon the refusal of the District judge to allow the plaintiff' to bond sequestered property, after the… Held: “Suit may be brought on a note not negotiable in the name of the payee for tiip use of the transferree.” Dayton v. Commercial Bank, 6 R. B. 17. “ In an action by one for the use of another, tho latter is tho real plaintiff.” Rawle, for Hie use of Russel, v. SleipworiU at re.e, TJL.

<p>Legal presumption is tliat which is attached, by a special law, to certain acts or to certain facts; such as the weight which the law attaches to the confession of the party, or to his oath.</p>

Plaintiffs claim four hundred and eleven dollars damages, caused by the carelessness and negligence of the defendant, as a common carrier, by taking into his charge and towing, with his steam job-boat Downs, a lot of skip timber from Battle Ground Flats, below the city, to Algiers.

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

from the Third District Court of New Orleans, Sandlin, J. This is a suit to recover §1,160 20, the balance of the price of oakum sold by Philip McGuire to defendants. The defendants admit they made the purchase, but allege that, on a previous occasion, they purchased from McGuire a lot of oakum, and when McGuire sold them the oakum, the subject of this suit, he represented it to be of the same quality as that which had been previously bought from him by defendants.

<p>_[%_ PPEML from the Third District Court of New Orleans, Fellowes, J.</p>

<p>When, the law of the land, and that which the parties have made for themselves by their oontract, are silent, courts must apply those principles to determine what ought to be the incidents to a contract, which are required by equity.</p>

<p>When tlio creditors of a succession, or an insolvent estate, who have an important interest in maintaining a judgment, have not beeu cited, nor their citation asked tor by appellant, the appeal will be dismissed.</p>

from the Sixth District Court of New Orleans, Beaumont, J. The laws of tho port of shipment, not of destination, govern a contact of affreightment, Hampton v, Thaddeus¡ é M. 584; Hennen’s Digest, 1423, No. 1; Felix, Droit International, privé, vol. 1, Nos. 96 et 210. Connaissement, C. Com. Art. 222. Le capitaine est responsable des marehandises dont il se charge. H en fournit nne reconnaissance. Cette reconnaissance se nomme con-naissement.

_TjL PPEAL from the Third District Court of New Orleans, Felbwes, J. J. R. Terry, as plaintiff, presented his petition to the Third District Court of New Orleans, setting forth the following facts : That, whilst in the lawful possession and enjoyment of the office of register of voters, in and for the parish of Orleans, he was forcibly dis-loossessed of said office by O. W. Stauffer, defendant herein, under the pretext that he was lawfully removed therefrom, and the said…

<p>PPEAL from the Sixth District Court of New Orleans, Duplantier, J.</p> <p>So far as plaintiff is concerned, Cook & Brother were in possession, as owners, of the coal at the date of •our purchase. We bought and paid, and received possession of the coal, 'without any knowledge of any hidden equities between the city and Cook & Brother. Indeed, these equities are not shown by the record, directly or indirectly; whether Cook & Brother owes the city, or the city owes them, is equally in doubt. For these secret equities, the plaintiff, whose .good faith is not impugned, must not be permitted to suffer. This rule applies equally to movables as well as immovables. Story’s Equity, seo. 1503. Fullerton v. Kennedy, 6 An. 315, and cases therein cited. Tatum v. Wright, 7 An. 358.</p> <p>I. The evidence in this case shows, that the coal which isjthe subject of the suit, was bought by the city at an expense of $6,200, and was placed in the yard near the manufacturing establishment of Cook & Brother, to be used by them for the service of the Confederate government, in March, 1862.</p> <p>H. The plaintiffs claim to have bought this coal from Cook & Brother. If Cook & Brother sold it, it was the sale of the property of another, and null. Vide C. C. 2427.</p> <p>But was there any real sale? It is clear that there was not, if all the circumstances of the case are fairly weighed and considered.</p> <p>1st. The time when it is pretended to have been made is extremely suspicious. It was on the 28th of April, 1862, when the city was about to pass from the control of the Confederate authorities, and to be taken possession of by the national forces.</p> <p>2d. It was made in an unusual manner. A special power to sell by Cook & Brother, who were not the owners of the coal, is produced in evidence by the plaintiff, dated on the 15th of April 1862. The date of the execution of this pretended power is not established by proof. It was produced, and the signature of Cook & Brother sworn to by two witnesses before a justice of the peace, on the 8th of May, 1862, ten days after the pretended sale, and before the institution of the suit.</p> <p>3d. The price at which it is pretended the coal was sold to Moore was 65 cents a barrel, when it was worth, according to plaintiff’s witnesses, in the month of May, 1862, immediately after the sale, $1 50 to $1 75 a barrel.</p> <p>All these circumstances compel one to believe that the pretended sale was a fraud, and that no sale was made in good faith and for a real price. C. C. 2263, 2267, 1842.</p> <p>III. There is no legal evidence of any sale to the plaintiff. There is but one witness of the pretended sale, to wit: J. Andrews or Mr. W. J. Andrews. Mr. Hoag, the second person named in the pretended power or authority to sell, says: “ I had nothing to do with the selling or delivery of the coal; nothing more than knowing that the sale was going on. The sale was made by Mr. Andrews. I cannot tell when I wrote across the face of the document. I do not recollect at what time I concurred in the sale.”</p> <p>Mr. Andrews says: “I made this sale to Moore.” No one present, unless it was Mr. Field, when he made the sale. But Mr. Field gives no testimony as to the making of the contract of sale.</p> <p>If there was but one witness, W. J. Andrews, to the sale, the judgment must be reversed, for there are no corroborating circumstances. C. C. 2257.</p>

from the District Court of the Parish of Jefferson, White, J. The intervenor bonded the property attached by plaintiff, and was condemned, as bondman, to pay his claim and judgment. He appeals because the judgment rendered is void, for want of citation, appearance or representation of Maumus. The defendant then, by plaintiff’s own showing within the jurisdiction of the court, and who had no notice of attachment.

from tlie Sixth District Court of New Orleans, Buplaniier, J. The motion to dismiss is made on the ground that the appellants have not complied with Art. 897 C. P., which provides: “The appellant who does not rely, wholly or in part, on a statement of facts, an exception to the judge’s opinion, or special verdict, to sustain his appeal, but on an error of law appearing on the face of the record, shall be allowed to allege such error, if within ten days after the record is…

<p>APPEAL from the Third Judicial District Court of the Parish of Terre-bonne. Belden, J.</p>

from the Sixth District Oourt of New Orleans, Buplantíer. J. 1. The defendant bases his defence upon Art. 2667 of our Code. 2. The spirit of this Article pervades our whole legislation on the subject. See Arts. O. 0. 1893, 2662, 2666, 2669, 2699. 3. Our Art. 2667 O. 0. is drawn from Art. 1722 Napoleon Code, and both are nearly identical in terms. See the Commentaries of Marcadé on this Art. 6 Marcadé, 450. 4.

<p>In cases of insolvency all tlie ordinary debts, even those not due, are on an equality and must be paid proportionally.</p>

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

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

<p>This court lias only appellate jurisdiction. It is not vested with the power of correcting decrees of other courts, except on appeal See Const &rt. 70.</p> <p>It has no authority to take original jurisdiction of the case, substitute its opinion for that of the judge of the lower* court, and force him to pronounce its opinion, not his own, on the rights of the parties.</p>