Volume 18 — Louisiana Annual Reports

The defendants were bound to take such steps as would enable them to perform the voyage •with reasonable despatch. No mistake or oversight can protect them from damages in such case, even where the greatest care has been exercised. 2 Parson’s Mar. Law, 137. 1 Arnould on Ins. 675, 681. Angelí Com. Car. sec. 172, 173'. 4 An. R. 567. 5 An. 264. 6 N. S. 645. The learned counsel for defendants contend that the damage was produced by natural causes, for which they are not liable.

Defendants except to the captain appearing in this suit, pray over of his authority, and the names of his owners. •This exception was overruled, and we think rightly. L. C. 3213. The answer-is a general denial. Judgment was rendered for $1,399 44, interest and costs, virtually, payable in current funds; and from this judgment, after a labored effort to obtain a new trial, the plaintiff has appealed. The charter party is dated at Havana, 30th July, 1862.

<p>APPEAL from tbe Sixth District Court 6f New Orleans,</p>

<p>Every mechanic, workman, or other person, doing or performing any work towards the erection, construction or finishing of any building in this State, erected under a contract between the owner- and builder, or other person, whether such work shall bo performed as journeyman, laborer, cart-man, sub-contractor or otherwise, shall have a privilege upon the building.</p>

The answer concludes by a prayer in reconvention for one thousand dollars damages againstplaintiff. The Court thus perceives that both parties rely upon the contract, and claim damages for its violation, the plaintiff alleging a passive violation by defendant, and defendant an active- violation by plaintiff. In reviewing the evidence, we first call the attention of the Court to the proof .of putting in default of the defendant by plaintiff.

Orleans, — The question 'in this case arose on the trial of the opposition of Boisdoré to the application of 3?heo. Drouet, for the curatorship of this estate. As stated by the Court, in its reasons for judgment, the only question was, whether Boisdoré was a creditor or not... The deceased had been for many years an interdict, by reason of insanity, and her estate, of some $17,000, was administered by one Aicard. The property was all improved, and bringing in quite a revenue.

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

<p>Every marriage contracted in this State, superinduces of right, partnership or community of acquets or gains, if there be no stipulation to the contrary.</p> <p>All property hereafter acquired in this State by non-resident married persons, whether the title thereto be in the name of either the husband or wife, or in their joint names, shall be subject to the same provisions of law which now regulates the community of acquets and gains between citizens of this State.</p> <p>Husband and wife are prohibited from contracting with each other except for certain specified purposes.</p> <p>A pledgee of a promissory note to secure a certain sum on it, cannot deprive the maker of all equitable defence against the payee, who is still a part owner thereof.</p>

<p>Interest can only be allowed from the date of tbe judgment liquidating the damages in an action of trespass, not from judicial demand.</p>

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

<p>The place in which a succession is opened, is, and in future shall he held to he, as follows, notwithstanding any former law to the contrary: In the parish where the deceased resided, if he hada domicil or fixed place of residence in the State; in the parish where he left landed property, if he had neither domicil nor place of residence in the State; or in the parish in which it appears from tho inventory that his principal property was situated, if he had property in several parishes; in the parish where he died, if he had no certain or any fixed property. O. P. 929.</p>

, of his dairy establishment, the terms of which sale were six months credit for approved endorsed notes, to he furnished prior to the delivery of the cows sold. Defendant Caze became the last and highest bidder of á cow and a calf for $184, and of two other cows for $222, making in all $306.

<p>Tbe jury, in a criminal case, are tbe judges of both, tbe law and the facts; and, where the Ju refuses to so charge them, their verdict will be set aside, and the case remanded for a new trial.</p>

J. A. Lum made opposition thereto. The inferior Court maintained them, except that made to the items, “James. Timony, for $300 due him on the note of $2,000, bearing on both properties,” and that to the “widow and children of the deceased John C. Norton, on their homestead claim, they being in necessitous circumstances, $1,000.” I. The item $300 is opposed, on the ground it is not due, and not a privileged debt.

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

<p>A married woman cannot sue her husband as long as the marriage continues, except it be to obtain a separation from bed and board, or for the separation of property, or for the restitution and enjoyment of her paraphernal property, or in case she holds herproperty separate from him by her marriage contract: but in every case she cannot sue, without the authorization of the Court before which she brings her action.</p>

- The opponent’s judgment was recorded long prior to the death of Virgin, and had it not been for the fraudulent proceedings of Virgin and wife, in placing the property beyond the immediate reach of the creditors, deponent would have had her judgment satisfied during Virgin’s lifetime, and we consider that the widow cannot be now allowed to profit of her own wrongful acts. 2 An. 15 and 16.

The interest which it is thus necessary for every one to have, before he can effect ah available insurance, on his own account and for his- own benefit, is called an insurable interest. Arnould on Insurance, p. 229. At page 228: “The ship-owner has an insurable interest in the profit he expects to make, by carrying his own goods, in his own ship, and this interest he may protect by a general policy on freight.

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

<p>APPEAL from the Judge of the District for the Parish of St. Tammany,</p>

<p>APPEAL from tbe Eourth Judicial District of the Parish of Jefferson,</p>

<p>This Court cannot recognize any legal proprietary right in Confederate notes, unless such rights be based upon som.9 positiva law of Uongress, or upon some legitimate Military Order of the Government of the United States.</p>

<p>To effect the seizure'of a negotiable note, before maturity, it must be taken into actual custody by the-Sheriff.</p> <p>In order to make a valid seizure of tangible property, the thing levied upon must be taken into actual possession by the officer. A promissory note, endorsed in blank by the payee, is of that class of property ; it is not merely the evidence of debt: with its endorsements, it contains the obligations of several parties, and is the subject of sale and delivery, as much as any other movable.</p> <p>An endorsee, after maturity, takes the note subject to equities. But, when we speak of equities between the parties, it is not to be understood, by this expression, that all sorts of equities existing between the parties, from other independent transactions between them, are intended ; but only such equities as attach to the particular note, and as between those parties, would be available, to con* tool, qualify or extinguish any rights arising thereon.</p> <p>If the evidence of the right be negotiable, and is acquired without notice by an endorsee, even after the seizure of the right, the seizure is ineffectual as to him : a principle adopted in favor of com. anerce. But if the evidence of the right be not negotiable, the seizure of the debt or right, of which it is the evidence, by notification to the debtor or keeper of the subject of the right, is valid against the subsequent assignee of the debt or right.</p>

<p>— On a Motion to Dismiss.</p> <p>APPEAL from tbe Second District Court of New Orleans,</p>

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

in the act of mortgage, dispensing with the appraisement required by articles 673 and 745 of the Code of Practice, in case of a judicial sale, is. valid in law? .

<p>The judgment of the lower Court will be amended, when the record shows that it is not according to the evidence.</p>

<p>When an order of seizure and salo was obtained by an administrator, without evidence that he is the administrator, Held: That the omission to produce such evidence is fatal, and the order will, be rescinded.</p>

” This exception was sustained by the Court. It seems, indeed, that no argument should be needed in a case so plain, of such common-occurrence, in presence of defendant’s express renunciation to the very ground of defence now set up by him, and in a ease based on a contract entered into before the passage of the law prohibiting the renunciation, by the debtor, to the law of the domicile.

<p>A verbal contract of lease may be proved by parol.</p> <p>An agreement in a contract of lease for the tenant to pub improvements on the ground let, so that he may use the ground to advantage, is as much a part of the contract of lease, as would be an agreement therein for him to till the soil. Improvements so made on the personal property of the tenant, and any agreement relative to them, may bo proved by parol.</p> <p>When parties enter into a contract, the contract is to be regulated by the laws in force at the time, and not by laws subsequently made ; though the legislature may pass laws subsequent to the contract, directing the manner in which the rights of the parties thereto may bo secured and enforced. It may extend or restrict the remedy, but it cannot exclude all remedy.</p>

<p>APPEAL from the Second District Court of New Orleans,</p> <p>— On the 18th of February, 1862, the defendant executed his note for one thousand dollars, payable to his own order, and endorsed in blank. Plaintiff, as owner and holder, for a valuable consideration, of the note, brought this suit, wherein the defence set up rests on the allegation that the note was given in payment of work and material supplied for gunboat equipments destined to the use of the Confederate Government, an insurrectionary body, treasonably warring against the lawful authority of the National Government.</p> <p>The lower Court held that “ the evidence clearly shows that the respondent was a kind of contractor for this work, and that he used services and goods of plaintiff in the supplies furnished. The contract was not simply immoral, but it was one of a highly criminal character.”</p> <p>From the decision thus rendered we have taken this appeal.</p> <p>Waiving all questions of fact, dismissing the legal question whether the payment by novation of the original debt for which the note was executed, did not cure any defect of original consideration, we shall address ourselves to the task of showing that, even if defendant can be allowed to allege his own turpitude in avoidance of the obligations of good faith, yet, that the learned Judge a quo has made a hasty and violent application of the familiar maxims of legal ethics enunciated in Art. 1887 of the Civil Code, the operation of which is regulated by the 19th Article of the Code of Practice. The decision to be rendered will be of vast importance, as fixing a precedent for the solution of numberless questions of a kindred nature which have arisen during our late troubles.</p> <p>It is not pretended that there is anything inherently immoral or essentially criminal in the art of making sails, or in the act of selling canvas. The trade of sail-making is in itself an eminently useful and honorable one; it is indispensable to commerce, to science, to civilization. A contract to supply canvas and sails involves no patent turpitude, like a contract to rob, to murder, to commit arson, to abet treason, which would be on its face iniquitous, and for the enforcement of which the law grants no action. It is obvious, therefore, that a distinction is to be made between contracts immoral sui generis and those the object of which is to supply, or do something which, innocent in itself, is intended by one or both parties to subserve a purpose reprobated by law or by good morals.</p> <p>Now, the case at bar, if it is at all affected by these principles, obviously comes under the second head of the distinction, and the plaintiff is denied all right of action for the recovery of money due on a contract for furnishing legitimate articles of commerce, because they are declared to have acquired an illicit character by reason of their destination, by the purchaser, to an unlawful purpose. The immoral character of the contract does not result from a simple inspection of its terms, but is remotely deduced by a process of reasoning and casuistry involving questions of motive and intention on the part of the vendor, and of knowledge on the part of the vendee. It is the alleged treasonable animus of defendant, known to plaintiff, which is supposed to have tainted the contract with immorality. It will certainly not be pretended that if plaintiff had been ignorant of the purpose to which the defendant destined the goods furnished, he would have forfeited his claim to compensation for their value, because it is only a criminal intention that can vitiate a contract otherwise legitimate and innocent. The whole inquiry, then, in cases of this kind, would turn upon questions of intention, and the investigation assumes a moral and metaphysical character. Attorneys at law become casuists. The Court is converted into a Synod of Theologians. The authority of Locke and Malebranche supersedes the authority of Pothier and Domat, and the judgment of the Court would present a solution of metaphysical problems, not a juridical sentence. It is obvious to what absurd consequences we are led by the doctrine of “ intention ” as taught by the lower Court. Civil magistrates should be content to limit their labors to the investigation and enforcement of civil contracts, and not complicate and confuse their duties by entering the labyrinth of subtleties in quest of hidden “intentions.”</p> <p>If the contract at issue in this case led, in its remote consequences, to the perpetration of a crime, there are means provided for the punishment of crimes, and the defendant who proclaims his guilt should surrender himself to the officers of the law. In the meantime, those hands stained with self-asserting treason, should not be lifted in an invocation for the spoils of the crime alleged to have been committed by the very party who meanly pleads his guilt as an excuse for the violation of plighted faith. But we deny that there was any immorality, still less, any crime, in the transaction of this business.</p> <p>“The cause is illicit, where it is forbidden by law, when it is contra bonos mores or to public order.” C. C. 1889.</p> <p>Now the sale of canvas is not forbidden by law, the making of sails is not immoral, nor is there any thing subversive of public order in the equipment of a vessel. "We must again revolve in the vicious circle of immoral intentions before we can condemn the contract and make the terms of the law fit the facts of the case. There being nothing in the contract contrary to good morals, it can only be avoided as violative of law or public order. This brings up the second branch of the argument, which is equally decisive in favor of plaintiff.</p> <p>We contend, that there was in the purposes and motives of the contract no such violation of law as would avoid it. Plaintiff sold the articles in question in the regular course of his business, and the laws in force at the time of the sale not only sanctioned the making of such contracts, but if plaintiff had refused to supply for an adequate consideration, the objects required by defendant,- those laws would have compelled him to supply them. It is the sheerest nonsense to deny the historical and practical existence of the Confederate Government, at the period in question, or-to affect ignorance of the fact, that it possessed not only all the outward characteristics of a de facto government, but all the powers necessary for the execution of its sovereign will within thelimits of Louisiana. The power was for the time supreme and irresistible, and with few exceptions there was perfect submission to its will. The question of legitimacy has nothing to do here. We simply assert what is proven by the record, by the voice of contemporary history, by the general consent of mankind, by the action of foreign governments, by the action of our own Government, that the Confederate Government was in fact a Government. On the 18th of February, 1862, its presence and its power in New Orleans was as complete, as undisputed, and as legitimate as were the presence and the power of the British Government in the town of Castine, Maine, on the 2d September, 1814. There is an exact analogy between the two cases, and the principles settled by the Supreme Court in relation to the legal character of transactions which took place during the British occupation of Castine, are strictly applicable to the legal character of transactions which took place during the Confederate occupation of New Orleans. We refer your Honors to the celebrated and familiar case, the United States v. Rice, 4 Wheaton, 246. We are utterly unable to comprehend how the lower Court could have repudiated principles so clearly settled by Judge Story, and ignored the analogy which forces itself on our understanding. Paraphrasing the language of that illustrious Judge, we hold it to be undeniable that by the fact of secession New Orleans, and its inhabitants, “passed under a temporary allegiance to the Confederate Government, and were bound by such laws, and such only as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them ; for where there is no protection or allegiance, or sovereignty there can be no claim to obedience.”</p> <p>It is well settled in law, in reason and jurisprudence, that the validity and effect of a contract is to be determined by the law of the' place where it was made. C. C. 10; C. P. 13 ; Henn. Obligations, VI, (a) 3.</p> <p>That the law of a contract is that in force at the time it was entered into. Henn. Ibid, (b) 1.</p> <p>We shall close with the following clinching exposition of the correct doctrines of law upon this question, by the great expounder of the British law: .</p> <p>“ The true distinction seems to be, that the statute of Henry the Seventh does by no means command any opposition to a king de jure, but excuses the obedience paid to a king de facto. When, therefore, a usurper is in possession the subject is excused and justified in obeying and giving him assistance; otherwise, under a usurpation, no man could be safe ; if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience ; nay, further, as the mass of people are imperfect judges of title, of which, in all cases, possession is prima facie evidence, the law compels no man to yield obedience to that prince, whose right is by want of possession rendered uncertain and disputable, till Providence shall think fit to interpose in his favor, and decide the ambiguous claim : and therefore, till he is entitled to such allegiance by possession, no treason can be committed against him.”</p>

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

After fully setting out his cause of action, and that his total loss had occurred by a peril of the sea, petitioner avers that defendant has refused to pay, alleging that the loss did not happen from stranding or collision. • The defendant pleaded the exception, no cause of action, and after judgment dismissing the suit, the plaintiff has appealed.

<p>APPEAL from the Sixth District Court of New Orleans,</p> <p>— The relator contends that the decree of this Court, “Judgment affirmed with costs,” did not, and could not condemn him to pay the costs of appeal.</p> <p>Duncan having been cast on the appeal, should pay the costs of appeal. The law is inoperative. O'. P. 549, 907, 908.</p> <p>In the case of Underwood v.' Lacapére, 14 A. 276, Mrs. Bourgeois, having called White in warranty, failed to obtain judgment against him in the lower Court, and appealed. This Court decreed that the judgment be affirmed with costs. Mrs. Bourgeois applied for a rehearing. The Court said: “Upon the question of costs, we perceive no more reason to change our previous judgment. Costs follow the judgment and are to be paid by the party cast. C. P. 549; Bolton v. Harrod, 10 M. 115. As well might it have been contended in that case, as in Boyé’s case, that the defendant in warranty had been condemned by the Su2>reme Court to pay all costs.</p> <p>Where a judgment is susceptible of two interpretations, one within,, and the other beyond the power of the Judge, the former must be preferred. Gopley v. Robertson, 6 A. 181.</p> <p>Costs are accessory to the judgment as interest to the principal, and t®be paid by the party cast; if the judgment be in favor of defendant, he cannot be condemned to pay them; if against him, he cannot be allowed them. Henn. Dig., new ed., p. 325, No. 2, and authorities there cited.</p> <p>The Judge of the Sixth District Court sanctioned and authorized the execution.</p> <p>It was proper that an application should have been made to the lower Court for relief. Slate ex rel. Dubois v. Judge, 4 B. 48; Stale ex rel. Babin v. Judge, 10 R. 169.</p> <p>In the case of the Slate ex. rel. Peel v. Judge, 19 L. 174, held: “Where a Court, divested of jurisdiction by a suspensive appeal, illegally issues-execution, the prohibition may be directed to the seizing creditor and ministerial officer, without regard to the Judge. But the writ may be directed to the Judge also, if he have sanctioned the execution. C. P. 853, ibid. The writ may issue though there be other means of redress, when the delay of ordinary proceedings would produce an immediate injury, which should be prevented. State ex rel. Dubois v. Judge', 4 R. 48. If,, where the costs of appeal are less than $300, as in this case, the appellee were not entitled to a prohibition, lower Courts would very frequently modify and do away with the decrees of the Supreme Court by their/ interpretations.</p> <p>In the present ease it is very evident that the Judge of the lower Court, by sanctioning and authorizing an execution which the final decree of this Court did not authorize, exceeded his jurisdiction. How can lower Courts be effectually prevented from misinterpreting the judgments of this Court, so as to assume that they were meant to be in direct contravention of law, and thus debar a party who relies upon your Honors’ decree from the benefit thereof, unless the writ of prohibition may be forthwith resorted to? It may issue before or after judgment. See Glark v. Rosendo, 5 B, 27.</p>

<p>Where a bond has been forfeited on account of the non-appearance of the prisoner, a subsequent arrest and release on bond does not absolve his first surety until his Anal trial.</p>

<p>Where there is no evidence to show that the wife administered her paraphernal property, alone and separately, it is presumed and considered that the husband administered it; and he is accountable to the succession for all moneys received and used by him belonging to it.</p> <p>Where the plea of prescription has not been suggestedin the brief, it will be considered as abandoned.</p>

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

<p>Where the proper parties have not been oited the oase will be remanded.</p>

Sheriff to seize property pointed out by them, in preference to property pointed out by the plaintiff in execution is appealable, or whether the remedy is to enjoin this judgment. All other questions are waived ; and should your Honor determine, as the District Judge, that an injunction, and not an appeal, is the remedy in such a case, then our application for a mandamus must fail.

The appellant contracted in his own name; and the authorities quoted, as to the rights and duties of tutors, cannot apply. 2. The agreement entered into was complete before the sale and the ■distribution of the proceeds, and consequently, before it was reduced to writing; therefore, all the authorities about the necessity of consent can.not apply; and the refusal of appellant to sign the annuity contract when, he had pocketed the consideration, cannot avail him.

<p>A party seeking to recover a claim must make his case certain.</p>

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

<p>Article 2510, of the Civil Code, provides that if the thing,&affected with the vices, has perished through the badness of its quality, the seller must sustain the loss.</p> <p>The redhibitory action must bo instituted within a year, at farthest, commencing from the date of the sale</p> <p>If it (the thing) has perished by a fortuitous event before the purchaser has instituted his redhibitory action, the loss must be borne by him.</p>

<p>Payment of a debt can be proved by one witness. •</p>

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

<p>APPEAL from the Fifth District Court of New Orleans,</p> <p>— Simonds took exceptions to the introduction of the draft, that he was no party to it, and that there was no proof that Cocke, who drew the draft for plaintiffs, had authority to do so, and that it is not admissible against him. The draft was drawn by Cocke, and accepted by C. & B., which was an affirmance of his authority to draw, and the institution of this suit is a full recognition of his aiithoritjr by the plaintiffs. Besides, the respective answers of O. & B. and S. contain a tacit admission of his authority, and the signatures are admitted, for as much as there is no special denial. Again, plaintiffs had to begin somewhere. They could not heap up all their evidence and throw it upon the Court at one and the same moment. If they failed to prove the indebtment of O. & B. to them, they would lose the suit; but if they proved their demand, they would have to go further, and show fraud, etc., ton the part of S. to hold him liable.</p> <p>His answers, as regards Simonds, were rejected by the Court, and plaintiffs excepted.</p> <p>The answers, we think, should have been received as evidence of ’simulation against S. It cannot be considered as offering one partner as a witness for or against another, in a matter where both are jointly concerned, and to throw a part or the entire burden of the debt upon one of the partners as such. But the object of the evidence is to establish and fix upon a wrong-doer the charge of fraud, the legal consequence of which is to subject certain property of the latter to the payment of a debt. It is not to fix his liability, as accruing in virtue of his social connection with the witness, but that the liability was incurred independently, and in spite of or above such industrial connexion. In other words, that the responsibility sprung from a wrongful act of the party sued. The offence or quasi-offence of S.' occasioned the responsibility, and not his social relations, or any act growing out' of them towards the witness. Rochdelle v. Musson, 3 M. Rep. 86.</p> <p>Again : The effect of this testimony is not to release C. & B. from their obligation to pay the draft which they accepted, for they are irrevocably obliged by their acceptance ; nor is it to fasten on S. a sole or part responsibility for the acceptance in his capacity as partner. The petition charges him as sole owner, and as having been the recipient and beneficiary of the goods sold and delivered. If either was the fact, and he only used his co-defendants, C. & B. ’s names as mere prets noms, to disguise his fraud and enable him to acquire the goods, and convert them to his own use, then he committed a fraud on plaintiff, and a coadjutor in the fraud is a competent witness. It was proposed to prove that C. & B. were nominal owners, and S. was the real one of the store ; that the pretended sale was a sham, and had no legal validity, and to hold S. as well as C. & B., all accomplices in solido. There was no intention to prove a partnership, nor to prove the interest therein of S., nor to establish any right, duty or obligation pertaining to a partnership.</p> <p>There was no change of possession after the sale, but the possession was retained by S. This was a fraud. 7 Ann. Rep. 124 ; 7 do. 614. A joint possession by S. & G. & B. would be fraudulent, for in such a case the delivery would not be complete. Wardell v. Smith, 1 Camp. 333 ; Cadogan v. Kennett, Cowper’s Rep. 432 ; Jannan v. Wolleton, 3 Tenn. Rep. 618 ; 7 Tenn. Rep. 82 ; Da.uets v. Smith, 3 M. R. 225, 3 N. S. 24, 2 ib. 13 ; 6 Toullier No. 341, et seq., 9 ib. No. 164. And the party asserting the validity of a sale must prove it. 12 Rob. 95 ; 10 Rob. 369.</p> <p>When a sale of personal property has been made, a delivery of the property to the vendor is essential to its perfection, so far as third persons are concerned. C. C. 2456, 2243, 1917 ; 4 Rob. 435 ; 1 Ann. 59 ; 3 Mart. 222, 3, 4.</p> <p>There was no list of the. articles sold' made out, or valuation of them. 7 Ann. 124, 5. The frequent change of the name of the owners and style of the firm, painted on the store, the possession of the books all the time by S., and the refusal to produce them in Court when ordered, are all so many badges of fraud and simulation that must ensure the annulment of the sale.</p>

<p>A party receiving an account, and making no objection to it within a reasonable time, admits its correctness, and cannot afterwards legally object to it.</p>

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

<p>This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produoe of the reciprocal industry and labor of both husband and wife, and of tbe estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase he only in the name of one of the two, and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.</p> <p>At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, unless they satisfactorily prove which of such effects they brought in marriage, or have been given them separately, or they have respectively inherited. The declaration is an authentic act, that property was acquired by a partner in community with separate funds, does not relieve that person from the burden of proving that fact aliunde.</p>

<p>Where a seco nd agreement has been entered into, which is conditional, and the party fails to comply with the obligations assumed therein by him, the original contract takes effect as the only one between the parties.</p>

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

<p>APPEAL frdm the Sixth District Court of New Orleans,</p> <p>— Admitting, for argument, the agreement and the proof of services, the obligation is a joint one ; the demand is against both defendants, and each is only liable for his or her virile share. Arts. 2080, 7082, C. C., require that all the obligors in a joint contract shall be sued together. It is alleged in the petition that both are defendants. But the prayer of the petition claims payment from Bene Trudeau alone, and the judgment is against her alone, although both were cited. In this there is error., 3 B. 140.</p> <p>In an action on joint contract all the obligors must be made defendants. No judgment can be obtained against either unless it be proved that all joined in the obligation, or are by law presumed to have done so, and the judgment must be against each defendant, separately, for his proportion. 3 B. 26; C. C. 2080 ; 5 B. 224 ; O. B. 351; 7 B. 181; 10 B. 430.</p>

It is certified to by the notary to whom the records of the notary before whom the act was passed had been confided.

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

<p>A FPEAL from the Sixth District Court of New Orleans,</p>

W. Watterston and himself, and prays for a liquidation thereof, and the payment of the balance, §4,300, or such other sum as may be found due, with general relief. The defendant made a general denial, and prayed for a trial by jury, which was denied him, whereon he took a bill of exceptions.

<p>Where a claim is under three hundred dollars, it is not appealable, although it be consolidated with another suit in which another party is plaintiff.</p>

<p>No law of tbe State requires that a bill of indictment for murder sliould be found within a year after tlae commission of such a crime.</p>

<p>The vendor of an immovable or slave must cause the act of sale to be duly recorded, in order to preserve his privilege; if not so recorded within six days from its date, if passed in the place where the-registry of mortgages is kept, adding one day for every two leagues from the place where it was-passed to that where the Register’s office is kept, it has> no effect as a privilege; i. e. it confers no preference over creditors who have acquired a mortgage in the meantime, which they have recorded before it; but it will still avail as a mortgage, and be good against third persons from the time of it# being recorded.</p> <p>Wit h the exception of special privileges, which exist on immovables in favor of the vendor, of workmen and furnishers of materials, as declared above, the debts privileged on the movables and immovables generally, ought to be paid, if the movables are insufficient, out of the product of the immovables and slaves belonging to the debtor, in preference to' all other privileged and mortgaged-creditors.</p> <p>The loss which may then result from their payment must be borne by the creditor whose mortgage is least ancient, and so in succession, ascending according to the order of the mortgages, or by pro rata contributions, where two or more of the mortgages have the same date.</p> <p>When the debts privileged on the movables and immovables cannot be paid entirely, either because-the movable effects are of small value, or subject to special privileges which claim a preference, or because the movables and immovables together do not suffice, the deficiency must not be borne proportionally among the debtors, but the debts must be paid according to the order established above, and the loss must fall on those which are of inferior dignity.</p>

<p>— On a Motion to Dismiss.</p> <p>APPEAL from the Sixth District Court of New Orleans.</p>

<p>Where a Record is so imperfect as to preclude an examination into the case on its merits, and where no suggestion of .diminution of the Recordis made, and no motion to dismiss the appeal is filed, it willberemandodfora new trial.</p>

<p>Where a party takes a note for bonds or moneys, from, one who had embezzled them, and which note went to judgment, they have no right against a thirdperson who received such securities andmoney in pledge. They thereby ratified the pledge, especially when they used part of the money without knowing from whom obtained.</p>

<p>Evidence may be received in explanation of an authentio act when it does not oontradiot, vary, alter, enlarge, or restrict it.</p> <p>Where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reierence to extrinsic circumstances, a Court of law may look into the extrinsic circumstances of the case to see whether the meaning of the words be sensible, in any popular or secondary sense, of which, with reference to these circumstances, they are capable.</p> <p>A donation made to a minor, undor the age of puberty, must be accepted by his tutor.</p> <p>A minor, arrived at the age of puberty, but not emancipated, must accept it under the authorization or with the concurrence of hie curator.</p> <p>Nevertheless the parents of a minor, whether he be arrived at the age of puberty or not, whether ho be or be not emancipated, and the other legitimate descendants, even in the lifetime of the parents, though they be neither tutors nor curators to the minor, may accept for him.</p> <p>The persons who have treated with a minor, the person interdicted, or of insane mind, or with a married woman, cannot plead the nullity of the agreement, if it is sought to be enforced by the party when the disability shall cease, or by those who legally administer the rights of such person during the disabifity.</p> <p>An act shall be passed before a Notary Public, and two witnesses of every donation inter vivos of immovable property, of slaves or inoorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.</p> <p>"Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.</p> <p>The action of nullity, or rescission of contracts, testaments, or other acts, is prescribed by five years; and, as prescription raises the presumption juris et de jure, that the donation was duly accepted, the property of the object given is transferred to the donee, without the necessity of any other delivery. Quern de eviotione, tenet actio, cum dem agentem repellifc exceptio.</p> <p>All donations inter vivos, made by persons having neither children nor descendants, actually living at the time of the donation, of whatever value those donations may be, and on whatever account they may have been made, should they even be mutual, not excepting such as were made in favor of marriage by any but the ascendants of the married persons, or by the one of them to the other, shall he considered as revoked up to the disposable portion by the birth of children to the donor, even of a posthumous child, or by the legitimation of a natural child by a subsequent marriage, if the child be horn since the donation.</p> <p>Donations inter vivos are liable to he revoked or dissolved on account of the following causes : 1. ¡The ingratitude of the donee; 2. The non-fulfilment of the eventual conditions which suspend their consummation ; 3. The non-performance of the conditions imposed on the donee; 4. The legal or conventional return.</p>

<p>An administrator has, the right to leave the State on his leaving with some person residing in the* Parish, or in an adjoining Parish, where the succession is opened, a general and special power of attorney to represent in all the acts of administration, and depositing an authentic copy of the power of attorney before departure, in the office of Recorder of mortgages in and for the Parish where said succession has been opened, which power of attorney must be duly registered.</p> <p>A demand to account upon an administrator must be by petition and citation, it cannot he made-by rule.</p>

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

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

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

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

He sets forth that title. Defendant answers, and alleges nullity of plaintiff’s title, and prays judgment decreeing its nullity. A jury is sworn to try the issues joined, and the points as they present themselves are these : 1. Is it the Sheriff’s return or his deed that is the proper evidence of his acts under the writ ? 2. Can the Sheriff make seizure after expiration of his writ, under a copy of the original retained, under the acts 1855 ? 3.

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

de St. Romes contended ttat tte note, for securing tte payment of wtict tte special mortgage of 1855 tad been granted, was in ter possession and still unpaid; ttat if tte mortgage ever was canceled, tte cancelment of it was erroneous and wrongful, done wittout ter knowledge, eitter ttrough error or coEusion, and was, therefore, null and void; and tte Court maintained ter opposition upon tte ground ttat “tte note wasstülinter tands; ttat it tad never been paid nor canceled;…

<p>AU parties interested in maintaining the judgment appealed from, must be brought before the Court in due form by the appellant.</p> <p>"Where the appellant has failed to give bond in favor of all the parties interested, in maintaining the judgment, the appeal must be dismissed.</p>

— The respondent and appellee, B. W. Knickerbocker, was appointed District Attorney of the Fifth Judicial District of Louisiana, on the 12th of April, 1864, during the recess of the Senate, by Governor Hahn. This recess nomination was never confirmed by the Senate, which met on the 4th of October following.

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

<p>Before a cause is at issue, either expressly or tacitly, a final judgment cannot be validly rendered-</p>

Helena, — The defendant and appellant, who is the drawer and payee of the bill of exchange sued on, maintains that there is error in the judgment against him ; in this : I. That the notice of protest was directed to the wrong post office. The testimony of Weil (plaintiff’s witness), late post master at Areola, shows that defendant receives his letters at Areola.

<p>A party must show cause by rule why evidence taken in limine should not be read in Court. His opponent must answer the rule, or else he waives his objections.</p>

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

<p>A motion to dismiss an appeal comes too late after three judicial days have expired from the filing-of the transcript.</p>

<p>Tlie sale or transfer of a debt includes everything which is an accessory to the same as suretyship, privileges, and mortgages.</p>

<p>A note payble in gold can be satisfied by tbe tender of United States Treasury notes of an equal amount.</p> <p>An appeal taken for an amount less tban three hundred dollars will be dismissed</p>

<p>Payment of a note may be proved by parol testimony, and its possession by another is only prima facie evidence of the indebtedness of the maker.</p>

<p>The law regards the application for a mandamus as summary in its nature, and the answer in opposition thereto should contain a full written defence, whether it involves exception or merits.</p> <p>The act ot 1857 having provided that “ ail the criminal expenses incurred in the different parishes of this State, by arrests, confinement, and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, and all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State, upon the certificate of the Clerk and the presiding Judge of the several Courts of this State,” the duties of the Auditor relative to accounts for such expenses thus certified, are ministerial and imperative, and he must issue his warrant on the Treasurer therefor. It would be otherwise, if the certificate of the Clerk and Judge should show upon its face thatitwas not drawn in accordance with the law, as, for instance, if it purported to beforfeesin civil suits.</p> <p>The 15th section of the Act of 1855, which gives the Sheriffs $100 per annum for their fees in criminal cases, did not intend this sum as their sole compensation. There are many services rendered by Sheriffs, which are not provided for in the fee bill.</p> <p>The party convicted in a criminal case must be condemned to pay the costs, and after a return of nulla bona, or after the Clerk and Judge are satisfied by sufficient evidence that the convict has no property, then the State becomes responsible for the costs.</p>

<p>The petitory action, or one by which, real property, or any immovable right to such property may be subjected, is claimed, must be brought against the person who is in the actual possession of the immovable, even if the person having the possession be only the farmer or lessee.</p> <p>But if the farmer or lessee of a real estate be sued for that cause of action, he must declare to the plaintiff the name and the residence of his lessor, who shall be made a party to the suit, if he reside in the Slate, or is represented therein, and w'ho must defend itm the place of the tenant, who shall be discharged from the suit.</p> <p>The plaim-iff in an aclion of revendicaliou must make out his titile, otherwise the possessor, whoever he be, shall be discharged from the demand.</p>

Murison & Co. and James E. Allen, on or about the 19fck day of August, 1S62, entered into an agreement for an adventure in cotton. Both parties were to advance, in equal proportions, the necessary funds, and to divide equally the profits acquired or losses sustained by the adventure.

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

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

<p>Tlie only real deposit is that, where the depositary receives a thing to bo preserved in kind, without the power of using it, and on the condition that he is to restore the identical object.</p>

<p>If a suit be instituted against an absentee who has no known agent in the State, or for the administration of whose property no curator has been appointed, the Judge, before whom the suit is pending, shall appoint a curator ad hoc to defend the absentee in the suit.</p>

<p>Held: That Article 2229 contemplates the formation and origin of the contract, not its execution. When the obligor fulfills his obligation in doing what he has bound himself to do, he does not contract nor agree, he complies with his obligation; contracting or agreeing is one thing, and the fulfilling of the obligation is another.</p>

Acts 1855, p. 183, § 3. This section requires that the charter of incorporation shall contain, first, the name and title of the corporation.

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

<p>— On a Rehearing.</p> <p>APPEAL from the Second District Court of New Orleans,</p>

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

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

<p>Where a note was given to a bank for a pre-existing debt; held, that the bank was a bona fideholder for a valuable consideration, but could recover no more than what the evidence showed that debt to be, not the face of the note.</p>

<p>Though the holder of paper, fairly negotiated, be entitled to recover and to shut out almost every equitable defence, yet, the rule applies only to the case of negotiable paper taken bona fide in the course of business, before it falls due.</p> <p>If taken after it is due and payable, the presumption is against the validity of the demand, and the purchaser takes it as a dishonored bill, at Ins peril, subject to every defence against it before it was negotiated.</p> <p>An endorsement extending the time for the payment of a note, made after its maturity, does not invest it with its original unrestricted negotiable quality.</p>

<p>Where a party defendant denies that he was a member of the partnership which is snod, it is incumbent on the plaintiff to prove it.</p> <p>Courts may, at the request of one of the parties, decree that the other party bring into Court, the boohs, papers, and other documents which are in his possession, and which are material in the cause, provided the party requesting their production declares, in writing and on oath, what are the facts he intends to establish by such books, papers, or other documents; and, on the refusal of the party thus called upon to comply with the order of the Court, the facts stated and sworn to shall be considered as having been confessed, unless satisfactory evidence be shown of the impossibility of producing such documents.</p>

<p>When a cause is called, the party who has not been able to procure the necessary evidence shall be' entitled to a continuance, on proving either that he has not sufficient time to get his proof, or has been prevented from doing so by some unforeseen cause.</p>

<p>The plea of payment requires proof of the fact from the defendant. The onus prohandi lies upon him.</p>

L. Broom, the dative executor of the estate of the late Samuel Broom, against Elizabeth Clew, widow of said the late Samuel Broom, and said judgment was affirmed by the Supreme Court on the 13th June, 1855. ' On the 28th June, 1853, said Elizabeth Clew obtained in the same Court a judgment for $1,318 31 against the heirs of said the late Samuel Broom, which judgment was on appeal reduced to $1,258, and thus amended, affirmed by the Supreme Court on the 13th June, 1855.

<p>The renunciation of warranty, made by the buyer, is not obligatory, where there has been fraud on the part of the seller.</p> <p>The seller who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and the repayment of the expenses, is answerable to the buyer in damages.</p> <p>A vendor is bound to good faith, and must state any defect he knows in the thing sold. The exception is when the article is susceptible of convenient examination, the purchaser is bound to make that examination, and abide by it.</p>

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

— On a Rehearing. APPEAL from the Sixth District Court of .New Orleans, — This rehearing was granted by this honorable Court upon the… Held: as the reporter’s synopsis of the case truly shows, that “mortgages, under the hypothecary system of Louisiana, may be given to secure debts having no legal existence at the date of the mortgage; that it is not essential, in such a mortgage, even with respect to third persons, that it should express on its face that it was given to…

<p>Any agreement of the debtor to buy the vote of a creditor by giving security for the payment of his debt, must be considered as fraudulent, and the creditor whose v ote is thus bought, cannot recover the amount of his debt against the surety furnished by his debtor, as the contract must be considered as a perversion of the course of justice, and a fraud upon the Court charged with the homologation of the deliberations of the creditors.</p>

<p>An injunction may compel a party to do as well as to restrain him from doing.</p>

<p>A payment made by a person without interest gives him no subrogation, and be is not entitled to an action thereupon.</p> <p>He who contends that he is exonerated, must prove the payment, or the fact which has produced the extinction of the obligation.</p>

Bernard, — This, suit grows out of the purchase of a plantation and slaves by plaintiff from. defendant, on the 27th day of September, 1857, for the price and sum of $135,000.

<p>The Congress of the United States, by the Act passed 29th August, 1842, declared all the entries of lands made in the Greensburg Land District to be null, on account of the errors and imperfections' of the public surveys, or of conflicting claims, and authorized the return of the purchase money, on returning the certificates, and ordered a re-survey of the District; and that, when the re-survey should be confirmed, the public lands (unreserved) therein specified shall be subject to the laws for the disposal of the public lands, with this proviso : Provided, that purchasers aforesaid may retain their certificates of purchase, and the surveys of said tracts shall be corrected; and when said surveys are corrected, may receive their patents from the United States for the lands so purchased by them.</p> <p>Where no attention has been called to the bills of exception filed, they will be considered as waived,, when the case comes before this Court.</p>

<p>When a case has been tried by a Jury, a verdict rendered, and judgment given according to that ver* diet, and the case is not properly a jury case, both the verdict of the jury and the judgment will be set aside, and this Court give a decree according to the facts on record.</p>

<p>A criminal action is one which is instituted in the name of the State by its proper officers, in order to obtain the public reparation of any crime or misdemeanor. This action comes under the head of penal jurisprudence.</p> <p>The general rule is that the form and effect of public and private written instruments are governed by the laws of the place where they are passed or executed; unless it is expressed that they are to have effect in another country.</p> <p>Every endorsement, accommodation or otherwise, is essentially an original contract, equivalent to a new note or bill, in favor of the holder and the acceptor or obligor.</p> <p>.The agreement or obligation of defendants as endorsers, having been entered into in Kentucky, without expressing a different place of performance, must, under the above general rule, be regulated by the law of Kentucky. The fact that the payers reside where the note is payable does not amount to such a designation of the place of performance as to take it out of the general rule. The parties, at the time of making the endorsements, were all in Kentucky, and are presumed by law to have contracted with reference to the laws of that State.</p> <p>Doubtless the defendants may be sued at their domicil; but the obligation of their endorsement and the duties of the holders are governed by the laws of Kentucky, where the endorsement was made.</p> <p>An amount involved being over five hundred dollars, the promise being one to pay money, must be proven by at least one credible witness and corroborating circumstances.</p>

k _fl_ PPEAL from the Second District Court of New Orleans, — This is a suit on contract of lease against Thos. McCluskey and Edward Reilly as his security in solido. Thei;e ryas judgment against both the defendants, -and Reilly alone has appealed. The lease is admitted, but the events of the war, causing a stagnation of business, is set up as a defence.' The Court, in its reasons for judgment, effectually answered this defence.

<p>■When the transcript contains a true and complete copy or transcript of all the proceedings had* ©ásB the evidence and testimony adduced, and of all the documents filed in the suit; whensuxih.it certificate as this accompanies the record, an assignment of error is not necessary.</p>

<p>‘The notification of the filing of a tableau operates as a citation to all persons concerned therein (ere* ditors as well as legatees); and the homologation of an account and tableau bare all further enquiries as to all matters included in the account.</p>

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

<p>Silence and inaction are, under some circumstances, the means of showing an assent that creates an obligation; if after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other,</p> <p>The parties must abide by the agreement as fixed at the time of the lease. If no time for its duration has been agreed on, the party desiring to put an end to it must give notice in writing to the other, at least fifteen days before the expiration of the month, which has begun to run.</p> <p>If the tenant either of a house or of a room should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he cannot be compelled to deliver up the house or room, without having received the legal notice or warning directed by Article 2656 of the Civil Code.</p>

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

<p>APPEAL from the Sixth District Court of New Orleans,</p> <p>— This is an appeal by-Beard from a final judgment in favor of Renaud, in a revocatory action, to set aside a transfer of a bakery from one Simon, the debtor of Beard to Renaud, for fraud and simulation. Pursuant to C. C., Article 1970, Simon, as debtor, was made a party to the revocatory action of Beard, against Renaud, in the original Court, but before this Court only Renaud is a party appellee to this appeal. In this action the onus probandi is on Beard to establish fraud and simulation. 17 L. B. 353; 9 Rob. 272; 10 An. 691.</p> <p>But as soon as Beard proved that Simon remained in possession of the bakery, after the date of the pretended sale from Simon to Renaud, the law raised the legal presumption of fraud and simulation in the transfer, and threw the burden on Renaud and Simon to prove the verity of the sale and good faith of both Simon and Renaud. C. C. Articles 2156,1915, 1917.</p> <p>That the transfer was simulated, vide 8 N. S. 267; 7 An. 91, 125; 11 Rob. 196; 9 Rob. 273; 6 An. 815; 10 An. 100, 691; 11 An. 758; 13 An. 597; 12 Rob. 98.</p> <p>Declarations of vendor and vendee before, at and since alleged sale,, admissible to prove fraud and simulation in transfer. 8 N. S. 267; 13 An. 597, and cases cited above.</p> <p>Simulation as well as fraud may be shown by presumptive evidence, and so of all the circumstances which have a tendency to show that the sale was not bona fide, and that no real consideration passed to and was retained by tbe vendor, such as the relative condition and circumstances of the parties, their means and revenues, their subsequent conduct, 'ho influence of one over the other, the fact that the price was nominal, rail generally such matters of fact as conduce to establish the plaintiff’s allegation of simulation and indirect advantage. 13 An. 208.</p> <p>It is a recognized principle, that the onus probandi is upon the pf.Ay who has to free himself from liability by the proof of a fact, the knowledge of which must be supposed to be more within his .power than that of his adversary.' 13 An. 397, 398.</p> <p>We prefer to examine the evidence on the point of fraud and simulation, on the argument of the case, orally, and .then appfy the law to the facts and the facts to the law, as the exigency of the ease may require.</p> <p>The judgment is unconstitutional, as no reasons therefor are assigned as required by the Constitution; therefore the judgment must bo reversed, and this Court must pronounce such judgment as the original Court should have rendered upon the law and the evidence. 11 An. 94, (P. Gallot v. J. McGluskey, el at., decided by this Court Monday, 19th March, 1864.)</p> <p>Appellant prays reversal of judgment, and one in his favor, setting aside the notarial act of transfer from Simon to Benaud, and ordering Benaud to deliver up the property therein enumerated to the Sheriff to satisfy appellant’s demand against Simon. C. C. Article 1972.</p>

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

— The amount of the judgment, including interest, is the criterion by which the amount of the appeal bond is to be fixed. 2 La. 86; 9 A. 310. It must exceed that amount by one-half. C. P. Article 575.

<p>‘Iicigeneral rule, as gathered from the text of our law is that a penal obligation being secondary to a primary one, the performance erf which it is intended to assure, the creditor cannot, except in two contingencies, avail himself of the double remedy, in the event of the debtor’s failure to fulfil the primary obligation; to enforce the performance of that, and to exact the penalty at one and the same time.</p>

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

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

<p>APPEAL from the Sixth District Cotirt of New Orleans, Duplantier, J. Miles Taylor, G. JDufour.</p>

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

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

<p>It has been repeatedly held by this Court that a partner cannot sue his co-partner for sums paid or advanced for the partnership, or funds placed in it, or goods furnished, or profits made, or losses incurred during its continuance until a final settlement, and then only for the balance which may be due. And even in a special partnership, a partner cannot sue his co-partner for a special item; it must be for a general settlement.</p>

<p>A witness can be allowed to testify, where he was not a party to the original act.</p> <p>Succession is the transmission of the rights and obligations of the deceased to the heirs.</p> <p>"When, at the decease of the testator, there are heirs to whom a certain proportion of the property is reserved by law, these heirs are seized of right, by his death, of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament.</p> <p>The legatees under an universal title are bound to demand the delivery of the heirs, to whom a proportion of the effects is reserved by law; in default of heirs, of the universal legatees, and in default of those, of the next heirs in the order established in the title of .successions.</p> <p>The usufructuary must give security that he will use, as a prudent administrator would do, the movables and immovables subject to the usufruct, and that he will faithfully fulfil all the obligations imposed on him by law, and by the title under which his usufruct is established.</p>

<p>Servitudes are either visible and apparent or non-apparenfc.</p> <p>Apparent servitudes are such as are to be perceivable by exterior works, such as a door, a window, an aqueduct.</p> <p>JNon-apparent servitudes are such as have no exterior sign oí their existence, such, for instance, as the prohibition of building on an estate, or of building above a particular height.</p> <p>If the inheritance sold be encumbered with servitudes not apparent, without any declaration having been made thereof, if the servitudes he of such importance that there is cause to presume that the buyer would not have contracted, if he had been aware of the encumbrance, ho may claim the cancelling of the contract, should he not prefer to have an indemnification.</p> <p>Joint purchasers cannot he condemned in solido for the payment of the price of real estate.</p>

<p>A continuance cannot be granted on account of the absence of the defendant or the inability of the counsel to attend in Court. -</p>

<p>Section 8 of the Act of 1C55, p. 432, declares that, after the cession, and acceptance, all the property surrendered by an insolvent shall be fully vested in his creditors; and the syndic shall take possession of and be entitled to claim and recover all the property, and to administer and sell the same according to law; but the repealing clause of the Act retains what is in the Civil Code and Code of Practice not contrary to its provisions; and, according to the terms of the Civil Code as well as the «fatuto of 1855, it scorns clear that this ti’&nsfer is for specific purposes, to be sold according to law, and the proceeds distributed in concurso among the creditors. They cannot hold it in common, nor partition, it in kind. The debtor or insolvent has a residuary interest, which may become fixed and avail'ng in a certain contingency.</p> <p>In matters of insolvency the law does not contemplate that a majority of the creditors shall deprive the minority of the right of having their claims paid within a reasonable delay. If they have the right to hold and enjoy the property for any fixed period, they have, at its expiration, the right to fix another and thus compel all the creditors to remain joint owners indefinitely.</p>

<p>Contracts reprobated by law cannot be enforced in a Court of Justice, and a party plaintiff must abide by bis own declarations in that respect.</p>

This is a suit instituted by Murison & Co., against J. E. Allen and A. J. Butler, on the allegation that an adventure in cotton was entered into between them all. The prayer is for a liquidation of the adventure, and that A. J. Butler, who is alleged to have in his hands the proceeds of the cotton, be condemned to pay the amount to the plaintiff's. Allen is made a party defendant, but no judgment is asked for against him.

<p>Great latitude is allowed in introducing evidence under the plea of the general issue.</p>

<p>— On a Rehearing.</p>

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

PPEAL from the Second District Court of New Orleans, — There was judgment in the lower Court, holding John Morgan Hall, defendant, liable for the payment of two bills of exchange, drawn in Louisville, Ky., by J. Hooper, Captain of the steamer J. A. Cotton, on E. Lanoue, President of the New Orleans and Bayou Sara Mail Company. It is not contended that the name of John Morgan Hall appears, in any manner, upon these bills.

<p>APPEAL from the Sixth District Court of New Orleans,</p> <p>— On the back of the note are the signatures of the defendants, S. M. R. Kercheval & J. L. Herwig, which the petition avers were placed there at the time the note was executed and delivered to plaintiff; and we deem it indisputable that the obligations of the defendants thereby became those of ordinary sureties and not those of endorsers.</p> <p>Weaver v, Marvel, 12 An. 517, and the numerous cases referred to in Hennen’s Digest, p. 172, No. 1. And we also deem it clear that Mrs. Kercheval being separated in property by her marriage contract, might, with the authorization of her husband, become surety for any person except her husband. Farrell v. Yoe, 2 An. 903. Roberts v. Wilkinson, 5 An. 369.</p> <p>Has plaintiff shown by competent testimony that she was so authorized, is, we think, the important question for the consideration of the Court, in this case. The petition avers : “ That her said husband fully authorized her to contract said obligation, being present at the time and assenting thereto.”</p> <p>In support of this averment the plaintiff relied exclusively upon the interrogatories addressed to Mrs. Kercheval and to her husband. The husband was asked, “were you not present when Mrs. Kercheval placed her name on the note sued on, and did she or not do so with your assent and authorization ? State particularly what happened at the time said note was executed, relative to the necessity of your placing your name on said note as authorizing the obligation Mrs. Kercheval contracted.”</p> <p>Although properly served, being a resident of another Parish (C. P. Art. 352, as amended by Acts of 1843), he refused to answer, and on the trial, plaintiff sought to introduce the interrogatories as confessed, which the Court refused to permit, and plaintiff took his exceptions.</p> <p>Mrs. Kercheval was interrogated respecting other allegations in the petition, as to the eonsideration of the note, that the obligation enured to the advantage of her separate property, etc., etc.; but as she denied the tmth of these allegations, we ask the attention of the Court to only two of the questions propounded, viz : “Was or not your husband present when you signed the note sued on ?”</p> <p>2. “Did you or not sign the same with his authority, consent and approval ? State fully all that occurred and was said at the time relative to the property or necessity of your said husband’s signing the same ?</p> <p>To each of these questions, “she answers yes,” and they were introduced in evidence without objection.</p> <p>The law which requires the husband to “ concur in the act or yield his consent in writing (C. C. 124), is intended to exclude parol proof of such authorization. But this Court has invariably, held that answers to interrogatories, on facts and articles, are not parol evidence. 10 An. 704; Hen. Dig. p. 563, No. 9.</p> <p>In tmth, the fact of the husband’s authorization is here more satisfactorily shown; is proven by testimony of a higher nature than any mere writing signed by the husband could have created. For, in thus proving the fact, we prove in addition that the authorization was voluntary, was not obtained through fraud or given in error.</p> <p>Is it for the protection of the husband or the wife, of either or both, that the husband must concur in the act which evidences the contract of the wife, or yield his consent thereto in writing ? We offered them facilities of defence, which the husband’s signature, had he affixed it, would have precluded. The facts to be derived from a perusal of the record are, that Cull worked and loaned money in and about a business which he sxrpposed was conducted for the joint account and benefit of the two Herwigs and their sister, Mrs. Kercheval; for it was the same business carried on in the same place in which their deceased father had labored and prospered. When he wanted a settlement the elder brother gives him his note, with the other brother and sister as sureties; the husband of the sister standing by, advising and authorizing her to sign it, but assuring Cull that it was unnecessary for him to sign with his wife, because, by the marriage contract, there was “ to be no community, and the parties were to remain separate of estate of all property, and each was to have and retain the entire administration and enjoyment of their respective property.” Before the note matures, the elder brother obtains relief from its payment by bankruptcy; and when Cull sues the younger brother, who, for years had been holding himself out to the world as full age, successfully pleads minority; and the sister seeks to avoid her obligation by alleging the want of her husband’s authorization, which she swears was in fact and in tmth given her when she contracted. Her position is so repugnant to every sense of right and justice, that we may unhesitatingly assume that it has no support in law.</p> <p>The Court is referred to the following authorities, on the matter of the bill of exceptions, viz :</p> <p>Huff v. Freeman, 13 An. 262; Bached v.''Rooked, 4 An. 406; 2 An. 772, 807, 876.</p> <p>— Appellant, Mrs. Mercheval, is sued on her alleged endorsement of a note, regarding which -there is no evidence of any written authority granted by her husband to •endorse. The note is not a negotiable note, and appellant, by her endorsement, can only be held as an ordinary surety of the drawer.</p> <p>The only evidence of authority of any kind, is that drawn from the answers of appellant to interrogatories on facts and articles propounded to her by plaintiff.</p> <p>It is submitted :</p> <p>1. That without such authority by the husband the contract is not -binding on the wife. C. C„ Arts. 124, 128, 130, 1775, 1779, 2411. Hen. X)ig., (new ed.) p. 866, Nos. 5, 7, 9, 13, 18, 20, 26.</p> <p>2. That the authority given by the husband should' be evidenced and •established by as high kind of proof as required to establish the contract itself; and in this case by written assent of the husband. The action is •on a written obligation, and the essential proof of the consent of parties ■thereto should be found in the instrument itself, or some other written instrument directly referring to it. In this case the legal consent of the wife cannot be given by herself alone, but requires the consent of the husband. Hence, the perfect obligation of the wife cannot be said to .arise on the note until the same consent be tested by the signature of herself and husband; her signature to establish her consent, the signature of the husband to show the authorization required by law, and without which there could be no legal, binding consent given by her.</p> <p>The very character of the authorization of the husband, required by law, to render valid the acts and contracts of the wife, would seem,to require that such authorization should be in writing, even though the law does not specially declare that it shall be a written authorization. Thus Article 123 of the Oivil Code declares: “The wife cannot appear in Court without the authority of her husband.” Has it ever been •■doubted that such authority must be evidenced by some written instrument, either by the husband appearing in the suit, or by a written •consent.</p> <p>C. C., Article 1779, provides that: “The incapacity of the wife is removed by the authorization of the husband, or, in cases provided by law, by that of the Judge.” ‘</p> <p>In this Article there is no distinction made between the manner in which the authorization of the Judge and that of the husband is to be •given, and can there be any question that the authorization of the Judge must be in writing ?</p> <p>The same Article, moreover, restricts the presumption of authorization by the husband to “commercial contracts, if he permits her to trade in her own name.”</p> <p>Again-, in Article O. C. 2411, it is not. declared positively that the authorization by the husband to his wife to alienate her immovable property shonld be in writing, yet could it be seriously urged that such authorization could be established by parol ?</p> <p>3. No legal evidence was offered to establish any authorization, even parol, by appellant’s husband.</p> <p>The answers of Mrs. Kercheval, to interrogatories on facts and articles propounded to her, are insufficient to prove such authorization, because such authorization cannot be established by the wife herself. Such proof would defeat the very object of the law: for if a declaration by the wife that she was authorized by her husband to execute a contract were sufficient evidence of the fact, the prohibition of the law could always be avoided; the simple statement or affidavit of the fact by the wife, could preclude the husband from the discharge of his duty, in refusing his authorization to such contracts as he might deem injurious to his wife’s interest.</p> <p>This point, it is submitted, is no longer an open question.</p> <p>As early as the case of Gorman v. Berghaus (1 Rob. R. p. 168), this Court, Martin, J., held that where an appeal was taken by the wife, but the authority or assistance of the husband does not otherwise appear than by a statement in the petition and bond of appeal, that the appellant is authorized by her husband, the appeal must be dismissed, and that .this assistance and authority must be proved aliunde, and otherwise than under the hand of appellant, or her counsel.</p> <p>The same principle was declared in the cases of Gorman v. Berghaus, 2 R. 282; Laeour v. Belamaine, 2 An. 140.</p> <p>If the statement of the wife is not to be taken as evidence of the authorization of the husband, the case at bar is clearly with the appellant.</p> <p>4. And, as if to render still more restricted the power of a married woman to bind herself or her separate or dotal property, by the contracting of debts, the statute was passed allowing her to contract debts, with the authorization of the District Judge, only when “the wife shall satisfy the Judge aforesaid that the money about to be borrowed, or debt contracted is solely for her separate advantage, or for her separate or dotal property. See Session Acts, 1855, p. 254; Rev. Statutes, p. 560.</p> <p>There is no evidence whatever that the suretyship of Mrs. Kerche.val was for a debt incurred for her separate interest, or that she was in any manner beneñtted by it, but the contrary.</p> <p>5. The motion of plaintiff to .have the answers of the husband as against his wife, taken as confessed, was properly rejected by the Court ■ on the unquestionable rule of law, that a husband cannot be a .witness either for or against his wife.</p>

<p>Xi the submission does not limit any time, the power of the arbitrators may continue in foroe during three months from the date of the submission, unless the parties agree to revoke it.</p>

<p>APPEAL from the Fourth District Court of Now Orleans,</p>

The judgment contains the reasons upon which it is founded, as the Constitution requires. The Judge says that he had heard the evidence and arguments,' and -therefore gave judgment. If it can be asserted that’evidenoe and argument are not reasons for a judgment, then what can be held to be such ?

<p>it is a presumption of the law, that every spooies of property found in a person’s possession at hid death belongs to his succession.</p> <p>Papers registered in the Custom-House at New Orleans when, under the oontrol of the so-called Con federate States Government, have no legal entity, and copies are not evidence for any purpose in our Courts,</p> <p>Where documents are received without objection, although illegal, they will be taken as evidence, but it will not be entitled to much weight.</p>

<p>APPEALS from the Sixth District Court of New Orleans,</p>

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

— On a Rehearing. APPEAL from the Third District Court of New Orleans, — The answer admits the contract, and alleges 1. That tho cargo of the Belle Bernard was sold to T. C. A. Dexter, but he failing to comply, the cargo was sold again, and gave a nett difference of $10,179 73, as is shown by the account of the re-sale filed, and the plaintiff agreed that the said difference should be carried to his debit in his general account. 2.

<p>íhe Oodo of tractive authorises the property of the debtor to be attached in whatever hands it may be found, and the attachment is effected by service of the process upon the person having in his possession the property of the debtor.</p>

<p>Whenever a notice of protest for non-payment of any bank note, as described in the section 19 of the Act, approved March 15th, 1855, shall be lodged in the District Court, verified by the affidavit of tho creditor, that the amount is still duo and unpaid, it shall be tho duty of the Judge of said Court forthwith to ordor notice of the same to bo served upon tho Attorney Goneral of the State, and it shall be tho duty of the Attorney General, receiving said notioe, immediately to ascertain whether there be any logal or equitable defonco to tho payment of said note; and, if in his opinion, there bo no such defence, he shall forthwith apply to said Court, by petition, for a writ of sequestration against all the property, and assets of the bank, whose noto has boon protested as aforesaid, and for judgment of forfeiture, upon filing said petition, such sequestration shall issuo, and it shall bo the duty of the Court at once to appoint three liquidators, who shall give such security-as the Court mayorder. Said bank shall be allowed three days to answer said writ; the cause shall be heard in preference to all other cases, and should there be no sufficient legal or equitable defence established to the payment of said note, judgment of forfeiture shall be entered up.</p> <p>A judgment by default must first be taken in all oases before a final judgment can bo obtained.</p> <p>The Attorney General is the proper porsonto represent tho State, in place of tho plaintiff, for the forfeiture of tho Charter of a Bafik.</p>

<p>A judgment can he amended for an error of calculation.</p>

<p>APPEAL from the Sixth District Court of New Orleans,</p> <p>— It is a well settled principle of law, that parol evidence is not admissible to contradict or vary the written contract, or as to what may have been said before, since, or at the time of making it. The authorities on this point are quite numerous. Seh-S. C. 2256; Henderson v. ¡Slone, 1 N. S. 641; Cook v. ParTcarson, 16 L. 129; Arnou v. Davison, 18 L. 43; Hilly. Hall, 4 R. 416; Clark y. Slidell, 5 R. 330; Williams’ Adm’ry. Garey Hood, 11 A. 113; Angelí on Common Carriers, 228-9; James Knox v. Lidell, 5 R. 111. In this last cáse the Court held that the Article 2256 of the C. C. was not confined to acts relative to the transfer of immovable property or slaves, or authentic acts.</p> <p>In the case of Slinson y. Schooner Pennsylvania, 12 L. 332, this Court held “that a ship landing goods at an intermediate port, and shipping them on another vessel without the consent of the shippers, is liable for their loss.</p> <p>And in a still later case, Murrell y. Dixey, 14 A. 299, this Court held “ That the cargo of a vessel while in the port of New Orleans, where it had arrived by reason of a deviation occasioned by the unseaworthinesss of the vessel, was at the risk of defendants as insurers.”</p> <p>' See also-Angelí on Common Carriers, $ 175, 176, 177; Abbott on Ship» ping, 340; Parson’s Mercantile Law, 348, 351.</p> <p>' Those authorities, we contend, show that it is a universal and well set» tied principle of law, and one' recognized by this Honorable Court, that the least deviation on the part of the common carrier from the terms of the contract contained in the bills of lading, renders them liable to the shippers as insurers.</p> <p>When an agent acts within the’scope of his authority, his acts are binding on his principal. Attord y. Allord, 6 R. 320; 8 Wheaton, 338; 7 Cranch, 299.</p> <p>Mr. Fuller, who signed the bill of lading, was the clerk of defendants and purser of the steamship Morning Star; he is shown to have signed other bills of lading for defendants. See the four bills of lading offered in evidence, all signed by him.</p> <p>Now, if the plaintiff’s bill of lading was not a good contract of shipment between him and the defendants, on the steamship Morning Star, we aro unable to conceive how the defendants can pretend that it is a good contract of shipment between them and the plaintiff, by the steamship Electric Spark, when the bill of lading does not contain a word about any other vessel than the Morning Star.</p> <p>It seems to us clear, that it is a contract of shipment by the steamer Morning Star, or no contract at all.</p> <p>Where one or two innocent persons must suffer, he ought to suffer who has placed his property in the hands of a careless agent, rather than one who acts in good faith, and on his confidence in what the agent has done. 4 A. 19. 3 A. 400.</p> <p>Corporations can only contract in writing, and parol evidence is inadmissible to contradict the writing. Courtney et at. v. Miss. Marine and Fire Insurance Co. 12 L. 233. See also the ease of Pontcharirain B.B. Co, v. Sleirn, 2 A. 129.</p> <p>For these reasons, we think the judgment of the Court a quo ought to be reversed, and judgment rendered in favor of the plaintiff for the amount of his claim.</p>

<p>APPEAL from the Fourth District Court of New Orleans,</p> <p>The defendant relies on the fact that he had funds deposited in the Bank of Louisiana in his own name, and that after the order of General Butler, dated May 16, 1862, and by which the banks of this city were directed to pay all deposits in their own bills, United States Treasury notes, gold or silver, he withdrew his deposit from said Bank of Louisiana (in notes of that institution) and made a separate bundle of the amount due plaintiff, which was labeled “ Jean Pierre Guenivet.” But how can this act on his part, which was done for his own private interest, without the participation or knowledge of plaintiff, be binding on the latter ? Had the plaintiff any interest in the funds thus withdrawn from the bank ? Were not these funds the exclusive property of the defendant, who had at the same time his- money scattered in three banks of this city ? Why should the plaintiff, then, share in the loss resulting from the depreciation of the notes of one of them ?</p> <p>Again, is the date'of the withdrawal of these funds from the bank established before the Court ? and is it proven that the defendant has not made use of them before their depreciation, in his own transactions ?</p> <p>But admitting, for argument's sake, that there was an obligation on the part of the plaintiff to receive Louisiana bank notes in payment of his claim, then I say that a real tender of- these notes in the manner pointed by law should have been made to him, (0. P. Article 407) and that without such a legal tender, foEoived by a consignment, in the mode pointed out by Article 413 of the same Code, the subsequent loss occasioned by the depreciation must entirely faE on the defendant. So that in either case, whether the plaintiff was bound to accept the notes of said bank or not, the result is this case would be the same.</p> <p>The judgment appealed from must be reversed, and given in favor of plaintiff, payable in Treasury notes, for the sum claimed, viz: $2,647 08, with interest from judicial demand. See 12 An. p. 267, Code of Practice, Article 405 et seq. Civil Code, Article 2163, et seq. and 2146.</p> <p>We rely on tho foEowing points and authorities :</p> <p>1. The money coEected by defendant for plaintiff, by which defendant became indebted to plaintiff, -and became bound to return other money of equal quantity and value, is not a deposit, but loan for use. L. C. 2883, 2884; Story on Bailments, § 88, p. 65; Edwards on Bailments, p. 66; 17 WendeE, 100, 10 A. 342, 346.</p> <p>2. In this, and in aE similar cases, the property is transferred to the depositary or loanee. Troplong, Depot 115, 116; Pothier, Contrat de Bienf, p. 71; Melville v. Dodge, 60 Eng. C. L. H. p. 455; Pott v. Clegg, 16 Exchequer Bep. 323, United States Bank v. Bank of Georgia, 10 Wheaton, 333.</p> <p>3. The moneys that went into the possession of the defendant were not to be restored in the identical notes, but an equal amount in cash. They passed therefore into the hands of the defendant, and became his property.</p> <p>4. In such a case, the defendant is liable for the whole amount of the debt, in dollars, and it is error in the Court to render a judgment for money payable in Bank of Louisiana notes.</p> <p>5. It does not affect the case, that defendant never used the money; or that he withdrew the amount from bank, and then made a special deposit of the notes in an envelope, with plaintiff’s name on it. The law is that, in commerce, as soon as the money is received, it is considered as having been put in circulation. There is not the sHghtest proof in. this record, that it was the intention of the parties, that defendant was to restore the identical money he received. Troplong, § 115.</p> <p>— The relation between plaintiff and defendant was that of principal and agent. The contract of mandate under which they acted, requires no particular form, and to be correctly understood and interpreted, must be read by the light of the surrounding circumstances of every kind. The authority of the defendant as a mandatary, is to be inferred from his occupation as a merchant and planter, or the particular duties he performed, and the manner of their execution as well as his relations to the plaintiff. And for some ends a mandate must be express and special, but for others it need be only verbal, and as in this instance, general and indefinite. O. G. 2961, 4, 6, 9; Millet' v. New Orleans Canal Company, 8 Rob. 23G.</p> <p>In the case before the Court, the plaintiff was saved from a total loss by the refusal of the defendant to withdraw his money when the Bank of Louisiana was paying Confederate notes only. It is notorious that other agents at the same time pursued a different course, accepting the return of their deposits in Confederate currency, and that their conduct was followed by calamitous consequences. But in this they were guilty of no fault, and are Certainly not chargeable with neglect; neither would an action in favor of a principal to recover for losses so sustained lie against any one of them.</p> <p>The plaintiff was favored by fortune. Whore nearly every other purse suffered, or was entirely lost, his escaped uninjured. And the evidence contained in the record establishes that the prudent and successful course of Perret was afterwards ratified by the plaintiff, who, on the 16th of June, 1862, applied to the defendant for $600, and himself received that sum in notes of the Bank of Louisiana, and then relieved the defendant of the agency.</p> <p>On the trial in the lower Court no explanation was attempted of these acts of the plaintiff. Had he disapproved of the conduct of the defendant, it is clear he would not have received Bank of Louisiana notes from him, and at the same time relieved him of his .agency; or he would at least have returned the notes within a reasonable delay, and make knowD his disapprobation. He cannot play fast and loose, and was bound to make his election. The acts of a principal are liberally construed in favor of a ratification; he cannot adopt a transaction in part, but must endorse it as a whole or reject it altogether; and if the ratification be established for a part, it will operate as a confirmation of the entire business concerned. Neither can he avail himself of the acts of his agent while he thinks it to his advantage to do so; settling with and relieving him altogether, so as to terminate their connection .and relation, as in this instance; and after-wards repudiate his own conduct, because its consequences turn out to be adverse. C. C. 1811; Story on Agency, $ 250; Flower v. Jones, 7 N. S. 143; í)upré v. Splane, 16 La. 51; Ward ei al. v. Warfield et ail., 3 An. 468, and numerous cases there cited.</p> <p>But, if for the sake of argument, it is conceded that this reasoning and these authorities are inapplicable to the case at bar, on the ground that the ratification of Ferret’s acts by the plaintiff, and the termination of the agency, do not sufficiently appear; and it is agreed that the contract of mandate continued uninterruptedly between the parties, the well ascertained principles of law which regulate that contract, furnish the defendant with a thorough vindication of his conduct, and support the defence he has here set up.</p> <p>In treating of the obligations of a person acting under a power of attorney, the Civil Code provides : . '</p> <p>' ‘‘The attorney is responsible, not only for unfaithfulness in his management, but also for his fault or neglect. Nevertheless, the responsibility with respect to faults, is enforced less rigoursly against the mandatary acting gratuitously, than against him who receives a reward.” C. C. 2972. And the Code Napoleon contains the same provisions. Code Nap. Article 1992.</p> <p>Troplong, in explaining the Article of the Code, says :</p> <p>“Ainsi. les magistrals pourront prendre'conseil, de l’équité; dans le cas -de mandat gratuit, ils verront si le mandataire qui rend un service d’ami doit autre chose que les soins qu’il.donne a ses propres affaires, et si une responsabilité plus sévfere ne doit pas étre réservée pour le mandataire qui regoit une rétribution, ou pour celui qui a fait l’officieux et, par ses promesses, a empéché le mandat de. choisir un représentant capable. •Troplong, Du Mandat, No. 393.</p> <p>And Duranton, after noting the fact that the aneient Roman law upheld the doctrine of the responsibility of the mandatary, with great severity, observes:</p> <p>“Mais le Code, évidemment, s’est éloigné de ces principes rigoureux; car si, dans tel cas donné, le mandataire doit repondré de sa faute, parce qu’il re<joit un salaire, il est bien elair qu’il n’en devrait pas repondré si le mandat était gratuit, autrement la circonstance qu’il y a un salaire serait absolument indifférente, et cependant les rédacteurs du Code veulent qu’on y ait égard;’d’oñ il faut conclure, ainsi que nous l’avons dit souvent dans cefc ouvrage, que, méme sous le Code, il y a des degrés dans les fautes, ou, si l’on veut, des cas ©ú le ¡juge doit y avoir égard, et des cas oú il n’en doit pas faire la base d’une condamnation a des dommagésintéréts.” Duranton, Droit Franjáis, vol. 18, pp. 232, 233.</p> <p>It is to be observed, that the Article of the Napoleon Code here referred to, and the reasoning of Troplong and Durant on thereon, pre-suppose the commission of some fault on the part of the unsalaried mandatary, to which indulgence is extended because his services are gratuitously rendered; and, a fortiori, from the same spirit of natural equity it follows that; where no fault whatever has been committed, as in the case at bar, and there appears to be only such an error of judgment on the part of the mandatary, in favor of the issue of a bank of the highest credit, as could have been avoided, under the circumstances, by infallibility alone, that there is no consequent liability.</p> <p>Our own jurisprudence on this subject is well settled, and has wisely provided for the very class of cases to which that before the Court belongs. In this respect our law contains provisions not to be found in the French Code.</p> <p>The Code of 1808 says: “ In case of an indefinite power, the attorney cannot be sued for what he has done with good intention. The Judge must have regard to the nature of the affair, and the difficulty of communication between the principal and the attorney.” Old Code, chap. 3, Article 20, p. 424; and Article 2975, of the Code of 1825, is a repetition of this Article of the Code of 1808.</p> <p>In the case of Madeira el al, v. Tovmsley el al. Judge Porter, in delivering the opinion of the Supreme Court, laid down the principle which regulates the responsibility of the compensated mandatary, as follows:</p> <p>“ The degree of diligence which is required of an agent who receives compensation for the business he transacts, is that which a prudent man pays to his own affairs, what is called in law ordinary diligence, and which, of course, creates a responsibility for ordinary nogleet. ” 12 Martin Rep., p. 87. And this reasoning, as has been already indicated, applies with increased force to the case of the gratuitous mandatary, who falls into natural and unavoidable errors of judgment.</p> <p>The same learned Judge, in the later case of Percy v. Millaudon, after an elaborate discussion of the principles of the law of mandato, defined the duties and liability of the mandatary as follows:</p> <p>“ But, when the person who is appointed attorney in fact has the qualifications necessary for the discharge of the ordinary duties of the trust imposed, we are of opinion that, on the occurrence of difficulties in the exercise of it, which offer only a choice of measures, the adoption of a course from which loss ensues, eannot make the agent responsible, if the error was one into which a prudent man might have fallen. The contrary doctrine seems to us to suppose the possession, and require the exercise, of perfect wisdom in fallible beings. No man would undertake to render a service to another on such severe conditions.” 8 N. S. 74. See also the cases of Dupré v. Splane, 16 La., p. 54, and Ward el at. v. Warfield el al., 3 A. p. 468, already referred to.</p> <p>The correct application of these decisions to the circumstances of the case before the Court, leaves no room for doubt that the defendant has not incurred any liability to the plaintiff. When he deposited the plaintiff’s money in the Bank of Louisiana, he put his own there also. If his own business prospered, he made twenty-five per cent. ■ profit for the plaintiff at the same time; and when, at a most critical period in the late great civil war, when values were unsettled, and all financial calculations, however skillful, failed, and in the progress of which the Bank of Louisiana itself succumbed, he withdrew plaintiff’s funds in bank, notes of that institution, then and long afterwards at par; he did exactly what,, as a prudent father of a family, he thought proper to do at the same time for himself, and to protect his own interests.</p> <p>The defendant now submits this case with confidence to the judgment, of the Court. The demand of the plaintiff is unreasonable, and finds no. warrant in the facts which have been established, or in correct principles of law. It is impossible to render services free from human eryor, and this suit shows that the plaintiff required such; he must therefore fail. These views were deemed so correct by the Judge below, that he felt no hesitation in expressing his warm approval of defendant’s conduct, and, promptly gave judgment according to his prayer, without even taking the matter under advisement. The language of Dr. Paley, which is. quoted with approval by Story (Story on Bailments,- g 182), furnishes the only just and true rule in such'cases :</p> <p>“Whoever (says Paley) undertakes another man’s business, makes it. his own; that is, promises to employ upon it the same care, attention and diligence, that he would do if actually his own; for he knows that the, business is committed to him with that expectation, And he promises no more than this.”</p>

ÍDefendants’s endorsements are prima facie evidence of their liability; and without proof destructive of the legal presumption thus created, that portion of the defence which rests upon want of… Held: says Judge Martin, in regard to subsequent promises to pay, that the plaintiff is bound to prove that the defendant had knowledge of the irregularity when he made the promise.

<p>— On a Rehearing.</p>

<p>APPEAL from the Fourth District Court of New Orleans,</p> <p>— Judgment, was rendered in favor of plaintiffs, and the defendant, Moulton, has appealed.</p> <p>The defence is so clearly untenable, that the appeal must be considered as taken for delay.</p> <p>I. The petition of the syndic, Harvey, on filing his final tableau, on the 21st of March, 1863, “ prays that public notice be given to all parties interested, aaid the same (the final tableau) be homologated and the funds distributed according to law.”</p> <p>Now, is it not a bar to the defence set up in this present suit, after having filed his final tableau, and prayed that the funds set forth therein be distributed in accordance therewith, can be permitted to say that he had no funds to distribute ? clearly not, inasmuch as there is no principle of law better established than this one: that no one can be permitted to contradict what he has alleged in a judicial proceeding. Henton v. Erwin, 5 An. p. 18; 4 An. 416; 2 An. 269; 1 Greenleaf on Evidence, Nos. 23, 24, 204; 1 Hen. pp. 518, 519, and S.</p> <p>The duties and responsibilities of syndics are well known. They must deposit in bank the money received, and distribute it as soon as possible, under heavy penalties. Rev. Statutes, pp. 2,-3.</p> <p>“Syndics are required by law to deposit funds received by them in some solvent bank, and to file a tableau and distribute the money as soon as practicable; and where thoy wilfully delay to do so, and the funds depreciate or are lost by their neglect, or by any want of prudent foresight, they will be responsible for the loss sustained thereby.” DeGruy v. Creditors, 9 Rob. 458 and 463.</p>

<p>A resident of the State must file his petition of appeal within one year from the date of the judgment, or it will he dismissed.</p>

<p>APPEAL from the Sixth District Court" of New Orleans,</p> <p>— The objection made by counsel to the trial of this ease by preference, on the ground that, to do it, would be to give to the law of 1866 a retrospective effect, is untenable.</p> <p>That law does not impair the obligation of pontraets, nor does it take away any vested rights. It is simply- a remedial statute, applicable to all cases of the kind, whether already pending before the Court, at the time of the passage of the act, or instituted subsequently, and in so doing it does not operate retrospectively.</p> <p>Marcadé, Merlin and the Oourfc of Cassation have clearly laid down this principle, in the following words :</p> <p>“ As to the mode to be pursued, the formalities of procedure to be followed in the exercise of the right of action, it is always the last law which must be applied.”</p> <p>“In fact, a person has never a vested right to enforce his contract, to be tried, in a word, to proceed according to certain rules instead of others; to claim and prosecute the exercise of a right in certain forms instead of other forms; the formalities to be gone through are always and necessarily within the power of the law, and wo can never have a vested right in their ulterior maintenance. What we rely on, when we make a contract, what we have a right to expect that the law shall not revoke without producing a retroactive effect, is the execution of our contract, the enforcement of our stipulations, but not the mode by which the law shall permit us to attain that end.”</p> <p>“The mode of proceeding is, therefore, always governed by the law in force at the time ye act.” * * * * 1 Marcado, No. 55, p. 43.</p> <p>Merlin, Yerbo, Effet Rétroactif, 7 and 8, is still more explicit:</p> <p>“ Judicial proceedings,” says he, “being of a successive nature, belong to the past and to the future. Composed of several acts, which are done successively and at different intervals, they belong to the past as regards all those of their acts which have preceded the new law concerning the form of proceeding, and to the future so far as all those which are to follow it are concerned.”</p> <p>“ Thus, the law cannot, without retroacting, declare null and void the anterior acts of a proceeding which has been commenced under the preceding law.”</p> <p>“As the future, however, is at its disposition, it is not always obliged, by permitting those acts to stand as they are, to maintain their effects, and we must, in this respect, distinguish between the acts which are consummated and those which are simply begun. ” * * *</p> <p>“But if the acts are begun only, the new law is not obliged to give them the direction which the preceding law had designed for them. It can change for the future the direction of those acts, and order that the proceeding commenced before its publication shall be continued, either by other officers, or in an entirely different form. ” * * *</p> <p>“If, therefore, the new law does not provide otherwise, it is by it that, in the proceeding initiated before its publication, all the acts which are done subsequently are governed; and that is what is decided in express terms in a decision of the Government of the 5th Eructidor, in the year 9: “ Whatever concerns the trial of cases, so long as they are not determined, is regulated according to the new forms, withont violating the principle of non-retroactivity, which has never been applied, except to the right of action itself.” ******</p> <p>“ The form of proceeding can vary, and it varies in fact, if, before the suits are finally determined, a new law intervenes and changes the form, provided this law does not declare expressly that the old form shall continue to be followed.”</p> <p>The Court of Cassation, in the 2d volume of the Journal du Palais for the year 1848, p. 640, in their considerants or reasons for judgment, lay down the same principle in the following wprds :</p> <p>“Whereas the principle of non-retroactivity only applies to the right of action itself (qu’au fond du droit), and the rules of practice and laws relative to the trial of cases are obligatory from the day of their promulgation, as concerns both future cases and cases already commenced, etc.”</p> <p>The same principle is laid down in the following American decisions: •</p> <p>“A statute allowing a parlance term affects the remedy merely, and applies to actions commenced before its passage.” Woods v. Buie, 5 How. Miss. 285.</p> <p>“The Vermont statute of 1850, in relation to invalid and informal levies, applies as well to levies made before as after the passing of the act. ” Pratt v. Jones, 25 Vt. (2 Deane) 303.</p> <p>— There is a preliminary question which the Court must determine before it can decide on the merits of the controversy in this suit.</p> <p>It is this : Is the plaintiff entitled to have this cause tried by preference in this Court' ?</p> <p>By the 8th section of the act organizing the Supreme Court, approved December 6th, 1864, it is enacted : “ That the Supreme Court shall take up all cases in the order in which they are filed.”</p> <p>The record in this cause was filed on the 3d of February, 1866, and if the above law be still in force, it is not entitled to be tried out of its turn.</p> <p>In answer to this, it is said that the above law was amended by an Act promulgated the 10th of May instant, declaring that suits for the ejectment of tenants should be tried by preference in the Supremo Court. 1</p> <p>This is a new law, and the only question is this: Is it retrospective in its operation ?</p> <p>• We think not; because Civil Code, Article 8, provides : “A law can prescribe only for the future ; it can have no retrospective operation, ” etc.</p> <p>The decisions of the Supreme Court of Louisiana on this subject are numerous, consistent and conclusive, and we beg leave to refer to a few of them, to show that this law can only operate on appeals filed in the Supreme Court subsequent to the promulgation of the law, and not on those filed previously.</p> <p>In Donaldson v. A. Winter, 8 N. S. p. 181, the Court says : “It is a sound rule of construction never to consider laws as applying to cases which arise previous to their passage, unless the Legislature have in express terms, declared such to be their intention.”</p> <p>In the act of 1866 there is no such declaration.</p> <p>In Mo Gaily. Mercier, 1 L. 348; State v. Bermudez, 12 L. 354; Fugenie v. Preval, 2 A. 181; and Municipality No. 3 v. A. Michoud, 6 A. 605, the Supreme Court recognize the samo doctrino, which appears to be this : that laws are only operative on, and applicable to cases arising after the enactment of the law, unless the Legislature should declare in express terms that the law should apply to cases existing previous to its passage.</p> <p>As this was not done in the law we are considering, it must be construed to read as follows :</p> <p>“In all suits of ejectjnont of tenants, hereafter filed in the Supreme Court, the parties shall be entitled to preference. ”</p> <p>“L’ofíice des lois est de régler l’avenir. Le passé n’est plus en leur pouvoir. ”</p> <p>“Partout oú la rétroactivité des lois serait admiso, non seulement la súreté n’exisíerait plus, mais son ombre méme.” Motifs, etc., du Code Civil, vol. 1, p. 27.</p> <p>The Roman law holds the same doctrine, for it declares : “ Leges ot constitutiones futuris certum est dare; formam negotiis, non ad facta prseterita revocari.” Cod. lib. d, tit. 14, 1. 7.</p> <p>The only question to be solved in this case is this : Did the defendant intend to avail himself of the stipulation to renew the lease, and had the plaintiff notice of such intention ?</p> <p>Numerous facts sanction the inference, not only that defendant had intention to renew, but informed plaintiff of his intention :</p> <p>1. Nature of defendant’s business and the inconvenience and expense of his transporting Iris establishment elsewhere.</p> <p>2. The repairs and improvements necessary to establish himself.</p> <p>3. Plaintiff’s letter of 13th September implies such notice.</p> <p>4. The evidence also proves it.</p> <p>5. The letter addressed to plaintiff of the 11th October, and which remained without an answer, is an implied admission that plaintiff received notice. See Meux v. Marlin, 5 An. 108 ; and Porter v. Ledoux, 6 An. 377.</p> <p>6. It was unquestionably an act of groat impropriety to lease the house to defendant’s sub-tenant without informing him of the fact, and the subtenant cannot avail himself of it without fraud.</p> <p>Honesty and fair dealing required of plaintiff to inform defendant that his sub-tenant offered $1,000, when there is no doubt he would have agreed to pay it; and, his not doing so, is a proof that he was actuated by a desire to avoid fulfilling his contract; no doubt, believing that he could get rid of it because defendant had given no written notice of his intention to renew the lease, and because he refused to submit to an arbitrary increase of the rent, without a proper estimate of the average rent in the locality, according to a special stipulation of the lease.</p> <p>To this position we say:</p> <p>1. That there is nothing in the lease requiring the notice to be in writing.</p> <p>2. Plaintiff is mistaken in supposing that there is no other mode of ratifying a contract, or of accepting it,' than by a written declaration.</p> <p>C. C. Art. 1805 expressly declares that assent is manifested by actions and even by silence and inaction.</p> <p>So C. O. Art. 1811 implies assent from silence and inaction. See Armory v. Black, 13 L. 267. Bruslé v. Thomas, 7 A 319. Woodwarth v. Wilson, 11 A. 1Ó2.</p> <p>In the first of these cases it was expressly decided that, although parol evidence is not admissible to prove a written contract, yet it will be received as proof of act done by the parties in execution of it.</p>

<p>The Supreme Gourfc, except in cases hereafter provided, shall have appellate jurisdiction only; which jurisdiction shall extend to all cases when the matter in dispute shall exceed three hundred dollars; to all cases in which the constitutionality or legality of any tax, toll or impost whatsoever, or of any fine, forfeiture or ponalty imposed by a municipal corporation, shall be in contestation; and to all criminal cases on questions of law alone whenever tho offence charged is punishable with death or imprisonment at hard labor, or when a fine exceeding throe hundred dollars is actually impose^</p> <p>No appeal lies to the Supreme Court where the amount in dispute does not oxceed three hundred dollars. The value of property seized by a Sheriff to pay taxes, the sale of which was enjoined by plaintiff, cannot givo jurisdiction, where the amount of taxes due is less than throe hundred dollars.</p>

<p>A second rule cannot be entertained, when one to the same purport; and effect has been taken, actod upon and decided, unless for a new cause, arising after the first has been decided.</p>

<p>Our laws have always permitted Frenchmen to enjoy the right of possessing and owning property in Louisiana, and under the treaty of 1853, they cannot be subjected to taxes on transfers, inheritance, or any others, different from those paid by the citizens of the United States, or to taxes which aro not equally imposed. ></p>

<p>Every marriage in the Stake superinduces a community of acquets and gains, unless there ho a stipulation to the contrary.</p> <p>A warrantor is not hound to look beyond the decree of a Court ordering tho sale of succession property; and he acquires all the right of the deceased to said property, and no more.</p> <p>The right which a possessor has, in case of eviction from the thing reclaimed, to retain it, until he is reimbursed, brings with it the expenses he may have incurred on it.</p>

<p>ít is the province of Oourfcs of Law, in the interpretation of last wills and testaments to endeavor to asoertain the intention of a testator, and to give effect thereto; provided the ascertained disposition he not contrary to law and pubiio policy.</p> <p>The testamentary dispositionbecom.es without effcot, if the person instituted or the legatee does not survive the tostator.</p> <p>The instituted heirs having taken ths whole suooession of the testatrix, no part of it could pass by representation to the heirs of a collateral, whose rights as testamentary heir, became legally divested by his predecease.</p> <p>Accretion take3 plaoe for the benefit of tho legatees, in oase of the legaoy being made to several oonjointly.</p> <p>The legacy shall be reputed to be made conjointly, when it is made by one and tho same disposition, without the testator’s having assigned tire part of such co-legatoe in. the thing bequeathed.</p>

<p>Whore an obligation sued upon i3 not negotiable, tho assignee can aoquiro no greater rights than tho assignor; and any legal defoncos whioh the latter oan urge, can bo urged against his assignee.</p> <p>This Oourt will not look for objections out of the bill; and general expressions therein, such as “illegally taken,” “tho law has not boon complied with,” “it is not tho best evidence,” “is inadmissible,” and the like, are insufficient. The party taking the bill must spread on tho faco of it everything noooBsary to enable the appollato Oourt to say that tho Oourt below erred.</p>

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

<p>The law requires tlio tax to be levied on the capital stock of an insurance oompany aofcually paid in and secured to be paid, excopting therefrom the sums paid for real estato and the amount of capital stook owned by the State or city of New Orleans.</p>

<p>Although the general rule is that damages are the amount of the loss the creditor has sustained, or of the gain of whioh he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party.</p> <p>Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an .engagement for a work of some of the fine arts, are objects and examples of this rule. In the assessment of damages under this rule-, as well as in cases of offences, quasi offences, and quasi contracts, much discretion must be left to the Judge or jury, while in other cases they have none, but are bound to give such damages undor the above rules as will fully indemnify the creditors, whenever the contract has been broken by the fault, negligence, fraud, or bad faith of the debtor.</p> <p>The Constitution, Art. 76, requires Judges in all cases to adduce the reasons on which their judgments are founded.</p>

<p>The rules of Louisiana law, relating to the opening and proving of wills, apply to the preliminary proceedings necessary to the administration of estates, which are not conclusive upon those instituting them or the parties cited or present; so as to estop them from subsequently contesting the validity of a will, unless at tho time of probate its validity was expressly put at i&sue. On the other hand, if at the time of probate the genuineness of the will is denied, the party Seeking its execution must produce the kind of evidenoo neoessary to counterbalance the express denial} and establish its validity.</p> <p>The law has fixed the kind and measure of the evidence necessary to the preliminary proof of an olographic will; the testimony of two credible persons, who shall have become familiar With tho handwriting of tho testator by having seen him often write and sign; not only sign his name, bub write other matter besides his name, and who shall attest, solemnly declare that they reoognizo the testament as being entirely written, dated and signed in the testator’s handwriting; itTmust be acknowledged and proved by them; they must recognize the handwriting of the testator, and deolare tho whole instrument, date body and signature, to be in his handwriting. (O. C. 1648.)</p> <p>All evidence of handwriting, except where the witness saw the document written, is presumptive and rests upon the principle of comparison, which is made in two ways: by comparing with the exemplar formed in the mind by previous knowledge, or with other writings produced on tho occasion, and provon or admitted to be genuine; and at best is merely evidence of opinion, which admits of Various degrees, and the weight of which is to be determined by the Court.</p> <p>If the party against whom the act under private signature is produced, disavows the signature, or tho heirs or other representatives declaro that they do not know it, it must be proved by witnesses or comparison, as in other cases.</p> <p>If the defendant deny the signature or contend that it is counterfeited, the plaintiff must provo the genuineness of such signature, either by witnesses wlio bad seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. Bub the proof by witnesses shall nut exclude the proof by experts, or by a comparison of tho writing, as established in the Civil Oode.</p> <p>The principle reoognized in the application of this rule of law is, that the express denial of a signature to a private writing, or the charge that it is counterfeited has some weight, and imposes upon the party seeking to enforqe the obligation, the burden of counterbalancing its effect by the kind of ovidonco prescribed.</p> <p>Judges should receive the truth from the hands of the law and in the form which it has established ; but it is equally their duty to be fully satisfied that what is offered in such form is really truth. It comprehends the principle which this Court is constantly applying,, that a plaintiff 'must make his case not merely probable, bub legally certain.</p>

<p>Two separate deorees are required for a divorce a vinculo, and a separation a mensa et thoro, preceding it.</p> <p>When the main purpose of a suit is to be tried, either party has the right to require the case to be set down on the ordinary docket of suits, and tried in the ordinary way, under such averments as would authorize a judgment, unless the law prescribes that it bo tried in a summary manner.</p>

<p>If the Court shall think it not possible to pronounce definitely on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior Coart refused to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower Court, with instructions as to the testimony whioh it shall reoeivo, to the end that it may decide according to law.</p>

— On a Rehearing. APPEAL from the Third District Court of New Orleans, All these decisions clearly show, that plaintiff and appellee had… Held: as their predecessors, that “the beneficiary heir cannot stand in judgment for the succession.” Indeed, other and numerous authorities might be adduced; but enough has been said to satisfy your Honors that the plaintiff, as natural tutrix, does not represent the succession, and has, therefore, no right to stand in judgment for it.

The law regards only a willful indisposition to pay or an unreasonable neglect to pay, or a decided inability to pay, as a valid ground for the dissolution of a lease. When the lessee is able, willing and, ready to pay, and, has been deterred from doing so at the exact date, either from accident, mistake and the like, he will not be visited with the penalty designed to protect the lessor against the default of an unwilling or insolvent lessee.

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

” Welson v. Simpson, 9 An. 311. The statute of 1858, p. 178, provides that “no seizure shall bind any proliorty, money or effects, rights or claims- in tho- hands of a garnishoe, cither under procoss of attachment or fieri facias, unless service of the interrogatories has been personally mado upon such garnishee.” The ease of Bighior v. Phelps, 16 An. 104, is directly in point, and fully determines the insufficiency of the pretended seizures by Baur & Bohle.

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

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

<p>The word ? ceord does not mean copies, and it is the duty of parties who offer records-in evidence to procure and file copies in tho District Court, in due timo, if they dosiro this Court to consider such records as evidenco.</p>

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

Among the property inventoried is a lot of ground with the buildings thereon, situated in Common street, valued at the sum of §11,000.

<p>In an action to annul a judgment, it must appear that the party seeking to annul tho judgment hás conformed to those essential requirements which equity oxaefcs from suitors who invoke its aid. He must have used all reasonable diligenoe, and not neglected to uso suoh means as he possessed, to prevent tho evil of which ho complains.</p> <p>The military order of General Shepley, Military Governor of Louisiana, requiring tho Judges of other Oourts in the Parish of Orleans to hold the sessions of the Fourth and Fifth District Courts of Now Orleans, for the purpose of terminating pending cases, gave suoh Judges full power to hold those Oourts for that purpose.</p> <p>Oourts will judicially take notice, without proof, of whatever ought to be generally known within tho limits of their jurisdiction; and this Court cannot ignore an historical fact in relation to the source whence Judges of Oourts, over which it exercises appellate jurisdiction, derived their power to preside in other tribunals, at a time when the State laws were merely subsidiary to military rule.</p>

<p>APPEAL from the Sixth District Court of New Orleans,</p> <p>— Tho plaintiff, by virtue of a judgment, caused tho movable effects of the defendant to be seized and sold by the sheriff. Tho amount of tho sale was $470 25. Foucher, the landlord and third opponent, took a rule agreeably to Articlo 401 C. P., to be paid by preference as privilege creditor. At the request of the plaintiff, and of the Court, tho defendant was made a party.</p> <p>The claim of the third opponent, for rent, was proved to be $510 ; and it was also proved that the property seized and sold under the plaintiff’s fi. fa. was in the house rented by defendant from the third opponent. The District Judge made the rule absolute, for $510, less $70 90, to bo retained by the sheriff for costs, and the plaintiff has appealed.</p> <p>Our right to proceed by rule, under Article 401 C. P. is so well established that we do not deem it necessary to argue it. O. O. 2675, 3184,3185. H. M. Robinson v. John F. Staples, 5 An. 712; 12 An. 339. Garretson v. Eis Creditors, 1 Rob. 445. Hoey v. Hews, 3 An. 704.</p> <p>Should it be said that we took a provisional seizure in the Second District Oourt, the answer is that it was done ex necessitate, in order to tie the proceeds of the sale into the sheriff’s hands, at a time when there was no Judge in the Sixth District Court; and that utile per inutile non vitiatur.</p> <p>And should it be objected that we did not obtain a judgment on our suit in the Second District Court, the answer is that it was not necessary under Article 401 C. P. Besides, the defendant having been made a party to the rule in the Sixth District ■ Court, at the request of plaintiff, the judgment á quo was rendered contradictorily with both plaintiff and defendant ; and again, this case has not any analogy with an attachment suit, where the plaintiff has no privilege, and obtains only a preference by the judgment.</p> <p>We trust, therefore, that the judgment of the District Court will be affirmed, with costs.</p> <p>— This is an appeal from a judgment rendered by the Sixth District Court on a rule taken by Louis P. Poucher, de Circe, on the plaintiff and the sheriff, to show cause why so much of the proceeds of the property sold by the sheriff, under a fi. fa. issued by plaintiff in this case, should not be paid to him, on the ground that he had the lessor’s privilege thereon, and was entitled to be paid by preference, etc.</p> <p>To the foregoing rule plaintiff excepted, because :</p> <p>1. Plaintiff in a rule had not obtained a judgment against defendant.</p> <p>2. The defendant had not been made a party thereto.</p> <p>3. That' any judgment that might be rendered on said rule would be a judgment against defendant, although he was no party to it.</p> <p>4. No judgment can be rendered against defendant unless he be a party to the rule.</p> <p>These exceptions the lower Court overruled.</p> <p>On the trial of the rule, the plaintiff filed the following peremptory exceptions, viz :</p> <p>That L. P. Poucher, plaintiff in rule,, could not appear and prosecute the same, because he was not a loyal citizen of the United States, and had not renewed his allegiance thereto in the manner and form prescribed by the laws of the United States and the proclamation of the President of the United States.</p> <p>These exceptions were overruled, and judgment was rendered in favor of the third opponent, Foucher, for the full amount of his claim, less certain costs.</p> <p>From this judgment plaintiff has appealed.</p> <p>The facts, as shown by the record, are :</p> <p>That plaintiff Wagner caused the movable property, on the premises occupied by defendant, on Levee street, to be seized and sold by the sheriff, on an execution issued in this case. That on the day previous to the sale by the sheriff, Foucher applied to the Second District Court and obtained a writ of provisional seizure against defendant; that the writ was received by the sheriff; that the sheriff did not make a seizure, and only executed the writ of provisional seizure by putting the same with the balance of the papers in the suit of Wagner & Newman, etc.</p> <p>That Foucher did not prosecute his suit in the Second District Court and obtain judgment against Newman, and that up to this day that suit is still pending.</p> <p>That on the trial of the rule, the defendant Newman was not present or represented; no default had been taken against him, no issue joined; that Newman left New Orleans in the fall of 1863, for Matamoros, Mexico, and had not returned. There is no evidence that he had any agent here.</p> <p>We therefore contend that the proceedings, under the rule taken by Foucher, are irregular and not in compliance with law. That the Court erred in overruling the exceptions filed by Wagner, as to the status of Foucher.</p> <p>2. That Foucher was bound to establish his loyalty before he could stand in the courts of the United States or of this State; and, failing so to do, it was the duty of the Court to sustain the exceptions and dismiss his proceedings.</p> <p>3. That Foucher not having obtained a judgment against Newman in the Second District Court, could not intervene in this case, and through a rule obtain judgment against Newman, unless contradictorily with him.</p> <p>A There is no evidence showing that the property sold under Wagner's execution is the identical property upon which Foucher pretends he has the lessor’s privilege. On the contrary, the evidence of Werzburger and DeArmas shows that the sheriff did not seize this property under Foucher’s writ, nor put a keeper over it, nor did he make an inventory of the property under the provisional seizure, nor take possession of the same under that writ; but that he merely executed that writ, as Werzburger says in his evidence, by putting this writ with the balance of the papers in the suit of Wagner & Newman, etc.</p> <p>We contend that Foucher, having failed to prove the identity of the property seized with that on which he claims lessor’s privilege, the judgment of the Court is erroneous, and we are entitled to the funds in the hands of the sheriff, arising from the sale under our execution. Privileges being stricti juris, must, as against third persons, be conclusively established. Rockford v. Geragkty, 10 An. 429.</p> <p>We therefore respectfully ask that the judgment of the Court á quo on said rule be reversed and set aside, and that the Sheriff of the Parish of Orleans be directed to pay over to us the funds in his hands arising from the sale made by him under our execution, as far as the same may go towards satisfying our judgment against Newman; and that the said Louis 3?. Foucher, de Circe, be condemned to pay all costs.</p>

Ross, by his counsel, excepted to the form of proceeding, and claimed that the administrator had no authority to proceed against him by rule or summary proceeding. Upon the hearing of the rule, the Court overruled the exception, and rendered judgment against Ross for $100. The administrator, dissatisfied with the judgment, appealed.

<p>The Civil Code provides that the lessor, and not the' lessee (unless there bo a stipulation to the contrary), must bear all the real charges with which the thing leased is burdenod. He must pay taxes, rents and other duos imposed on the thing leased.</p>

<p>APPEAL from the 2d Judicial District Court, Parish Jefferson,</p>

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

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

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

<p>The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of gun, foot, horse and chariot racing. And as to such games, the Judgo may reject the demand, when the sum appears to him excessive.</p> <p>Held .- — That the Court a quo can not, ex officio, declare a bet on a horse race excessive on its face, without any proof indicating the pecuniary standing of the parties to the bet.</p>

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

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

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

<p>APPLICATION for a Mandamus.</p>

<p>A. slight misstatement of the name of a Corporation, in talcing an appeal from a judgment in its favor, if tlie alteration or misstatomeno is not of such a character as to mislead, is not a sufficient cause to dismiss on appeal.</p>

<p>A judgment from which there is a suspensive appeal to the Supreme Court cannot be pleaded in compensation ; but it is otherwise if the appeal is devolutive.</p> <p>In all cases, where the defendant resides out of the State, the plaintiff is entitled to an attachment; the law makes no distinction.</p>

<p>APPEAL from the District Court, Parish of Morehouse,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>A motion to dismiss an appeal, which is prematurely died, will be overruled.</p>

<p>APPEAL from the District Court, Parish of Morehouse,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>The provision in the Charter of the Corporation of Bastrop, which limits the power of the Corporation to assess taxes on property, only restricts the power to levy taxes on assessable property, and does not restrict or interfere with the right to impose a tax on trades or occupations, and licenses, and thereby increase the revenues of the Corporation above the amount limited in its Charter.</p>

<p>APPEAL from the District Court, Parish of Morehouse,</p> <p>This case was tried by jury in the District Court.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>APPEAL from the District Court, Parish of Ouachita,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>This case involves only a question of fact.</p>

<p>APPEAL from the District Court, Parish of Morehouse,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>APPEAL from the District Court, Parish of Morehouse,</p> <p>This case was tried by jury in the District Cdurt.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>"Where the answers to interrogatories on faots and articles, all taken together, present a complete answer to all the interrogatories, taken together, the Court will not order one of the interrogatories tobe takon as confessed, for the reason that the answer to that particular interrogatory appears evasive, it appearing that it has been fully answered in the answer to another interrogatory.</p>

<p>The proper time to demand proof of the death of a party to an appeal, and the appointment and qualification of an administrator, in whose name the suit is revived, is at the time the suggestion of death and motion to revive is made; it is too late for the opposite party to demand it after a trial on the merits — the proof is waived.</p>

<p>I*he doctrine in Branner ct al. v. H. C. Hardy, Sheriff, et al. (ante, p. 537), re*affirmed.</p>

<p>Purchasers at Sheriff’s aale aro bound, as to tho torms of payment, by the tol'ma announced by thd Sheriff at the time of sale.</p>

<p>Whoro it appears by the petition that tho defendant is indebted to the plaintiff by reason of a negotiable promissory note, endorsod in blank ; Held .- — That tho potition is sufficient and discloses a cause of action ; and the averment that the plaintiff is tiie holder and owner of tho note sued on, is not absolutely necessary, as it is a necessary inference from the allegation that the indebtedness of tho defendant is on account of tho note sued on.</p> <p>Courts will not order the plaintiff in an action to answer interrogatories on faots and articles, when, if confessed or answered in tho affirmative, they would establish no defence to the action; or whon they look to the establishment of a defence not set up in tho pleadings.</p> <p>■When a defendant, sued on his promissory note, alleges that a third person has, for a valuable consideration, contracted to pay tho note and save tho defendant harmless; Held: — That the Court properly refused to allow the defendant to call such third person in warranty, there being no privity between tho plaintiff and the party sought to be called iu warranty.</p>

<p>APPEAL from the District Court, Parish of Rapides,</p> <p>The fadts are stated in the opinion of the Court.</p>

<p>APPEAL from the District Court, Parish of Bapides,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Whore a pretended owner of a steamboat has repairs made and materials furnished tlio steamboat, oil the credit of his ownership and for his apparent Advantage as owner, he cannot escape responsibility by setting up that he was not the owner of the steamboat at the time the repairs were done and materials furnished.</p>

<p>APPEAL from the District Court, Parish of Caddo,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>"Whore the record does not contain sufficient evidence to enable tho Court to determine the rights of partios, the judgmont of the District Court will be reversed, and the causo remandod to tho Dislriot Court for new trial.</p>

<p>Promissory notes, and other obligations for the payment of money, made during the late war, the maturity of which was made dependent on atreaty of peace between the then belligerents, became matured, by the lapse of the time agreed on, after the oossatiou of hostilities between the belligerents.</p>

<p>APPEAL from the District Court, Parish of Caddo,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Fhe possession of a promissory note, payable to bearer, is prima facie evidence of ownership, and the holder has the right to institute suit upon it in his own name.</p> <p>Where there is nothing in the record showing lex loci contractus or authorizing it, the Oourt will not allow, interest at the rate of twelve per cent, per annum.</p>

<p>APPEAL from the District Court, Parish of Natchitoches,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>APPEAL from the District Court, Parish of Bapid.es,</p> <p>This case was tried by jury in the District Court.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>A PPEAL from the District Court, Parish of Caddo,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>APPEAL from the District Court, Parish of Bossier,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Where no exception is taken to the admission of * contract in evidence, at the trial of a cause in the Court a qua, on account of the absence of a United States revenue stamp, the Supreme Court .will presume that the original, offered in the District Court, was properly stamped.</p>

<p>APPEAL from the District Court, Parish of Caddo,</p> <p>The facts are stated in the opinion of the Court.,</p>

<p>This caso involves only questions of fact.</p>

<p>P ersons having privileged claims on a steamboat or other property, under the allegation that it is all the property the debtor has from which to satisfy his debts have the right to require the proceeds of sale brought into Court to bo distributed among all the creditors, according to their respective privileges.</p>

<p>Parol evidonce cannot be admitted to ohange the torm3 of a written contract, or to enlarge or restrict its meaning.</p>

<p>APPEAL from the District Court, Parish of Bossier,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>A XA. PPEAL from the District Court, Parish of Caddo,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Community property is liable for community debts; the estates of minor heirs are merely residuary. The validity, as well as the rank of debts, may be contested in the Court of the concurso. On the arena of the tableau all the creditors are plaintiffs and defendants, and it is thero that their respective claims are to be contradictorily settled.</p>

<p>APPEAL from the District Court, Parish of Natchitoches,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>APPEAL from the District Court Parish of Natchitoches,</p> <p>Tbe facts'are stated in tbe opinion of tbe Court.</p>

<p>APPEAL from the District Court, Parish of Caddo,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>The law reprobates the begetting of illegitimate children, and only grants to natural children,!, o., those illegitimate children who have been acknowledged by their natural parents, the right to reoeivp from their natural parents by donations mortis causa, beyond what is nooessary to procure them sur. tenance, or an occupation or profession.</p>

<p>The right to make a demand available by exception does not relievo it from prescription in a direct action.</p> <p>If a party, having the right to proceed by exception or direct action, solectstho latter mode of proceeding, he must submit to the rules governing direct actions, ono rule of which is, that actions may be defeated by prescription.</p>

<p>APPEAL from the District Court, Parish of Calcasieu,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Tho sotting aside of a continuance in a suit, without notice to tho adverso party, ia irregular, and tho judgment will bo reversed.</p>

<p>APPEAL from the District Court, Parish of Avoyelles,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Courts will not permit an injustico to be done tbe owner by the usufructuary, in his abandoning arbitrarily that part of the property subject to usufruct, which might be heavily burdened with charges or repairs, or which he might so consider, and retain that ■which was profitable, unless the law imperatively required Courts to sustain the usufructuary in such a course.</p> <p>If the usufructuary desires to be relieved from the repairs and charges imposed on him as usufructuary, he must renounce the usufruct on tho whole, not on a part, of property subject to right of usufruct. Civil Code, 669.</p> <p>Plaintiffs have no right to force defendants into a multiplicity of suits, in the division of the property belonging to the community.</p>

<p>When the law is changed after prescription begins, the time elapsed before the chango is to be computed aocording to the old law, and that which follows according to the new.</p> <p>In the absence of any proof of the lex loci contractus, the provisions of the Oode of Louisiana must govern.</p> <p>Tender of payment by defendant debars him from pleading prescription. Atender is an admission of the debt.</p>

<p>A judgment of the Supreme Court was rendered at the last term of the Court held before the late civi war, affirming the judgment of the District Court, and the Court adjourned before the expiration of the three judicial days necessary to render the judgment final; afterwards, the records of the Supreme Court were destroyed by troops, who occupied the town where the Supreme Court was held:</p> <p>HeldThat, on motion, and the fact of the judgment having been rendered and the record destroyed being fully established, and more than three judicial days in term having elapsed, the Court will decree the judgment of the District Court affirmed, and direct the District Court accordingly.</p>

<p>APPEAL from the District Court, Parish of Avoyelles,</p> <p>The facts are 'stated in the opinion of the Court.</p>

<p>A sale of movable property is not complete without delivery.</p> <p>A purchaser of movable property who purchases in good faith, without notice of a prior &ale, and who has secured possession of the property, has a good title as against the first purchaser, who has not possession. An injunction to enjoin the second purchaser from taking posssession of a portion of the property, in process of delivery, will be dissolved.</p>

<p>APPEAL from the District Court, Parish of St. Martin,</p> <p>The facts are stated in the opinion of the Court.</p>

<p>APPEAL from the District Court, Parish of Avoyelles,</p> <p>The facts are stated in the opinion of the Court.</p>

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

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

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

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

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

<p>Xn order to entitle shippers to recover for alleged damage to merchandize, whilo on a voyage, it must satisfactorily appear that the damage ocourred while the merchandize was in charge of the carrier and under his control, and the result of his negligence or want of skill. *</p>

<p>When an appeal is granted, not on motion for appeal in open Court, but on petition of appeal, service of petition and citation of appeal must be made on the appellee.</p>

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

<p>Where, by tho announced terms of a public sale, the purchaser has three days to remove the articles purchased, and the property is destroyed in the possession of tho seller, before the expiration of the • three days, the loss is the loss of the seller.</p>

<p>Wiiere the District Court rendered a judgment making a rulo asking the rescission of an order granting an appeal absolute, and the party aggrieved prays an appeal to the Supreme Court from the judgment annulling the order allowing the appeal, the Supreme Court, on mandamus, will compel the District Judge to allow the appeal.</p>

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

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

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

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

<p>i Ü. PPEAL from the Fifth District Court of New Orleans,</p>

<p>The proprietor has a right to cancel, at pleasure, the bargain ho has madej even in case the work hrt8 already commenced, by paying the undertaker the expense and labor already incurred, and such damages as the nature of the case may require.</p> <p>Where the proprietor has cancelled a contract made with an undertaker for the erection of a building, the Court will not award the undertaker the full amount ho was to receive for the entire services necessary to complete the building, but will award the amount of profit which he would make on the. contract, if completed.</p>

<p>Where a merchant furnishes goods to a party, on the faith of the verbal promise of a third person to accept a bill of exchange for the amount, and, after the goods are delivered, refuses to accept in writing :</p> <p>Held .- — That the party furnishing the 'goods can reoovor of the party who promised to accept, and tho provisions of the Act of March 18,1858, requiring written proof in certain cases, does not apply.</p> <p>Laws in derogation of the commercial law are strictly construed, and without a clearer expression of the intention of the law-making power, that the statute of 1858 is intended to restrain the commercial law in tho particular under consideration, wo are not inclined to givo the statute that interpretation. • - .</p>

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

<p>Whore the Court is satisfied, from the evidence, that any of the redhibitory vices existed at the time of the sale, and they became apparent within a short time after the sale, the Court will annul tho sale and decree a return of the price paid.</p>

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

<p>Where a wife sues her husband for alimony, alleging that he refuses to provide for her support, and, before the trial of the cause, the husband and wife are reconciled, and he is living with her and pro vides a suitable maintenance for her :</p> <p>Held:-That the husband may plead such reconciliation and compliance with his obligations at the trial, as a peremptory exception, and, if sustained,,it is,the duty of the Court to dismiss the action.</p>

<p>Where the District Court, misapprehending the law, did not fix the amount of the bond at the time of granting the order of appeal, but fixed, the amount of the bond a month afterwards, at which time the bond was filed, the appellant is not blamable, and should not lose the benefit of his appeal.</p> <p>The expressions of Article 575 O. P. simply imply that the judgment, to necessitate such a bond of appeal, must bo ono in which the appellant has been competed to pay, and is not applicable where the applicant lias been compelled to pay nothing. Accordingly, a bond for costs only is sufficient for a suspensive appeal, where the fund to be divided was in the hands of the Court.</p> <p>The fixing of the amount of the bond by the Court, one mouth after the granting of the appeal, was an irregularity, and in conflict with Article 575 O. P., which requires that the amount of the bond shall be fixed when the appeal is allowed ; but it is a defect in the order of appeal, and, as was said by this Court, in the case of Dunn v. Chaffe, 10 An. 493, a defect in an order of appeal is an irregularity against which the appellant is protected by the Act of 1839, § 19, No. 53, re-enacted in 1864, No. 82, section 16.</p>

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

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

<p>The Court will not entertain a motion to dismiss an appeal from an order of seizure and sale, because there is no assignment of error, bill of exceptions, or statement of facts in the record.</p>

<p>Defendants pleaded part payment and proscription of three years, to the demand in a suit against a lessee and surety on a lease, for the rent due :</p> <p>TXeld .- — That the defences are inconsistent; that the plea of part payment is an acknowledgment that the debt is due, and interrupted prescription. *</p> <p>The surety on a lease is not discharged by the negligence of the lessor in enforcing the rent; in all cases of negligence or refusal of the creditor to act, the surety’s rerasdy is indicated and pointed out in Article 3026 G. C.</p> <p>Where the surety on a lease fails to plead discussion, to point out the property of the debtor, and to advance a sufficient sum to have the discussion effected, as required by Articles 3015, 3016 C. 0., he becomes absolutely bound in solido for the debt, and has lost all the privileges granted by law to simple sureties.</p>

<p>APPEAL from the Sixth District Court 'of New Orleans,</p>

<p>The lessor of a plantation has no privilege on sugar and molasses manufactured for third parties on the plantation, from cane belonging to such third person, grown on another plantation, and who simply used.the sugar-mill on lessee’s plantation to manufacture his cane into sugar and molasses.</p> <p>Where property of a third person is seized by virtue of a writ of provisional seizure, and at the time of seizure is coijfused with property belonging to defendant, and the entire property is sold, and the money paid into Court to await the result of litigation, the thir.d party having no opportunity to effect a separation of his property : ~</p> <p>Held .---That the party so having his property sold, -without authority of law, is entitled to recover from the proceeds in Court the amount which his property is established to have been worth.</p>

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

<p>Where a judgment in the District Court was rendered against the principal and surety on an injunction bond, the principal appealed, and the surety on the injunction bond became surety on tho appeal bond: »</p> <p>HéUl .---That the surety on the injunction bond was a necessary party to the appeal, and could not be surety on the appeal bond.</p>

<p>vVhere, during the late civil war, tho military authorities seized a lot of lumber, and turned the samo over to the Surveyor of the Oity of Now'Orleans, who used the same for repairing the wharves :</p> <p>Jleld .- — That the party from whom the lumbor was seized, can recover the value thereof from the Oity of New Orleans, it appearing that the seizure in the first instance was without authority of law.</p> <p>The object of pleading is to notify the adverse party of the nature of the claim or defence, that he * may be prepared to rebut it, and not be surprised. It is only where, from the pleadings or proceedings before the trial, the opposite party has sufficient notice of the nature of the demand or defence to be advanced, and could not be surprised, that evidence is admissible, although the allegations be • indefinite and informal.</p> <p>A party must be informed by the pleadings of the intended attack to bo made on his title, that he may be prepared for his defence.</p> <p>Whoro a defendant resists the right of the plaintiff to recover tho value of property, on the ground that the title of the property in contest is in a third person, the defence must be specially set up in the answer. Evidence going to establish such a defence cannot be given under a general donial.</p>

<p>Purchasers afc sheriffs sales, who pay the full prico of property struck off to them, should not he thereafter exposed to molestation hy parties entitled to a portion of the price,</p>

<p>Steamboats and other vessels engaged in carrying passengers are responsible for the loss of all baggage which has been placed in the custody of the officer of the vessel, whose duty it is to receive and take care of baggage.</p> <p>The Code of this State prohibits a plaintiff from testifying as to the value and nature of the contents of a lost trunk or baggage. The oommon law rule, in this respect, has never been adopted in this State.</p>

<p>Tjie wife cannot arrest the sale of the husband’s property seized in execution, on the more ground of preference over the seizing creditor.</p>

<p>Where the City Attorney of New Orleans obtained judgment against delinquent tax payers, for taxes, audbofore.the judgments were paid and satisfied was removed from office, and his successor claimed for the City tho per centago allowed the City Attorney for the collection of taxes :</p> <p>Hold That the City attorney who obtained the judgments is entitled to tho five percent, on the amount collected on said judgments, and his successor in office has no authority to interfere and enjoin tho sheriff from paying the per centage to the attorney who obtained the judgments.</p> <p>That the five per cent, allowed the City Attorney for collecting city taxes is not the property of the city.</p>

<p>Where the loss of a flatboat, loaded with coal, at the flatboat landing in New Orleans, is shown to have been the result of carelessness or inexperience on the part of the owner, or by reason of the want of propor crew, or want of skill on the part of the crew, neither the harbor master or the city of New Orleans are responsible for the loss.</p>

<p>Redhibition is a remedy which the law accords to buyors, and it may be exercised by them in two ways: either by direct action, or by way ol defence to an action for the price of the thing sold; but, in either form, the remedy originales, for all practical purposes, with the buyer, and the seller is not bound to anticipate the buyer’s resort to it. "When this remedy is used in answer to a demand for the price, to avoid a sale, the seller is not required to make any averment to let in his proof, to nhow that he did not contract the obligation to warrant the thing sold against redhibitory vices; for our law does not require a replication or rejoinder, as all matters set up in an answer are understood to be open to every objection of law and fact, as if these objections were specially pleaded.</p> <p>A clerk who receives, as remuneration for his services, a certain per centage of the profits made by his employer, is a competent witness for his employer. His interest is too remote to disqualify him on tho ground of interest in the result of the suit.</p>

<p>Á debtor can arrest tlie executory process of his creditor, whose act of mortgage contains the' non-alienation clause, by surrendering his property to his creditors, when tho executory proceedings must be cumulated with the proceedings in insolvency.</p>

<p>A debtor who is insolvent, and against whom proceeding to compel a surrender oí property, can do nothing'to impair the rights of his creditor.</p>

<p>The subscription notes of a mutual insurance cpmpany constitute a part of tho capital stock of thQ company, and are subject to taxation.</p>

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

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

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

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

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

<p>Tlie proprietors of steam tow-boats (such as ply between New Orleans and the Gulf of Mexico) are common carriers, and responsible as such.</p> <p>By the contract for towing, tho captain of a tow-boat is bound to carry vossols safely to their destination, unless prevented by uncontrollable accidents, or such as are not within the control of human foresight or power. If the boat be so much undor the influence of the rudder of the ship, it is the duty of the master of the tow-boat to look to it. His undertaking is to tow the vessel in safety, and he has a right to assume all the authority necessary to effect that purpose. The command and care of the vessel towed should either be subject to his command whilst she is carried by his boat, or her rudder should be placed in the hands of one of his own men. We consider a vessel thus towed as property carried for hire, in which her crew should not bo viewed as having any lawful a ency.</p>

<p>The Bellevillo Iron Works Company, a corporate body domiciled in New Orleans, came into Court and mad© a voluntary cession of its property, and after due proceedings had, an order was made staying all proceedings against th© corporation, and a syndic was appointed; a short time after the order was granted, a creditor of the corporation brought an action to recover an amount due him from the corporation, and prayed that the order staying proceedings against the corporation b8 annulled; after trial, the Court rendered judgment annulling the order, as prayed for:</p> <p>I fold .- — That all subsequent proceedings, on the part of the Belleville Iron Works Company, taken to perfect the cession of their property in settlement of its debus, wero void, as the order staying proceedings and appointing a syndic was annulled.</p> <p>Corporations have no right, under the laws of Louisiana, to make a voluntary cession of their assets to their oreditors and obtain the benefit of the insolvent laws.</p>

<p>— On Rehearing.</p>

<p>A rule was taken to set aside an attachment for the reason that no United States interna] revenue stamp had been affixed to the affidavit or petition. The rule was dismissed. The defendants after-wards filed a peremptory exception on the general ground that the provision of the United States internal revenue law had not been complied with:</p> <p>Jítld : — That the dismissal of the rule judicially established the fact, that the law requiring a stamp had been complied with, and if any other provision of the revenue law was relied on by the defend ant, he should have specially set forth the non-compliance.</p> <p>Fraud must he specially pleaded.</p>

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

<p>An absentee is a person who has rosided in the State and has departed, without-leaving any one to represent him. It means, also, the person who never was domiciliated in the State, and resides abroad.</p> <p>A defendant who is domiciled in this State cannot be cited through a curator ad hoc, when lio is absentfromthe Statoandnot represented by an agent.</p>

<p>A party gave four notes payable to his own order, and by him endorsed in blank, and gave a mortgage on certain immovable property to secure their payment; at the maturity lie gave four other notes, to represent the old ones, with the express understanding that the new notes should nob in any manner operate as a novation of the old notes, or impair the validity of the mortgage by which they were secured. The mortgage contained a stipulation that, in case suit was instituted on the old notes, the holder should receive interest and attorney’s fees. A holder of one of tho new notes instituted a suit to recover the amount, with interest and attoney s fees, and also askod for the recognition of the mortgage in his favor, and the enforcement thereof :</p> <p>7Ield: — >That the mortgage to secure the payment of the old notes was nob to be affected in any man* nerby the new notes; and that there was no contract of mortgage made to secure the new notes, and the plaintiff could not recover attorney’s fees under the stipulation in the mortgage.</p>

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

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

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

<p>Where, by the terms and conditions of a lease, the lessee covenants to allow no goods to be placed on the premises, which, if on the premises, would cause a forfeiture of the insurance, it is a sufficient cause for annulling the lease, if such goods aro allowed on the premises with the consent of the</p> <p>Default is not a necessary prerequisite to tho rescission of a contract, when the party sued for its rescission lias made an actual breach thereof.</p>

<p>Where the rules of the District Court require causes to be fixed for trial on the first day of the term, it is error to fix a cause for trial on tho second day of the term.</p> <p>Courts are clothed with power to prescribe such rules of proceeding appertaining to their jurisdiction as may be necessary and useful in the exercise of their functions, and which have not been established by law. These rules become, in effect, laws, which may, be modified or repealed by the power from which they emanate, but they ought not to be relaxed or suspended to meet temporary convenience or be accommodated to the ever varying circumstances of time. The evils that would arise from a vacillating and uncertain operation of such rules are more and greater than any that would by such lax operation be obviated.</p>

<p>Tho plaintiff, a drayman, contracted to haul and deliver to a vo3sol, loading at tho port of Now Orleans, sixty-four bales of cotton. The cotton was hauled to tho vcssol and placed on tho Levco, at a place near the vessel, which place was pointed out by the mate of tho ship. • The drayman, at the request of the officers of tho vessel, covered the cotton with a tarpaulin; the officers of tho vessel then refusod to sign a receipt for the cotton, alleging that they would not receipt for freight at so late an hour in the day:</p> <p>Held : — That the cotton was in the custody of the vessel, and the vessel rosponsiblo therefor as a common carrier, and must pay for the loss of ono of the bales'talcen away during tho night.</p> <p>The drayman, having paid hite employer tho value of tho bale of cotton lost, brought this action against the vessel to recover the amount so paid :</p> <p>Held .- — That there was no privity between the drayman and the vessel; that the mero paymont to the owner of tho cotton of the the value of the cotton lost, did not subrogate the drayman to the right of action the owners of the missing bale of cotton had against the vessel^ either for the balo or its value.</p>

<p>That portion of the capital of tho Citizens Mutual Insurance Company, which i3 invested in bonds an d stocks exempt from taxation by statute, is subject to taxation as tho capital of tho corporation.</p> <p>For purposes of taxation, there is a distinction between the actual capital of tho corporation, and tho bonds or securities in which that capital is invested; and tho city of New Orleans, by tho provisions of its charter, can impose a tax on the entiro capital of the corporation invested in bonds and securities, irrespective of the character of such bonds or securities.</p>

<p>Proceedings wore taken to pave a street in Now Orleans; a majority of the proporty owners, by a petition to the Common Council, duly signed in due time, opposod the improvement of the street; subsequently, the majority opposing tho improvement of the street withdrew thoir opposition, and tho Common Council proceeded to pass tho requisite resolution authorizing the sale and adjudication of tlie contract to pave :</p> <p>Held: — That the proceedings were regular, and property owners on tho street liable to pay for die paving, as provided by law.</p>

<p>A contract to pity a liiglior rate of interost than eight percent, per annum, is usurious, unless the interest agreed upon bo included in a written obligation and form a part of the amount for which the written obligation is given, and tho penalty for a usurious contract is tho forfeituro of the ontire interest so contracted. Ho who pays such usurious interest can rocovor tho amount so paid by him, if he sue for it within twelvo months from tho time of payment.</p>

<p>Tho answers of a party interrogated on facts and articles, form a part of tho ploadings, and oithei* party may uso them, without formally introducing them in evidence, in the same manner as either party may have the benefit of any admission in the petition or answer. They belong to the record from which they cannot bo withdrawn.</p> <p>So, where interrogatories on facts and articlos are propounded to a party, and are taken for confessod, the order of the Court taking tho interrogatories for confessed, stands in liou and place of the answers, and form a part of the record.</p> <p>"When a record in a cause, in which interrogatories on faots and articles have boon taken for confessod, is offered in evidence, the order of the Court taking the interrogatories for confessed, stand in lieu and place of the answers, and form a part of the record offered in evidence.</p> <p>And this, although the interrogatories so taken for confessed were filed in another suit between the samo partios and for the same causo of action, and which suit had been dismissed by plaintiff after the interrogatories had been taken for confessed.</p> <p>Where interrogatories on facts and articles are taken for confessed as against plaintiff, and tho suit subsequently dismissed by plaintiff, the defendant has the right to use them in evidence in a subsequent suit between the same parties for the same causo of action.</p> <p>A party paid a certain sum of monoy to obtain an extension of time on several notes:</p> <p>JTcUl: — That this money could not bo plead in part payment of tho notes; the sum'paid for delay was separate and independent of the notes. The notes formed one contract, the delay another; and the contract for delay was consummated, and could not bo questioned in an action on tho notes.</p> <p>A party seeking to recover money paid for usurious interest, must bring his action therefor within one year.</p>

<p>A landlord, bp virtue of a provisional seizure in a proceeding to enforce tlie payment of rent due, seized property on tlie premises belonging to an absent sub-lessee wlio was not indebted to the lessee for rent, and caused tlie property seized to bo sold on final process:</p> <p>Held: — That the property of the under-tenant was illegally seized and sold, and that he could recover of the landlord the value of the property so sold.</p>

<p>An indictment charged that tbe defendant "didlio in wait and sboofc with a dangerous weapon with intent to commit tlio crime of murder upon one,” oto:</p> <p>Held: — That this allegation is uncorfcain and indefinite, and subject to two meanings, and is not in language equivalent to the words of tbe statute upon which it is based.</p>

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

<p>Where the Supreme Court has jurisdiction of a cause at the time of appeal, the appeal will not be dismissed on account of a part payment of the judgment, which, if made before appeal, would have reduoed the amount below its jurisdiction.</p>

<p>Damages should bo established by sale before a judgment for the recovery of damages can be had agaimat a carrier, for goods damaged while intrusted to his oare. ,</p>

<p>APPEAL from the Third Justice’s Court, Parish of Orleans.</p>

<p>A husband made application to be put in possession of the community property, as survivor and usu* fructuary of his wife, she having diod without leaving heirs, either ascendant or descendant. The Court grantod the application, without notice to the attorney for absent hoirs :</p> <p>ItoinThat the application could only bo gi'ilntod after due notice to tlio attorney representing absent heirs, and must bo determined Conttadiotorily with tho heirs.</p>

<p>Without somo authentic evidence of the interruption of prescription, no action via oxocutiva can lay.</p>

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

<p>APPEAL from tho Sixth District Court of Now Orleans,</p>

<p>— On Rehearing.</p> <p>APPEAL from the Fifth District Court of Now Orleans,</p>

<p>A PPEAL from the Sixth District Court of New Orleans,</p>