Volume 2 — Louisiana Annual Reports

<p>The incapacity of married women to contract Í3 not universal and absolute. The limitations imposed on their capacity to contract, for the maintenance of the marital power or for their protection against its abuse, must be construed strictly. In all oases to which they do not extend, the capacity of women is not affected by marriage.</p> <p>The plea of want of authorization will not avail a married woman, where its effect would be to enable her to commit a fraud. Nor tlio same reason, in all obligations arising from quasi-contracts, offences and quasi-offences, tho wife is bound without authorization.</p> <p>A wife cannot be made responsible for wages due to a laborer for work done for the community, in the absence of proof of any fraud or misrepresentations on her part, calculated to mislead the plaintiff, by inducing him to believe that the property was paraphernal.</p> <p>A promise by a wife to pay a laborer who had been employed to work on community property, is not obligatory. Whether separated in property or not, a wife cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage. C. C. 2112.</p>

<p>APPEAL from the Court of Probates of New Orleans, Bermudez, J. The executor of Rebecca Glover appealed from a judgment condemning him to amend an account filed by him, so as to credit the succession with $1168 10, the amount of a debt, on the ground that he had not shown due diligence to collect it. The judgment was rendered on an oppostion to an account filed at the instance of the opposing creditor, Dudley.</p> <p>The exception taken in this case to the form of proceedings confounds claims for damages founded on torts, with claims for indemnity founded on matters of administration. The rule in the first class of cases is given in 3 La. 464, Young v. Chaney. The question there, was damages for injury to real estate. These, from their nature, are unliquidated demands, and the court say, “ the act complained of would amount to a quasioffence, and to say the least of it, a question might be raised as to the competency of a Court of Probates to decide on such a claim.” The reason of this rule is to be fonnd in considerations touching the trial byjuty. Morgan v. Jjard, 14La._286. “ The jury are the peculiar judges of the quantum of damages.” •‘•he assessment of damages is the peculiar province of a jury.” Barney v. Be Russey, 1 Rob. 75. C. P. 313. The two following cases were judgments by default, in which the court had assessed damages without the intervention of a jury : In actions of tort in which, from the nature of the demand, damages are to be assessed, a jury must be summoned to find the same.” Olivier v. Canon, 11 La. 474. “A jury only can assess damages.” Liles v. New Orleans Canal and Banking' Company, 6 Rob. 273. Construed by these authorities, the interpretation of the rule in 3 La. seems to be, that that a Court of Probates ought not to have a jurisdiction which is the peculiar province of a jury, and that it cannot exercise a jurisdiction which, in every case of a judgment by default, would require it to perform an impossibility.</p> <p>This case is different. The opponent’s claim is based upon a mere matter of maladministration. In matters of this sort, curators are responsible in the Court of'Probates. C. C. 1140. C. P. 924, no. 9, 997. These articles declare that curators are responsible for their maladministration: that they are to render their accounts to the Courts of Probate; that these courts alone have the power of compelling them to render accounts, and to pay over what they owe. To suppose, under these circumstances, that the Court of Probates could not give judgment against a curator personally, would involve the absurdity of supposing a tribunal possessing exclusive jurisdiction over the facts, without the power to decree what consequences flow from these facts.</p> <p>Nor do any of the reasons given for the rule in 3 La. apply here. There canbe no doubtful question of facts to be solved by a jury, for the curator is bound to furnish all the proofs and to make all the facts clear in his accounts ; and there can be no unliquidated damages to assess, as the amount of the debt lost by his negligence, furnishes the exact measure of his liability. See Lafon’s Heirs v. His Hxeeutor, 3 Mart. N. S. p.718,719. Longbottomv. Babcock, 9 La. 49. In these two cases, the executors were held liable, on oppositions to their accounts, for debts which they had failed to collect; the one for gross negligence, and the other for want of proof of due diligence. See also, Hodge's Heirs v. Bunford, 1 Mart. N. S. p. 126. McMicken v. Millaudon, 2 La. 184. ■ Watts v. McMicken, 2 La'. 183. These cases were from courts of ordinary jurisdiction, and it was held that a single act of an administrator'cannot be selected as the foundation of a suit; that the action ought to be to compel him to render an account of every thing he has done in that character, that is, that the Court of Probates had jurisdiction and that an opposition was the proper form of proceeding.</p> <p>The cases of Ingraham's Heirs v. Stokes, 10 La. 26, and Parmelee v. Brashear, 11 La. 332, sustain the jurisdiction of the District Courts in suits brought upon bonds of curators, &c., when the penalty of the bond is the gist of the action, and, by implication, refer it to the Probate Court when the gist is an account. In the case of Flint v. Wells, 4 La. 332, the jurisdiction of the District Court was negatived, when a suit on a curator’s bond claimed an account, and not the penalty. The act of March 16,1842, ch. 120, § 6, gives, in terms, exclusive jurisdiction to the Probate Court in all suits upon bonds of curators, &c., in relation to sureties. It must be construed to embrace principal, of course. Conclusive upon the point of jurisdiction, it says nothing about the mode of proceeding; but the case of Wilson v. Murrell, 6 Rob. 69, in construing the clause of this act which requires that the necessary steps shall be taken against tho principal before recourse upon the surety, expressly designates the mode by account and opposition under arts. 1055, 1056, 1057 of the Code of Practico. In Boudousquie’s Succession, 9 Rob. 407, the issues made involved the question of an administrator’s liability for negligence in collecting a debt; the prayer of the plaintiff'in opposition, however, was for a different kind of relief; and the court ordered that the case be remanded to the Court of Probates to enquire whether the administrator ought not to be charged, with a certain sum of money, “in consequence of failure of recovery and loss to the estate, resulting from the administrator’s negligence in pursuing legal means to secure payment.” Code de Procédure, arts. 533, 1002, 995. 2 Toullier, p. 407-9.</p> <p>On the question of jurisdiction, the court is referred to Prieur etal. v. Their Creditors, 2 Rob. 541. Dupin’s Pothier, v. 8, p. 79. Story’s Agency, § 183. 11 Mart. 192. 6 Ibid. N. S. 195. 8. Ibid. N. S. 328. 7 Ibid N. S. 38. 18 English Common.Law Reports 348. 20 Ibid., 183. Story’s Agency, § 217, 218. 8 Mass. Rep. 57. 7 Dupin’s Pothier, 161.</p> <p>I. Courts of Probate are without jurisdiction of any action or proceeding to render an administrator personally responsible, for laches, or mal-administration. They are courts of limited jurisdiction. They have no powers but such as have been expressly given. No article of either Code — no statute has ever given them jurisdiction in such a case. Art. 997 of the Code of Practice declares, that “the judges of the Courts of Probate, who have appointed or confirmed testamentary executors, and other persons administering successions, alone have the ¡tower of compelling them to account and pay over what they may be found to owe” — in the french text “ ont seuls le droit de les contraindre a rendre compte de leur administration et a en payer le reliquat.” The Probate Court has exclusive power to compel an administrator to account; it has authority to force him to pay into court any money, or to give up any property, of the succession, in his possession — but when there is no longer any money or other property of the succession in kind, the Probate Court ceases to have jurisdiction. Any thing due to the succession by the executor personally, becomes a debt to the succession —and payment must be sought from him, as from any other individual, by an action before the ordinary tribunals. In the case of Baillio v. Wilson, 5 Mart. N. S. 217, the question of the jurisdiction of the Probate Court in such a case, was expressly raised and decided. Porter, J. says : “ The first questions to be examined arise out of the pleas to the jurisdiction of the court, and we think the defence well offered to that part of the petition, which alleges the personal responsibility of the defendant by reason of her mal-administration. Such an action should be commenced in the District Court.”</p> <p>In the case of Bouquette v. Bonnet, 2 La. 133, the question of the jurisdictiction of the Probate Court of an action against an executor personally, for an illegal act in his administration was raised and argued. The court say: “It appears to us, this is a demand against the executor, in his personal capacity, for property sold by him contrary to law. In other words for a tort or wrong done by him.” “ We think the Probate Court had no jurisdiction of the case.”</p> <p>In Ingram v. Stokes, 10 La., 28, which was an action against a curator of absent heirs on his bond, brought before a District Court, the jurisdiction of the court was excepted to, but sustained.</p> <p>In the case of Hemken v. Ludewig, 12 Rob. 188, the question was again expressly raised, whether a Probate Court could take jurisdiction of an attempt to render a curatrix liable personally, for the debts of the succession. Simon, J., in delivering the opinion of the court, says: “ It is well settled that Courts of Probate have no jurisdiction of a claim against an administrator personally, for mal-administration.”</p> <p>The power of the Probate Court is limited to the property of the deceased— it has a sort of jurisdiction in rem. When the property itself has ceased to exist, and the succession has only a claim against an individual — whether the claim results from an ordinary contract, or from the mal-administration of an executor, payment can only be enforced before the ordinary tribunals.</p> <p>It is evident that Probate Courts have not been invested with jurisdiction in actions against executors, &c., for mal-administration, because the remedy being in damages, the defendant is entitled to a trial by jury. The reason does not apply when the the object is to enforce the delivery of property or money, of the succession, in his hands.</p> <p>Not a case is to be foundin the whole series of Reports in this State, in which the court has sustained the jurisdiction of a Probate Court in such a case, where the point has been raised. An examination of the numerous cases cited by the counsel of the appellee will satisfy the court of this. In the cases of Longbottom v. Babcock, 9 La. 49 — Lafon's Heirs v. His Executors, 3 Mart. N. S.718 — Collinsv. Andrews, 6 Ib. N. S.195- — and Succession of Boudousquie, 9 Rob., 405, no exception-was taken to the jurisdiction of the Probate Court, nor was the question of j urisdiction raised. The controversies turned on other matters.</p> <p>The case of Hodge's Heirs v. Burnford, 1 Mart. N. S. 126, was an action before a District Court, and the question of jurisdiction was not raised. That oiFlint v. Wells, 4 La. 537, merely decides that a District Court is without jurisdiction of an action to compel an administrator to account. In the case of Prieur et al. v. Their Creditors, 2 Rob. 541, the question related to the administration of a syndic of the creditors of an insolvent. The case had nothing to do with a a succession. The case of Wilson v. Murrell, 6 Rob. 65, was an action against the surety of a curatrix under the express provision of the act of 1842, and decides nothing as to the question of jurisdiction. The case of McMicken v. Millaudon, 2 La. 184, is the only case in which there was any plea to the jurisdiction of the court, and that case was evidently determined on the ground, that the Probate Court alone had authority to compel an executor to account— which is not denied. The decision Was delivered by Judge Porter, but a week or two before his decision in the case of Boquetle v. Bonnet, reported in the same volume, p. 193, and must be taken in connection with the latter, in which it is expressly decided that a Probate Court has no jurisdiction of an action against an executor personally, for mal-administration.</p> <p>If an executor can be condemned, on a mere rule in the Probate Court, to pay a large sum to the succession de bonis proprks on the ground of neglect or maladministration, there must be some law authorizing the proceeding. An examination of the articles of the Code of Practice, (see arts. 993, 997, 1056, 1057,) will show that the Code never contemplated giving the Probate Courts authority to proceed against an executor personally, but where he retained in land property or money of the succession. Art. 993 says: “It shall be ihe duty of the curator to account before the judge of probates, and pay over, &e., a due proportion of the sums which be may have in his hands ; and on his failure to render his account, &c., or to make payment, &c., execution may issue against liis property.” Art. 997 gives authority to probate judges “ to compel executox-s, &c., to account and pay over what they be found to owe — (in the french text, le reliquat,) that is to say, any balance of property or money in their hands belonging to the succession. Art. 1057 authorizes an execution against the property of an executor, “ when he fails to prove that he has no Junds in his hands belonging to the successionand this proof the preceding article (1056) declares may be made by “filing in court, a brief statement of his condition as executor, &c., with regard to the succession.”</p> <p>The provisions of sects. 3, 4, 5, of the act of 13th March, 1837, (B. & C’s. Dig., 498 — 9) seem to have suggested the summary proceedings resorted to in the lower court; but it will be seen that they do not extend to a case like this. The accounts of the executor show that the money received was disbursed according to the judgment of the court homologating the tableau, and as fast as received. Besides, there is no evidence that there was any bank in the parish of Orleans allowing interest on deposits. The third and fourth sections of the act of 1837, prescribe a penalty for not depositing money in bank, or withdrawing it — they relate to no other matter. The rule in this case was taken to effect a different object, nor is it pretended that the executor had any funds to deposit.</p> <p>Admitting the jurisdiction of a Probate Court to condemn an executor de bonis proprks, for laches or mal-administration, where the question of liability arises incidentally, it does not follow that it would have the same power where such a judgment was sought as the principal end of the proceeding.</p> <p>The case of the Succession of Johnston, 1 Ann. Rep. 75, does not touch the questions presented by this case.</p> <p>II. All the creditors appearing on the homologated tableau of distribution should have been made parties to the proceeding against the executor, otherwise the judgment on the question of laches, if given in favor of the executor, would not be final, while itwould be, if against him. If a contrary rule were admitted, there might be as many judgments as creditors. See McMicken’s case, 2 La., 184.</p> <p>III. There was no laches. The omission to take out execution is not conclusive evidence of negligence. It may be — as was the fact in this case, that there was no property to be seized.</p> <p>IV. The omission to record a judgment is not alone evidence of such neglect as will subject an executor to the payment of the whole debt. Such a precaution can only be required where there is reason to believe it might be productive of some good. To render an executor liable for such an omission, it ought to be proved that some injury resulted from it. There was no pretence of any thing of the sort in this case, which is a mere attempt to render an executor personally liable for a technical neglect, in a case in which, in fact, the utmost diligence has been used.</p> <p>V. Though the omission to take out execution be regarded as evidence of laches, what law condemns the executor to the payment of the whole debt as a penalty for his neglect? To entitle any party to damages for the malfeasance or misfeasance of another, he must show an injury to himself.</p>

<p>Appeal from the Parish Court of Now Orleans, Maurian, J.</p>

<p>Where the record does not contain all tho evidence on which the case was tried, and there is no statement of facts, hill of exceptions, nor assignment of error filed within the time prescribed by art. 897 of tho Code of Practice, the appeal must bo dismissed.</p>

The interrogatories annexed to the supplemental petition, were properly taken pro confessis. The defendant was required to answer them in open court, on the day of trial. The Code of Practice, art. 463, provides that cases shall he fixed for trial on the docket of the court, and for all purposes connected with the trial the parties aro bound to take notice of the day so fixed. The order was made by virtue of the Code of Practice, art. 351.

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>1st. It was a giving in payment, nota sale, and thero was no real delivery. C. C. 2028, 2626.</p> <p>2d. It was made when the seller, or rather the transferror, was insolvent. C. C, 1965, 1972.</p> <p>3d. Such transfers, within a year .proceeding insolvency, are presumptive of fraud in both vendor and vendee, who must prove their good faith. Acts of 1840, p. 133, ss. 14,19. Hodge v. Morgan, 2 Mart. N. S. 61.</p> <p>4th. Malard's continuing in possessson was proof presumptive of fraud. C. C. 1915, 2456. 5 Touh, no. 41. Pierce v. Curtis, 6 Mart. 418. Thibodeaux v. Thompson, 17 La. 359. '</p> <p>The vendor’s privilege yields to the lessor’s, All the goods had been unpacked, and were not claimed within eight days thereafter. Civil Code, arts. 3196 3197, 3230.</p> <p>By art. 1977 of the Civil Code, “If tho parties with whom the debtor contracted,, be,in fraud as well as the debtor, ho shall not, in the annulling the contract, be entitled to restitution of the price or consideration he may have paid, except so much as he shall prove shall have inured to the benefit of tho creditors by adding .to the amount of property applicable to tho payment of their debts; but if the only consideration be a sum due from such debtor to the party with whom he contracted, then'the only restitution to be made is the placing the parties in the situation in which they were before the contract complained of was made.</p> <p>By art. 1978, it is declared: uBut if such fraud consisted, merely in the endeavor to obtain a preference over other creditors, for the securing or payment of a just debt, under circumstances in which, by law, the ondeavor to obtain such preference is declared to be a constructive fraud, in such case tho party shall only lose the advantage endeavored to be secured by such .contract, and shall bo re-imbursed what he may have given nr paid, without interest, and shall restore all advantages he has received from the transaction.”</p> <p>It is under these articles the plaintiff proceeds.</p> <p>If Hunt Co. are, in the language of art. 1978, “only to lose the advantage endeavored to be secured by the contract” of sale; and if, in the language of art. 1977, “the only restitution to be made, is placing the parties in the situation in which they were before the contract complained of was made,” then Hunt tf Co. stand, as creditors of Malard, with tho vendor’s privilege upon all his goods, and upon all goods transferred by the act of sale of the 14th January, excepting a small quantity, which, being unsaleable, were sent to auction, and brought $124 14.</p> <p>Plaintiffs’ privileges ns lessors upon the goods was lost by thtfiif, as tlioy did not, in accordance with art. 2679 of the Civile Code, seize tho objects subject to it, before they wore taken from the store, nor within fifteen days thereafter.</p> <p>The judgment of the court below was based upon art. 1972 of tho Civil Code. By that art. it is doclared that, “ The judgment in this action, if maintained shall be that the contract be avoided as to its effect upon the complaining creditors, and that all the property in money, taken from tho original debtor’s estate by virtue thereof, or the value of such property to the amount of tho debt, be applied to the payment of the plaintiffs-” In this case, tho effects of the sale wero not injurious to tho complaining creditors, for Hunt Sy Co. obtained thereby only the advantage which the vendor’s privilege gave them, and would still give them, though the sale be anulled. That article must, moreover, be construed in connection with arts. 1973,1974, 1976, 1977, and 1978. Art. 1973 says, “No contract shall bo avoided by this action but such as are made in fraud of creditors, and such a3, if carried into execution, would havo the effect of defrauding them. If Hunt & Co. have tho vendor’s privilege upon the goods, and no other creditor has a superior or equal privilege, by carrying the contract into execution, Hunt Sy Co. gained no more than their privilege gave them, and its execution could defraud no one.</p> <p>As to Brewster, it would seem impossible to sustain the judgment of the court below, if tho articles 1973, 1974, 1976, 1977, and 1978, are regarded as at all applicable to tho facts of the suit.</p>

<p>Appeal from the City Court of New Orleans, Cullens, J.</p> <p>There was due diligence, and the endorser was properly notified, under sec. 3 of act of 13 March, 1827. B. & C’s. Dig. p. 43. Jones v. Mansker, 15 La. 51. Union Bank v. Grimsliaw, 15 La. 321. The evidence shows that the defendant px’omised to pay the note, after the protest.</p> <p>There was not sufficient diligence used to discover the residence of the endorse!-. Canonge v. Louisiana State Bank, 7 Mart. N. S. 585. Chitty on Bills, 213. There was no sufficient promise to pay after dischai-ge, it not having been shown that the defendant knew of his discharge at the time of the pi-etended promise. 12 La. 465.</p>

This was an action on a bill of exchange, for $4,500, drawn by John C. Harrison, to the order of the defendant, by whom it was endorsed, on Pearce Sf Elbert, of Philadelphia, who accepted',but failed to pay, the bill- at maturity.

<p>APPEAL from the Parish Court of New Orleans, Maurian, J.</p>

<p>Testamentary dispositions, made by a husband in favor of his wife, when he leaves a child at the time of his death, arc governed by art. 1739 of the Civil Code. Art. 1480 does not apply to donations between married persons. Art. 1.739 embraces testamentary dispo" sitions, as well as donations inter vivos.</p> <p>Definitions incorporated in a Code must be construed with reference to its positive enactments in pari materia, and have no meaning beyond them.</p> <p>Art. 1745 of the Civil Code applies to testamentary dispositions.</p> <p>The provision of art. 1745 of the Civil Code, which authorizes one who contracts a second or subsequent marriage, having a child by a former one, to give to the other spouse only the least child's portion, and that only as an usufruct, and which declares that the portion, of which the donee is to have the usufruct, shall in no case exceed the fifth part of the donor's estate, extends to all the property of which the donor may die possessed, whether brought by him into marriage or subsequently acquired.</p> <p>The provision of art. 552 of the Civil Code, which authorizes one by whom an usufruct has been established, to dispense, in favor of the usufructuary, with the securety required by that and the preceding article, must be construed with reference to art. 1485, which prohibits testators from disposing of the legitimate portion to the prejudice of their descendants. One who has the usufruct of property forming part of the legitimate portion of the descendants of the person by whom the usufruct was established, cannot he relieved from giving security.</p> <p>Compensation is due to the community, for the value of useful improvements made during its existence, by the common labor or expense of the spouses, upon the separate property of either. B ut as such improvements benefit the community by increasing the vaelu and income of the property, which it enjoyed to the day of its dissolution, and are of advantage to the heirs of the owner only from that period, the compensation to which the community is entitled is the value of the improvements at the time of the dissolution, and not at the time when they were made; but whatever may be their value at that time, the recompense due to the community can never exceed tlieir cost.</p> <p>Any legal evidence is admissible to rebut the presumption that, a balance due on the .price of</p> <p>property purchased hy the husband before marriage, but subsequently paid for by Him, was paid out of the funds of the community.</p> <p>The commnnity is entitled to the enjoyment of all the property and effects belonging to the husband at the time of the marriage (C. C. 2371); and it owes no recompense to the succession of the latter, for any diminution in their value resulting from such enjoyment.</p> <p>Property brought by the husband into marriage will belong to his succession, in the condition in which it was at the dissolution of the marriage; but it cannot claim credit for the value of the property at the date of the marriage.</p> <p>The debts of the community must be paid out of its assets, and the surviving wife is entitled only to one-half of what will remain after their payment. ’</p> <p>Where an executrix has paid debts due hy the succession, though without authority, she will be entitled to credit for the amounts so paid.</p> <p>An executrix who fails to deposit in bonk the money of a succession, as required by sec. 3 of the stat. of 13 March, 1837, must he dismissed from office, on proof thereof, made in the manner prescribed by that section.</p>

A verdict and judgment having been rendered in this case in favor of the defendant, for $6,559 87, with interest at five per cent a… Held: “that in the case of a judge recusing himself, the question was one of discipline, cognizable only by his colleagues, involving no contradictory proceedings, no debate, arising from the spontaneous declaration of the judge that there exist legitimate «reasons why he should abstain, and requiring neither decree nor procés-verbal, but…

<p>A judge must, in all oases, assign the reasons on which his judgment is founded, or it will be null j but the omission to refer to the particular law in virtue of which it is rendered, will not render it null. Const, art. 70.</p>

<p>The purchase of a judgment, from which no appeal can be taken, and which is not subject to be annulled, is not the parchase of a litigious right. The purchase of such a judgment by an attorney at law is not prohibited by art. 2423 of the Civil Code.</p> <p>Where the parties to an agreement entered into it for the purpose of defrauding their creditors, neither party can maintain any action on it.</p>

<p>Appeal from .the District Court of the the First District, Bucchanan, J.</p> <p>cited Civil Codo, articles 2451, 2496,</p> <p>2504. 5 Mart. 434. 1 La. 311. 7 La. 517. 19 La. 519,</p>

<p>APPEAL from the District Court of the First District, Buchanan, J. The commissioners appoihted under the act of the 14th March, 1842, to liquidate the Merchants’ Bank of New Orleans, having filed, in the District Court for the First Judicial District, their final tableau of distribution, and prayed for its homologation, the usual order of publication was granted.</p> <p>The publication having taken place as required by law, various creditors filed oppositions, insisting on their right to be placed on the tableau, and to be paid in preference to other creditors, &c. These oppositions were tried, and the court settled the rank of the opposing creditors, and from the decision thereon none of them have appealed. In the course of the argument on the oppositions, Mr. Barker, one of the counsel in the case, suggested to the court that, the commissioners were only entitled to a compensation of $1,000 per annum, agreeably to the act of 1843, instead of $3,000 per annum, that fixed by the tableau. The judge reduced the compensation of the commissioners accordingly, from which decision Calhoun and Conrey, two of them, have appealed.</p> <p>The judgment below was erroneous:</p> <p>I. Because there was no opposition filed by any one to the compensation allowed them by the tableau. By the 24th section of the act of 1842, (Sessions acts, p. 246), “the powers, duties and liabilities of the commissioners, are the same as those conferred or imposed on syndics of insolvent estates, and the proceedings are the same as those provided for by the acts now in force, relative to the voluntary surrender of property.” By the 36th section of the act relative to the surrender of property, (B. & C’s Dig. 494,) it is provided that, after a tableau has been filed and notice given, the creditors who have any objection to the distribution “shall file their opposition in the clerk's office, together with the motives on which the same is founded," Sec, Vide Kirkland v. His Creditors, 7 Mart. N. S. 131.</p> <p>The judge is not authorized to reform the tableau of distribution, unless there be: 1st. A written opposition filed, explaining the motives why the reform is required; and 2nd. Unless such opposition come from a creditor, that is, from a party who is not a mere volunteer, but who has a direct interest in the question. Here, no opposition has beon filed with the clerk, and there is no evidence to show that Jacob Barker is a creditor. The judge had no power, ex oficio, to make such changes in the tableau as he thought proper.</p> <p>There are cases in which the court will officially apply the law, but they will be found to class themselves under two heads, viz: 1st. Those relating to the powers of the tribunal before which a suit is brought, or, in other words, questions of jurisdiction. The reason of this is, that questions of this nature fall peculiarly within the province of the judge, who cannot, without a dereliction of duty, and disregard of his official oath, assume an authority wiih which the legislative power has not chosen to entrust him. 2nd. Those in which the legislature, from motives of policy, has thought proper to refuse relief to a party aggrieved. In such -cases, the judge may, ex officio, refuse his aid, if the fact appear plainly from the pleadings.</p> <p>II. Because the construction which the inferior court put on the act of 1843, gives that law a retrospective effect, and violates the contract, by virtue of which the commissioners acted, contrary to the true intent and meaning of the legislature ; and because sueh a construction would discharge the sureties of the commissioners, and leave the creditors without any other guarantee than their personal responsibility, which can never be presumed to have been-intended by the legislature..</p> <p>Any alteration of the original agreement, whether injurious or beneficial to the surety, will discharge him. Miller v. Stewart, 9 Wheat. 680. Wright v. Johnston, 8 Wend. 512. Moore v. Payne, 12 Wend. 12,6. Colemard v. Lamb, 15 Ibid. 329. Miller v. McCann, 7 Payne, 451. Doev. Postmaster General, 1 Peters, 325. United States v. Stansbury, Ibid, 475. Hunter v. United States, 5 Ibid, 173. Douglass v. Reynolds, 7 Ibid, 113. United States v. Orr, 8 Ibid, 399. Sprigg v. Bank of Mount Pleasant, 10 Ibid, 257. Same case, 14 Ibid. 201. United States v. Boyd, 15 Ibid, 187. Pothier, Traité des Oblig. 406. Roman v. Peters, 2 Robinson, 479.</p> <p>III. Because the inferior court makes the law take effect from the day it was approyefl by the governor, instead of twenty four hours after its promulgation. The act of 1843 (Sessions acts, p. 65) was approved 6th April, 1843, and promulgated the 13th April following; it did, consequently, not go into operation until the 15th April, 1843. Acts in fine.</p> <p>The stat. of 1843 did not impair the obligation of any .contract. The stat. of 1842 created no .contract. 6 Crauch. 135, 145. 4 Wheat. 611, 616, 661. 4 Devereux, N. C. Rep. 14, 20. 3 Story on Const. 260. The stat. of 1843 expressly provides that it shall go into effect immediately after its passage.</p>

Stehlins FisTc, by his last will, bequeathed the sum of $100,000 to his brother Alijah Fisk, for his sole use and benefit, without any security whatever during his lifetime, and at his death to be divided and given equally between the children of Sereno Fisk, his youngest brother.

<p>Where a posterior testament contains no disposition from which a change of intention in the testator, with regard to a legacy in a prior will, can he presumed, the legacy will not ho revoked. O. C. 1683,1684,1686.</p>

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

In the year 1788, Bertrand Gravier established on his plantation the faubourg St. Mary, now a part of the city of Hew Orleans. Held: in 19 La. 71, that the facts of that, and .consequently of the present case, afforded no proof of an intention to dedicate, or of the acceptance of the pretended dedication. Much light is thrown upon ■this subject by the decision of the Supreme Court in the case of Livaudais v. Municipality Number Two, 16 La. 509.

<p>Where a partner, pending a suit for the settlement and liquidation of the partnership, collects money belonging to it,, under an appointment from the court, he has no right to withhold from the court the money so collected, under any plea or pretence personal to himself. To retain funds so collected is a flagrant breach of trust, and the court may compel their immediate production,</p> <p>After the dissolution of a partnership and pending its liquidation, a partner is not permitted to do any act, still less to make use of the partnership funds in a manner inconsistent with the purpose of a just and proper settlement.</p> <p>It is not necessary that the creditors of a partnership should he made parties to an action between the partners for a settlement of the'partnership affairs.</p> <p>Commercial partners being bound in solido the debts due by them are indivisible, and no settlement of the partnership canbe effected without their payment.</p> <p>The creditors of a partnership have a privilege on the partnership property entitling them to be paid in preference to the creditorsof the individual partners; and any partner ultimately hound for the partnership debts, may maintain an action against his co-partner, to effect a proper application of the partnership property to the extinguishment of the partnership debts. C. C. 2794.</p> <p>Where in a suit for the settlement of a partnership the appointment of a receiver becomes necessary to effect the object of the suit, the court may appoint one. The power to do so belongs to the class of incidental powers. C. C. 21. C. P. 130.</p> <p>Partners are bound to pay interest on sums taken out of the partnership funds from the time they are so taken. C. G. 2829.</p> <p>Attorneys in fact are bound to pay interest on any sums belonging to their principals, which they have applied to their own use, and on any sam which they are in default in paying over. C. C. 2984.</p>

<p>APPEAL Appeal by the plaintiff from a judgment of the District Court of the First District, Bucehanan, J., in favor of the defendant.</p> <p>on the question of the admission of parol evidence to explain the authentic act, cited Civil Code, art. 2256. Goodloe v. Hart, 2 La. 449. Badonv. Badon, 4 La. 166. Henderson v. Stone, 1 Mart. N. S. 639. Clark v. Farrar, 0 Mart. 250. 2 Mart. 78. 11 Mart. 030. 13 Mart. 684. 2 Mart. N S, 361. 1 .Rob. 358.</p> <p>Where fraud is charged and error alleged, parol testimony is admissible to contradict even an authentic act. See Broussard v. Sudrique, 4 La. 347. Keys v. Powell, 9 La. 574. Badon v. Badon, 6 La. 255. Gale v. Kemper's Heirs, 10 La 209. Palangue v. Guesnon, 15 La, 311, and the authorities there cited. Also 2 Starkie on Evidence, pp. 555, 558. 1 Greenleaf on Evidence, §§ 296, 305. Morris v. Nixon et al., 1 Howard, 119. 2 Story on Equity, § 1531. A notarial or authentic act has no more force or .effect between the parties to it than an act under private signature. C. C. 2239.</p> <p>The prohibition contained in arts. 2255, 2256 of the Civil Code, has relation particularly to immovables, and is not applicable to other contracts; they are, governed by the general rules of evidence. C. C. art. 2257. Clamagaran v. Sacerdottee, 8 N. S. 541, 542. Bradford et al. v. Clark, 7 La. 147.</p>

<p>Where property of a succession, ordered, at the instance of the tutor of certain minor heirs, to he sold after being appraised, is adjudicated to a purchaser for a price loss Ilian one-half of its appraised value, the sale is null..</p>

<p>The holder of a note endorsed in blank is presumed to be the owner, until thb contrary he shown.</p> <p>Where there are several applicants for the euratorship of a vacant succession, which exceeds three thousand dollars in value, the judge is hound to appoint two of them, provided they have the requisite qualifications. C. C. 1116,1117. There is no difference as to the rights of applicants for the euratorship, founded on the amount of their claims.</p> <p>In appointing a curator to a vacant succession, creditors must be preferred to those who are not. C. C. 1114.</p>

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

<p>Where a wife dies leaving neither ascendants nor descendants, nor legitimate relations, but natural brothers-and sisters, and a husband not separated from bed and board, the surviving husband will inherit the estate to the exclusion of the natural brothers and sisters. C. C. 918. The last exclude only the State. C. C. 917, 923.</p>

PEAL from the Fifth District Court of Now Orleans, Buchanan, J. Several mortgage creditors have appealed from the judgment, settling the order in which the mortgage creditors of the defendant are to be paid out of the proceeds of certain property, and ordering the erasure of the other mortgages. The mortgages to be classed are as follows: 1.

<p>Where one holding a mortgage on property offered for sale by order of a District Court of the United States, sitting in bankruptcy under the stat. of 19 August, 1841, never proved liis claim in bankruptcy, and, though notified of the sale, from a wish to avoid recognizing the power of the court to sell mortgaged property, took no part in the proceedings, he will not be estopped from disputing the title of the purchaser. His conduct could not mislead or deceive any one.</p> <p>A mortgagee not made a party to proceedings by which a judgment was obtained ordering the recorder of mortgages to erase the mortgage held by him, will not be bound by them.</p> <p>The jurisdiction conferred on the courts of the United States in matters of bankruptcy, by the stat. of 19 August, 1841, is restricted to the unencumbered assets of the bankrupt, except where parties voluntarily apply to the court for relief, or remedies arc sought to be en- ' forced against them which are authorized by special provisions of that act. The object of that statute being the discharge of debtors from their debts, it affects only such rights of property as stand in the way of that object. The 11th sect, provides that the assignee may, under the authority of the court, redeem and discharge any mortgage or pledge, deposit or lien upon any property, real or personal, whether payable inpneseuti or at a future day, and tender a due performance of the conditions thereof. The assignee may thus remove the encumbrance by satisfying the creditor, he may sell the property cum onere, or he may leave the creditor to exorcise his rights at his option; but no power is given over such mortgage, pledge, deposit, or lion, except to satisfy it, and thereby release the property. Sec. 2.</p>

<p>In an action against tlie owners for the value of certain services alleged to have boen rendered to a steamer, evidence is admissible, under .the general issue, to show that, at the time of rendering the services, the steamer was chartered to a third person. Tho dofonce set up is not an exception.</p> <p>The owners of a steamer, chartered to, and in the possession of, a third person, will not be liable for services rendered to the vessel, while so chartered, to the knowledge of the party by whom tho services were rendered.</p> <p>Tho 9th sec. of the stat. of 20 January, 1830, incorporating the Pontchartrain Railroad Company, while it grants to that company a privilege on vessels or other property liable for the cost of warehouseing, wharfage and transportation, imposes no personal liability on the owner for services rendered to a steamer while charted to a third person.</p> <p>Where the business of an incorporated company is of such a nature as to require it to be conducted through servants or agents, notice to one of its officers relative to a matter in which he acted within the scope of his employment and in the usual course of the company’s business, will bind the company.</p>

<p>Appeal from the Commercial Court of New Orleans, IVatls, J.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>cited Civ. Code, arts. 1841, § 1, 4, 2523. Pothier, Vente, Nos. 211, 231, 234, 235. Diet, de Medicine, verbis Asthma, Oppression.. •</p> <p>The language of the act of sale was sufficient to put the purchaser on his guard, which is all that is required. It is not necessary, in order to modify the extent of the warranty, to state the exact nature of the disease in technical language.</p>

<p>Where by the release of one of two debtors in solido, and the deduction of bis part of the debt, made in the court below for the purpose of introducing him as a witness, the amount in dispute is reduced below the sum necessary to give jurisdiction to the Supreme Court, no appeal will lie. Const, art. 63.</p> <p>Where the amount in dispute is insufficient to give jurisdiction to the Supreme Court, the appeal will be dismissed, though the objection be uo.t made by either party.</p>

<p>from the Fourth District Court of New Orleans,</p> <p>cited Code Pract. arts. 464, 468. Me Carty y. McCarty, 19 La. 296. Bell v. Williams, 13 La. 447.</p>

<p>Appeal from the Court of Probates of Ascension, Duffel, J.</p>

<p>A motion to dismiss on tlie ground of informalities in the mode of bringing up an appeal, must bo made within three days after thep'ecord is filed.</p>

<p>The omission of & seal in the copy of a citation in the record of appeal will not be considered as establishing that the citation was issued without a seal, it being a common practice with clerics not to copy the seal, in making a copy of the citation.</p> <p>Where a citation signed by the clerk, purports to have been issued from a District Court ' sittingin a particular parish, and calls upon the defendant to file his answer in the clerk's office of that court, at a certain place, it is a sufficient description of the place where the clerk's office is held. C. P, 179.</p> <p>Where notice of protest of a note, payable in a particular parish, is shown to have been mailed, addressed to the indorser at a post office in another parish, in which he resided, it is for him to prove that there was another office nearer to his residence.</p> <p>,An error in allowing interest from the 1st instead of the 4th of the month, on a sum of seven hundred dollars, is too insignificant to justify the reversal of a judgment.</p>

<p>Appeal from tile District Court of Point© Coupée, Deblieux, J.</p> <p>cited 6 Rob. 60. 5 Rob. 96. 4 Mart. N. S. S89. Code Pract. art. 897.</p> <p>Plaintiff was not authorized by her husband to sue. Gorman v. Bergans, 1 Rob. 468. Same case, 2 Rob. 282,</p>

<p>APPEAL from the District Court of Terrebonne, Randall, J.</p>

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

<p>Appeal from the District Court of Pointe Coupée, Deblieux, J.</p>

cited Civil Code, arts. 2294, 2295, 2477, 2480, 2523, Troplong, Vente, nos. 437, 469, 497. Duranton, vol. 16, no. 264. Merlin, verbo Créancier. Wilkins tv. Bassett, 5 Hob. 492. Smithy. Wilson, 11 Kob. 522. Wilkins v. Bassett, 12 Kob. 29. There is no privity of contract between the parties to this action. A purchaser, who has paid the price, has no right to have it restored before eviction, nor to security against eviction. Civ. Code, art. 2538. 17 La. 25.

<p>Where, in an action for the price of land, defendant resists payment on the ground of the existence of a servitude which had been fraudulently concealed from him, alleging it to have been created by public act, passed before a certain notary at a particular date, he [ may offer in evidence, as proof of the servitude, an act under private signature, of the same date aud recorded in the office of the same notary. The evidence will not be excludedfor such an inaccuracy in the description of it.</p>

<p>In proceedings via ezeentiva, it is not necessary to servo the defouchmt with a copy of tho petition; and the Code of Practice, art. 734, expressly dispenses with any citation. The notice required by arts. 735, 736, is not a citation, but is in tlie nature of a notice of judgment ; and no law requires it to be served in the french language, oven when that is the mother tongue of the parly to be notified.</p> <p>Where a judgment, the execution of which has been enjoined, bears interest, such additional interest only can be allowed, on dissolving the injunction, as will make the rate allowed equal to the highest conventional interest.</p>

<p>One who bas made useful and necessary repairs to the road and levees on the lauds of an absent proprietor, under an adjudication by the inspectors of roads and levees, is entitled to recover from the owner of'the land the value of such improvements, with interest from judicial demand, on the principle ihafe no man shall he permitted to enrich himself at the expense of another*</p>

<p>Appeal from the District Court of Pointe Couple, Farrar, J.</p>

<p>In an action by a police jury against a sheriff to recover the amount of taxes on suits placed in his hands for collection, plaintiffs are not bound to show the amount actually collected by him, as the measure of his liability. On proof by plaintiffs that, the lists of suits on which taxes were due were delivered to him as required by law, it is ior him to account for the amount, and to show that, though due diligence has been used by him, he has lieen unable to'collect.</p>

J. This was an action for the partition of lands and slaves, in which certain minors were interested. The Court of Probates had no jurisdiction ratione materia. Code Pract. art. 924, nos. 14, 15. La. 33. Consent of parties, could not give such jurisdiction. Code Pract. art. 92. 11 Robinson 77. The disposition of art. 924, no. 14, refers altogether to property belonging to successions, and not to property held in common otherwise.

<p>Where a case has been submitted to amicable compounders by an agreement filed among the records of the court, it will be conclusive evidence of the terms of the submission, Per Curiam : The records and minutos of a court are the highest and best evidence of its proceedings.</p> <p>An agreement between the parties to a suit to submit the matters in dispute to amicable compounders is a contract, and the parties should be held to the observance of the strictest good faith in all proceedings relating thereto.</p>

The mere fact of the defendant’s being a non-resident, made his property liable to attachment. Code Pract.. art 240, no. 2. The law attaches no condition to the capacity of the attaching creditor, except that he be a creditor, and that his claim be established as provided by the arts. 242 and 243 of the Code of Practice. The court can make no distinction, where the law makes none.

<p>Where a plantation on which an order of seizure and sale has been levied, is in possession of aleesee, the sheriff is not authorized to appoint a guardian or keeper for its management and preservation, and consequently can make no charge for the services of such a person, if one he appointed by him.</p> <p>A sheriff is entitled to be reimbursed all expenses incurred by him in the preservation of slaves seized under an order of seizure and sale, including compensation for the services of a keeper employed to take care of them on the plantation on which they were at work. Stat. 10 March, 1845, s. 2.</p>

<p>APPEAL from the District Court of Lafourche Interior, Randall, J.</p>

This is an action upon a tutor’s bond, against the defendant as surety. The only sei-ious defence is the plea of prescription, established by art. 356 of Civil Code. The prescription relied on, is inapplicable to this demand, which is against the surety on the bond, and not against the tutor for a rendition of accounts. 6 La. 161. 1 Mart. N. S, 334. Toullier, 2d vol nos. 1275 — 6.

<p>Where in consequence of the death of a child subsequently to that of the father, the surviving-wife holds in common with the other children an undivided share in all the property of the father, she may, under art. 338 of Civil Code, cause the whole of it to be adjudicated to her, on complying with the requirements of that article. That article does not restrict the right to this adjudication to community property only; it makes no distinction as to the title by which property may be held in common between the surviving parent and the minor children.</p>

<p>APPEAL from the Parish Court of New Orleans, Maurian, J. The defendant appealed from a judgment against him for $300, in an action for an assault and battery, in which the plaintiff claimed $1000 as damages.</p> <p>The appeal should be dismissed. In actions for damages the right to appeal is determined by the amount of the judgment bejow — not by the sum claimed in the petition. See Howard’s Rep. Cooke v, Woodson, 5 Cranch 13. Wise et al. v. Columbian Turnpike Co., 7 Cranch 276. Wilson v. Daniel, 3 Dallas, 401. Gordon v. Ogden, 3 Peters 33. Smith v. Honey, 3 Ibid, 469.</p> <p>The 63d article of the constitution of Louisiana says: “The Supreme Court, except in cases hereinafter provided, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases where the matter in dispute shall exceed $300.’ To ascertain the matter in dispute, we must recur to the foundation of the original controversy: to.the matter in dispute when the action was instituted : to the thing demanded by the plaintiff and refused by the defendant, and i'or which suit was brought. The descriptive words of the constitution point emphatically to this criterion; and in common understanding, the thing demanded, and not the thing recovered — the sum claimed (as in the present instance $1,000, damages,) and not that for which a judgment is rendered, constitutes'the matter in dispute between the parties.</p> <p>This construction not only comports with every word in the constitution, but avoids an inconvenience, which would otherwise affect the impartial administration of justice. For if the judgment was considered as the rule to ascertain the value of the matter in dispute, then whenever a judgment was rendered for less than $.300, the defendant could have no relief, though the judgment should be most erroneous and injurious, while the plaintiff would have a right toan appeal and a revision of the cause — his demand (which is alone to govern him) being for more than $300. It is not to be presumed that the framers of our constitution intended to give any party such an advantage over his antagonist. 3 Dallas’ Rep. 404.</p> <p>But we are not without authority for the true meaning of this provision in our constitution.</p> <p>“The 4th article, sec. 2d, of the former constitution of this State, provided as follows: “The Supreme Court shall have appellate jurisdiction only, which jurisdiction shall extend to all civil cases when the matter in dispute shall exceed the sum of three hundred dollars.”</p> <p>From the journals of the convention of Louisiana, held in 1844 — 1845, wo learn, that the committee of the convention, to whom was referred phe 4th ar* tide of the constitution of 1812, concerning the judiciary department of the State, reported the following, among other provisions: “The Supreme Court shall have appellate jurisdiction only, except hereinafter provided, which jurisdiction shall extend to all cases, when the matter in dispute shall exceed $500.” When this provision came up for consideration before the convention, a motion was made by a delegate from East Feliciana (Mr. Ratliff,) to strike out $500, and to insert $300, for the avowed purpose of keeping the appellate jurisdiction .of the court unchanged, so far as the value of the matter in dispute was involved.</p> <p>The convention decided by a large majority, in the the proportion of 3 to 2, that the jurisdiction of this court, so far as it depends on the value of the matter in dispute, shall remain co-extensive with the jurisdiction of the Supreme Court under the constitution of 1812. The court cannot fail to observe that the very language of the 2d see. 4th art. of the constitution of 1812, is copied into and embodied in the 63d article of the constitution of 18.45. In adopting that language, the .convention adopted it in the sense in which it had been understood, construed and acted on by. the legislature, by the courts and by the people of the State. Indeed .the convention were urged to adopt it, because it was well understood. A leading member of that body, to whom I have already alluded, (Mr. Eustis) now the Chief Justice of this court, while expounding the views of the Judiciary committee on the subject of the appellate jurisdiction of the court, said: “The committee propose the adoption of the words of the constitution of 181-2. They are of opinion that no change ought to be made in them. They have been -long sine® settled by legislative' and judicial Interpretation.”</p> <p>Let us see then h,ow the provision of the constitution has been understood and expounded — how the words of the constitution have been settled by legist |q,tiypgad judicial interpretation. The legislative interpretation admits of up doubt. The Code of Practice declares, as follows, article 874: “The Supreme Court has only appellate jurisdiction, which it exercises in all civil cases where the object in dispute exceeds the sum of §300.” Art. 875: “The Supreme Court’has jurisdiction, although the judgment appealed from be for less than §300, if the demand was for more than that sum.”</p> <p>Such is the legislative interpretation, confirmed by a long series of judicial interpretations. In Hart v. Lodwick, 8 La. 166, it was held, that inasmuch as plaintifPs demand exceeded §300, he was entitled to an appeal against all the appellees who had judgment in their favor, even against those whose demands were under §300. So, in Buckner el al. v. Baker et al., 11 La. 462, it was held that plaintiffs, whose demand exceeded §300, were entitled to an appeal even against intervenors whose judgments amounted to §295 only. It was well settled, then, by these as well as by other decisions, that a plaintiff who claimed more than §300, had a right to appeal from a judgment for a sum less than §300. Of course, this rule was not construed to include a case in which a plaintiff made a fictitious demand for the mere purpose of obtaining an appeal; as if, in a suit on a promissory note for §1000. where the piaintiff could only recover that amount with interest, he claimed $1,000, damages. In every such case, the court promptly dismissed the appeal as an attempted fraud on its jurisdiction. But where the value of the thing claimed exceeded $300[; where a bond fide demand was made for a sum exceeding that amount, or where, as in present action, the law prescribed no limitation as to the amount to be recovered, and the plaintiff, who had aright to estimate his damages at any sum, demanded more than $300, the plaintiff had a right to appeal from a judgment for less than $300. It was equally well settled by the decisions of the late Supreme Court, that the defendant was entitled to an equal right of appeal from a judgment for less than,$300, when the plaintiff in his original demand claimed more than §300. In Philips v. Stanley, 1 La. 246, plaintiff sued for SI,000, damages. The verdict fixed them at one dollar. Defendant appealed. The court held that he was entitled to an appeal. “It is the sum claimed,” said the court, “and not that for which judgment is rendered, which confers jui'isdiction on the Supreme Court.” So, in Lewis v. Clark, 2 La. 437, plaintiff sued for §80.0, and damages. The court assessed his damages at $192 76. Defendant appealed. The court held that he was entitled to an appeal. They said: “It has been rejieatedjy decided, that it is the sum claimed, and not that recovered, which confers jurisdiction on this court.” S.o, in Gerber v. Marzoni, 3 Rob. 371, defendant appealed from a judgment'for less than $300. The court refused to dismiss the appeal. They said; “The jurisdiction of the Supreme Courtis to be tested by the v.alue of what is claimed in the petition. Whatever may be the amount of the judgment given, either party has a right of appeal.” It would be easy to cite other -decisions to the same effect. But it is sufficient to observe that the entire series of decisions of the Supreme Court, on the right of plaintiff as well as of defendant to appeal from a judgment for less than $300, where the demand was for more than that sum, is uniform and unbroken, from the adoption of the constitution of 1812 up to the year 1846, without a solitary conflicting decision, without even the dissenting opinion of a single judge.</p> <p>Surely, then, in adopting the provisions of the constitution of 1812 — in refusing to make any change in the words of the provision, because they had long since been settled by judicial and legislative interpretation — the convention ex-jiressed as strongly as they could, by words aDd by action, their determination to adhere to the construction put upon the provision for a period of thirty-three years, and universally acquiesced in by the people of the State; a construction .sanctified by time, approved through a series of years, and reaffirmed and republished by the highest judicial tribunal of Louisiana, at the very time the provision was adopted by the convention. Si de interpretatione legis qua^ratur, in primis inspiciendum est quo jure ciyitas retro in ejusmodi casibus usa fulsset. ff. 1, 3, 57. If the construction of the words of the constitution, as a question of original interpretation, res integra, admitted of doubt, the deliberate action of the legislature, and the solemn and repeated decisions of the Supreme Court have long since settled the construction too firmly to be shaken, without well founded alarm to the people. “ Miserable” says a great judge, “ miserable indeed must be the condition of that community, where the law is unsettled, &nd decisions upon the very point are disregarded when they again come di» rectly or indirectly into discussion. In such a state of things, good men have nothing to hope, and bad men nothing to fear.”</p> <p>In vain was it attempted, in the convention of 1845, to restrict the jurisdic~ tion of this court within narrower limits, and to shut out a large .class of suitors •on account of the smallness of the matter in dispute.</p> <p>To give a novel construction now to the words of the constitution, and thereby to exclude from this court persons, who, under the well settled and uniform construction of the same words in the constitution of 1812, were entitled to an appeal to the Supreme Court, would frustrate the intention of the convention. It would be a fraud upon the constitution. It would be to alter, and not to expound the constitution.</p> <p>The reasoning by which the appellee seeks to oust this court of jurisdiction over the present case, is not less startling than the object sought after.</p> <p>By the judiciary act of 1789, an appeal is allowed from the Circuit Courts to the Supreme Court of the United States in certain cases, where the matter in dispute exceeds $2,000. The Supreme Court of the United States have determined that their jurisdiction depends on the sum or value of the matter in .dispute in that court, and not that which was in dispute in the Circuit Court; and that therefore a plaintiff, who sues for more than $2,000, may appeal from a judgment for less than $2,000, but that the defendant would not be entitled to an appeal from such a judgment. As the words of this statute are similar to the words of the constitution of Louisiana, the counsel for the appellee contends that we should reject the construction put upon the words of our own constitution by our own courts, and adopt an interpretation similar to that put upon the statute of the United States, by the courts of the United States; and he refers us to Howard’s Reports. 3 Peters’ Reports 33. 7 Cranch, 276. 5 Cranch 13. and 3 Dallas, 401.</p> <p>The case from Howards Report's, is a mere repetition of the point decided in 3d Peters’Rep. 34; and the case in 3d Peters, Gordon and others v. Ogden, is based upon the authority of Wise and Lynn v. The Columbian Turnpike Company, 7 Cranch 276, decided in 1812, and upon the settled practice of the court, which had conformed ever since to that decision. In pronouncing their opinion, the court admitted that the case from 3 Dallas, 401, was directly in point; and that it turned on the principle that, the jurisdiction of the court depended on the sum which was in dispute before the judgment was rendered in the Circuit Court. They added, that although that case was decided by a divided court, and although they thought the jurisdiction of the court depended, by a true construction of the statute on the value of the matter in dispute in the Supreme Court, they “should be much inclined to adhere to the decision in Wilson v. Daniel, (3 Dallas 401,) had not a contrary practice since prevailed.” The court then showed that the case from 5 Cranch, 13, was not in point; and relied upon the decision in 7 Cranch 276, overruling the decision in Dallas, and upon the practice of the courts from that time up to 1830. It is clear then from the language and reasoning of the Supreme Court of the United States, that if the decision in Wilson v. Daniel had been supported by subsequent decisions, and conformed to in practice, the court would have adhered to it. Thus, the true principle to be extracted from the cases cited by the appellee proves fatal to his object.</p> <p>But had there been no such principle in these cases, the notion that we should abandon the construction put by the legislature and courts of Louisiana upon a clause in our own constitution, and adopt the construction given by the courts of the Union to a similar clause in a statute of the United States, when there is no collision between the clauses, is notto be tolerated. It is a principle universally recognised that the judicial department of every government, where such department exists, is the appropriate organ for construing the statutes of that government. The Supreme Court of the United Strtes have invariably held that, in cases depending on the statutes or constitution of a State, the settled construction of those statutes or of the constitution by the state courts, must be regarded. The exposition of the law is a part of the law; a fixed and received construction by a State, in its own courts, of its constitution and statutes, makes a part thereof; and the Supreme Court of the United States is bound to conform to such a construction. It would be a perversion of principle, if the judicial exposition of the laws of a State by the state tribunals, should be disregarded. If this be tho rule for the construction of the constitution of the State, when it comes immediately and directly for exposition before' the Supreme Court of the United States: if that Supreme Court be bound, as it has determined it is bound, where the highest judicial tribunal of a State gives a different construction to a statute, from the exposition formerly adopted by the Supreme Court of the United States, to conform to the construction of the state tribunal, it is not easy to understand, how the fixed, received construction, given by Louisiana herself, to the words of her own constitution, in her own courts, can be disregarded, for the purpose of conforming to another and a contradictory exposition of similar words in a statute of the United States, by the Supreme Court of the United States.</p>

Éugenie Savary, the widow of one Joseph Savary, became a party to a marriage contract, executed on the 19 December,-1836, between the defendant and Joseph Rousseau, by which she made to her and her children a donation inteY vivos, as follows: “lo.

<p>The privilege granted to an artificer or laborer, on the buildings or other works constructed by him, for the payment of his labor, will exist, as between the parties to the contract, though the work exceed five hundred dollars in value and the contract has not been registered with the recorder of mortgages- The parties to a eonuract cannot take advantage of its non-in. srdption.</p>

<p>APPEAL from the Commercial Court of New Orleans, Watts, J. . Moore sold to the defendant, Griffin, in October, 1845, the steamer Sea Bird, by notarial act. Tho act of sale recites : “ That this sale is made for the price of $10,500, in part payment of which said purchaser has paid to the vendor $3,500 in ready money; and in payment of the balance of said price, to wit, $7000, the said purchaser has, first, furnished his three several promissory notes, for the sum of $8,00 06 each, each drawn to the order of and endorsed by William K. English, dated this day, and payable &c.; and second, tho said purchaser hereby puts himself in the place and stead of said vendor, and assumes to pay to his acquittance live certain promissory' notes, given by him to Albert Todd and Charles TI. Haven, as trustees, in trust for Willard Arnold of Kentucky, and secured by deed of trust bearing date 24th September, 1845; one lor the sum of $320 50, payable 24th November, 1845; one for $1069 83, payable 24th December, 1845; another for the same amount, payable 24th February, 1846; one for same amount, payable 24th March, 1846; and one for the same amount payable 24th May, 1846, with interest from date until paid, at the rate of six per cent per annum.” A memorandum of the deed of trust, giving its date, with a description of the notes, was endorsed on the enrollment of the steamer, by the surveyor and inspector, and is set forth in the act of sale to Griffin. Cammack, the plaintiff, having attached the boat, Moore, and the trustees of Arnold, intervened, claiming a privilege as vendors, the former for two oi the notes executed in his favor remaining unpaid, and the latter for the amount of the five notes due to them as trustees. There were other intervenors, whose claims the nature of the decision renders it unnecessary to notice. There was a judgment below ordering the payment, in the first place, of certain claims of the first class, for wages of the crew; advances of money, supplies and materials, &c., leaving a balance oí $2517 67, which was ordered to be jraid to Todd and Haven, trustees. Moore was also decreed to be entitled to a privilege as vendor, for the amount of his unpaid notes. The plaintiff, Merle, Beylle Sf Co. and H. C. Cammack Sf Co., intervening parties, appealed.</p> <p>The court below considered that Moore had the privilege, given by the Code to the vendor of moveable things while in the possession of the vendee. But this article of the Code is not applicacle to a ship or vessel, as will appear by examining the articles of the Code touching privileges on certain moveables. The section 2d; beginning at article 3183, says “there are some privileges which act on particular moveables,” and, after enumerating various ones, all inapplicable in terms to ships and vessels, at no. 7 mentions that of “the price due on moveable effects, if they are yet in pos'session of the purchaser.” Ships and vessels are never spoken of as moveable effects. The enumeration of the nine cases of privilege shows plainly that the legislator had not, at the time, in contemplation ships and vessels, but intended to treat of them apart; and so he does, after discussing separately the six items from which the others are corollaries: “the privilege of the lessor,” — “the privilege on the thiug pledged,” — “the privilege of the depositor,” — “of expenses incurred in the preservation of the thing” — “of the privilege of the vendor of moveable effects-” — “of the privilege of the innkeeper.” He then commences another section — section 3d — headed, “ Of the privileges on ships and merchandise,” and says, article 3204, “the. following debts are privileged on the price of ships and other vessels,” Sec.: “8thly, sums due to sellers, &c., if the vessel has never made a voyage,” &c. Here, then, is a positive enactment concerning this matter; and it is only before a vessel has made a voyage, that the seller preserves his privilege of vendor. It is in evidence that the Sea Bird had made voyages since her purchase, and under this article the privilege was lost.</p> <p>But the two notes were taken in payment; and if there had been no voyage, the privilege of the vendor would have been lost. Barrow v. Howe, 2 Mart. N. S. pp. 147, 150. Abat v. Nolte’s Syndics, 6 Ibid, N. S. pp. 636, 638. .</p> <p>The claim of Todd and Haven, as trustees for Arnold was acquired under a trust deed, of which we know nothing more than is endorsed on the papers in the words following:</p> <p>“I, Isaac H. Hodges, surveyor and inspector, have this day filed a deed of' trust in favor of Albert Todd and Charles H. Haven, as trustees, in trust for Willard Arnold, of Kentucky, to secure the said Arnold the payment of five promissory notes,” reciting the dates and amounts of the notes. It has been shown that there is no vendor’s privilege for this; but it is urged on behalf of Arnold, that this trust deed is intended as a mortgage; that vessels are liable to be mortgaged (art. 3256); that it is not necessary that they should be recorded, but that hypothecations of vessels are made according to the laws and usages of commerce (art. 3272,) and that the mortgage arising from this trust deed, and so noticed on the papers, has its validity recognised by those usages and laws existing in the general Commercial Code, “upheld by general consent, growing out of the mutual wants of nations, and founded on principles of natural equity", which are of universal obligation.” Malcom-v. Henrietta, 7 La. Rep. 492.</p> <p>In any case, to be binding on others, the mortgage must be shown to be according to the laws and usages of commerce. What are these laws and usages. By the law of France, mortgages of vessels are forbidden. Boulay Paty, Droit Com. Mar. pp. 106-8. Abbot on Shipping, edit, of Í812, p. 13. By the laws of England, mortgages of a ship or vessel are allowed; and this form of security is regulated, first, by a statute George III, and after, by a statute of 6 George IV, § 110. This statute is of so late a date, that judge Bullard could' not have had reference to it, as making the commercial law, and We must therefore go back to the practical difficulties and doubts under the old statutes. Vide Bell’s Commentaries, vol. i. p. 158, 164. Holt on Shipping, vol. i, p. 306) says: “ Notwithstanding the above cases, Witson v. Hinther, 5 Taunton, C42, &c„ it is not to be concluded that there can be no valid mortgage of a ship.” “The mortgage of a ship, like the mortgage of any other chattel, may take place subject to the restrictions laid down in courts of law and equity relative to such mortgages. The main and fundamental principle, as respects property in shipping, is this, that there can be no valid mortgage without complying with all the forms of the register acts: a transfer by mortgage, made known to the public, and confined to british subjects, is within the spirit of the acts,” &c. The english mortgages, are, therefore, altogether subject to the statutes, passed from time to time, in William, George the Third and George the Fourth’s time. Where are the general commercial laws to which we are to look? That a ship can be mortgaged for debt, we are told by the Code; that it is to be under the general commercial law, &c., we are told by the Supreme Court, in 7 La. Rep., but we are not aware of any nation that has construed these mortgages independent of statute. We know merely what would be a useful rule of equity to be hereafter established. Judgingfrom analogy to the requisitions of the statutes, a mortgage of a ship, to be binding upon third persons, and others acquiring privileges by virtue of laws of their own states or sovereignties and under them, should be so fully stated, recited and explaimed upon the ship’s papers, that there could be no mistake or misunderstanding concerning the nature and extent of the incumbrance on the part of a creditor seeking information, or persons-wishing to require precise information as to his security upon a projected advance.</p> <p>The plaintiff is deprived of the privilege, given to him by the laws of his country, by an instrument reputed to have been made in the State of Missouri. This instrument is not recorded; the clauses and conditions of the defeasance are not stated, much less recited; and the act is not verified by Hodges.</p> <p>This would not be a mortgage in England ; shall it be so construed here, because Grifjin, the purchaser, acknowledges that he has never paid puch notes ? It may well be his personal debt if such notes exist; but it is nota lien — it is not a mortgage, entitled to effect- against third persons under the commercial law. 5 Taunton, supra.</p> <p>The pretended mortgage, however, in the present case, was made in a common law State, aud “there is no substantial difference at common law between a mortgage of real estate and a chattel; in both cases the property vests in the mortgagee subject to be defeated by the performance of the condition; and ou forfeiture, or non-performance of the condition, his interest becomes absolute.” Badlamv. Tucker et al., I Pick. 399.</p> <p>Unless, therefore, there was a stipulation in this trust deed leaving the possession with the morgagor, the vessel not having been reduced into possession before the attachment, the latter will have the preference. Edwards v. Harben,% Durn. and East, 596. Kidd v. Rawlinson, 2 B. and P., 60. Abbott on Shipping, 10'. Portland Bank v. Stubbs, 6 Mass. 425. Putnam v. Dutch, 8 Mass. Ptep. 287. Galev. Ward, 14 Mass. 352. Lamb v. Durant, 12 Mass. 54. Lam-phear v. Sumner. 17 Mass. 110. Bartlett v. V/illiams, 1 Pick 288; and. vide 3 Cowen’s Rep. p. 187 in note, for all the decisions upon this point. As we have not the trust deed, if any there were, before us, we cannot presume as to its stipulations. There is no reference in the memorandum on the boat’s papers to any special agreement as to possession, and it must be considered as a transfer with a defeasance. In such case, under the above decisions, the mortgagee has been negligent, and the attaching creditors have preference, as stated in 2 D. and E. and 1st Pickering.</p> <p>The judgment in favor of Moore is correct. Civil Code, arts. 3194, 3184, no. 7, illustrated by 3230, and 3234. Pier claim is postponed only to law charges, 2 Rob. 280; 527. 10 La. 68, Terry's case. Art. 3204 relates to privileges upon ships and vessels for sixty days, into whose hands soever they may come; but the vendor’s privilege is only while the moveable belongs to the vendee. These privileges do not conflict: one is special — into whosoever hands;. the other is a general privilege, in the hands of the vendee. 17 La. 161. As to the pretence that Moore took the two notes in payment, the authority cited by the counsel of plaintiff only establishes that nothing prevents a debtor and creditor from agreeing, by contract, that a note shall be given and received as a payment. In the cases on this point a recipt was given. ■ The novation resultodfrom clear expressions used to that effect.</p> <p>The trustees of Arnold, claim by virtue of the stipulation in their favor, in the sale from Moore to Griffin, that they should be paid as ¡’art of the price. See La. Code, art. 1884. But in addition to the vendor’s priviilege in common with Moore, the trustees had a mortgage. The Civil Code, art. 3272, gives the mortgage, which was made according to the laws and usages of commerce. Abbott on Shipping, p. 36. The Civil Code, article 3256, declares ships and other vessels susceptible of mortgage ; and art. 3272 declares, “that hypothecations of ships and other vessels are made according to the laws and usages of commerce.”</p> <p>An attaching creditor has no priority of payment over privileges and mortgages. An attachment only giyes a priority of payment over ordinary creditors, or such as attach later. The attaching creditor can only take the property, cum onare; he attaches the right, title and interest of defendant in the thing, subject to prior liens. Blit the plaintiff contends that the vendor of a ship has no privilege, because none is given by the section 3, headed, of Privileges ok Ships, &e., art. 3204, &c. To this we reply, that articles 3194, and 3184, no. 7, give the privilege, if the property still remain in the possession of the purpurchaser; and articles 3204, &c. give the privilege into whose hands soever the property comes.</p>

<p>Prior to the stat. of 30 May, 1S4G, the removal of the owner, with a slave, into a country where slavery did not exist, and the acquisition of a domicil there, emancipated the slave. That statute cannot be considered as affecting any rights perfected before its passage.</p>

The defendant appealed from a judgment in this case in the following words : “After evidence and argument, and at the suggestion of the court, a decree is now herein entered, pro forma, in favor of the plaintiffs and against the defendant without prejudice.” The action was instituted by the municipality to recover the amount of a tax on real estate owned by the defendant.

<p>Improper behaviour on the part of an overseer, in the use'of abusive language and threats of violence towards others in the service of his employer, will authorize his immediate discharge, without rendering his employer liable for his wages for the whole term for which he was engaged.</p>

<p>It is not necessary, to enable alessor to preserve her recourse against the surety of her lessee, that she should enforce her privilege against the lessee himself. It is enough that she has done no act to destroy or impair the privilege, or which could have prevented her, at any moment, from subrogating the surety to all her rights. Per Curiam: A surety is not discharged by the mere omission of the creditor to enforce or preserve a privilege. C. C. 3030.</p> <p>Novation will not be presumed. The intention to malte a novation must be clearly shown. C. C. 2186.</p> <p>Interest may be recovered from judicial demand, when the debt is due by contract.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

Plaintiffs’ father purchased during marriage, a government warrant issued in favor of one Le Page, authorizing the holder to enter any 320 acres of public… Held: that acts under private signature by the husband during the marriage, conclude the wife. He is considered as acting for her. No statute requires that her right and title should be made known by registry, any more than her legal mortgage. I refer the court to the statutes of 1810 and 1813. See B. & C.’s Digest, 596.

This action was instituted by Mary Urquhart, the only surviving child of Mary Sargent, by her first husband David Williams, and by the children of James C. Williams, her brother. The ancestor of the plaintiffs, David Williams, died in 1792, leaving four children. Mary, one of the plaintiffs, and James C., David, and Anna Williams.

<p>Appeal from the District Court of Concondia, Curry, J.</p>

<p>ÁPPEAL from the Court of Probates of'Concordia, McWhorter, J. The petitioner, Johnson, applied to the Probate Court for an order of seizure and sale of certain property mortgaged to him by the deceased. The property was sold, and purchased by Johnson, who applied for- the homologation of the sale under the stat, of 1834. The homologation was opposed on the grounds: 1, That the judgment by which it was ordered, was signed “James Dunlap, Parish Judge,” instead of judge of Probates. 2, That no counsel was appointed to represent the absent heirs. 3, That the property sold was not appraised within a year preceeding the sale. 4, That the property was not legally advertised. The oppositions were overruled, and the sale homologated; and fronFthis judgment the defendant has appealed.</p> <p>cited Civil Code, art. 1157. 11 La--116. 13 La. 431. 16 La. 65. 3 Robinson, 35. 10 Rob. 398. 1 Howard’s Miss. Rep, 444. 6 Ibid. 114, 234.</p> <p>contended that the property should have been appraised immediately before the sale', citing Code of Pract. art. 990. The appraisement in this case was made, when the inventory was taken, in March, 1840, and the sale on the- 19th February, 1842. Lawrence, also appeared on the same side.</p> <p>The validity of the judgment in this suit is contested on the ground that it was signed by James Dunlap, as “Parish Judge.” The petition was addressed to “James Dunlap, Parish Judge, and ex-officio Judge of Probates, in and for the Parish of Concordia, State of Louisiana. ” The suit was brought against the defendant as administrator. The minutes of the proceedings in the suit, show that they were had in the Probate Court. The default was taken, and the judgment made final in that court. The probate judge is such from the fact alone of his being parish judge; his probate jurisdiction is derivative and incidental. It is an ex-officio authority. Code of Practice, art. 923. The petition must mention the ñame or title of the court to which it is addressed. Code of Practice, art. 172. The petition in this suit is addressed to the Probate Court, and to James Dunlap as ex officio j udge of that court. This was clearly sufficient.</p> <p>The next objection is, that there was no attorney appointed to represent the absent heirs. In.August, 1840, Miles B. Hamilton was appointed administrator of the succession and tutor ad bona to certain absent minors, who, with Miles B. Hamilton, were then recognized by the Probate Court as the only heirs of the deceased H. C. Hamilton. They were then the only known and recognized heirs. They were represented by a tutor ad bona, under the 946th article of the Code of Practice (Berluchauxv. Berluchauxetal.,7 La.543,) and they, with M. B. Hamilton being at that time the only known heirs, and being represented in this Stale, no attorney for absent heirs could have been legally appointed. C. C. art. 1204. Robouam v. Robouam's Executor, 12 La. 73. Addison v. New Orleans Savings Bank, 15 La. 530.</p> <p>An attorney of absent heirs does not represent the succession, but the heirs. He is the guardian of their interests against the illegal acts of the curator, who particularly represents the succession in all suits baought against it by creditors. Civil Code, art. 1146. Code of Practice, arts. 986, 984 , 945. Pratt v. Peets, 3 La. 276. No doubt he cou.ld intervene in a suit to prevent the creditors and curator from colluding together to injure the succession. But he is not to be made a party defendant by the creditor — but the curator alone. He is simply designed as the protector of those he represents, against the ‘Voluntary and discretionary acts of the curator as to the succession. When the curator attempts to act, he must make an issue with the attorney; upon that issue a judgment is rendered. Civil Code, arts. 1156, 1157, 1208. But the creditors of the succession do not, and could not, legally make him a defendant in a suit against the succession for a debt of the deceased.</p> <p>The third objection urged against the rule is, that the property had not been appraised within a year next preceeding the sale. A sufficient answer to this is that, no law requires it, and as it is nowhere stated at what time the appraisement of the property of a succession, sold for the payment of debts, shall be made. Code of Pract. arts. 990, 991. There are two Cases inwliich appraisements are required to be made within the year. One where the property of a succession is offered at first on a credit. Civil Code, arts. 1203, 1202. This is to prevent the property from being sacrificed; and the other, in case of a partition among the heirs. C. C. arts. 1247,1248,1249. Both in probate and in sheriff’s sales, the appraisements are required for the protection and interest of the debtor. The creditor cannot get his money in cash unless the property brings the amount required ; otherwise he must aubmit to a delay of twelve months. Now, if a sale for cash is not made, it matters not what might have been the appraisement. C. P. art. 990. The property of this succession was appraised at $48,583 25. This appraisement served as a basis at the offer to sell for cash; when so offered there was no bid to that amount, and it was then advertised on a credit. All this was in favor of the succession and adverse to the mortgage creditor. The appraisement completely affected the object intended by law, i. e. to prevent the sacrifice of the property by a forced sale for cash. 16 La. 555.</p>

<p>Where a wife sues to establish herright to have the proceeds of property applied' to tho sa tisfaction of certain mortgages in her favor, in preference to a mortgage executed by her and her husband in favor of a third person to seeure the payment of their joint and several notes, onthe allegation “that her renunciation was not binding, because she was notinstruefced by the notary, before whom the act was passed, of the nature of hor rights and of the contract, and that the requisites of the law to render such renunciation valid were not complied with, and that she acted in ignorance of her rights,” the plaintiff cannot recover on the ground that, the debt for which the mortgage was executed was one for which sho was not hound. The ground of nullity should have been specially alleged.</p> <p>Laws intended for the protection of married women will not be extended to their assignees, who have no- claim on the equity of the court by reason of their personal incapacities.</p>

<p>The title of one who purchases property, sold under execution issued on a judgment from which a devolutive appeal had been taken, will not be affected by the reversal of the judgment*</p> <p>Allegations in a petition, signed by one as the attorney of a third person, inconsistent with claims set up by him in an action in his own name, commenced on the same day, will estop him from recovering.</p>

The plaintiff enjoined an order of seizure and sale obtained by the defendant Hundly, against the plaintiff, on the record of ajudgment rendered in Mississippi.

<p>A son cannot recover from the succession of his mother any compensation for services rendered by him during his minority, as an overseer on an estate belonging to the community, in the absence of proof of any promise of payment by the head of the community; nor will an acknowledgment of his claim made by the mother, after the death of the father, be binding on her, oronherheirs. Per Curiam: Dot-the services rendered by the son during the minority there could be no debt, and the acknowledgment of a debt which had no existence, is not binding on the mother or her heirs.</p>

<p>Appeal from the ÍHstrict Couit of Carroll, Curry, J.</p> <p>cited Greéníeaf on Evidence, p. (ill, ss. 574, 755. McPherson v. Rathbone, 11 Wendell, 98, and same' volume, p. 123. Jackson v. Waldon, 13 Wendell, 196. Chitty on Bills, 379, 380. In the case of Dismukes v. Musgrove, 7 Mart. N. S. 58, there was no proof of any inability to prove the signature of the obligor, and that was á written signature; here the party only made his mark.</p>

<p>APPEAL from tlis District Court of Carroll, Guriy, J. The plaintiff alleges that he performed work worth Si,010, on a house owned by the defendantand himself jointly; and that the defendant had agreed, and expressly promised to- pay half of such a sum as the work was fairly worth ;• that nevertheless he had refused, <fce.</p> <p>The defendant excepted that the suit was for a specific item of an unsettled-partnership account. This exception was overruled.</p> <p>The testimony establishes that while the house belonged jointly to Bell and the defendant, they agreed to divid e equally the cost of the work which the plain-tiff was employed to perform. With this understanding, the plaintiffhad almost completed the job, when he purchased Bell’s undivided share of the house, assuming in every respect Bell’s position as joint owner. The work was then-completed by the plaintiff. The defendant appealed from a judgment against him.</p> <p>The house upon which the work was-done was not partnership property. The plaintiff and defendant were joint owners as to the house, not partners. The plaintiff’s claim, therefore, for half the work done on the house, was not a specific item-of an unsettled partnership, account. The deeds introduced in evidence show that each purchased a moiety individually, and if they had taken the title in the name of the firm, they would still have been joint owners each of an undivided-half. Civ. Code, arts. 2777,. 2807. 3 La. 494. 17 La. 596.</p>

<p>'Trespassers cannot call in warranty persons under whoso authority'they act, and relieve themselves from responsibility by substituting the latter in their places.</p> <p>, -Uninterrupted possession as owner, for more than a year, will exempt the party from liability in damages for acts of ownership done while such possession continued; and in such a case, an agent of the party in possession cannot be made li able for acts which his principal might have done without subjecting himself to damages.</p>

<p>Appeal from the District of Carroll, Curry, J,</p>

<p>On an •application for executory process on a foreign judgment, which is silent as to interest, plaintiff cannot, by producing an authenticated copy of a statute of the State in which the • judgment was rendered authorizing execution to issue on such a judgment for the principal with interest at a certain rate, obtain an order of seizure and sale for more than the principal sum. The court cannot look beyond the foreign record itself. Per Curiam; A proceeding by which Che property of a party is summarily seized and sold, without citation, is one of great severity, and cannot bo extended beyond the cases for which it was expressly and clearly provided.</p>

<p>Appeal from the District Court of We'st Baton Rouge, Burk, J.</p>

<p>Appeal from the District Court of Madfeon, Selby, 1.</p> <p>contended that a new trial Should have been granted,-citing 4 Mart. N. S. Í32. 10 La. 409.</p>

APPEAL Appeal from the-District Court of Concordia, Curry, J'. The1 petitioner represented that, in August, 1839, she was married to on»1 Smalley, and that the parish of Concordia was their matrimonial domicil.

<p>APPLICATION for a mandamus to the judge of the Second District Court of New Orleans. The testamentary executor of the widow Nora represented that, with the consent of the heirs of age and by the advice of a family meeting on behalf of the minors, he had, in his capacity of executor, applied for the sale of the immovable property of the succession, to be made by one Tricou, a licensed auctioneer of the .city of New Orleans: That the judge refused to comply with the petitioner’s demand, that the sale should be made by .the auctioneer named by him, thus refusing to the petitioner the exercise of a right granted to hint by a particular statute, that of having the property administered upon by him sold by a licensed auctioneer: That this refusal is a denial ,of justice which can only be remedied by a mandamus, and that the property in question exceeds the sum of 55300. ITe prayed for a mandamus to the judge .of the court below, .commanding him to comply with the .demand of the petitioner.</p> <p>In answer to a rule to show cause why a peremptory mandamus should not .be issued, Canon, J., alleged: That the sale prayed for had been ordered to be jnadeon the 25th of January, 1847, under the provision of the Code of Practice, arts. 760, 767: That it is provided by the Code of Practice, art. 1046, that the sales of property belonging to successions shall be made, in New Orleans, by the register of wills, under the direction of the judge: That by the 1st sec. of the stat. of 15 March, 1830, it was declared that the sales of .such property might be made by auctioneers, “ provided that the executor, ¡fee. .cause the procés-verbal of such sales when made in the parish of Orleans, to be recorded in the office of the register of wills, and when made in any other parish ofthis State in the office of the judge ;”that since the re-organization of the ¿he judiciary system, and the suppression of the office of register of wills, the right to employ an auctioneer to make such sales must be considered as done .away with, since the procés-verbal of the sales can no longer be recorded in the .office of the register of wills.</p> <p>A mandamus is the only means by which the plaintiff can obtain redress. The judge alleges that he has ordered the sale prayed for, to be made by a competent officer. But that officer is not the one we have designated, as we had a right to do, and the order given is not the order prayed for.. This order is not final but interlocutory, being rendered on matters incidental to the settlement of the estate; and such judgments are not appealable from, unless they'produce an irreparable injury. In this case, not only jg there I10 irreparable grievance, but there is not even a grievance so far as the succession is concerned, as it will certainly not be contended that the parties interested can by any means be aggrieved, or injured, simply because the sale would be made by the sheriff. Indeed the only party aggrieved is the executor, who is denied the exercise of a right which is secured to him by law; but as the succession is neither aggrieved nor injured, the consequence is plain that the executor had no right, for the redress of his individual wrongs, to appeal from that judgment, had it been appealable from. The Code of Practice, art. 831, provides that a mandamus may issue at the discretion of the judge, even when a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay, that the public good and the administration of justice will suffer from it.</p> <p>It is not contended that the sheriff had no right to sell succession property. But cap this general authority destroy the right vested in executors by a special law of the land ? In other words, can a special law be repealed by implication ? This is the only question before the court. Until 1830, the probate judges in the country and the register of wills in New Orleans were the only persons authorised by law to make sales of the property. Code of Practice, art. 924, no. 5, and art. 1046. In 1830, the legislature passed an act, the first section of which provides “ that it shall be lawful for testamentary executors, administrators and curators to cause the property, real and personal; of such succession or successions as may be under their administration, to be.sold by any commissioned auctioneer, and such sale or sales, so made, shall be good and valid in law.” So that, previous to the abolition of the parish and probate court system, the law with regard to the sale of succession property stood thus: The power to sell was vested in the probate judges in the country and the register of wills in New Orleans, and this was the general rule on the subject; but under the 1st section of the statute of 1830, executors, administrators and curators, had a right to cause the property under their administration to be sold by any commissioned auctioneer; and this was the exception to the general rule. How does the law stand on this subject now ? The .sheriff, if the reasoning of the lower court be correct, and we have no interest or disposition to question its soundness, is the officer who has superseded the register of wills, so far as the sales of succession property are concerned. The power to sell such property would then vest in him, under the general rule of law. But as no change has taken place ip our system of laws relative to the settlement of successions, although the ministerial officers, through whose agency it was carried into effect may have been changed, the consequence is that the exception in the 1st section of the act of 1830, which existed before the adoption of the new constitution, and w.as a limitation of and a restriction upon the general powers of the register of wills, still continues to exist as an exception to the general rule, under which, in the opinion of the lower court, the sheriff is now authorized to make the sales in question. Registers of wills are no longer known to our laws; but the duty was imposed on auctioneers to file a procés-verbal of the sales made by them in the register’s office, because the latter was the clerk of the probate court; and this formality can easily be complied with now, by recording the procés-verbal in the clerk’s office of the court which orders the sale. Besides, the new constitution, art. 142, provides that “all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, shall continue as if the same had not been adopted and the statute of 1830 is certainly not inconsistent with the constitution which vests no new powers in sheriffs, but simply provides (art. 83) that “ a sheriff shall be elected in each parish by the voters theof, for the term of two years.”</p> <p>If it be correct that no express repeal of the act of 1830 can be found; that there is no contrariety between the general power to sell succession property as claimed for the sheriff by the lower court, and the special power vested to the same effect in auctineers by the statute of 1830 ; and lastly, that the statute under consideration is not inconsistent with the new constitution, the conclusion must be that the statute is still in force, unless abrogated by considerations of a general character. And this brings ns to the only question before the court, that is, whether a special law can be repealed by implication.</p> <p>Zacharia;, “ Gouts de Droit Civil Francais,” vol. 1, p. 31, § 29, says: “ Toute fois, l’abrogntion tacite ne peut résulter que d’une contrariété formelle; daq le doute, ilfaut, en la rejetant, interpreter la loi nouvelle de maniére it la mettre en harmonie avec la loi antérieure. Posteriores leges ad priores pertinent, nisi contraries sint.- D’un autre colé, une loi sptciale n’est pas tacitement abrogtepar une loi genérale posttrieure. Lex specialis per generalem non abrogatur.” Pothier, in his Pandects, title De Legibus, sect. Í, art. 5, no. 25, speaks thus : “ Cum duax leges contrarios videntur, quarum- altera specialiter de casu de quo judicandum aut respondendum est, disponit, altera generaliter duntaxat disponit,- prsevalere debet illa quce specialiter disponit.” Merlin, in his “ Répertoire de Jurisprudence, Vo. Loi, §11, art. 3, says : “Les lois spé cíalessont-elles abrogées do plein droit par les lois générales pestérieures ? Non.” The Court of Cassation, in a decision dated August 8th, 1822, (Journal du Palais 17, page 561,) held that “ en principe,-íes lois et róglemens relatifs á desinatieres spéciales nepeuvent étre considérés comme abrogés par des lois genérales postérieures, qu’autant que célles-ci coritiennent des dispositions /ormelles et expresses d’abrogation.” The same learned tribunal, in another decision of July 13th, 1826', held the same doctrine, but in a different language. They said: Les lois générales ne dérogent point tacitement auxlois speciales, qui, par leur nature meme, conservent leur eífet tantqu’elles no sontpas spbcialemcnt abrogtesj” Journal du Palais, 20, p. 688.</p> <p>Sir Wm. Blackstone, in his celebrated Commentaries- on the laws of England. at page 89, of vol.-l.st, says:</p> <p>“ Where the common law and a statute differ, the common' law gives place to-the statute, and an old statute gives place to a new one. And this, upon a gen-ex-al pi'inciple of univei-sal law, that “ leges posteriores priores contrarias abrogant;” consonant to which it was laid down by a law of the twelve tables at Rome, that “ quod populus postremum jussit, id jus raium esto.” But this is to' be understood lohen the latter statute is couched in negative terms, or where its matter is so elearly repugnant, that it necessarily implies anegative. But if both acts-be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assizes, here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the' offender may be prosecuted at either,- unless the new statute subjoins express negative words, as that the offence shall be indictable at the assizes, and not elsewhere.”</p> <p>In the case of De Armas, (10 Mart. p. 172,) the Supreme Court adopted the px-inciples recognized by the authorities above quoted, and held: “ That a particular law is not repealed by a subsequent genei-al law, unless there be such repugnancy between them, that they cannot be complied With under any circumstances..” But nowhere is this principle more cleax-ly and forcibly illustrated, than in the recent case of the Bank of Louisiana v. Farrar and wife. 1 Ann. Rep. 49. Mrs. Farrar had bound herself jointly and in solido with her husband, in favor of the bank, under the 32d section of the charter gx-anted to that institution in 1824. When sued upon that joint obligation, she resisted the claim, on the ground that the 32d section of the charter was repealed by art, 2412 of the Louisiana Code, which prohibits a wife from binding hei-self for her husband. But your honors thought differently; and his honor, the chief justice, who delivered the opinion of the court on that occasion, said: “ In Louisiana, special laws form a large portion of our legislation. It is one of the evils of the times. An effort was made in the late convention, to place some i-estraint on what was felt to he an abuse in legislation; but it failed, and special legislation is a pai-t of our system. We cannot hold this section to be repealed by what we consider an implication. For the exception of the 32d section is no more in contradiction with art. 2412, than it was to the laws in reference to which it was passed; the relation it bears to each, is to all intents and purposes, identical. It was an exception to the former law; it remains an exception to this.”</p> <p>The case of the Bank of Louisiana v. Farrar and wife, is alone decisive of this. In that case, the wife resisted the plaintiff’s demand, on the ground that the special law of 1824, was repealed by the general law of 1-825. But the court thought differently, and decided that the exception in the special law of 1824 was no xnore in contradiction with the general law of 1825, than it was with the law in referonce to which it was passed; that it was an exception to the former law, and remained an exception to the latter. In this case, the execu-' tor claims the exercise of a right vested in him by a special law of 1830? and that;' right is denied to him by the learned judge of the Second District Court, because, in 1845, the office of register of wills was abolished, whence he concludes that the sheriff has the right to sell suecessionproperty, under the general' powers of his office. But it will be decided, in accordance with the principles laid down in the case of Farrar, that tho exception in the special law of 1830 is no' more in contradiction with the laws of 1845, than it was with the laws in reference to which it was passed; that it was an exception to the former laws, and remains an exception to the latter.</p> <p>The plaintiff in his anxiety to prove that he has no other remedy but that of mandamus, has succeeded in showing most clearly, that he is not entitled to that writ. He admits in his argument that there is not only no “ irreparable grievance,” but no grievance at all, “ so far as the succession is concerned; as it will certainly not be contended that the parties interested can by any means be aggrieved or injured, simply because the sale would be' made by the sheriff': indeed, the only party aggrieved is the executor, who is denied the exercise of a right secured to him by law,” etc. From this we see' clearly the issue tendered by the petitioner, and the true grounds of his complaint, and what he calls a denial of justice.</p> <p>It appeal's by the answer of the honorable judge of the Second District Court, that the order for the sale prayed for by the plaintiff, was actually grant-' ed on the 25th of January, 1847. The return of the judge is not traversed, nor its truth denied; it must, therefore, be taken as true. It is distinctly admitted that the succession, and those interested in it, are in no manner aggrieved or' injured by the nature and tenor of the judge’s order ; and that the plaintiff, in his representative character of executor, in which' capacity the whole proceedings in the' cause were conducted, has sustained no injury. The whole cause' of complaint is, that the plaintiff has not been permitted to exercise his arbitrary caprice in' the choice of an agent to execute a judicial judgment or decree, in opposition to judicial discretion, fairly and clearly exercised. The object of the struggle is to deprive the court of all discretion in the choice of the officer who-is to execute its mandates and judgments, and to vest it in the arbitrary will of an irresponsible suitor, one acting (as in this case)1'not in his own right, but irr a fiduciary' capacity, under the saction and by the appointment of that very court, immediately amenable to it, and considered in law as administering in all respects under its supervision and control.</p> <p>From these facts, and others appearing in this case, we submit, in support of the cause shown by the-judge of the Second District Court, the following propositions':</p> <p>1. In the language of Lord Bacon, that “ a mandamus is a writ commanding the execution of an act where otherwise justice would be obstructed, or the* king’s charter neglected, issuing regularly only iff cases relating to the public' and the government; and is therefore termed a- prerogative writ.” 4- Bacon, page 498 — vei'bo Mandamus. And, in the language of the Code of Practice, that “the object of this order (mandamus) is to prevent a denial of justice, or the consequence of a defective police,” and should be issued where the Jaw has assigned no relief by the ordinary means, and- where justice and reason require that some mode should exist of redressing a wrong or an abuse.</p> <p>2. That no obstruction of justice has taken place, the order prayed for having been granted. That no injury has resulted either to the thing,- nor the persons interested in the thing-over which the court exercised jurisdiction in thee course of the proceedings complained of, and no injury or damage caused to the' immediate party in his representative or fiduciary character, in which capacity alone he was before the court; nor any actual damage'or loss to him iw his individual capacity.-</p> <p>3- That the exercise of a sound discretion by the court, is a power and a’ right inherent in all courts, unless forbidden by positive law, and more especially in courts of probate, which are invested by law With the supervision over the administration of estates in the hands of trustees, such as executors, administrators, tutors etc. etc.; and that the exercise of such discretion involves nothing in relation to the public and the government, in the true sense of the authors quoted, and is nothing more than ordinry judicial action upon matters coming before the courts, in the exercise of their acknowledged jurisdiction.</p> <p>4. That there is nothing in this case in relation to defective police. There is no wrong to redress; for it is expressly admitted that 1he parties interested have suffered none. There is no abuse to correct; for the privilege contended for by the plaintiff is a bare naked right, uncoupled with any perceivable interest — not granted to him by any statute, positive in its terms, passed upon any considerations of a public nature, but subject to judicial interpretation and judicial discretion.</p> <p>5. That the statute of 1830, quoted by the plaintiff, (Bullard and Curry's Digest, p. 2,) is directory only in its terms; it creates and vests no positive and absolute rights in the persons named in the statute, independent of all judical interpretation, discretion, or control: it does not, in direct terms, exclude judicial action ; and this can never be done by implication — by the general terms of the law: it cannot be conclusively inferred that it relates to the sales of property to be made by the judgment or order of the court. In its terms it would seem to relate to the extra-judicial action of the executor, curator, etc. To suppose that a statute contemplated judicial action as necessary to the accom plishment of an act — -that it should be done by virtue of a judgment or decree of a court, and at the same time deprive that court of all power or discretion as to the organ or means by which its judgement should be executed, and vest that power in a. party to the suit, would be to suppose a case that might be within the scope of legislative power; but it is a conclusion which no court should arrive at by implication. It would render the court the mere organ of the party to the proceedings — -invest him with an arbitrary authority, to be exercised ex parte, and without opposition, destructivo of I he legitimate power and authority of the court, and tending to disorder, fraud and numberless abuses. When the powers of the judiciary are necessarily called into act ion, for the accomplishment of any lawful purpose, they are necessarily seized of the whole subject — have a right to act upon it in all its parís- — lo look lo the execution, as well as the rendition of their judgments, unless restrained by some clear, positive, and prohibitory law. No such law is to be found in the statu!e quoted and relied on by the petitioner. If (he court had any discreiion in the matter, (hen a mandamus will not be granted (Louisiana. College v. The Slate Treasurer, 2 La. 394); nor is a mandamus in this case at all necessary to aid this court in its-appellate jurisdiction, as contemplated by (he (lode of Practice, art. 838.</p> <p>(i. The privilege claimed by the plaintiff has no appreciable value; it could not come before this court, nor be considered by it, in the «exercise of its appellate jurisdiction. It has no permanent-, fixed, or useful existence. It may be used capriciously, or it may not be used at all, and, if not claimed or used, the matter would belong to the court, which is (he strongest argument to prove that the court is not wholly without, power or discretion in the matter. For all these reasons we believe that this is not a case for a mandamus.</p> <p>Supposing all these objections to (lie remedy by mandamus to be overruled, and the court in possession of the cause, what judgment should be rendered ?</p> <p>1. The probate system and all its machinery, as it exisled prior to the adoption of the new constitution, has been abolished, or modified by the new constitution, to such an extent as to repeal or render inapplicable many of the statutes passed iu relation thereto. In relation to the particular statute relied on by the plaintiff, the first section declares that the sales to be made by auctioneers shall be good and valid in law, upon an express proviso: that the procesverbal of such sales shall be recorded in tne office of the register of wills, when made in the parish of Orleans, and in the office of the parish judge, when made in any other parish. The office of register of wills in the parish of Orleans is abolished, and so are (he parish judges throughout the State; and, neither the conslitut-ion, nor any law passed under it, has endowed any other office or officer with all the faculties or functions exercised by either the register of wills or parish judges; yetthe proviso of the statute is clear that such sales shall only be valid in law upon that condition.</p> <p>But suppose it should be considered that by necessary implication those duties and functions have been transferred to some other officer, and that a recording in some other office would satisfy the exigency of the law. What office is this to be ? Surely it would be for the judiciary to decide this, upon a fair and legal interpretation of the constitution and laws; and travel round the whole circle of this case, and we must come back to this point of judicial interpreta, tion. In the present state of the law there is no escaping from it; it must be. gin in the inferior court, for this court has no original jurisdiction. The cor. rectness of the judgment of a court of the first instance, pronounced on matters of law arising in the course of judicial proceedings, and submitted to its decision, connot be inquired into on a mandamus; and if the powers of this court, in the exercise of its ordinary appellate jurisdiction, will not reach the case; if the thing claimed has no value, or none but an imaginary one which will not support the jurisdiction of this court, it only proves that it is a ease in which the constitution has not provided the means of revising such judgments.</p> <p>By this statute it is made the duty of the executor, curator, &c. &c., or some one else, to cause the proces-verbal of sales to be recorded. Suppose the executor or curator fail to do it? Suppose no person else takes the trouble to do it? The statute makes it a condition precedent to the validity of the sales, that, the recording should take place. Judges of the District Court cannot be expected to devote their time to watching the conduct of suitors, of executors, curators, &c., or to the performance of any extrajudicial functions; this is forbidden by the constitution. If the law invoked by the petitioner be in force, and gives him what he contends for, the absolute right, independent of all judicial power or action, to the exercise of this privilege, the validity of all sales of this nature must depend upon the conduct and will of executors, administrators, curators, &c. and great confusion, frauds and litigation must be the natural consequence. Such a state of things must be sufficient to open the door and let in the judiciary to act upon the subject, and its judgments must be considered as judgments in the discharge of their ordinary judicial functions, and to be revised and corrected in the ordinary manner, and where this cannot be done, to remain final, as in other cases.</p> <p>2. We take it for granted, that the sheriff, by virtue of his office, is the proper person to execute all orders, judgments, decrees and mandates of the several courts of justice of this State. That this is the peculiar, appropriate, universal and necessary attribute of his office, independent of any special statute or law so declaring it. That a judgment, order, or decree of a district court, directing or ordering a sale of property, is, in every sense of the word, a judicial act or judgment, done or rendered by such court; and that the execution of such a judgment or decree would fall directly within the legal and natural attributes and functions of the sheriff’s office. That all special legislation, by which any part or portion of the duties, powers or rights of the sheriff are transferred to any one else, is an exception to the general rule; and, if the person to whom any such powers, rights and duties are transferred be an officer of the State, it is to all-intents and purposes a transfer of the duties and powers of one office under the State, to be held and exercised by another. The 126th article of the constitution of the Slate declares, that “no person shall hold or exercise at the same time-more than one civil office of emolumont.” The act of 1830, authorizing auctioneers to execute the judgments of the courts, is in conflict with this article of the constitution, and, of course, repealed by it. Auctioneers are offi - cers of the State — they are appointed by the governor, by and with the advice and consent of the senate — and commissioned as such, and their duties are regulated by law; they are the collectors of a considerable portion of the revenue of the Slate; and it is not competent to the legislature to get round the true meaning of the constitution, by cutting up and parceling out the legitimate and lawful powers, duties, and attributss of one office, and accumulating and adding them to another; and thus doing indirectly, that which it would be unconstitutional to do directly. No court of justice would be justified in sanctioning such a course, under the actual legislation on the subject; nor will this court, by mandamus, compel a district judge to act as in the case of an acknowledged, valuable, indisputable and useful right, in a case where the construction of the constitution and the statutes of the State are called in question, and where his judicial discretion is necessarily called into action.</p> <p>3. The judge of the Second District Court returns, that the order for the sale, as prayed for by the plaintiff, has been granted; but, that he has ordered it to be made by the sheriff of the parish of Orleans. In this he has exercised a sound legal discretion, upon every principle of public order, safety and convenience. To execute the j udgments and decrees of the courts of justice, is the natural and almost exclusive duty of the sheriff, as laid down and regulated by law. He acts under an oath of office, and a heavy official security. His office is in immediate contact with all the courts of justice, and he is under their easy and constant superintendence; and, asan officer of the courts, he is subject to their authority by summary process. All the records, documents and proceedings in relation to the business of the courts; are kept together in one office, and of easy access to the public. Being an independent public officer, and his duties regulated and prescribed by law, and the most summary remedies provided to restrain him within the bounds of his duty, and to punish him when he exceeds them, the public business is more safe in his hands; and his fees or compensation being fixed and regulated by law, all temptation to bargains and collusions with executors, administrators or curators, for a share in commissions and emoluments is done away with. He is elected by the people of the parish and is amenable to them; and in addition to all the other checks and securities created by positive law, the slightest violation of duty is subject to die action of public opinion through the ballot box, at short periods. The struggle on the part of the petitioner in tilis case is for the exercise of an arbitrary privilege or will, that has no intrinsic value to him in the fair and honest exercise of his functions as.executor. Its only object is to enable him to distribute his patronage, and the emoluments arising from sales of this nature among die auctioneers of the city, at his pleasure. Thisis a dangerous power with which to invest individuals, who are parties to judicial proceedings — who are mere trustees, guardians, or administrators of property for others. It is dangerous to the public to entrust the execution of judicial decrees or judgments to many persons who aro not under the immediate eantrol of the courts, who act under no official responsibility, and who owe their employment and its emoluments to the patronage or choice of one party to a suit or judicial proceeding. As to the emoluments arising from business of this nature, if they must accrue, it is certainly better that they should go to the sheriff than to any one else. His office is essentially a public one — he is not supposed to be engaged in any private business, trade or calling — it is wholly for the public — it is a very expensive one, and the profits or emoluments are divided among a host of deputies, clerks and employés, whom he is obliged to maintain for the public service, whether the emoluments of his office be great or small, and being thus distributed contribute to the support of a large number of persons and famlies who are in need of such employments. Auctioneers, on the contrary, are not only officers of the State, but they are also private merchants, traders and dealers — the whole trade and commerce of the country is open to them, they are subject to all its vicissitudes, from the accumulation of large fortunes to bankruptcy. They employ no more clerks or persons than are necessary for their private business; they contribute to the emolument or living of no one beyond the exigencies of their own interests.</p> <p>They are appointed by the governor, and in proportion as you add to their functions and emoluments, and introduce them into the administration of justice., you add to executive patronage and power, and take away from the people that power and authority over public officers, and weaken their accountability to them, which it is clearly the object of our new constitution to create and establish upon an effectual and lasting basis.</p> <p>The auctioneer, not being an officer of the courts of justice, but owing his employment to the good will of a party litigant, is beyond the reach of the summary process and proceedings of the court; in many cases he could only be reached by the ordinary and tardy process of the law. He is without the restraint of an approaching popular election and accountability to the people; he may trust to explanations, and appeals to executive clemency, mercy or favor, fora re-appointment; when appointed by partnerships and associations in commerce, he may be the mere holder of a sinecure commission, and all the public business placed in his hands be entrusted to the management and control of persons not elected by the people — not even appointed by the executive — but private merchants and traders, wholly irresponsible to the public, and in whose appointment and induction into the most important public concerns, the public has never been consulted, directly or indirectly; or he may bring his commission as so much capital into the partnership, thus trafficing in executive patronage, and advancing his private fortune at tlie hazard of the public good.</p> <p>From all these considerations it is submitted that the judge of the Second District Court has exercised a sound, legal and just discretion in this matter, and that the mandamus asked for should be refused.</p>

<p>APPLICATION for a prohibition to the Third District Court of New Orleans, Kennedy, J.</p>

<p>Appeal from the District Court of Madison, Curry, J.</p> <p>cited Civ. Code, art. 2294. 10 La. 117, 204. 14 La. 280.</p> <p>cited Civ. Code, arts. 21, 1960. 1 Story’s Equity, ch. 5, p. 155 et seq.</p>

APPEAL Appeal from the District Court of Madison, Curry, J. Sims recovered a judgment against Gray, on a joint note executed by Day and Gray, given for the purchase of a tract of land. Dunlap purchased the land at sheriff’s sale, on twelvemonths’ credit, and entered into bond, as required by the statute in such cases.

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

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

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

<p>APPEAL from a court organized for the trial of the defendant in the parish of East Feliciana.</p> <p>A second trial was illegal. Act of 1 June, 1846, s. 9. Confessions, not voluntary, are inadmissible in evidence. 2 Starlde on Evid. p. 48. Roscoe’s Crim. Ev. p. 28. Greenleaf on Ev. p. 263.</p>

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

<p>Novation, like other contracts, derives its binding force from the intention of the parties. Where there was no intention to novate a debt, there can be no novation.</p> <p>Where a mortgage was executed to secure the payment of hank-stock, subscribed for by the mortgagor under the provisions of a bank charter, which provided that each stockholder' should he entitled to a loan to the amount of one-lialf of his stock, and the mortgage stipu" lated that the property mortgaged should stand hypothecated for any stock-loan so made, the statement in the act of one-half of the amount of the stock, as the maximum to he advanced, is sufficiently definite. Nor will such a mortgage he affected by any change in the evidence of the advances made; the fact that they were made andhave not been satisfied, being sufficient to give it effect.</p> <p>"Where mortgages have been executed by the stockholders under their interpretation of the provisions of a hank charter, the court will be governed by the construction put upon it by the manner in which they have executed it, whatever might be its opinion, had the questions been brought up originally, on the refusal of the stockholders to execute the mortgages-in the form actually adopted. C. 0.1951.</p> <p>In cases of doubt, the interpretation must he against him who has contracted the obligation. C. C- 1952.</p> <p>Where the directors of a corporation are empowered by its charter to make by-laws, not contrary to law, for the general administration of its affairs, the shareholders may he hound by provisions and rules beyond those actually containedin the charter.</p>

<p>APPEAL from the Dista-ict; Court'of Concordia, Curry, J. The facts of this case are fully stated in the opinion of the court infra.</p> <p>1st. The mortgage of plaintiffs is void for uncertainty, because the notes do not state precisely the nature and situation of the lands intended to be mortgaged, mentioning neither the quantity, township, range nor section. Cjvil Code, arts. 3273, 3275. Neither do they state in favor of whom the mortgage was executed, except by inference. Civil Code, art. 3357. Neither does it appear, except by inference, that it was intended that the mortgage should be upon the land on which the work was done.</p> <p>Code, art. 3331. 2d. The mere execution of notes, with a stipulation in them of a right of mortgage, is not sufficient to give one. There should be a formal act of mortgage executed by the debtor, and accepted by the mortgagee. Civil Code, arts. 3257, 3272. The register of mortgages had no authority to record these notes on his register as mortgages, as they were not signed by both parties. Civil</p> <p>3d. The act containing the vendors privilege from Sims Sf Brown to the Preslers, was sufficiently recorded to give notice to the world. In the index to the mortgage book was the following íeference : “ Sims Sf Brown to Amelia Presler, mortgage clause, page 158,” and the clause referred to was recorded on that page of the mortgage record. This was enough to have put any person upon inquiry, which would have led to the necessary information.</p> <p>4th. The plaintiffs cannot avail themselves of the want of recording the act .of sale from the Preslers to Sims ¿y Brown, in which the vendor’s privilege was retained for the price, because : 1st, as between the parties, there can be no doubt that privilege existed; 2d, at the time the notes were executed, or previous thereto, plaintiffs had never applied to the parish judge to ascertain by his certificate what privileges or mortgages existed on the property; and 3d, had such application been made, the same certificate would have been given, as that furnished by him to the sheriff, and read at the sheriff’s sale. They would then have had actual knowledge of the fact, which is equivalent to registry. Planter's Bank of Georgia v. Allard, 8 Mart. N. S. p. 140. Bell v. How et al, Ibid. 246. They were bound to obtain this certificate before receiving their mortgage, (Civil Code, art. 3328,) and, not having done so, they relied alone on the good faith of the mortgagor, and their only remedy is an action against him for damages. Civil Code, art. 3329. The maxim of caveat emptor, applies. Sims pould only invest them with such rights as he held at the time; they failed to lake the legal means to ascertain what those rights were; and they received the mortgage, subject to all the previous encumbrances upon the property, as agaiDst him, in the same manner as if they had purchased from him a quit claim to the property; and qui non habit, ad alium non transferre potest.</p>

<p>An amended answer, offered to bo filed by third persons, wbo had, ponding the suit, purchased, at a judicial sale made by order of another court, the title of the defendant to the property in contest in a petitory action, and who had been substituted in place of tlie original defendant, in which they set up the title so acquired by them, cannot be excluded as changing the character of the suit, by setting up a title under judicial proceedings, the validity of which cannot be tested in the suit in which their answer is offered.</p> <p>The testimony of a single witness that, he knew a person as a married woman for a few months before her death, in a neighborhood into which she had lately removed a stranger from another State, is insufficient to prove her marriage. Per Curiam: Her status cannot be proved by the generalreputation of that neighborhood; and we are not prepared to say that, where the proof of legitimacy is introduced for the purpose of acquiring property of great value, a single witness is sufficient to prove a marriage, by reputation.</p> <p>Aduly acknowledged natural child inherits the estate of her father, in default of legitimate relations or a surviving wife.</p> <p>Property claimed in an action cannot be alienated, ponding the action, to the prejudice of the party claiming it. C.C. 2428.</p> <p>One who has caused himself to be substituted in the place of the original defendant in a suit, who was his warrantor, debars himself of the right to obtain a judgment in warranty against the latter.</p>

<p>An appeal will not bo dismissed on the ground that the appeal bond is not payable to the appellee, where the name of the persou in whose favor it was actually made was inserted through a clerical error. Such an error, will not discharge the surety.</p> <p>The heirs of the wife are entitled to ono half of property purchased by the husband during the existence of the community, though not paid for till after the death of the wife, subject to the payment of one half of the community debts.</p> <p>A having purchased at judicial sale property sold as belonging to the succession of B, assumed, as part of the price, the payment of a note, secured by mortgage on the property. Pending an action by the heirs of the surviving wife of B, claiming one half of the property, on the ground that the whole belonged to the community of acquets formerly existing between the spouses, an attorney at law, practising in the court in which the suit was pending, purchased the mortgage and note: Held, that the purchase, being by a public officer connected with the court, was a nullity, C. C. 3432.</p> <p>A sale made under a judgment rendered in an action in which there was no defendant, is a nullity. The nullity of such a sale, is not required to be pronounced judicially.</p> <p>Where the payee of a note, secured by mortgage, executed for a community debt, receives from the maker crops, made on the community property, more than sufficient to discharge the debt, but, instead of applying their proceeds to its payment, pays them over to the malrer, and gives him personally credit for tho amount of the note, it is a novation of the debt, and will discharge the community.</p> <p>Where a lot of ground purchased during the existence of the community of acquits is incorrectly described in the conveyance, but, after the dissolution of the community by the death of the wife, a new conveyance is executed to the husband for the property with a correct description, the title thus acquired will enure to the benefit of the community.</p> <p>A possessor in good faith ia entitled to be paid for useful improvements made by him on the property.</p>

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

<p>Appeal from the District Court of Concordia, Curry, J.</p> <p>cited stat, of Miss, of 25 June, 1822, and Coxe v. Eowly, 12 Rob. 273.</p>

<p>One aware that another had purchased land from a third person, and that the purchaser was in possession, but bad failed to have bis title recorded in the parish in which the land was situated, from whatever source such knowledge may have been derived, can acquire no title to the property to the prejudice of the purchaser.</p>

J. to establish the responsibility of the wife for one half of the community debts, cited the Civil Code, art. 2382. Flood v. Shamlurg, 3 Mart. N. S. 622. Chapman v. Kimball, 6 Rob. 94. Lynch v. Benton, 12 Rob. 113.

cited Civil Code, arts. 911, 918, to show the heirship op the appellant, and arts. 1035, 1114, to establish her exclusive right to the administration, as sole beneficiary heir.

<p>Plaintiff sold property to defendant for a certain price, on credit, taking an endorsed note for the amount. A creditor of the' latter having seized the property under a fi- fa., plaintiff enjoined the proceedings, claiming to be the owner, under a deed from defendant to him by which the property was reconveyed for the amount of the note; but the injunction was dissolved, the reconveyance being considered as simulated. In an action by the plaintiff, against the endorsers on the original note: Held, that whether the reconveyance was executed in good faith, or was simulated to defeat the rights of the seizing creditor, plaintiff cannot be permitted to treat it as other than genuine, and that, considered as such, it extinguished the note.</p>

<p>Appeal from the District Court ef Madison, Selby, J.</p> <p>cited Spencer V. Knowland, ante p. 222, as decisive of this case.</p>

This was an action to recover from the defendant the amount of two notes, executed by her for the price of slaves sold to her by the plaintiff. The defence was the danger of eviction, from a claim to the slaves set up by a third person.

The material facts in the case, are stated in the opinion delivered by Rost, J., infra.

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

<p>Where in an action against a drawer of a bill of exchange endorsed in Manic, plaintiff sues as executor, proof of his being ox ecu, tor is unnecessary, though specially denied. Per Curiam: The bill being payable to bearer, whether the plaintiff chose to stylo himself executor, or to -sue in his own name, was immaterial. The only effect of the allegation would be to estop him from denying it, and to bind him by any defence which the drawer could set up against the succession he pretended to represent.</p>

Weems, Parish Judge, presiding. contended that an attachment cannot be dissolved after appeal, where no steps were taken to obtain a dissolution in the court of the fh’st instance. Code of Practice, art. 258. The attachment must bo dissolved. See Levy v. Levy, 11 La. 581. Brinegarv. Griffin, ante p. 154.

<p>A. Court of Probates lias jurisdiction of an action to compel a tutor to account, instituted at any time before his discharge. The court will have jurisdiction, though it bo alleged in the petition that the tutor, in collusion with tho imder-tutor, had been permitted to resign the tutorship without rendering any account.</p>

contended that though a party would not be permitted to prove a fact extinguishing an obligation contracted by him, without having specially pleaded it, yet where a plaintiff, in his efforts to establish the contract, introduces evidence which shows its extinction, that evidence must avail the defendant, under the general issue. In Brown v. Saul, 4 Mart.

<p>Appeal from the Parish Court of Now Orleans, Maurian, J.</p>

<p>Appeal from the Court of Probates of Livingston, Watts, J.</p> <p>cited 12 Mart. 684. 3 Rob. 287. 4 Mass. 354. Winter and Wailerston, contra, cited Arcenaux v. Michel, 6 Mart. N. S. 93. Longbottom v. Babcock, 9 La. 48. HeLorme v. BeLallancle, 10 Rob. 477. Láfon's Heirs v. His Executor, 3 Mart. N. S. 707.</p>

<p>Appeal from the District Court of West Feliciana, Boyle, J.</p> <p>cited Nicholas v. Alsop, 10 La. 409. No coun. sel appeared for the plaintiff.</p>

The plaintiff alleges that she is the only child of the late Jacob, and Nancy Beiller, and as such the only heir of her father. She avers that the defendants are in possession of all the property of her succession.

<p>Where, on an appeal from an order refusing to set aside a provisional seizure, the question Of releasing the property is the solo matter for consideration, and the record contains no information as to the value of the property, the appeal will he dismissed, though the action was on a claim exceeding three hundred dollars. Const, art. 63.</p>

The plaintiff alleges that he is the owner, in possession, of lots of land 1, 2, 3, 4, 5 and 6, of section 26, township 17, range 13 east, in the district of pub-lie lands north of Red River, of the value of $10,000 ; that he acquired title by-purchase from the United States at the Land Office at Ouachita, on the first of December, 1832, and first of February, 1833.

<p>A paper purporting to be the copy of the record of an act of sale sous seing privé, is inadmissible in evidence to prove title to real estate, where no proof of the verity of the act was exhibited to the recording officer at the time of recording it, and there is no sufficient proof of its being a copy of the original.</p>

<p>A PPEAL from the District Court of Carroll, Carry, J. This is a suit against the drawer and endorsers of a promissory note for $4,000, dated ut Munroe, La., March 15th, 1842, and payable at the office of plaintiffs, at Alexandria, twelve months after date. The defence of the appellant, O. J. Morgan, one of the endorsers, is want of legal notice of demand and non-payment. The evidence on the part of the plaintiffs consisted : 1st. Of the certificate of the notary attached to his protest, in which he states the manner in which he gave notice to the endorsers, as follows: “ Notices in writing of this protest were deposited by me in the post office, at Alexandria, on the 18th day of March, 1843; one addressed to Oliver J. Morgan, at his domicil, near Lake Providence, Parish of Carroll, La.; and one to Jonathan Morgan, at his domicil, near Lake Providence, Parish of Carroll, La.” 2d. Of the answers of the notary to interrogatories. In answer to the 2d interrogatory, he says : “ I did make diligent enquiry for the domicil of and usual place of residence of the endorsers, Jonathan, and Oliver J. Morgan, by enquiry of persons in the parish of Rapides, who were acquainted with them, and most likely to know; I enquired of Robert Chew and H. M. I-Iyams, who I knew to be acquainted with them.” In answerto the 3d interrogatory, he says : “ I was informed, on making such inquiry, that they resided in the parish of Carroll, near Lake Providence.” To the 4th interrogatory, he says: “ I did, on the 18th day of March, 1843, send the notices in conformity therewith, to said Oliver J. Morgan and Jonathan Morgan, addressed to them, at their domicil, near Lake Providence, parish of Carroll, La., and did deposit the same in the post office, at Alexandria, on the said 18th of March, 1843.”</p> <p>On the part of defendants, the following evidence was offered: 1st, The admission of parties, of record : That O. J. Morgan and J. Morgan live near the Pecan Grove post office, in the parish of Carroll; that O. J. Morgan lives 12 miles from the town of Providence, and within 4 or 5 miles of Pecan Grove. That O. J. Morgan wasnever known lo send to Providence for letters or papers ; ahoays mails his letters at Pecan Grove Post Office, Sfc. 2d, The testimony of J. C. Hollingsworth, deputy postmaster of Providence. He swears, that he was postmaster at Providence at the date of the protest of the note sued on; that letters coming to that office for O. J. Morgan always went to the General Post Office as dead 'lctters; and that O. J. M. has lived at his present residence since 1839, Judgment was given below in favor of the plaintiffs, from which the defendant, O. J. Morgan, has appealed.</p> <p>Notice was given in strict conformity to the second section of the act of the 13th of March, 1827, B. and C.’s Dig. 43. It is only when the residence of an endorser is unknown to the notary, and cannot be ascertained by diligent enquiry, that he is required to address notice lo the place where the note was drawn. His enquiries informed him truly of the residence of the endorser, and he addressed his notices to them properly. 10 Rob., 37.</p> <p>The notice was not sufficient to bind the appellant as endorser. 1st. It was not directed to any post office whatever. It was directed to “ Oliver J.Morgan at his domicil, near Lake Providence, Parish of Carroll, La.” There is no such post office as “ Lake Providence” in this State. There is a post office at “ Providence,” the seat of justice of the parish of Carroll. This court is bound to take judicial notice of the post offices established within the State. Nott's Fxecutor v. Beard. 16 La. 311.</p> <p>2d. If the direction amounted to anything, it was a direction to “ Providence,” or a general direction to the “ Parish of Carroll.” In the latter case the notice would have gone to “ Providence,” under the regulation of the Post Office Department, by which, letters addressed to a person in a certain county or parish, without further direction, go to the post office at the seat of justice. If then the notice in this case had any legal direction at all, it was to “Providence,” which this court knows officially to be the seat of justice for the “ parish of Carroll.”</p> <p>3d. Admitting, for the sake of argument, that the notice was directed to “ Providence,” in such a manner as to have insured its transmission by mail, w as such notice sufficient to bind the appellant ? It is admitted on the record that the Providence post office was not the nearest to O. J. Morgan’s residence, but that “ Pecan Grove post office” was eight miles nearer; that he always mailed his letters at the latter, and never received either letters or papers at the former; the postmaster himself testifying that such letters as came to Providence to his address were always sent to the General Post Office, as dead letters. The general rule of the commercial law is well settled, that notice to an endorser must be directed to him at the post office nearest his residence. There is an exception where a person is in the habit of receiving his letters and papers at a more remote office, and does not use the nearer one. The act of 13th March, 1827, has not changed the commercial law in this respect. Vide Preston v. ¡Dayson, 7 La. 11. Duncan v. Sparrow, 3 Rob. 164. The general principle has been repeatedly recognized by the Supreme Court of this State. In the case of The Mechanics’ Traders’ Bank v. Compton el al., 3 Rob. 4, and also in Nicholson v. Marclers, 3 Rob. 242, it was decided that, even when a party has been in the habit of receiving his letters at two post offices, notice of protest must be directed to him at the nearest, or it will be bad. Vide also 6 Rob. 73 — 90. The true rule is laid down again in Priestly v. Bisland, 9 Rob. 528, and still moreffiully defined in Follain v. Dupré, 11 Rob. 454. It was directly decided in the case of Bicnel v. Tournillion, 6 Rob. 500, that a notice of protest simply directed to an endorser, as in a particular parish, when there are soveral post offices in the parish, and the one at the seat of justice is not the nearest to his residence, is insufficient. It is clear, then, that notice to the appellant at Providence, was bad, because there was a nearer post office at “ Pecan Grove,” where he was in the habit of receiving his letters and papers, while he never used the other at all.</p> <p>4th. It will be urged that the notary was excused from sending notice to the defendant’s proper post office, on account of ignorance of his place of residence. We answer : 1st. The notary does not testify that he did not ascertain his true residence, nor tliathe did not know his nearest post office. 2d. By the notary’s own showing, he did not exercise the due diligence required by law, to ascertain the residence of defendant. Pie testifies that he enquired of Chew and Hyams. Neither of these was a party to the note. The general rule of the commercial law is, that enquiry should be made of the other parties to the bill or note. Story on Bills, §299, with authorities cited in note, &c. 3d. But even if the commercial law were otherwise, our own statute settles the question. The 3d section of the act of the 13th March, 1827, directs that when, after due diligence, the residence of an endorser or drawer cannot be ascertained, notice shall be sent to the place where the note or bill was drawn. Bullard and Curry’s Dig. 43. Now the note in this case was drawn, as appears upon its face, at Munroe, and it does not appear that any notice was sent to the defendant at that place. If, then, the notary did know the residence of defendant, the notice was bad, because it was not directed to his nearest or-usual post office. If he did not know it, then the notice was bad, because it was not sent to the place where the note was drawn, according to the requisition of the 3d section of the act of 17th March, 1827.</p>

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

<p>A case will not be continued in order to allow a party to procure the evidence of witnesses absent from the State, where no diligence has been used to obtain their testimony.</p> <p>A person having been objected to on account of his exemption as a school commissioner from liability to serve as a juror, waived his privilege, and was sworn. After the pannel had been formed, on being asked a question by defendant, he stated that he did not like to serve, as he felt interested in the case, and that he did not know the nature of the case when he was objected to. Held: That the juror was properly discharged, and another sworn in his place.</p>

<p>Where the facts of the case leave it doubtful whether the court should interfere with a judgment, overruling a motion to set aside an order directing certain interrogatories to be taken for confessed, the party against whom they have been taken for confessed will be considered as entitled to the benefit of the doubt, and the case will be remanded to give him an opportunity of answering the interrogatories</p>

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

<p>The right given by the 13fch section of the stat. of 20 March, 1839, to a plaintiff who has applied for a fa., to propound interrogatories to third persons, believed to have property or effects under their control belonging to the defendant, or to be indebted to him, can be exercised only while the writ remains, in the hands of the sheriff.</p>

This is a suit by attachment, instituted by the plaintiff on a promissory note for $5,159 27, executed by defendants on the 25th February, 1839, dated at Hall’s Ferry, and payable to the order of George Henderson, at the Union Bank of Mississippi, on the 1st of January, 1841, at Jackson. Defendants plead payment, and set up in protection of such payment the statute of Mississippi, of 25 Jan’y, 1822.

<p>The la\v of the forum governs questions of prescription.</p> <p>The acknowledgment of a debt will interrupt prescription, though such acknowledgment be not made to the debtor.</p> <p>Tiy the laws of Mississippi, an agreement to postpone the payment of a balance due on a note for a certain period, on tbe payment of interest on each balance at the rate of ten per cent a year, is usurious, and subjects the party to a forfeiture of all the interest which may have accrued.</p>

<p>Appeal from tlie District Court of Concordia, Curry, J.</p>

To grant an injunction would defeat the objects of art. 307 of the Code of Practice. The judgment being interlocutory, and affecting no irreparable injury, no appeal will lie. Code Pract. art. 566.

APPEAL Appeal from the District Court of East Feliciana, Johnson, J. The defendants, Lockhart and Arrott, appealed from a judgment perpetuating an injunction obtained by the plaintiff against a fi. fa. issued from the District Court of the First Judicial District. The court a qua correctly overruled the motion of the defendants, objecting to the jurisdiction of the court. See La-wes et al. v. Chinn, 4 Mart. N. S. 388. Barbarin v. Saucier, 5 Ib. N. S. 361 and 500.

<p>A principal who avails himself of a purchase made hy an agent by selling the property, will be bound to comply with stipulations made by the agent with the owner at the time of the purchase.</p>

<p>Country merchants acting as mere forwarding agents for the neighbouring planters, charging no commission for their services, but getting an indirect compensation in the patronage and good will of the planters in the business of their country store, by whom cotton has been shipped to a merchant for sale, are liable only for reasonable prudence in the selection of the merchant, and for the payment of the proceeds when received; they cannot he made responsible for any loss resulting from the dishonesty of the person to Whom the cotton was shipped, if reputed at the time to he honest and solvent.</p>

<p>Appeal from the District Court of West Feliciana, Boyle, J.</p> <p>cited Bullard & Curry’s Dig. p. 43, no. 14. Fol-lain v. Bupr'e, 11 Rob. 454.</p>

<p>Witbout the express authority of his client, an attorney at law Can receive nothing hut money in satisfaction of a judgment belonging to the former.</p>

<p>Courts of Probate as they existedbefore the reorganization of the judiciary under the constitution of 1845, had jurisdiction of actions for the partition of the property of successions, and power to determine questions of title to real estate arising in such actions, either directly or indirectly. C. P. 1022. C. C. 1250, 1304. Stat. 27 March, 1843, s. 3.,</p>

<p>Appeal from the Distinct Court of Concordia, Curry, J.</p>

<p>Where, in an action by the holder of a promissory noto endorsed in blank, plaintiff alleges that, by a second endorsement in blank, made by certain persons as commissioners of a bank, the note was transferred to him, the allegation is unnecessary; and, in the absence of any pretence of an equitable defence against the bank, or of plaintiff’s having come unfairly by the note, he will not be required to prove the authority of the commissioners.</p> <p>Notice of protest addressed to the endorser of a note at the post office at which he was in tho habit of receiving his letters and papers, mentioning the State in which it is situated, is sufficient, though the name of the parish be not mentioned.</p>

<p>Appeal from the District Court of East Baton Rouge, Burk, J.</p> <p>contended that the maker and endorser of anote are bound in solido, citing Duranton, vol, 6, nos. 207, 213, 241, 242, 243, 187, 188, 189, 190. Civil Code, arts. 2086 to 2089, 2103, 2102. Code of 1808, p. 282. Toullier, vol. 6, p. 751. Poth. on Obi. (Evans’ E d.) vol. 1, pp. 172, 174,180. 4 La. p. 151. 9 Rob. 26. Code Napoléon, arts, 1200, 1201. Pandectas Frangaises, vol. 5, pp. 104,105. The acknowledgement of the obligation by one of the parties in solido, interrupted prescription as to his codebtors. Civil Code, arts. 2486, 3517. 7 La. p. 181. 6 Rob. p. 256. 6 Duranton, p. 303.</p>

The plaintiff appealed from a judgment of nonsuit, in an action against the endorsers of a promissory note. Plaintiffs offered as evidence of notice of protest, a notarial certificate, in the following words : “Baton Rouge, June 26th, 1841. Messrs. F. D. Conrad, A. Winthrop Sf Adams.

<p>Appeal from the Court of Probates of East Baton Rouge,</p>

<p>Though a joint and several note, signed by several parties, was executed exclusively for the benefit of one, neither of them can be regarded as sureties in relation to the payee (C. C. 2086. 2089); but, as between themselves, the other makers are sureties of the one for whose benefit the note was made, and where one of the former has paid the debt, ho has his remedy against his co-sureties, in proportion to the shave of each. C. C. 3027v The makers not standing in the relation of sureties to the payee, payment before suit did not forfeit the recourse of the party by whom the payment was made, against his co-sureties.</p> <p>Where a joint and several note is signed hy an individual, and by a commercial firm in their partnership name, they being in fact the sureties of another maker for whose benefit the note was executed, the partnership must be considered only as a single party to the note, and between themselves and their co-surety, they are liable for only one-half of its amount.</p>

<p>The court Will judicially notice the fact that, the common iaw is the basis of the jurisprudence of the State of Mississippi.</p> <p>The court will not require the provisions of the common law on any subject tobe provedas facts by the testimony of witnesses, but will ascertain for itself what that law is, by the examination of commentaries on it.</p> <p>The vendor's privilege on moveables recognized by the Civil Code of this State, is unknown to the common law.</p> <p>In the distribution of the assets of a^succession among its creditors, one who has absolutely sold and delivered a moveable, is, by the common law, a mere ordinary creditor for the price.</p> <p>Where a vendor of moveables sold and delivered in another State, would have no privilege under its laws, he can have none in this State.</p> <p>Where property sold in another State, by whose laws the vendor was entitled to a privilege, has heen removed to this, by the laws of which it is considered an immovable, to preserve the privilege, the act of sale must be recorded in the mortgage office. C. C. 3238.</p>

<p>APPEAL from the District Court of West Baton Rouge, Burle, J.</p> <p>contended that the injunction granted in this case should be perpetuated.</p> <p>cited Code of Pract. art. 298.</p>

<p>Where flic amount in contest, in a rale taken on a sheriff, to show cause why he should not be made liable for the balance due on a fi. fa., of which no return was made, is less than three hundred dollars.no appeal will lie ; and where, in sueli a case, an appeal has been taken, it will be disregarded by the court, though no objection on the ground of want of jurisdiction be made by either party.</p>

Choses in action may be sold under a ft. fa., and noseizure is necessary.- 4 Mart. N. S, 416. 5 La. 486. The seizure conferred a privilege. C. P. art. 722. cited Wilson v. Munday, 5 La. 484.

Helena, Leonard, J. 'The facts of this case are stated in the opinion of the.eoui't infra. There -was a motion to .dismiss the appeal, on the ground of want of jurisdiction, the amount claimed from each heir being less than $300. The plaintiff.claimed $1,200 of-the administrator of the estate of Womaclc, who being dismissed, the lieii-s, nine in number, were made defendants. From the widow in community, only an heir’s — a child’s poi'tion, was claimed.

<p>A judgment rendered by default against a wife, in an action on a note by which .slio bound herself jointly and severally with her husband, will be binding on her, though the note was given for a debt of the husband’s, where no fraud or duress is alleged to have been exercised to prevent her appearance and defence of Che action.</p> <p>Where a married woman, for the purpose of shielding certain lands from a creditor conveys them to a third person by .a simulated sale, her heirs, on proof .of the existence and contents of a counter-letter by which the purchaser acknowledged the simulation, and of its concealment or destruction by the latter, may recover the land, with damages, profits and rents.</p>

<p>A note discounted by a bank, at the highest rate of interest allowed byjits charter, for the benefit of the maker, to whom the proceeds were paid, will, if unpaid at maturity, bear the same rato of interest from that time till payment.</p> <p>A husband is not responsible for debts contracted by his wife before marriage.</p>

<p>APPEAL from the District Court of St. Tammany, Briggs, Parish Judge, presiding. The judgment below was in favor of the defendant, and the plaintiffs appealed.</p> <p>Jones and Childress, for the defendant, cited as to' the admissibility of the maker of a note in a case like the present, Waters v, JPetrovic, W La. 584,</p>

<p>Xt is no objection to the homologation of a partition made by a notary, who holds also the officeof parish judge, that any objections to his decisions as a notary, on questions arising in the course of the partition, must be determined by him in his capacity of parish judge. Per Curiam: The inconvenience, if it be one,, is the necessary result of the parish judge system.</p>

<p>Where the property in .controversy in a petitory action, is proved to he in the possession of the wife of a person offered as a witness for the defendant and of a third person, who cultivate it together, and it is shown that the witness controls and ships the crops, he will he incompetent. Per Curiam: A husband cannot be a witness either for or against bis wife. C. C. 2260.</p> <p>A possessor in good faith, in case of eviction, is entitled to be paid for necessary improvements made even after judicial demand and judgment of eviction, such as clearings, levées, and ditches, without which the landcouldnot have beenso cultivated as to yield the rents and profits claimed by tlie plaintiff.</p> <p>One bolding under a judicial sale mustbe considered as apossessorin good faith until judicial demand, and as such accountable, in case of eviction, for the fruits from that day only.</p> <p>One who removes, and converts to his own use, the materials of a house built on land from which he has been evicted, and for the value of which he was liable, will not be released from that liability, by proof that the ground on which the house was built has since been destroyed by the encroachments of a river.</p> <p>'The owner of a tract of land fronting on a river, cannot be made to contribute to the cost of a levée made at right angles to the river, on property of another proprietor, and which was necessary to bring it into cultivation, although the levee may benefit both tracts.</p> <p>The husband of a married woman is bound with her, in solido, for her acts as a tutrix.</p>

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

<p>Where an endorser does not reside in the town in which the note is payable, but receives his letters and papers from the post office at that place, a notice of protest put into the post office there, addressed to him at his domicil, though not intended to be forwarded by mail, will be sufficient.</p>

<p>decisions in Hepburn v. Ratliff, ante p. 331, aid Bird v. ílcC'alop, ante p. 353, affirmed;</p>

<p>Where no issue'has been joined, nor judgment by default taken, ncf judgment can be rendered against the defendant.</p>

Martin, Boyce, J. The facts of this case are stated in the opinion of the court, infra. The defendant appealed from the judgment below, which was against him. No specific form of words is required in making a demand of payment of a note, but any phrase used which shows, substantially, a call for payment of the notes, is sufficient. 5 Mart. N. S. 513. 6 La. 730. 16 La. 311. 4 lb. 462. Chitty on Bills, Springfield edition of 1836, pp. 421, 422.

<p>One who alleges that he has a joint interest with the plaintiff in a contract between the latter and the defendants, and that he furnished money and labor for its execution and is entitled to one-half of the contract price, cannot intervene in an action on the contract, .in.stitntedby the plaintiffto recover the price of the work done in pursuance of it. Theintervenor, not being a party to the contract, has no more claim upon the amount due by defendants than any other creditor, and the obligation of the defendants cannot be divided against their consent.</p> <p>.One who has made a levée, under an adjudication by the inspector of roads and levees under the provisions of the act of 26 March, 1842, relative to roads and levees in the parish of Concordia, in case of the land not selling for the whole amount of the adjudication and the insolvency of the owner, may recover from the parish any balance due.</p>

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

<p>Whore judgments for sums of money are enjoined the measure of damages is established by the third section of the stat. of 25 March, 1831; but where the judgment is for the'delivery of specific property, the amount of damages is a question of fact, to bo ascertained in an action on the injunction bond.</p>

<p>Appeal from the District Court of East Baton Rouge, Burle, J.</p> <p>cited Story on Agency, ss. 61, 93, 95, 127, 25G> 257. Civ. Code, art. 1960. 17 La. 353.</p> <p>Walsh had no authority to bind the defendant by note. Story on Agency, ss. 62, 65, 68, 69, and notes 2,72, 76. Civ. Code, art. 2966.</p>

<p>A variance from the corporate name in a petition filed in an action instituted by a corporation, which caunot mislead the defendant as to his creditor, is immaterial; as where a railroad company, invested with hanking privileges, and incorporated under the name of the “New Orleans and Carrollton Railroad Company,” is termed in the petition the “ New Orleans and Carrollton Railroad and Banking Company.”</p> <p>Where a note is payable at the office of a particular bank, a demand of payment at the place specified, of one apparently in charge of the affairs of the hank as its cashier or agent, if the maker be not present, is sufficient. The holder is under no obligation to present it elsewhere, norpersonally to the maker; and where the notary states in his protest that a demand was made of one having apparently such authority as agent, it will be prima, facie evidence of the fact, and throw on the defendantthe burden of proving it untrue.</p>

<p>Appeal from the District Court of Concordia, Curry, J.</p>

<p>This is an action on a -promissory note for $5,254 10, dated the 13th'of November, 1841, and due on the 1st January, 1842, bearing ten per cent interest from maturity. The facts of the case are these : The agent of the plaintiff loaned the defendants a sum of money, which, with twenty per cent added.thereto, made the amount specified in the body of the note, and also charged the defendants the highest rate of conventional interest upon the original amount of money, .as well as upon the twenty per cent usury included .in .the face of the note. The defendants pleaded the usurious character of the contract, and appealed from a judgment rendered against .them. PPEAL from .the District Court of Madison, Curry, J.</p> <p>The contract, being ■usurious, was made in contravention of a prohibitory law, and cannot be enforced; and the plaintiff, by the turpitude of the contract, has .forfeited the right to recover any portion of the.nate sued.on. Rosenda v. ZabrisJcie, 4Rob. 493. Cox v. Roioly, 12 Rob. 273. Hagan v. Canal BanJc, 1 An. Rep. 62. Under the law, at the time the contract was made between the plaintiff and defendants, the stipulation for usurious interest vitiated -and avoided the whole contract. - According to art. 2895 of the Code, interest cannot be stipulated at a higher rate than ten per cent per annum; and under this Code all contracts made in contravention of a prohibitory law are void. C. Code 12, 1887, 1889. To test the question whether or not the contract is void ab initio or only pro tanto, it is proper to inquire whether a loan of money with a stipulation for usurious -interest, is a divisible or indivisible obligation. If the latter, the whole .contract must follow the fate of the usurious portion. If the former, then it can be pruned of its illegalities, and the loan for the amount actually received be sustained. The usury being the primary inducemeritto make the 'loan 'by the plaintiff, forms the main and principal motive for the contract. It is only necessary to inquire with what intent the loan was made by the plaintiff. The evidence of Lowry, who acted as the agent of the plaintiff, fully discloses the moving cause and consideration of the loan, viz: twenty per cent premium on the money loaned, and ten per cent interest on the original amount of the loan and the premium.</p> <p>The judgment of the .court a qua ,is clearly erroneous. The demand of the plaintiff should have been rejected at his cost. In .the decisions heretofore made by this court upon questions of usury, it has never gone so far as to declare the whole contract to be void. But by reference to those decisions it will be perceived that the question has never been fully presented to the court. The contracts have only been sought tobe avoided to the extent of the usury, in the cases heretofore adjudicated upon, and the court in all the recent decisions have declared the contracts void to the full extent demanded by the defendants, in the various suits heretofore decided. The defendants therefore contend, that the contract having been made in contravention of a prohibitory law, is absolutely Hull and void; that the contract of loan with a stipulation for usury is indivisible, an<I that if void for any portion, it taints tlie whole transaction, and bars a recovery for even the actual amount loaned by the plaintiff; thatif the contract is not void_ a¡¡ iniiiw, the plaintiff is precluded from recovering interest on any part of the loan, and that the judgment mustbe reduced to the actual amount received by the defendants.</p>

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

<p>Appeal from the District Court of Madison, Selby, J.</p> <p>cited Civil Code, arts. 3239, 3240. Code Pract. arts. 296, 6S3. 6 Mart. N. S. 615. 7 lb. N. S. 281. 2 La. 66.</p>

The heirs of Merriman transferred the notes and mortgage to plaintiff’s testator, Bowen, subrogating him to all their rights to the notes and mortgages. On the 18th January, 1845, the notes were protested for non-payment, after a demand made of the maker. On the 9th of April following demand of payment Was made of the defendant, Micky, as third possessor, and on the 2d of May ensuing, a second demand was made of him. The plaintiff thereupon instituted this hypothecary action.

<p>Contracts entered into during minority, may bo rendered valid, by a ratification, either express or implied, made after the disability has ceased. C. C. 1778, 1785, 1869.</p> <p>Where improvements made on public lands of the United States purchased by a minor, are held by him after arriving at the' ago of majority, and he continues to cultivate the land, it will amount to a ratification of the contract.</p>

<p>In proceedings against a sheriff, to render him liabie, under the 7th section of the stat. of 7 April, -182G, for failure to return* a on or before its return day, he may show any cii-</p> <p>cdmstaiice whicli will legally excase his failure to return* the‘writ before that time; and Where the writtenreturn on the writ is offered in evidence by the plaintiff, the facts which it recites will be evidence for the defendant*</p>

<p>Where a mortgage mentions the parish in which the .mortgaged property is situated, the bayou on which it lies, the number of acres it contains, the use made of the property as a ■plantation, andthatit was purchased by the mortgagor at a probate sale of the succession of a person named, the conveyance being shown by evidence to be of record in the same .parish, the description of the property is sufficient.</p>

<p>A provision ii> a statute incorporating a bank, enacted under the .constitution of 1812, “ that it sliallliavethe like privileges granted to it in making loans on mortgage, in tailing security, and in enforcing payment, as are pow accorded bylaw to the Bank of L — ." will confer upon the former all the privileges granted to the latter, witboHi; any farther specification. Decision in jSauk of Louisiana v. Farrar, 1 An. R. 49, affirmed.</p>

<p>A- possessor in good faith is entitled to remuneration for useful improvements,- and is not aei countable for fruits. -C. C.-500. The owner has the choice either to reimburse the price' of the improvements, or to pay a sum equal- to the enhanced value of the soiL</p>

<p>aÜvery government has the right to establish and regulate the rights of property in things within its jurisdiction, in such manner as the public interest may require.</p> <p>Whore a testator dying in another State, possessed of slaves there, directs that, if either of his two sons, to whom his property had been bequeathed, “ should die without a lawful heir, his part, real .unipersonal, shall go to the survivor,” and one of the sons receives his portion ■of the slaves and removes with them into this State, and dies without issue, the survivor cannot recover them, nor their increase here. Tlio clause on which plaintiff's claim rests, though it might confer a title on the survivor by the laws of the State where the testator died, as it creates a substitution, cannot he enforced here. Such a testamentary disposition cannot operate on property within this State. Code of 1808, b. 3, tit. 2, ch. 4. C. C. 1507.</p>

<p>In all cases, however summary, the plaintiff mast prove his allegations, or he cannot recover.</p>

<p>Where a principal claims under a contract of sale made by his agent, and does not deny the authority of the agent to make it, he will be bound by its terms.</p>

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

<p>An order of seizure and sale cannot be issued on a judgment, rendered in another State against a defendant, who appeared, but did not plead. A judgment so rendered is a judgment by default.</p> <p>Slaves seized under an order of ¡Seizure and sale against an absentee; must bo sold at the seat of justice of the parish, or at some other public place in its vicinity. C, P. 664. Stat. 5 March, 1842, s. 1.</p>

<p>APPEAL from. the District Court of St. Mary, Boyce, J. The petitioner alleges that she is a woman of color, and was brought into the State of Louisiana, about the first of March, 1836, by one Thomas Gates, from Mexico, where she was held as a slave by Gates; that, after she was brought into this State, she was held as a slave, and seized and sold to pay the debts of Gates, and was purchased by Milton Johnson, in 1840, and that at the sale of the estate ■of the latter she was purchased by William, C. Dwight, who not paying for her, she was seized and sold at public auction, in October, 1842, to Pecot; that Pecot, when he purchased her, was informed that she claimed her freedom, as she had been brought into Louisiana, from Texas; that since said sale, Pecot has held your petitioner in bondage, as a slave; that by the constitution and laws of Mexico, slavery is not tolerated, but is prohibited; and that she was brought into the United States in violation of the constitution and laws thereof, and that by the laws of the United States no one can hold her in slavery. Wherefore, she prays that she may be permitted to sue for her freedom; that she may be taken into the possession of the sheriff of St. Mary; and that she may be declared free.</p> <p>Pecot, the defendant, filled a general denial, but admitted that he bought the slave as alleged, and avers that he is her bona, fide owner, &c. He cited Carson, administrator of Johnson’s estate, and Dwight, in warranty. Dwight denied that Pecot had any claim against him in warranty, and answered that he purchased said slave from Sarah Johnson, wife of N. Dalsheimer, who he prays may be cited in warranty.</p> <p>Sarah Johnson and her husband filed a general denial, and specially denied any warranty, as Dwight placed himself in lieu and stead of the respondents, and was subrogated to the right of Sarah Johnson against Milton Johnson's estate, &c. They further alleged, that they purchased the slave from the estate of Milton Johnson, and that Carson, administrator of his estate, is bound in warranty, who they pray may be cited. John Carson filed a general denial, &c.</p> <p>Bofore the trial, the warrantors fded an exception to the jurisdiction of the court, on the ground that the Circuit or District Court of the United States had exclusively the right to pronounce upon the charge of illegally importing the slave, which was overruled by the court, and a bill of exceptions taken.</p> <p>On the trial a witness was offered to prove that slavery w.as prohibited by tho Jaws of Mexico in 1835 and 1836, who was objected to on the ground that plaintiff had not previously shown that there was ho statute or written law in Mexico on the subject, which he was bound to do, before being allowed to prove the laws of that country by parol. The objection was sustained. There was a judgment below for the defendant, and the plaintiff has appealed..</p> <p>The laws of foreign States may be proved by pa-j'ol. unless it appear that they are statutory or written. 5 Mart. 673. 2 La. 154. 17 La. 514, 595. 5 Rob. 163. 'in suits for freedom every thing should be done in favorem libertatis, which can properiy be done, even to noticing facts dehors the record. 8 La. 47.9. 9 La. 373. The court should notice officially the well known fact that, slavery is not tolerated in Mexico. Would it be required of a party to prove the french or english governments to be monarchies, or that Paris is the capital of France, or London of Great Britain ? Why then not notice the equally well know fact, that slavery is is not tolerated in England, France, or Mexico 1 This court has twice, in favorem libertatis, noticed the fact of its not being tolerated in France. See 9 La. 373. Eugenie v. Preval, lately decided, ante p. 180. One who has been once free, cannot become a slave. 8 Mart. JST. S, 699. 9 La. 209, 476. A slave taken to a free conn» try becomes free, and cannot be again reduced to slavery. 16 La. 483. 13 La. 442. 9 La. 473. 11 La. 499. 2 Mart. N- £, 401, A negro purchased in a country where slavery is not tolerated, will be presumed to be free. 4 Mart. 385. A negro or colored person, brought here from a foreign country, cannot be held in bondage. Stat. 20 April, 1818, ss. 5. 6, 7, 8. 13 Story’s Laws U. S. 1699,1700. Stat. 3 March, 1819, s. 4. 3 Story’s Laws, U. S. 1753. 11 La. 602. 8 La. 479.</p> <p>The exception should be sustained. The forfeiture of a slave imported, or claimed, in violation of the laws of Congress in relation to the slave trade, must be the result of a suit op judical proceeding before the United States District Courts, which, under the 9th section of the judiciary actof the 24th of Se; tember, 1789, have exclusive jurisdiction of all suits for penalties and forfeitures incurred under the laws of 'the United States. See Ingersoll’s Dig. Vo. Courts, sec. 8. By the provisions of the act of the20th of April, 1818, the prohibitions of which have been held to extend to carrying slaves from one country to another (9 Cranch, 403, 404); and by those of the act of the 3d of March, 1819 (Tngersoll’s Dig. Vo. Slave Trade), tho importation of a slave into the United States, from any foreign conn, .try, is made an offence against the Jaws of the ge.neral government, subject to be punished by fine and imprisonment, and forfeiture, as the case may be, and in all cases, by the forfeiture of the slave so imported, who was, by the act of 1818, to remain subject to any regulations which the legislatures of the different States might at any time theretofore have made, or hereafter make, for dispos» jng of any such slave (sections 5 and 7), but who, by the act of 1819 (sections 2 and 4), is to remain subject to the order of the President of the United States, for tho purposes provided for in the second section of said act.</p> <p>The allegations of the petition are, that plaintiff was brought into the United .States in violation of the constitution and laws thereof, and that, under those laws, ao one can hold her in slavery; and the position taken by tne warrantors, under their exception, is, that a District Court of the United States has exclusive jurisdiction of this suit under the allegations, the object of which is to maintain and show that said plaintiff has been illegally imported, and that her owners have incurred, not only the penalties and forfeitures imposed by the laws of Congress, but also the forfeiture of their slave. The State courts have no jurisdiction to try such matters. There must be a conviction on the issue of the illegal importation, before pronouncing the forfeiture of the slave, and such conviction cannot be had but before a court of the United States, whose jurisdiction extends exclusively over all suits for penalties and forfeitures incurred under the laws of the United States.</p> <p>Plaintiff having offered a witness to prove that slavery was prohibited by the laws of Mexico in 1835 and 1836, defendant’s counsel objected, on the ground that plaintiff had not previously shown that there was no statute or written law prohibiting slavery in Mexico, which he wTas bound to do before he could prove the laws of that country by parol. It is well known that Mexico, formerly under the Spanish dominion, and governed by the laws of Spain, under which slavery was authorised and tolerated, continues to be governed by those laws, except so far as it was found necessary to change or abrogate them after the decla.tion of her independence. Mexico never was governed by common or unwritten laws, and having adopted the form of representative government, the former laws could not be changed or abrogated but by statute, or by the provisions of her constitution. This being premised, as belonging to the general history of that country, how could the plaintiff be allowed to prove by parol, a law, which, if it existed at all, must be written ? The proof of a law of Mexico by parol, would not be the best evidence. The testimony offered pre-supposes better testimony attainable, and the judge decided correctly in rejecting it. Story, .Conflict of Laws, nos. 638, 639, .&c. 2 Crunch, 237. 17 La. 513. 3 Rob. 8.</p> <p>The slave Isabella was not brought into the United States, in contravention of the law. Her owner was a citizen of Texas, which at that time (1836) had revolted from Mexico, and was invaded by an armed force from Mexico with a view to bring it again under the power of the Mexican government. During that invasion, the master fled with his slave into the United States for protection. Can it be .said that, in such a case, there was any attempt to violate the Jaws of the United States 1 The plaintiff, under the very laws which she invokes, has no right to sue for her freedom. Supposing that she was imported into this country in violation of those laws, the only consequence of such illegal importation, with regard to herself, after conviction before a court of competent jurisdiction, would be, that she would remain subject to being disposed of according to the laws or regulations adopted by the legislature of Louisiana, or to being taken possession of and kept in the custody of the marshal, subject to the order of the President.</p> <p>The law of Congress of the 20th April, 1818, gives the right to the legislatures .of the different States to adopt regulations for disposing of any slave illegally imported, and contemplates that such slave may be sold in virtue of such regulalations. Sections 5 and 7. It appears that the legislature of this State, by a Jaw passed on the 13th of April, 1818 (B. and C,’s Dig. p.789), had already provided for disposing of the slaves imported into the United Sta,te.s, in violation of the law of 1807, by a sale thereof. The preamble of that act shows .the object of the regulations, adopted on this subject by our legislature, in conformity with the law of Congress. The act does not contemplate that the slave shall .be free, but, on the contrary, the 2d section provides, that “the decree of the Circuit or District Court of the United States for the Louisiana District, properly certified and authenticated, condemning, &c., shall betaken and considered by the sheriff, for the time being, as a sufficient warrant, to sell or cause to be sold as a slave for life, any negro, &c.” The 1st section had provided that the sheriff' should be required to receive any negro, &c., and keep him until the Court of the United States pronounced a decree upon the charge of illegal importation. Another law was passed by Congress in 1819, providing that ■any slave illegally imported should remain subject to the order of the President .of the United States, for the purposes provided for in the 2d section of the act, which authorised him to make such regulations and arrangements as he might deem expedient, for the safe-keeping, support and removal beyond the limits of ¡She United States; and the previous laws on this subject were perhaps repealed by the law of 1819. But is there any thing in any of those laws which gives to the slave the right of suing for freedom, and of acquiring emancipation, from the fac(; 0f having been illegally imported ? There must be a decree of the Court of the United States; there must be a-eonviction, before the owner or purchaser of the slave can be deprived of his property; and even then the slave does not become freo; he is to be sold as a slave for life under the laws of our State, or to be taken possession of and kept by the marshal, to be removed beyond the limits of the United States, under the regulations and arrangements adopted by the President.</p>

<p>Appeal from the District Court of St. Mary, Boyce, J.</p>

<p>The correctness of a judgment adjudicating community property to a surviving spouse, rendered by a court of competent jurisdiction, in the absence of any proof oflraud or spoliation, cannot be enquired into collaterally.</p> <p>Where community property has been adjudicated to a surviving spouse, and a mortgage retained to secure the price, the administratrix of the deceased spouse cannot seize and sell the property so adjudicated, until the portion ofthe survivor has been ascertained by a par. titionand settlement of the community, but upon proof of the existence of debts, and other having exhausted, by a proper application of'them, the funds placed at her disposal for their payment.</p>

<p>APPEAL from the District Court of Carroll. Selby, J. The judgment in this case was rendered on the verdict of a jury, in favor of plaintiffs, for part of their claim. They appealed.</p> <p>cited in support of the exception, Code of Pract. art. 172, §3.</p>

<p>Where a wife, separated in property, by whom a note had boon executed jointly with another person, after maturity of the note executes a second note, payable at a futuro period, for the amouul.of the original note with interest, and delivers it to the payee to be signed by her coobligor, taking an obligation from the payee .to deliver the first note on .the execution of the second by her co-obligor, and her husband, acting as her agent, afterwards gives a receipj. to the payee for the first note, reciting therein that the second note had been made in re. nowal thereof, it is sufiicient evidence of his authorisingjthe wife to hind herself by the note.</p> <p>In an action on anote payable at the place ofbusiuess. of the holder, demand at the place of paymentnoed not be alleged or proved, to authorise arecov.ery .against the maker.</p>

The facts -of this case are stated on the opinion, infra. The contract of sale between .the parties was a commercial one, as the boat was purchased for the express purpose of carrying freight and passengers for hire; and the owners of the boat conducting that business, were engaged In a commercial partnership. Civil Code, art. 2796, •§ 3.

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

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

<p>APE AL from the District Court of’ Carroll, Mayo, J. This action was instituted'on the 26th of May, 1845. The acts complained of as designed to defraud the plaintiff, Were'committed, as the-petitioner alleges, on the 3d of’ June, and 2d of September, 1843.</p>

<p>Appeal from the District Court of West Feliciana, Boyle, J.</p> <p>cited Radial v. Radial, 10 La. 460.</p>

<p>Open accounts against a plaintiff, not acknowledged by liim, transferred to defendant by a third person, cannot be pleaded in compensation, in an action by plaintiff on a promissory note.</p>

<p>Appeal from- the District Court of Concordia, Farrar, J.</p>

<p>from the District Court of St. Mary, Voorldes, J.</p>

<p>After the dissolution of a partnership, and notice thereof by an advertisement in the newspaper of the village where the partnership business was,earned on, service of citation upon •one of its members will not authorise a judgment against the rest. In a direct action .against a partner, for dealings had with the firm after its alleged dissolution, the fact that plaintiffs were in the habit of dealing with the partnership, would render it necessary to bring notice of the dissolution home to them, otherwise than by notice in a newspaper; but this fact cannot affect the manner .of bringing the partners of a dissolved partnership into court.</p>

<p>A noto made payable in “ Mississippi currency,” will be taken to moan tlie lawful currency of the State, that is, gold and silver, in the absence of other proof that it was intended to be payable in tlie notes of tlie banks ofthat State.</p>

The defendants in this rule rely on the prescription of ten years. Civil Code, arts. 3442, 3444, 3495. “This prescription has also the effect of releasing the owner of an estate from evoiy species of real rights, to which the property may have been subject, if the person in possession of the right has not exercised it within the time required by law.” Art. 3494. 11 La. 59, 259. These cases are decrees rendered on mortgage claims.

<p>Appeal from the Court of Probates of Tensas, Montgomery, J. Frost, for the appellant, cited Civ. Code, art. 2306.</p>

This suit' was instituted to recover from a former sheriff the amounts for which certain executions were issued in favor of tlie plaintiffs, the sheriff having failed to' return them on'or before their return days. There was a verdict and judgment in favor of tlie plaintiffs for $>4,793 06, from which the defendant has appealed. Tlie material facts of this case will be found iu the opinion of the' court, infra.

<p>Where a sheriff fails to return afi.fa. directed to him and put into'his hands, and shows no_ thing which can excuse his failure to execute or to return the writ, ithe plaintiff in execution will be entitled to judgment against him for the amount for which the writ was issued. An allegation that the debtor was insolvent, where no surrender had been made by him, is not of itself sufficient to excuse the neglect.</p>

The facts of this case are stated in the opinion of the court, infra, 1, There never was any partition of the estate of Dees, There is no judgment of partition. McCuLlom v. Palmer, I Rob, 514. C. C. arts. 1261 to 1291. 2. Courts of Probate have exclusive jurisdiction over all matters concerning successions. 17 La. 238, 248. 15 La. 56. 3.

<p>In proceedings by attachment all the forms prescribed by law mustbe strictly observed, under pain of nullity.</p> <p>Where an attachment is obtained in an action in which plaintiff claims a certain sum, with interest from a date anterior to the institution of suit, a bond for a sum exceeding by one-half the principal, exclasive of interest, is insufficient; nor can the defect he cured by subsequently furnishing bondfor a sufficient amount. Per Curiam; A sufficientbonct was a condition precedent to issuing the attachment. C. P. 245.</p>

<p>Where a mortgage stipulates that on the mortgagor's failure to pay the debt the property may he seized and sold for cash, without appraisement, but, in the petition for an order of seizure and sale, the right to sell without appraisement is not claimed, and the petitioner prays that the property “ may be seized and sold as the law directs,” and the judge directs-that “ an order of seizure be issued as prayed for and the property sold as the law direets/, but in the writ issued by the clerk on this order, the sheriff is directed to sell for cash, without appraisement, and the property is sold accordingly, and purchased for an inconsiderable price, the sale will be null. The stipulation for a sale for cash, without appraisement, was waived by the party for whose benefit it was made, by his claiming a seizure and sale according to law — that is, by observing the formalities ordinarily required in proceedings via executivá, one of which is the appraisement of the property. The clerk was not authorised under this order, which was made in accordance with the prayer of the petition, to direct-the sale to be made without appraisement.</p>

Tammany, Jones, J. The plaintiffs appealed in this case from a judgment in favor of the defendant, who was sued as endorser of several promissory notes. The facts material to a correctunderstanding.-of this case, will be found in the opinion of the court, infra. 1. The Code does not exclude the blind from contracting. Art. 1775. It does not require an authentic act to give validity to their .contracts. A power of attorney may be given by private act. C. C. 2961.

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>cited C. C. art. 3035, et sec/. Alley v, Hawthorn, 1 Ann. R. 122.</p>

<p>APPEAL from the District Court of Concordia, Curry, J. The facts of this case are fully stated in the opinion of the court, infra.</p> <p>1. As to the right to make parties, see C. P. 903. 3 Wendell, 667. 21 lb. 253. 10 La. 437. 6 Wheaton, 260.</p> <p>2.The question involved in the exception to the deposition of the notary, on the ground that his capacity as notary could not be established by his own evidence, and that his commission, as the best evidence, should have been produced, was settled in Las Caygas v. Larionda’s syndics, 4 Mart. 287. See also Jacob v. United States. 2 Brock. C. C. R. 520. 2 Peter’s Dig. 218. “ A memorandum made by a person in the ordinary course of his business, of acts which his duty in such business required him to do for others, is, in case of his death, admissible evidence of acts so done.” A fortiori the acts of apublic officer are so admissible. Nichols v. Webb, 8 Wheat. 326; 5th Condensed R. 521. Welsh v. Barnett, 15 Mass. R. p. 380.</p> <p>3.The notice to the endorser -is objected to on the ground that it was not directed to him at his domicil, and the case of Duncan v. Sparrow is relied on as authority. That case is not authority. If authority, it can have no application to this case. We rely on long and well established usage,and on the rules of commercial law. Rodney was proved to be the nearest post-office to the residence of Bass, and the notice was properly sent there. Harrison v. Bowen, 16 La. 282. Follain v. Dupré, 11 Rob. 454.</p> <p>4.It is not necessary that the notice should contain a formal allegation that payment was demanded at the elected domicil of payment. It is sufficient that it state the fact of non-payment of the note, and that the holder looks to the endorser for indemnity. Mills v. U. S. Bank, 11 Wheat. 431.</p> <p>5.The defence of usury, on the ground of excess of interest of $13 34, on a loan of $20,000, can have no weight. The Supreme Court of Mississippi, on this very note, in a suit against another endorser, overruled that defence. Planter’s Bank v. Snodgrass, 4 Howard’s R. 573. To constitute usury there must be an intention to take usurious interest; a corrupt agreement will not be enforced. Bank of the United States v. Wagner, 9 Peter, 378. The mode of calculating interest was adopted by the bank for convenience, and has been long sanctioned by universal usage. The case from Howard is conclusive on the point. See also Walden v. City Bank, 2 Rob. 197.</p> <p>1. This court, having only appellate jurisdiction, cannot determine originally the question of the right of the trustees to make themselves parties. Oakley v. Phillips, 6 Mart. N. S. 306. Baron v. Kingsland, 5 La. 379. Taylor v. Jeffries, 10 La. 438. Brown v. Williams, 12 La. 614. Stale v. Bermudez, 14 La. 481. Sess. Acts of 1846, p. 161. 2. The trustees cannot make themselves, or be made, parties. G Binney, 359. 5 Cranoh, 287. 12 Wheaton, 361, 1 Hav. & Mcl-I. 23G. 2 lb. 463. 2 Johns. 3. 20 lb. Story’s Confl. of Laws, § 565. Taking them as administrators appointed in Mississippi, they cannot sue here. Story’s Confl. of Laws, § 512, 513. 4 Mart. 571. 16 La. 670. 8 La. 508. 9 Wheat. 565. 6 Smedes & Marshall, 529. 3. There is no proof that payment of the note' was demanded at the place of payment. The notarial protest, if legal and regular, makes no proof of demand of payment. Waldron v. Turpin, 15 La. 554. H. & H.’s Digest, p. 609, sec. 33. The alleged protest is not authenticated in the manner required by the laws of Mississippi. Tickner v. Roberts,-11 La. 16. H. & H.’s Digest, p. 434, sec. 36. Parol evidence was improperly admitted to prove the capacity of the notary. It should have been proved by the certificate of the governor, under the great seal of the State. 3 La. 148. 13 lb. 284, 3G2. The protest is not admissible as a memorandum of a deceased-person, to make proof of the demand. By the laws of Mississippi (H. & H.’s Digest, p. 609, s. 33), notaries are bound to make out and certify on oath true .records of their protests and ñotices. Hyde v. Planters Bank, 17 La. 563. 4. Notice of protest was insufficient, being directed to Rodney, Mississippi, and not to the parish of Concordia, the domicil of Bass, the endorser. Duncan v. Sparrow, 3 Rob. p. 164. 5. The contract between the bank and the-makers of the note, by which the former discounted the note, was usurious and void. By its charter the bank was allowed to take, on notes like this, interest or discount at the rate of seven per cent per annum only. This note had eight months to run. The interest or discount on it for that time, with the three days grace added, was $955. The amount of interest taken or reserved was $968 34, being an excess over the legal rate of $13 37, and making arate of seven and one-tenth per cent per annum. The bank obtained this excess, by calculating interest according to Rowlett’s Tables,which make the year as 360'days; a month as 30 days, &c. The bank knew that the mode of calculation of interest systematically adopted by it, gave more than'the legal rate. It acted Under a full and correct knowledge of the facts. This is sufficient evidence of a corrupt intent, and constitutes the crime of usury. Maine Bank v. Butts, 9 Mass. Rep. p. 48. Marsh v. Martindale, 3 Bosanquet & Puller, p. 154. Bank of Utica v. Wagner, 2 C'owen’s Rep. p. 769.-Bank of Utica v. Smalley, 9 lb. 779. N. Y. Firemen's Insurance Company v. Ely, 9 lb. 704'. Barnard v. Young, 4 Randolph, pp. 406, 411. 17 Vesey,. p. 46. The effect of usury is to avoid the contract, so that no recovery can be had. Bank of the United States v. Owens' et al., 2 Peters,, p. 538.-</p>

The facts-of this case are stated in the opinion, infra. The discharge of the bankrupt extinguished all debts due by him to creditors who proved or claimed in the bankrupt court. 6 Taunton, 75. 2 Howard, 209. 3 Howard, Christy’s case, p. 308. 5 Rob. 27, 49. City Bank v. Houston, ante p. 114. Cullen on Bankruptcy, pp. 445, 149. The debt being extinguished, the security fell with it; subíalo fundamento cadit opus.

contended that the debt sued for was.one of the community, for which the wife was not liable, citing 7 Mart. 4'63\ 7 lb. N. S. 64. 8 Ib. N. S. 692. 9 La. 583. 10 La. 147. 3 Rob-. 329. 4 Rob. 115, 511* 7 Rob. 257• 12 Rob. 583- The husband was the usufructuary, and, as such,, bound li r the expenses of the property. C. C. 572.

<p>Appeal from the District Court of West Baton llougo, Burk, J.</p> <p>Plaintiffs sue as holders of a promissory noto, endorsed in blank. Banlcs v. Easton, 3 Mart-.-N. S.291 .-Shawv. Thompson, 3 Ib. N. S. 392. They are entitled to interest, there being no legal tended of payment. C.P. 407. G La. 16. Starkie on Ev. p. 107, note q, and p.-1067 note, citing 4 Dallas,-325. Starkie on-Ev. pp.-l059, 1070, nótele.-</p>

<p>Actions-to rescind or annul agreements on account of error, fraud, or 'violence, are prescribed only by ten years; to be calculated, in cases of error or fraud, from tbe day on which either was discovered, and, in.cases of violence, from the day on which the violence ceased. C. C. 2218. Article 3507 of the Code applies only to cases not included in art. 2218.</p>

<p>Where in an action on a contract made wzth the .commissioners of a particular district or subdivision of the parish, acting under an ordinance of the police jury, for the erection of certain levees, -the evidence shows .that the contractor did not contemplate that the parish shonld •be responsible in-the first instance for the cost of the levées; and ihe failure to obtain payment from the source originally contemplated, is attributable to the negligence of the creditor, the latter cannot recover.</p>

<p>Appeal from the District Court of Concordia, Curry, J.</p>

<p>The privilege given to overseers for their salaries by art. 3184 of the Civil Code, and that for necessary supplies furnished to any farm or plantation, are not included among those privileges which authorise a provisional seizure. A sequestration may he obtained whenever the creditor has a lien or privilege upon the property, on complying with the requisites of Jaw, by previously giving bond, &c. (Act 7 April, 182G, s. fl. C. P. 276); but the writ of provisional seizure is restricted to certain enumerated casos of privilege, and issues without a bond.</p>

<p>Appeal from the District Court of St. Mary, Overton, J.</p>

<p>The tortious conversion of the property of a succession by a commercial firm; Will render the members liable m solido.</p> <p>Where the pleadings and evidence are too incomplete to enable tho court to pronounce a final judgment, the Case may be remanded, with-leave to the parties to amend,</p>

<p>Appeal from the District Court of St. Mary, Boyce, J-.</p>

<p>Appeal from the District Court of St. Mary, 'Voorhies, J.</p>

<p>'Where a -plaintiff v/ho had obtained judgment against the defendant, appeals from ajudgment in favor of an intervenor, hut executes an appeal bond in favor .of the defendant, the appeal must be dismissed. An affidavit that the failure to make the bond payable to the appellee was an error committed by the clerk in preparing the bond, will not entitle the appellant to ■relief. In sueli a case the clerk acts as agent of the party, and no relief can bo givenagainst bis 'errors or omissions.</p>

<p>Appeal from tille District Court of West Feliciana, Boyle, J.</p>

<p>Appeal from th© District Court of Carroll, Curry, J.</p>

<p>Where' judgment has been obtained against the maker and endorsers of a note; an agreement to suspend execution for a short time against) the maker, will- not discharge the endoi-sers.</p> <p>A judgment is not extinguishedby the lapse of ten years.</p>

<p>Where by making a loan in depreciated bank notes to be repaid at their par valne, the effect of the contract will be to enable the lender to obtain more than legal interest, the contract is usurious.</p> <p>The effect of a stipulation for usurious interest must be determined by the law of the place where the contract was made.</p>

<p>Eraud may in all cases be proved by parol. C. C. 1842.</p>

<p>Appeal from the District Court of St. Mary, Boyce, J.</p>

<p>An appeal from a judgment rendered in an action instituted by plaintiffs for the use of third persons, will not be dismissed because the appeal bond was made payable, and the citation .of appeal directed, to tbe plaintiffs, simply, without mentioning those for whose use the suit was instituted.</p> <p>An appeal will lie from an order of a judge rendering a judgment of another State executory, though not made in court.</p> <p>A judgment of another State cannot be rendered executory here, where the transcript of the record shows that a fi. fa., issued on the judgment in the State in which it was rendered, had been levied upon property, but does not show what disposition was made of it.</p>

<p>An appeal will not be dismissed where the bond, though insufficient for a suspensive, is large enough for a devolutive, appeal.</p> <p>Legal interest is due from maturity, and without putting the maker in ■default, on a note given for the price of property producing fruits. C. C. 2531.</p>

<p>APPEAL from the District Court of Carroll, Mayo, J. The facts of this case are stated in the opinion of the court, infra.</p> <p>The warrantor sets up title by a forced alienation from Neibert’s estate to Wilkins, made April 8th, 1842, resulting from a judgment of the Court of Probates, and sale in pursuance thereof.</p> <p>This title, and the judgment or decree upon which it is founded, are opposed by us as absolutely null and void. 1st. Because the decree of sale was ex parte, and without notice to any one as representing the succession, and was not a judgment. 1 Mart. N. S. 9. 5 lb. 446. 19 La. 354. 14 La. 17. 2d. The judgment in favor of Wilkins is a nullity as affects the succession or creditors of Neibert, because there was no defendant authorised to represent the succession or creditors. 10 La. 222. 1 Kent. 261. 5 Rob. 420. 3d. An administrator mustbe appointed in every succession accepted with benefit of inventory. 9 Rob. 141. C. C. arts. 1034, 1037, 327, 1051. 6 La. 207. 17 La. 149. C. P. 976. 18 La. 396. 11 Rob. 69. 4th. Administrators must give bond, 11 La. 134. 11 Rob. 407. A tutrix, as such, could not stand iu judgment. 17 La. 149. 11 Rob. 69. She may be appointed administratrix, but must give bond. 1051 C. C. 963. A administrator must be a resident of the State. C. P. 990, 995-6-7. 5 La. 386. 6 Mart. N. S. 521. 4 La. 202. C. C. 1036. 1 Rob. 235, 261, 268. Forced alienations are void without legal formalities. 2 La. 328. 11 M. 610. 3 La. 427. 4 La. 150. 9 La. 543.</p> <p>A tutrix, as such, cannot stand in judgment in an action for the sale of the property of the minors. A sale made under a judgment obtained in such a case will hot be binding on the heirs or creditors. C. C. 1037, 1041, 1042. Tildón v. Dees, 1 Rob. 407. Hally. Parks, 9 Rob. 138. Parks v. Patton, 9 Rob. 167. Beale y. Walden, 11 Rob. 69.</p> <p>contended that the sale at the suit of the tutrix was legal, citing Erwin v. Orillan, 6 La. 212. Poullney’s Heirs y. Cecil, 8 La. 4. Jacobs v. Tricou, 17 La. 106. Civ. Code, arts. 934, 935, 936, 939.</p>

<p>APPEAL. Rom; the; District Court of Concordia, Farrar, J. The facts of this case are stated in the opinion of the court, infra.</p> <p>The land sued for did not belong exclusively to the succession oí Joseph Harrison. One half belonged to his wives; and no partition could be made without making their heirs parties, by the appointment of curators for the express purpose. C. C. art. 1291. The heirs should be cited, not the administrator. C-. P. 1024,1025. Even the names of the absent heirs are not given; nor was the counsel of the absent heirs cited.- Prescription cannot be- urged against the- successions of the wives. Calmt v.Mulhollan, 12 Rob. 261.</p> <p>The decree under which defendants claim was a nullity. The number and names of the parties between whom the partition was to bo made do not appear in the decree. C. C. 1252. In matters of partition, the order for a sale is the complement of the decree for a partition, and without such a decree is a nullity. Prescription did not run against such of the plaintiffs as were minors, and the claims of such of them as were non-iesidents could only be-prescribed by twenty years. C. C. 3440, 3442.</p> <p>The judgment ordering the sale was rendered in strict pursuance of all the forms of law. C. C. 1129, 1238. The curator of absent heirs was the proper person, and the only proper person, to sue or be sued for a partition. The judgment recites that the curator was present, and that it was rendered contradictorily with him. This is evidence of the fact; and it is every day’s practice in our courts, when the defendant appears in open court and consents to judgment being rendered against him, to enter it up without any thing appearing on the record, but the mention of the fact in the-judgment, which ought to be the highest evidence of it. On this point we cite the cases of Brainard v. Francis, 2 Mart. N. S. 150. Hangerfleld's Executors v. Thurston's Heirs, 8 Ib. N”. S. 236. Hubbelv. Clan-non, 13 La. 496'. On the subject of the partition, we refer also to articles 1246,. 1251, 1252,1261, 1262,1230, 1234, 1238, 1130, 1146, 1147, 1148. The jurisdiction of the Probate Court which ordered this sale, is established by art. 923 of the Code of Practice.</p> <p>It is contended that the counsel for absent heirs was not cited, and that to make it alega! sale, he should have been a party. Art. 1238 of the Code dedares that the curator for absent heirs is the proper person to be sued for a partition, and there is no law requiring that the counsel for absent heirs should be cited. Art. 1157, which requires-the counsel of absent heirs to be notified, refers expressly to the caso where the curator himself provokes the sale for the payment of debts. Although, therefore, it was not necessary that he should be notified, yet, in this caso, it was done. The judgment recites that it was rendered contradictorily with him; his name is signed to the inventory and appraisement, and the accounts of the parish judge and the curator, ih the proeeedings, show that a chargo was made and paid, for his services, at that very audience. Art. 1213 of the Civil Code provides the mode in which proof shall be received of the services rendered by the counsel of absent heirs, and authorises the judge to grant compensation, on the proof being made. It must'therefore be presumed, that this proof was then made. The sale was a judicial one, and as the parish judge was, ex officio, judge of probates and auctioneer-, the objection taken, that it was made by the parish judge, is entitled to no weight whatever. In the case of Lallans’s Heirs v. Moreau, 13 La. 433, it was decided that “ sales directed by the Court of Probates are judicial sales, and the purchaser is protected by the decree ordering them.” The same principle has been frequently decided. See Poultney’s Heirs v, Cecil, 8 La. 321. Beale v. IValclen, 11 La. G8. According to these well settled principles, if there had been irregularities preceding this judicial sale, the purchaser would not have been affected by them.</p> <p>In the present case, however, both the curator of absent heirs, and the counsel for absent heirs, were parties to the judgment ordering the sale. An inventory and appraisement of the estate had been previously made; the property was sold for a larger amount than the appraisement, and the price paid over to the curator, who had qualified in every respect according to law; and the title of the defendant ought to be considered free of all doubt or difficulty whatever. The defendant’s title is also supported by the prescription of ten years; more ■than ten years having elapsed after the sale and delivery of possession, before the institution of this suit; and the heirs may well be considered to have acquiesced in the sale, when they permitted the price to be paid over to the curator, and took no steps for more than ten years to impeach the sale. The defendant has made out a perfect title to the land in .controversy; but this is a petitory •action, in which the plaintiffs must make out title in themselves.</p>

<p>Appeal from the Court of Probates of Madison, Downes, S.</p>

<p>Appeal fromthe District Court of East Baton Rouge,- Bwk, J.-</p>

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

<p>Whore one of the parties to a contract is bound to protect the other from eviction from property delivered to him in pursuance of the contract, and which he was to receive freeof encumbrance, the seizure of the property by a mortgage creditor will put the former in default from the time of the seizure.</p> <p>Where a mortgage creditor by whom an order of seizure and sale had been taken out against the mortgaged property, enters into an agreement with the debtor, by which it is stipulated that the latter shall convey to him certain property free of encumbrance, and that, in consideration thereof, the creditor shall assign to the debtor “ all his right to the judgment, or acknowledge satisfaction thereof, with subrogation, as may be required, by the debtor,” the creditor may, on the seizure by another mortgage creditor of the property which was to have been conveyed to him free of encumbrance, proceed by an hypothecary action against the property originally seized, though in the possession of a third person, and cause it to be sold to satisfy his claim, without having taken any steps to rescind the contract.</p> <p>In Case of doubt as to the moaning of a contract, the mode in which the parties undertook to execute it themselves, is the best exposition of its intendment.</p> <p>A married woman, who has obtained a judgment against her husband, is competent to receive payment, and give a discharge. Her receipt is evidence of payment, as between the parties. ;</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

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

are stated in the opinion of the court, infra. contended that the judgment and sale under it, were mere simulations, and are not protected by prescription. Cammackv. Watson, 1 Ann. R. 132. The action is prescribed by art. 1989 of the Civil Code, See also arts. 3484, 3487, and 1965 to 1989. 6 Mart. N. S. 130. 8 Ib.

<p>A party who had obtained an order allowing him .an appeal, on discovering that several de.fendants had not "been made parties, presented a second petition, .and obtained a second order of appeal, embracing all the parties. A transcript having .been sent up .under each .order, by amagreement of counsel the first appeal was dismissed Held, that .the court below was not divested of jurisdiction by the first order of appeal, it having been irregularly obtained; and that the second appeal cannot be dismissed on the ground tba,t a previous appeal had been abandoned.</p> <p>Where one of the defendants in an action for the partition of a succession dies while the case is pending in the court of the first instance, and it is afterwards decided without his heirs having boen made parties, the appeal will not be dismissed, but.the.case will.b.e .remanded, that the heirs may be made parties to the action. C. P. 120.</p>

<p>In an action against a defendant to render her liable personally, and as tutrix of her minor children, for a debt due by the community which existed between her aud her late husband* ,on the ground that she had accepted the community, and had rendered herself liable, personally and as tutrix, by disposing of effects of the succession and paying its debts without observing the forms of law, where it is shown that the defendant had ceased to act as tutrix, the action against her as tutrix must be dismissed; hut the plaintiff should he permitted to show that the defendant had accepted the community, either expressly or by acts of ownership, and thereby rendered herself liable for one half of its debts. C. C. 2387.</p>

contended that the prescription of thirty years under art. 1228 of the Civil Code, does not bar this action, there having been only nine years of adverse possession by defendants during which prescription was not suspended by minority. C. C. 3488.

<p>The purchase of a litigious right by an attorney practising in the court in which the litigation was pending at the time of the sale, is null. C. C. 2422, 2623, 3522, § 22.</p>

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

<p>A District Court having jurisdiction over the place where an execution is levied, may enjoin the execution, though the domicil of the party at whose instance it was issued be in another parish.</p> <p>A judgment allowing a fee to counsel appointed by the court to represent an absentee, is a nullity. No action is necessary to have it declared so. Const, art. 71. C. C. 12.</p> <p>Informalities in a seizure may be considered on the trial of an injunction to arrest it, though not set forth in the petition for the injunction.</p> <p>Where notes offered in evidence before their maturity, have been withdrawn, by permission of the court on leaving certified copies of them in the record, the levying of a fi.fa. upon the copies of the notes and notice to the maker, will not constitute a legal seizure.</p> <p>Where judgment has been pronounced by a District Court, no other District Court has jurisdiction of an action to annul it. C. P 608.</p>

<p>Appeal from the District'Court of St. Mary, Overion, J.</p> <p>The matter at issue in this case is res judicata. C. C. 2265. 19 La. 323-328. 10 Rob. 361.</p>

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

<p>APPEAL from the District Court of East Feliciana, Boyle, J. This case was tried before a jury, and the plaintiffs appealed from ajudgment, rendered on a verdict, in favor of the intervenors, and against the plaintiffs and defendant. The facts of the case are stated in the opinion of the court, infra.</p> <p>The note was transferred to the plaintiffs before maturity, and in the usual course of trade. There was nothing on the note calculated to excite suspicion. No notice was given prior to the maturity of the note, tending to show that any third person had any equitable interest therein. The plaintiffs gave a valuable consideration for the note, and are bond fide holders. If they are bond fide holders, they are entitled to recover, and their rights cannot be affected by the acts of antecedent holders. Story on Promissory Notes, ss. 190 to 197. Coolidge v. Payson, 2 Wheaton, 66, 70, 73. Townsleyv. Sumrall, 2 Peters, 170, 182, Sioijt v. Tyson, 16 Peters, 15, 22. Story on Bills, s. 188.</p>

<p>Appeal from the Commercial Court of New Orleans, Waits, J.</p> <p>cited stat. 7 April, 1826, s. 7. Tyson v. Lansing, 10 La. 444. Russell v. Wilson, 18 La. 3691</p>

<p>The contract of sale requires a concurrence of wilKboth on the part of the vendor and vends®,</p>

<p>Where a judgment pronounced by the Supreme Courtis absolute and unconditional as to the matters which it professes to decide, its execution cannot be enjoined by a party, while litigating other matters in controversy, which the judgment had reserved.</p>

This is a petitory action, brought by Simeon L, Gibson and others, against Foster and Reese, to recover a tract of land ; they claim as heirs of Simeon Gibson, deceased. Foster disclaimed title, and prayed to be dismissed from the suit, which was done with the consent of the plaintiffs. The other defendant, Reeset filed a general denial; he claims title, but does not mention from what source.

<p>Whenever the .courts of the United States have jurisdiction rationc persona, their jurisdiction ratione materia extends to all cases within the pecuniary limits fixed by law. Their jurisdiction is not limited or restrained by the local remedies of the different States.</p> <p>The fact of a succession being under administration in a Court of Probates as constituted under the judicial organisation existing anterior to the constitution of 1845, could not deprive a Circuit .Court of the United States of jurisdiction to order the sale of property forming part of the succession.</p> <p>Xn proceedings vid ¿xecutivá no citation is necessary. The proceedings are in rm-, and notice of the order of seizure and sale is all that is necessary to be given to the debtor.</p> <p>Where a sale lias been made by order of a court, whose jurisdiction over tho subject matter appears on the face of the proceedings, errors or mistakes committed by it cannot be corrected or examined when brought up collaterally.</p>

urged a reversal of the judgment on the ground, that the 4th section of the stat. of 1 April, 1835, was not repealed by the act of 11 March, 1837. The two acts are not repugnant, and the former cannot be repealed by implication, 10 Mart. 172, 560. 3 Mart. N. S. 190. Farrar's case, 1 Ann. R. 34. The stat. of 1837 applies only where the forfeited bonds are, due to the State, State v. Desforges, 5 Rob. 257. Second Municipality v. Labatut, 8 Rob. 33.

<p>Donations of moveables to a concubine are valid, but they may be reduced to one-tenth of the value of all the property left by the testator. C. C. 1468.</p>

Jones. C. C. arts. 497, 654, 823. Servitudes are real rights, and can only be established by written evidence. There is no such evidence of any servitude of way, in favor of the lots owned by plaintiff on the north side of the alley. C. C. arts. 642, 644, 715, 718, 749, 752. The alley was not a public one. C. C. art. 790.

<p>APPEAL from the Court of Probates of Carroll, Harris, J. The facts of this case are fully stated in the opinion of the court.</p> <p>By the' death of Gibson the rights of the parties were fixed. Buard v. Lemée, 12 Rob. 243. At the time of his dentil plaintiff had obtained a judgment recognising his mortgage and ordering its execution. The property was seized and offered for sale. Gibson’s death prevented the sale. An insurmountable barrier was interposed by operation of law; and he cannot be made to suffer for not doing what he could not do. The judgment ordering the execution of the mortgage is res judicata. It gave effect to the vondor’slien, and it cannot now be, directly or indirectly, avoided.</p>

<p>■Whore, undor .color of a warrant to search for stolon goods in a certain house, tho parties charged with its execution force their way into an adjoining dwelling, against tho remonstances of the occupant, and search it without finding the stolen property, they will be re.sponsible jointly, in damages, for the injury done thereby to the property and feelings of the occupant, and for the disturbance of his family; and where, in such a case, the damages .arc assessed by a jury*, the verdict will not be disturbed, unless they arc palpably excessive. Such warrants must be construed strictly.</p>

<p>Appeal from the Court of Probates of St. Helena, Leonard, J.</p> <p>cited acts of 1835, p. 105, s. 28. Qui hy* pothecam habet, rem ipsam habere videlur. Jourdan’s Juris Regulas, no. 230,</p>

<p>Where, on counting the votes put into the ballot-box in an election for an officer by a municipal council, it appears that thirteen votes -were put in, when the members present were only entitled to give twelve votes, and that seven were in favor of plaintiff and sis for another person, there is no election.</p>

<p>Appeal from the District Court of St. Mary, VoorMes, J.</p>

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

<p>In the absence of any evidence of the recognition by the government of the United States of it state of war,-as existing between a foreign government and an insurgent próvince, the rights of the latter as a belligerent cannot be admitted. Per Curiam: *íhe proceedings of courts in such cases depend entirely on the action of the general government.</p> <p>One concerned in capturing an American vessel under color of the insurgent military authority of a foreign province, in the absence of proof of the recognition by the government of the United States of a state of war as existing between the insurgent province and the power to which it belonged, willb'e responsible to' the owner of the' vessel for thé' dam’age sustained by the capture.</p>

Thefactflof this case are slated in the opinion of the court, infra. I. The ordinance is legal.

<p>Appeal from tho Court of Probates of New Orleans, Bermudez, J.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

<p>One Who purchased Certain lots, jointly with defendant, executing his notes With htíí in solido for the price, and who afterwards paid the notes at maturity, cannot recover from the latter her proportion of the notes so paid, where the evidence shows that defendant had been debauched by the plaintiff, and was living in concubinage With him at the time of the payment, which was made as a reparation for the injury he had done to her.</p>

The facts of this case are stated in the opinion, infra. The notes made by the insolvent were prescribed at the time of filing his hilan ; the acknowledgment of them on the bilan cannot affect the creditors. Larlhe'i v,. Hogan, 1 An. R. 330. Ti e piea of compensation is-inadmissible.

<p>Privileges exist only in those cases in which they have been expressly granted by law.</p> <p>■To entitle aparty to the benefit of the privilege established by the Code in favor of architects, contractors, masons, workmen, and furnishers of materials, for the construction and repair of buildings, the amount due, or to become due, must be fixed in the .contract, where it exceeds five hundred dollars. C. ,C. 2737, 3239.</p>

<p>Thestat. of 12 March, 1838, s. 4, making it the duty of the mayor of the city of New Orleans, before authorising exhibitions in any theatre in that city, to require from tho manage,, the production annually of a receipt from the treasurer of the Charity Hospital, showing the payment by the manager of the sum of five hundred dollars for the uso of the Hos. pital, is not unconstitutional. The exaction of a price for the license so granted, is not, in its proper legal sense, a tax.</p>

<p>In proceedings vid executive the creditor must bring himself within the letter of the law.</p> <p>A judgment having been obtained against the owner of a city lot, in proceedings instituted by ouo of the municipalities of New Orleans, under thestat. of 3 April, 1833, for the opening of a street, establishing the amount of his contribution,- defendant purchased the lot, and assumed to pay the judgment in favor of the municipality, putting himself in the place of his vendor. Plaintiffs having become Subrogated to the rights of the municipality, took out an order of seizure itnd sale against the property. Held, that defendant,-in- assuming the debt, merely put himself personally in the place of his vendor; that plaintiffs can enforce against him only the mortgage which existed-on the property at the time of his purchase, and that that must be done vid ordinaria; that if the claim, on which the order of seizure and sale was obtained, still belonged to the municipality, it could- not, under the act of 1832, resort to proceedings vid cxccutivd, without having previously passed a resolution requiring the issuing of the process by the court in which the assessment was confirmed; and that the right to proceed vid executive, oven after passing such a resolution, is personal to the Corporation, and cannot be transferred to its creditors.</p>

<p>APPEAL from the First District Certil't of New Orleans, McHenry, J. Antoine Molinari died in 1833, leaving three minor children: Antoine, Theresa, and Paul. His widow was confirmed as the natural tutrix of these' minors. She proceeded to settle the estate, and on its final liquidation the' only property left for the children was a house in Hospital street, in this city. The widow afterwards contracted a second marriage with Rufino Fernandez, and afterwards surrendered her tutorship, and caused a dative tutor to be appointed, agreeably to the forms required by law in such cases. Her second husband, Fernandez, died in September, 1843; and shortly after, the tutorship having become vacant, Mrs. Fernandez was appointed, on the recommendation of a family meeting, and confirmed as natural tutrix of said minors Molinari. Sho took the oath required, by law, but gave no bond, and has since acted as the legal representative of said minors, in all matters appertaining to the administration of their estate. The two eldest children, Antoine and Theresa, having been emancipated by marriage, instituted suit against Mrs. Fernandez, as tutrix .of their brother Paul J. Molinari, for a partition. She answered in her capacity of tutrix, but made' no defence; she admitted the plaintiffs’ right to obtain the partition by licitation, as prayed for, and submitted the Case to the judge, who gave judgment accordingly. The property was advertised, appraised, and, at the sale, adjudicated to Omer Gaillard, for a sum considerably exceeding the appraisement; but this purchaser now refuses to comply with the terms of sale. A rule was taken against him, which was made absoluto, and he has appealed.</p> <p>I. Mrs. Fernandez was not duly qualified to represent, as tutrix, the minor Paul J. Molinari. The children of the first marriage would have had a prior legal mortgage on the property of their mother, if she had-not forfeited the tutorship ; by her fault thei-f mortgage is now inferior to that of the children of the second marriage. Under these circumstances,- it-is contended that she is not duly qualified-as tutrix of the minor, Paul J. Molinari; that she must give security like any other dative tutor, in order to be qualified; and that the exemption, in article 330, of the father and mother from giving security, avails them only when they hold the tutorship by right, the only species of tutorship which the Code supposes the father and mother to hold. G. C. 272, 288, 330: Tutorship of Mossy, 3 Rob. 390: Article 951 of the Code of Practice, would seem to favor the idea that she might have claimed the tutorship by right;- but it would not authorise her to claim the appointment in a case like the present, where, by her neglect, she has incurred the penalty of art. 272 of the Civil Code, and has given the children of the second husband,, ii prior mortgage on all her property, even that whicli she may have derived from-the first community.</p> <p>Moreover, she did'not claim the tutorship of right, but accepted the dative tutorship as it was conferred upon-her. The question is, whether the exemption in art. 330 of- the father and mother from giving security, can avail the mother, when dative tutrix. Upon this point, there appears to be no authority. It was not raised in the ease of the Tutorship of Mossy, beeauso,-as we are inj formed, the maternal grand-father of- those minors, offered to be seourity for his daughter, as their tutrix. In the French Code, security is not required from tutors of any kind. Art. 288 clearly shows that the framers of our Civil Code did not contemplate the father or the morlher’s be-coming a dative tutor. The •facts of this case show that there might be serious prejudice to the issue of the first marriage, by the doctrine contended lor by our opponents. The minor, Paul, is not represented in the rule, and was not a party to the. original suit; there was, therefore, no defendant, and no contestation litis; the judgment' was consequently null, and could not authorise the sale of' the property.</p> <p>II. The plaintiffs also were minors, emancipated by marriage, and were not" specially, authorised by the judge, on the advice of a family meeting, to sue for the partition of their property, as required by law in-such cases. G. C. 1236, 1235, 376, 377. Breaux v. Carmouche, 9 Rob. 36.</p> <p>III. No public inventory of the property to be divided, such as is required for the basis of a judicial-partition, was made during the pendency of the suit, nor' within one year preceding it. C. C. 1-246-9. This inventory might have been made after the decree of partition, and at any time before the sale. Millaudonv. Percy, 5 Mart. N. S. 554. Lalaiine’s Heirs v. Moreau, 13 La. 433. This was not one of those errors of- proceeding,- which are covered by the' judgment of the court. 13- La. 433. But w-e are told that the appraisementwhich was made, was a substantial compliance with the law; and that art. 1247 is applicable'only to partitions in kind, and not to those to be effected by a sale.An appraisement madcw-ithout the'presence of the parties interested, or that of a notary or witness, evidenced-by no public act — '•by nothing but a slip.iof pap.er filed in court, containing aproces-verbal under private signature, purporting-to be signed by the appraisers alone, is far from being a substantial compliance ■with the law prescribing the form of public inventories. Arts. 1247, 1093-9, 1-101-3. Art. 1247 makes no distinction-between partitions in kind, and those’ which are made by a sale of the property.</p> <p>IV. It is urged by the plaintiffs in the rule, that the purchaser cannot refusetb take the property and pay the price, unless he be disturbed in his possession. In support of which--position,■ they cite the following authorities : Arts. 710; 7-11, C.-P.,-and the cases of Collins v. Daly, 4 Rob. 113. Abat v. Pallet, 3-Mart. N. S. 220. Foster v. Murphy, 5 Ib. N. S. 82. Freret v. Meux, 9 Rob. 416. Stille v. Bronson, 5 Mart. N. S. 47.</p> <p>AU-of these authorities except Freret v. Meux, are inapplicable to the present' case. Arts.-710, 711, C. P. apply to -sheriffs’- sales-made under writs of fi. fa., in cases where the property is subject to legal or judicial mortgages. Theses mortgages do-not prevent the sale under ti fi. fa., nor excuse the purchaser for not complying with the' conditions of the sale, saving the cases excepted in art. 7-1-0; All of the cases above cited, except that of Freret v. Meux, relate top sheriffs’ sales made- under writs of fi. fa. The general expression of judicial sales, which is applied as weil to sales in execution of writs-of ft. fa., as'lo those ordered by a court in matters of succession or partition, could alone give rise to the error of confounding this case with those above cited. Our Code, art. 2594, says that: “ Sales which are made by authority of law, are of two kinds: 1st. Those which take place when the property of a debtor has been seized by order of a court,-to be sold for the purpose of paying the.creditors. 2d. Those which are ordered in matters of succession or partition.”</p> <p>Sales under execution do not give rise to the redhibitory action, but may be set aside, in cases of fraud, and declared null in cases of nullity. C. C. 2597, 2515. They transfer only the rights of the debtor, such as they are. C. C. 2598. On the contrary, “ all the warranties to which private sales are subject, exist against the heir in judicial sales of the property of successions. Art. 2602. When the court, in Freret v. Meux, say that the vendee, “ may .refuse ■to pass the sale until a good title is tendered to him, and musthe relieved if his vendor is unable to give one; it is otherwise with regard to judicial sales,” «¡ting Code of Practice, art. 710,3 Martin N. S. 221, it is evident.from the authorities cited by the court, that the -first class of judicial sales specified under •art. 2594, was alone intended.</p> <p>The heirs of Molinari wish to sell their property to effect a partition. If of .age, they might agree-to sell it by an auctioneer, or an attorney in fact. We ■might in that case, refuse to accept a sale of real estate, until the auctioneer or attorney in fact was shown to be authorised in writing, by all the parties in interest to sell; until a good title be made out to us; until, in fine, such title be tendered to us in writing. C. C. 2584, 2255, Freret v. Meux, above cited. ■Not being of age, they can sell only through legal representatives and with legal ■formalities. What should forbid us in this case, to examine the qualifications of those soi-ifearci legal representatives, and the reality of the alleged authorisation ? Ours is not the case of a purchaser who has accepted a deed and taken possession of the property, and is trying-to see how long he can enjoy it without paying the price ; so that art. 2535 does not apply to us. Pontcharlrain Ii. R. ■Company v. Dwell, 6 La. 485. Freret v. Meux, above cited. We have not taken possession of the property, because we believed that the judgment and sale conveyed to us no title. The tender of title in the rule, by the minor plaintiffs in the rule, can add nothing to the previous formalities. If the judgment and public sale have divested the minors Molinari of their rights, and transferred them to us, we are willing and ready to pay the price.</p> <p>Mrs. Fernandez never claimed the dative tutorship providedfor by art. 272. She preferred to surrender the tutorship; and, at her own request, ,a dative tutor was appointed in her place; but after the death of her second husband, her incapacity to hold the tutorship, by natural right, having ceased, she prayed for and obtained the natural tutorship provided for by art. 268. Art 272 is intended as a protection against the second husband. The mother cannot be suspected of any such bias,all the children are her’s, and she must feel for them equal solicitude. Luring the second marriage, she might yield a great deal to the ■influence of her husband; but after his death she occupies in the eye of the law the same position with regard to all her children. Theie being, after the death of the second husband, no existing legal cause of exclusion, article •288 could no longer apply. If, after the death of the second husband, Mrs. Fernandez had a right to the natural tutorship, no family meeting was necessary, though indeed one was held, and it advised her appointment. She was “of ■right” entitled to the tutorship, it being then, vacant. C. -C. 265, 268. No cause of exclusion could be urged against her ; no other person could claim a preference. The circumstance requiring the call for a family meeting, provided for by arts. 272 of the C. C., and C. P. 951, could not apply to the widow; for. at the time, there was no marriage existing or intended. She was not therefore required to give security. C. G. 269, 330.</p> <p>The cases of Mossy, 3 Rob. 390, and Robinsonv. Weeks, 5 Mart. N. S. 379, do not apply. In those cases, the second husband was living.</p> <p>JBoileux, in his “ Commentnire sur le Code Civil,” under art. 395, C. N., says: “ A la mort du deuxieme mari, la mére qui n’a pas été maintenu, recouvre-t-elle la tutelle? Nous le pensons : cessante causa, cessat effectus.”</p> <p>Letters of tutorship are mere certificates of the fact of appointment or confirmation ; and their existence or non-existence cannot disturb the legal character and validity of the appointment by the judge. It is .the confirmation duly made, followed by the oath required by law, which invests the natural tutor or tutrix with his or her official charge and responsibility. The assumption that, jf j\qrs, Fernandez gives no other security than the tacit mortgage, Paul Molinari’s mortgage must be necessarily inferior to that of the minors Fernandez, .as being of subsequent date, is an error, for the confirmation” as natural tutrix must date, in relation to the children of both marriages, back to the time when the tutorship was actually assumed, or was vested by law, to wit, to the date of the death,of the second husband. C. C. 268. But if it were not so, in all cases of this kind the minors of the first bed, for all acts of administration previous to the mother’s ro-appointment, are always fully secured, either upon tho estate of the second husband {C. C. 272), or by the bond of a dative tutor (C. C. 330), and in this case, Paul Molinari has both guarantees.</p> <p>The appellant relies on articles 1235,1236,376, 377 of the Civil Code, to sustain his second position. These articles do not apply to the caso, but are intended to govern minors emancipated otherwise than by marriage^ The minor wife had a right to sue for a partition, and no curator was required to assist her. Her husband was the proper person to authorise and assist her. A suit for a partition cannot be viewed as a voluntary alienation, to which the prohibitions of arts. 375, 377 apply, nor does art. 1236 apply as to the mode of authorisation, to the minor wife emancipated by marriage. Her curator is her husband. C. ■Code, 378,123 et seq., and 1779. Code P. 106, 107. Art. 1239 of the Civil Code is conclusive in our favor; jt admits of no distinction between the minor ■wife, and the wife of age. The right to sue, in a case like this, is clearly es„ lablished in tho case of Hooka v. Hooke, 6 La. 472. Art. 1240 declares that ■the husband can, with the concurrence of his wife, sue for the partition of im* movable property. See also arts. 368 of the Civil Code ; and art. .999 of the C. P. and amendment thereto. Bullard & Curry, p. 154, sec. 14. The word f‘ even” in this amendment makes the rule general. As to the alienation, if it can be so called, by means of the partition. — it is clear that it can he made by minors. Civil Code, 1235, 1236, 1237, 1238, 1239 and 1240. C. P. 1023. In 14 La. p. 22, it is decided that a licitation to effect a partition is not a sale as between the heirs, and does not change the .character of the thing to be dL vided.</p> <p>This suit is instituted by two persons: 1st, a minor husband; and '2d, a minor wife, assisted by her husband, who is of age. Admitting,the defendant in the rule to be correct, in drawing a distinction between these two, as to their right of demanding a partition, still, it being adinitted that the minor husband had that right, under art. 368 of the Civil Code, the judgment ordering the partition is valid, for it could have been rendered upon the petition of tho minor husband alone.</p> <p>I he authorisation of the judge, if required at all, in relation to minors emancipated by marriage, is necessarily inyolved in the judgment rendered, decree-, ing the partition.</p> <p>It is contended that there should have been an inventory preceding the sale ■or partition. Arts. 1246, 1247 and 1248, are quoted. These articles .can apply only to cases where the partition is to be made in kind. The use to be made of the inventory is shown by articles 1278, et seq. Its object is also to enable the notary to make the collations between the heirs, and this is expressly excluded from such a case as tho one before the court, by art. 1304 of the Civil ■Code. This is a licitation; and the rules applicable to jt are entirely different. In Imitations the judge “orders a sale at public auction,” in which case an inventory is perfectly useless. Cessante rations legis, cessat ipsa lex. Of what use could the inventory be ? Why take an inventory of a single town lot, fully described in the petition and judgment, and ordered to be sold for .cash, when the proceeds aro to be distributed equally among the heirs, without collation 1 ltwould have been a work of entire supererogation. Even an appraisement, in cases pf licitation, pan have no effect. Jacobs v. Lewis, 8 La, 179. Foidev, Weekes, 7 La. 312. Civil C.odo 339, 1863.</p> <p>Even did the technical informalities spoken of exist, the minor is bound, and pould not disturb tho purchaser. Michel v. Michel, 11 La. 154. Lallane v, Moreau, 13 La. 433. Tolmie v. Thompson, 2 Pet. 106. The purchaser can-pot refuse to take the property and pay the price. The sale was a judicial one. In judicial sales the purchaser cannot withold the price, unless he is disturbed in his possession. Abat v. Pallet, 3 Mart. N. S. 220. iStille v, Prou-nson, 5 Ib. N. S. 47. Foster v. Murphy, 5 Ib. N. S. 82. Collins v. Daly, 4 Rob. 113. Freret v. Meux, 9 Rob. 4Í6. See also C. P. 710 and 711. It is true that in judicial sales, made to effect partitions, the rules of warranty are different from those of sales made under Ji. ja.; but all judicial sales possess in common this feature, that the adjudication is a complete title to the purchaser. Civil Code, arts. 2594, 2598, 2601. See also C. C. 2535 fit s,eq.</p>

<p>Where a'factores notified that cotton consigned to him by a third person, was made on plain, tiffs’ plantation and belongs to them, and is direoted not t.o pay over the proceeds without the.ir.consent, ,tl>e notice will render the factor liable for any subsequent payment made to ■the consignor, not depending on a superior right. Art. 2926 of the Civil Code is inapplicable to the liability of factors receiving goods for sale. Their liability is fixed by commercial usage.</p>

APPEAL by the defendants^from a judgment of the Commercial Court of New Orleans, Watts, J, cited Story on Agency, 266-9. 2 Kent, pp. ©9-30,8.41. contended that they are not liable, having acted as agents, and their principal having been made known to plaintiffs. C. C. 2981, 298’2. Zacharie\. Nash, 13 La. 21. Hazard- v. Lambeth, 3 Rob. 378. Story on Agency, § 263. Plaintiffs contracted with the principal,- defendants being only agents for the delivery of his crop.

<p>A consignee -will not be liable for the freight of property which Was never delivered’ to' him',where it is not shown that he ever accepted the consignment, or authorised tho entry of the property at the custom-house by the consignor, wlio took possession of it-</p>

<p>APPEAL from the First'District-Court of New Orleans, BucKatian, L- The' facts of-this case are stated in the opinion of the court, infra, and in-that1 pronounced in the case of Dupuy, Curator, v. Bemiss,-ante p. 509;</p> <p>The Circuit Court'of the-United States has no jurisdiction to order the sale of the property of a succession, while subject to the jurisdiction of the Probate Court, and in the due-' course of administration, in the hands of its officer, the curator. 6 Rob. 230; Lowry, Curator, v. Erwin, 9 Rob; 254. G. C. 1105. C. P. 924, ss. 9, 13,-Elliott v. Peursoll et al., 1 Peters, 340. Thompson v. Tolmie, 2 Peters, 169. Schroeder’s- Syndics- v. Nicholson, 2 La. 355; 4‘Tb. 83. All the cases cited by the defendantsare from common lawStates, where the'administrator is seized' of the goods of the estate, and is, by law, capable of standing in judgment in any' court of general jurisdiction.- 2 Blackstone’s Comm. 126,' 410, 426.' He can be' sued in any of the State courts, and therefore is amenable to the'federal tribunals. Tho only question which has ever arisen in the federal courts, in regard1 to jurisdiction over administrators, has been inn-elation to their citizenship, not" as to their capacity to stand in judgment and execution. In this State, curators" do not occupy the position of- administrators at common law; they do not hold1 the goods of the intestate in full and absolute property, but only sub modo, as-1 agents and officers of the Probate Court, to whom alone, by the very law of-their" creation, they are responsible for suehgoods. The State courts of- general jurisdiction cannot seize and sell the property of a succession, in - due course of-’ administration.-</p> <p>The federal courts come into the State to administer its laws ; they aro, pro-' hacvice, State oourts. It is true, they are not subjected tb the modes of procedure imposed upon-the State tribunals : but, so far as the rights and qualities-of property are concerned, they act wholly- under the State laws. If, by the" State law; any particular species of property is exempted from execution, could the federal-courts execute their judgments upon such property ?</p> <p>The State law creates a certain court, giving it exclusive jurisdiction and control over vacant successions, and authorises it to appoint a certain officer, who-shall be accountable to it alone, for the goods of a succession placed in his hands by the court. This curator has no seizin or absolute title in the goods of the succession ; he has only the charge of them ; he is the mere officer of the Pro-, bate Court, and by the law of his creation, accountable to it alone. The federal .court, by pretending to assume jurisdiction over him, cannot increase either his power or his liability. He is a State officer, .accountable to a particular State tribunal, for the property entrusted to his .charge. In no other State tribunal .can he stand in judgment, so as to render the goods of the succession in his hands subject to an execution, even though he permit a judgment to go against ¡him in such tribunal. Such judgment might bind him personally, but could not be executed against the goods placed in his.custody by the ¡Probate Court, where .the succession ¡was opened, and from .which he derived his authority.</p> <p>But, it is said, if the federal court had power to render judgment, it had, ¡necessarily, thepower to .execute it. That, as a general rule, ¡we admit; but ¡there are exceptions to it. The judgment of a federal court cannot be executed .on property already seized by the sheriff, under process .from a State tribunal. This has been expressly decided, in the case of Hagan v. .Lucas, :10 Peters, .400. Again: a judgment cannot be executed on property not subject, by law, .to execution. .Suppose.the legislature of this State should change .entirely the ¡the character of immovable property, and subject it -to entallment. No one ¡will pretend that, upon a judgment rendered after the passage of such a law, immovable property could be seized and sold under execution, either from the ■federal or any other-court. If, then, .the State-law can .exempt property from -execution intoto; a fortiori, the same power can exempt it .during the period of .its administration, and while in the.-custody of-the Jaw.</p> <p>If the United States Circuit Court was without jurisdiction, either ratione persona.ox ratione.materia, the decree ordering the sale of the slaves in controfversy .was .a nullity, not only voidable, but wholly -void. .See authorities cited before. If the order, or decree, directing the sale, was not merely en-o¡neous, but absolutely .void, it follows that the sale made by virtue of said order nr decree was equally null and void. 1 Pet. 340. 2 Howard’s U. S. Rep. 43. 3 Mart. N. S.,1. 8 Ib. N. S. 1.76.</p> <p>.contended that the Circuit Court.of the United .-States had jurisdiction, and that its judgment was conclusive, .citing ¡Const. U. ;S. art. 3, sec. 2. Act of Cong, of 1789. Gordon’s Dig. 149, no..575. 5 Gond. Rep. 542. 4 Dallas, 12. 1 Cond. Rep. 210. 3 Wheaton, 212. 4 lb. 108. ¡8 lb. 642. 10 lb. 152. 1 Peters, 623. 6 lb. 291. 14 lb. 72. 1 Kent’s Com. 395, 342, 348.</p>

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p> <p>cited Parmley v. Bradbury, 13 La. 353. 16 La. ,525. C. P. 243, 312.</p>

<p>A judgment ibnof conclusive against persons, neither parties, nor privies to it.</p> <p>Sec. 7 of the stat. of Mississippi of 21 February, 1840, prohibiting any bank in that State from transferring “ by endorsement or otherwise; any note, bill receivable, or other evidence of debt,” cannot he considered as prohibiting a bank from collecting its dues, by accepting payment of a note due to it, after maturity, li-om- a third person, nor ds depriving the latter of tile right to be refunded the amount out of tlie succession of the maker.</p>

<p>Unifer íhc 5th seo. of flie stat. of 20 Mar’dlf, 1839, amending art. 243 of the Codo of Practice, if is' sufficient to authorise an attachment, that the creditor stibuldYweaf that he'verily believes that tiro debtor resides out of the State ; it is not necessary that he should-swear positively that lie does so.</p>

The defendant could not attack Broughton’s title, as he claimed under it. Trahan v. McManus, 2 La. 213. Bedford v. Urquhart, 8 La. 234. Grant v. Walden, 6 La. 627. A suit by attachment is a proceeding in rem, authorising only the sale of the property attached. contended that the judgment against Presler, having been rendered without citation or appearance, was null, citing 5 Mart. 465. 1 Ib. N. S. 9. 6 Mart. 726. 8 lb. N. S. 145. 5 Ib.

APPEAL Appeal from the Fourth District Court of New Orlenos, Strawbridge, Jr Felloioes, Johnson Sf Co. are appellants m this case. The facts are fully-stated in the opinion, infra.

Appeall from the Second District Court of New Orleans, Canon, J. contended that the curator of a vacant succession is not apublic officer, within the meaning of the stat. of 30 Feb. Í841, s. 14, citing Ex parte Powell, 8 Rob. 95.

<p>The acceptance or renunciation of the community by the beirs of the wife, are subject to the rules provided by law for the acceptance or renunciation of successions under the benefit of inventory ; and the rights and powers of creditors aro the same in both oases. C. C. 2383. They may, in either case, sue the legal representative of the suoo'ession, or make opposition to the accounts rendered by him. If they do so, on an exception by the executor- or administrator, that the time allowed to the heir for deliberating whether he will accept the succession or community has not expired, the proceedings must be stayed until the expiration of the term, or until the heir Has decided. O. C. 1046. Where no such exception is taken, either in writing or in argument, the court will proceed to decide on the rights of the creditors.</p> <p>The succession of a deceased wife can be made liable only for one half of the community debts.</p>

<p>Where a promissory note is payable, on its face, to the tutor of minor’s, it is notice that the obligation belongs to the minors, and a holder can acquire, by taking it, no rights adverse to' the parties- in whose interest the restriction is made.</p> <p>In an action by the holder of a) promissory note, payable to ffl party as tutor of certain minors, endorsed-in blank by the'latter, it is incumbent on the plaintiff to establish any mat ter of account between the tutor and the minors-, which may constitute a bond fide ownership of the note in the plaintiff.</p> <p>Where the under-tutor of a minor intervenes in an action by the holder against the maker of anote, secured by mortgage,-payable to the tutor, alleging that the transfer of the note by the tutor was illegal,not having been made for money, nor for any thing which enured to-the benefit of the minor, and that, though the minor is still subject to the tutorship/ the interest oi the tutor, as transferror of the note, are adverse to the minors, no execution willbe' allowed to issue for the amount due to the minor. Per Curiam.- The tutor notbeing a party to the suit cannot be removed, and he ought not to he permitted to receive the amount; nor ought it to be paid to-the under-tutor, who instituted the intervention.</p>

<p>PPEAL from the First District Court of New .Orleans, McHenry, J .</p> <p>A wife .cannot bind herself for her husband. C. C. 2412. She can, in no e.vent, become his surety; if really .a surety, the form of the contract will be disregarded. McMickenv. Smith, 5 Mart. N. S. 431. Hughes -v. Harrison, 7 Ib. N. S. 252. Filié v. Palin, 8 lb. 693. If sued as principal, the wife may contradict, by parol evidence, her own declarations in an authentic act. Brandegee v. Kerr, 7 Mart. N. S.. 64. Gas quet v. Dimitry, 9 La. 590. Firemen's Ins. Co. v. Cross, 4 Rob. 508. Ailing v. Egan, 11 Rob. 246. Pascal v. Sauvinet, 1 An. Rep. 428.</p>

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p> <p>cited Jackson v. Sill, 11 .Johns, 217. Mann v. Mann, 14 lb. 11. Doe v. Roe, 1 Wendell, 541.</p> <p>.cited C. C. 1710. Lartigue v. Duhamel, 4 Mart, N. S. 664. Thrall v. Thrall, 7 La. 23.0. Sarcp v. Dunoyer, 11 La. 223.</p>

<p>A new trial will not be granted on the affidavit of counsel of his- ignorance of facts which were known to the party whom he represented before the commencement of the suit, but which were not communicated by him to his attorney, in consequence of the absence of the client from the State at the time of trial. Per Curiam: It was the business of the client to give proper information and instruction’ to his counsel,</p> <p>to entitle a party to a new trial, on the ground of the discovery of important evidence since the trial, it must be shown that it could not have been obtained by due diligence before. C.P. 560.</p>

<p>Appeal from the Parish Court of New Orleans, Maurian J.</p>

<p>It is no objection to the validity of it mortgage executed by a married woman, under the 25tlr see. of the stat. of 2 April, 1S32, incorporating the Union Bank, to seéure aloair made to her husband, that her rights were not explained to her, out of the pV'esené'e Of her husband, by the notary before whom the mortgage was executed. Per Curiam.- The lavv requires’ that married women should be' made acquainted with their rights, When about to renounce’ them; hut the bank does not claim’ under a renu’ncia'tion by the wife, but under á' direct obligation, which she had capacity to contract.</p>

Plaintiffs-have failed to prove the most'important fact in the cause. They have not proved that they did buy the' land. There is no evidence but the sheriff’s deed. The parol evidence only shows that there was a sheriff’s sale — rem ipsam.

of the plaintiff. The exception in the bill of lading is of “ unavoidable accidents and dangers of the river.'” The adjective “unavoidable” qualifies the word “dangers,” as well as “ accidents,” and has invariably been interpreted in this connection, to mean such overpowering force as is produced by superhuman agency, and which human effort could not prevent. If, then, the cause of ihe accident was the mismanagement of the Emperor, it was not the result of vis major.

<p>Appeal from the Commercial Court of New Orleans, Watts, .T.</p>

<p>Where the words of a receipt leave its meaning doubtful, the testimony of witnesses is admissible to explain it.</p>

<p>íhe failure of any of the obligors named in an instrument to sign it, authorises the others to retract; but they mu'st do so seasonably, before the contract taires- effect.</p> <p>Where in an action by Creditors against the sureties in an administrator’s bond, defendants plead that they have been discharged by the gross negligence of plaintiffs, it is an admission of their liability unless negligence be shown, and a waiver of any defects of form' in the execution of the bond.</p>

<p>Appeal ffom the Fifth District Court of New Orleans, Buchanan, J.</p>

<p>Appeal from the Fifth District Court of New Orleans, Btíéhamütrí, I.</p> <p>A rule is not the proper’ remedy t<r set aside a sheriff’s sale; th'e remedy is by an action against the possessor of the property.' Where the debtor is himself the purchaser he cannot bring suit. He possesses by a good title, because he is in no danger of eviction. The informalities in the sheriff’s sale, if any, were' cured by the debtor’s appearance and purchase of the property. 1 An. R\ 11*. C. C. arts.-1810, 1811, 1812. 1 Story’s Equity, p. 385 and note.</p>

<p>In tllB'absence of evidence to the contrary, it will be presumed- -that’ payment'was made by' the-party bound, and not by another. •</p> <p>The fact that a party was erroneously condemned by the court of the first instance-to pay half-" the costs of the action, will not authorise a reversal of the judgment "on appeal, where no' application was made to the court below tó correct the error."</p>

<p>Tho compensation due toa parish judge for the sale of property belonging-to a .-succession though opened in another parish, is that fixed hy sec. 5 of the stat. of 28 March, 1813. He is not entitled to, the commission allowed to ordinary auctioneers on sales made by them.</p>

<p>Appeal from the Second District.Coui-t of N,e.w.Orleans, Canon, J.</p>

<p>Acts,of-transferof immovables, whether passed before a notary or not, have effeot against .third persons only from the time of their registry in accordance with the stat. of 20 March. 1827. The stat. of 26 January, 1838, making it the duty of notaries in New Orleans to cause to be registered in the .conveyance office all acts passed before them, which by law .ought to he so registered, does not exempt the party to whom the immovable is transferred from the duty of seeing that it is so registered; that statute may give him recourse against the notary, but does not affect his rights as against third persons.</p>

<p>A new trial will not be granted on the affidavit .of a party .that, a person whose,testimony was important in the cause, but who had not been summpned because,lie had declared that he was interested, had, since the trial, informed the applicant that he had become a compe. tent witness. Held, .that the interest of the witness was a question upon which .tfie opinion of the court should have been had, and that a new trial should not be granted.</p>

<p>The extreme term for the duration of privileges for work done, or materials furmáhed; fdf the' construction of a steamer, is sixty days, Whore the boat has been for that length of time engaged in making trips between this port and' those of other States'.</p> <p>Privileges on steamers or'other"vessels'established by the laws of other States,'ufaless ex', pressly recognised by our laws, will not'be enforced here. Pei• Curiam: The framers of our* Code did not intend to coniine their legislation on the subject'of the privileges on steamers' or other vessels to such as aré owned in this State; they laid'down general rules'as to the distribution of the proceeds of such vessels, without regal'd tb their origin, - or the' place of their owners’ residence.</p> <p>A nation within whose territory personal property is'found, lias as entire jurisdiction'over it' while there, as it has over immovable property. Its exercise, for all phi-poses; is a question' of policy.</p> <p>Privileges established by the laws of another State' for work or'labor furnished for the con-' strubtibn of a steamer form no part of the'contritcf itself, and cannot follow the property' into this State, when no such privilege exists here;</p> <p>In the distribution of insolvent estates, no distinction is'recognised' among creditors' ddpend'-ent on the pla'ch of origin of the debts. The distribution is'made as of the'proceeds of a common pledge,- according to the order of privileges and mortgages established by the Civil Code.</p>

, (‘ First Judicial District, ss. “ Parish of Orleans, First District .Court of New Orleans : The grand-jurors pf the State of Louisiana, duly empannelled and sworn in and for the body of the parish of Orleans, upon their oath present, that one Edward Russell, &e. It concludes : “ contrary to the form of the statute of the State of Louisiana jn such .case made aqd provided, and against the peace and dignity of thp £>an)e,” ..citing State v. Anthony, 1 McCord, 285.

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p> <p>cited 20 Duranton, Nos. 193, 194. Went v.. Morgan, 3 La. 311. Sacerdotte v. Duralde, 1 La. 484, Williamson v. Creditors, 5 Mart. 620.</p>

APPEAL, by the plaintiff, from1 a judgment' of the Parish Court of New Orleans, Maurian, J. Article 3289* of Our' Code gives fo a' recorded judgment the efl'e'ct of a mortgage. Its language is general.

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

<p>APPEAL from' the District Court of Concórdiíi, Cúrry, J-. Tile plaintiff appealed from-a verdict and judgment rendered in favor of the defendant.</p>

<p>Appeal from the District Court of East Baton Rouge', Burk, J.-</p>

<p>Appeal from the Fourth District Court of N.ew Orle.ans, Strawbridge, J.</p> <p>¡sited 3 La. J.03, 391. 2 Rob. 318. 9 Rob. 91.</p>

<p>A slave voluntarily taken by her owner to a country in which slavery is prohibited, and there kept in his service for two years, will be thereby emancipated. The fact of the mas.•ter s not having acquired a domicil in the country to which the slave was removed, will not prevent her emancipation. Per Cvriam: The personal condition of those thrown on foreign •coasts by shipwreck, or taking refuge from pirates, or driven by some overwhelming necessity, or perhaps those passing through a foreign territory on a lawful journey, may remain unchanged; hut this is the extent to which an immunity lrom the .foreign law can he maintained under the law of nations.</p> <p>One who succeeds in establishing her right to freedom against a person by whom she is held in slavery, will be entitled to recover wages from judicial demand.</p>

<p>*In an action to render a defendant liable for goods sold to a partnership of which it is alleged •.that he was a member, another partner is incompetent .as a witness ior the plaintiff, to prove the partnership. The witness is interested,to charge the defendant.</p> <p>'Where interrogatories to be propounded to a witness under a commission are submitted to the opposite party, and the.latter propounds no cross-interrogatories, but writes at the foot ,of the plaintiff's interrogatories “ legal objections reserved,” the reservation will authorise an objection afterwards to the admissibility of the-evidence-on the ground of interest in the witness.</p>

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

<p>Appeal from the' District Court of J'effersou, Clarke, J.</p>

<p>A factor cannot be' deprived of bis commissions by tbo wilful act of bis principal. Tbe execution of a contract of agency, the obligations of which are mutual, cannot be placed entirely at tbe option of tbe principal.</p> <p>Ilian action by a factor against bis principal for compensation, evidence is admissible on tbe part of plaintiff to establish a custom among merchants alleged in tbe petition. Per Curiam : As afact/it was competent to piaintiffto establish tbe custom; its effect, is a different matter. It may well be supposed- that the parties contracted with reference to the usual course of the business, which was the subject of their agreement.</p> <p>It is within tbe discretion of the judge who tries a case, to determine whether the trial shall be delayed until a bill of exceptions can be drawn up and signed. Per Curiam: All that the party who exceptabas aright to require on the trial is, that tbe point reserved, or' decision excepted to,- be reduced to writing by tbe court, and that a bill of exceptions may be drawn up and signed afterwards. C. 3?. 488,489.</p>

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p> <p>contended •that the judgment .below was correct, and the new trial .properly refused, citing 18 La. 535. 1 Rob. 93. Graham on New Trials, 473, 485.</p>

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

EULE on the Judge of the District Court of Carroll, in the Tenth Judicial District, to show cause why a mandamus should not be issued, commanding him to allow a devolutive appeal to the plaintiff, in an action against the judge individually.

<p>No collation is due to the succession of the wife for advances by the husband to one of his children, made in bis own name and right, while tlieCode ofl808 was in force, where the father lias died, and the widow has not accepted the community. Code of 1808, b. 3, tit. 5, art, 31. Nor will the circumstance that she did not renounce the community in strictly legal form be viewed as an acceptance, though the law in force at the time required the same formalities in renouncing, as in accepting, ¡¡..succession.</p>

<p>Tlie term absentee embraces persons residing abroad who have never'Been dómiciüated'’ in this State, as well as- those who, having once resided here, have since left the State.</p> <p>The-prescription of five years, established by art. 3505 of the Civil-Code as to bills of exchange, applies to actions upon the instrument itself, for breaches of the contract of which it is the evidence.</p> <p>Quoad creditors, the wife or her heirs must show, Otherwise than by the confession or acknowledgment of tlie husband*in the marriage contract, tlie origin and payment of tlie dowzy. By the frenchlaw, the receipt of the'husband to a person by whom the dowry was due, although by private act, provided its date be certain and anterior to suit by the creditors, is sufficient evidence of payment, subject to the right of the latter to controvert the receipt and prove its simulation; hut the acknowledgment, is not received- as proof when, the dowry purports to have been constituted by the wife herself, the legal presumption being that" e'est donner á sa femme que de reconnaitre en avoir recu quoique ce soitf in such a case the acknowledgment of the husband is not even binding on him or his heirs — the wife1 must prove the origin of the money, and the trath of the receipt. Aliter, as to the acknowledgment by the husband in the marriage contract of the estimated value of clothing, linen, andjewelry broughtby the wife into the marriage, to an amount suitable to her con ditionj the presumption is that she had such things.</p> <p>Where a father resides iii this State, he will, though a foreigner, become of right? the tutor of his children, on the death of their mother, and a legal mortgage will attach, in favor of his minor children, on real property owned by him here.</p> <p>Aforeigner residing in this State may be appointed a tutor by our courts.</p> <p>It is the duty of a tutor, immediately after appointment, to reduce the property of his wards into possession, to render it productive, and to administer it as a prudent father of a family administers his own affairs.</p> <p>In settling the accounts of a tutor he will not be allowedto make a donation to his wards, at the expense of his creditors.</p>

<p>Appeal from the Commercial Court ofNew Orleans, Watts, J.</p>

<p>Where the transcript of a record from a court-of another State, commences as follows: *' Pleas before the Hon. G. 0., Judge of the'Eirst Judicial District of the State of M,, at a Circuit Court begun and held at the court-house in' a'nd for C. county,” &c.; and the clcrlv, in his certificate, describes himself as Clerkof the Circuit Court for the county of C-; and the judge, in a certificate commencing “ State of M.!, C. county,” styles himself Judge of the Eirst Judicial District of said State, an objection-that the certificate of the judge docs not show that the county oí C. was within his circuit, will be disregarded.</p> <p>In the absence of any suggestion- that the certificate of a judge, authenticating the transcript of a record from a court of another State, and attached thereto, at the foot of tlie clerk’s certificate, by a wafer, was improperly obtained, it' wilfbe presumed that the judge did not violate his duty, and that he affixed the certificate liiméelf to the transcript;- nor will this' presumption be affected by the fact that there washroom enough to have written the judge's* certificate on the same sheet on which the clerk's’cevtificate was written-</p> <p>It is no defence to an action against tfie maker of anote, -by the last endorser, who had paid &- part of its amount, after protest, to the holder, that the defendant made the note for the accommodation of a previous endorser, who had put it in circulation, where tliere is no proof that the relations between the latter and'the maker Were known to plaintiff. In the absence of such proof the defendant musif'be considered to have endorsed-the note upon the* faith of the antecedent names.</p> <p>The testimony of a witness that the last endorser of a note, who had been compelled to pay-its amount, told him. that be looked only to ^previous endorser, and knew nothing of the?* maker ii the matter, is insufficient to discharge the latter. Per Curiam: Such loose declarations, made without consideration to a1 third person, cannofTbe treated as an abandonment’of a lawful claim. *</p> <p>Where the endorser of a note, after protest for non-payment by the maker, pays apart off its amount, he may recover such partial payments from the maker.</p> <p>Where the maker of a protested promissory note, in settling certain partnership transactions* with'an-endorser, transfers property to the latter onhis-agreeing to pay the amount of the-note to the holder, it will amount to an acknowledgment of the debt by the maker, interrupting the prescription running in his favor,'and maybe taken advantage of by another' endorser, who had been compelled to pay a part of the amount of the notfe. C.‘ 0. 3486.</p> <p>duesfiions of prescription must he determined by the law of the forum.</p> <p>An endorser of a bill or note, against whom an action has been brought by the endorsee, cannot recover from*the maker or acceptor the costs of the action, unless in case of an express and collateral contract of indemnity.</p> <p>A judicial record from another State is sufficiently authenticated, when, by a reference to the ■record itself, taken in connection with the'Certificate of the judge, there is evidence to .show that the person by whom the certificate was given .was the judge of the court from whichthe record was certified. Per,Curiam.- It is not necessary that the judge should repeat in his certificate what his very act implies.</p>

cited Chambliss v. Atchison, 1 A. R. 488. contended that the case was one in which summary proceedings were authorised, citing Larthet v. Hogan, 1 A. R. 330; and that in such cases a trial by jury is not allowed. C.P. 401, 757. ON an application by the counsel of the appellant for a re-hearing, the opinion of the court was delivered by

<p>Where the corporation of a city, under authority conferred on them by law, take possession of a town lot, and dedicate it to public use, interest on the price will be due from the time of their taking possession. Per Curiam: .Town lots in the improved parts of a city, are productive property. C. C. 2531.</p>

<p>Appeal from the District Courtof the First District, Buchanan, J.</p>

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

PPEA'L from the Fourth District-Court of New Orleans, Strawbridge, J-This was an action for damage sustained by the owner of a flat-boat, loaded with coal, which was sunk by a raft of'timber belonging to the defendants. The defendants -contended: 1st, that they were not the owners of the raft at '.the time of the accident; 3d, that the damage was not occasioned by any negligence on the part of those in charge of the raft; 3d, that the amount of the loss is overrated.

<p>A book purporting to contain the statutes of another State, not authenticated according to the act of Congress of 26 May, 1790, is inadmissible to prove a statute of that State. But the printed statutes of a State produced from the office of the Secretary of State sof this State, and proved to have been received by the executive of this State from tha executiva authority of the' State whose laws they purport to he, will be received as-primes facie evidence of the statutes contained in it-.</p> <p>Parol evidence is- inadmissible to prove a foreign-statute.</p>

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

<p>Where the legal mortgage existing in favor of a minor on the property of his tutor basteen releasedby a decree of court, on the substitution of a special mortgage in his favor, in conformity with the provisions of the stat. of 11 March, 1830, the court cannot afterwards, on the depreciation of the property specially mortgaged, set aside its own iinal decree, and reinstate the legal mortgage.</p>

PPEAL from the Fourth District Court of New Orleans, • Strawbri'dge, J. The facts of. this case are stated in the opinion of the court, infra. The conveyance under -which the appellants claim was admitted to record by the register of conveyances, on the production of-a copy certified by a notary of this State to have been correctly made from an original instrument deposited in his office.

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>cited Kuhn v. Abat, 2 Mart. N, $. 168. Duchamp v. Nicholson, lb. 679.</p> <p>cited stats. 20 March, 1813 (Moreau’s Dig. verbo Auctioneer)-; 16 Feb. 1825, and 18 March, 1839, ss. 2, 5, 13 (Bull. & Curry’s Dig. pp. 37, 39,1. C. C. 2583. 9 Wheaton, 680. Theobald, Prin. and Surety, 49. 2 Mart. N. S. 169. 7 La. 103. 3 Camp, N. P. 52. 3 Wilson,- 530.</p>

<p>Decision in Nicholson; syndic, v. Chapman, 1 Ann. Eepr-222, affirmed*</p>

<p>APPEAL from.the Second District Court of .New Orleans, Canon, J. The petition alleges, that Franfois Xavier Martin, -.who -resided in the. city of New Orleans, died on the 10th December, 4846, leaving an estate.estimated in the inventory at $396,841 -17. That Paul BartMlemy Martin, a brother of the deceased, caused himself to be recognised .as ;the.executory under a pretended olographic will, dated 21 May, 4844, and has'taken-possession of his estate:: That the said pretended olographic will is-.void and of no effect, ffor-tliis, that when it was made, Francois Xavier Marlin was physically incapable, on account of blindness, of making an olographic will: That the estate of the deceased goes to heirs domiciliated out of any State or Territory of the United States-.: That by the 4th sec. of a statute of 26 March, 4842, a tax of ten .percent is imposed upon all successions, and every part thereof, going to-persons domiciliated out of any territory or State,of .this Union-: That the succession is liable to the tax imposed by that statute : That-the tax amounts to $39,608 41. The prayer of the petition is that P. B. Martin be cited ; that the pretended olographic will be declared null and void, so far as the interests of the State are concerned ; that judgment be rendered in its favor for the said tax,.to -be paid by privilege ; and for general relief.</p> <p>The defendant excepted to the petition, on the ground : That the State has no right of action against the respondent, as set forth in the petition, and cannot contest, in its own name, the validity of the olographic will of the deceased, because it has no direct interest in his succession; that if the said testament be voidable for the reasons alleged, which is denied, it can only be set aside by those on whom the estate would have devolved in case the will had not .been made. In case this exception should be overruled, defendant answered : That the will is in due form and valid; that it has been duly proved and ordered to'be ex-ecuied; that by itheis instituted sole 'heir of the decensed ; that the deceased has left no heirs to whom any portion of his property is reserved by law: and ithat the respondent, as sole instituted heir, is, by the death of the testator, seized of right of all the ¡property and effects of his succession. He prays that the will may be declared valid, and that he may be quieted in his possession.</p> <p>A supplemental petition alleges that the deceased, for the illegal purpose of depriving the State of the ten percent allowed to it by law .on all successions .opened here., and going to persons not citizens and not domiciliated in the State, bequeathed, by .an olographic will on file in the court, the whole of his property to his brother, P. B. Martin, a resident of New Orleans : That the latter was appointeduniversal'Iegatee and sole heir of the deceased, with the understanding and agreement'between him and the deceased, that the property thus bequeathed, or a part of it, should go to his .other heirs, or to other persons, all foreigners and residents of France, or that all of said property should be divided between all his heirs in the same manner as if no disposition mortis causa had been made: That this was the motive which the deceased had in view in making the defendant his sole heir : That this, of itself, renders said, olographic will null and void, as made contrary to law and public order, and to evade especially the statute of 1842 : That all substitutions and fidei-commissa are prohibited by law: Wherefore petitioner, not abandoning any of the grounds heretofore taken, assigns .the above as additional reasons why the said olographic will .should be declared null and void.</p> <p>The defendant excepted to the supplemental petition as containing a different ■cause of action from that set forth in the original petition, and inconsistent with it, and which cannot be cumulated with it. Pie prayed that plaintiff might be .compelled to select his ground of action. In case this exception should not be sustained, he answered, denying generally all the allegations in the supplemental petition, and especially that the will of the deceased was made with the intention, and for the purposes, alleged.</p> <p>Pie was well acquainted with Judge Martin, for many years, and more intimately since the last eighteen years. For the last ten or twelve years he was in the habit of stopping once or twice a week at witness’ office, when on his way to and from court. It is to witness’ knowledge that Judge Martinhas been blind since 1838 or 1839 ; thinks he was able to read writing in 1838 ; at the time he made liis will he could not read. Judge Martin often spoke to witness of his relations in Europe, and of some that were dead. Several days before Judge Martin’s departure for Fiance, he told witness he was going to write his will; and the day before he left for Europe he came to witness’ office, and told witness that he had written 'liis will, and also told him the contents. Judge Martin never spoke to witness of his heirs in France, except in 1833, when he told him he had written a will, and told him of several dispositions he had made. He stated he had left a portion to a sister then Jiving, and a portion to his. brother now living, and the .balance to nephews and nieces of his: this was in 1833. The judge spoke to witness several times of making, wills and different dispositions. In 1839, he again spoke of doing so, and of leaving all to his brother, who would take his place and.stand in his stead .towards his relations. The judge was in. the habit of sending, from time .to time, drafts of 1,000 and 2,0.00 francs to his old sister, who died in 1840. He has told witness, speaking of his nephews and neices, that if they would consent to eome to Louisiana, he would purchase for them a plantation worth 3¡¡150,000 ; hut that they must settle Here and work for themselves. This was at different periods before and since his return from France, He said that he desired that when he died, his property should be taken care •of, and that was the reason he would wish to leave it to his brother; and the .only fear which he had was that after his death his property would be sold by his brother. This statement was since he made this will. The only surviving relations of the judge are a brother, two nephews and a ueiee. Has never heard the judge complain of any of his relations, and has spoken to witness of one of his nephews as a man of merit. From what Judge Martin told witness of purchasing a plantation for his relatives, he should judge he wished them more good than harm. Witness never heard the judge speak of the law of 1842; but witness spoke to the judge of that law, concerning its constitutionality, relative to the succession of Magére. The judge thought the law perfectly consiit.utio.nal. Witness never heard Judge Martin say that he left the whole of his estate to his brother to evade the tax of ten per c.ent, but always heard him say it was that his brother might replace him as head of his family. He never heard him say that he had given any directions to his brother relative to his other relations in France. Witness being asked whether he has any knowledge resulting either from .conversations he might have had with Judge Martin or his brother, or from other facts he might have been apprised of, which induces .him to believe that a portion of that fortune which he left his brother was to go to his other relations now in France, answers; Knows of no fact from which he might deduce that belief; and from the statement made to him by Judge Martin, he cannot infer that any portion of the property left to his brother was directed by him to be given to any person. Witness knows that since the death of Judge Martin, and since P. B. Martin has been putin possession of the estate of his brother, he has furnished a list, and put the same in the hands of a broker, to sell a portion of his property; and he has told witness that he had the intention of selling all the property .and leaving Louisianna. Witness supposes he will return to France. P. B. Martin is not married. Judge,ilítt?*ra never told witness that he had requested his brother, or written ■to him, to cprne to Louisiana. He only appeared to fear his brother might sell the property. Mr. P. B. Martin is a native of France. He has been here twice; the last time he came here in 1836 or 1837. He was formerly a resident of Naples, and was .a merchant there ; thinks he is a citizen of the United States,'but is not positive. Witness has seen Blanche N. Martin. She told him she had.eome here to take care of her uncle, Judge Martin, at his request; and said he had requested her to .come out here, whenlie was in France. She expressed no disappointment at the will of her deceased uncle, and said she knew the contents before and would respect it.</p> <p>He was well acquainted with Judge Martin; that when he went to France in 1844 he was totally blind. He has frequently seen him write, sign writs of error, licenses, and sometimes bank checks. Since 1836, has never seen him write more than to sign his name. Knows that he wrote an opinion in August, 1834, at Baton Rouge, at which time his sight was quite dim, when .he wrote further than the paper and on the table; .so that when the clerk came to examine the opinion, a part was on paper and a part written on the table. Witness says it was necessary, in all cases where .the judge had to sign, to place a pen in Ids hand, and to direct him where to sign. It was not necessary to hold his hand. He sometimes signed his name well. He could not tell if he had ink in his pen or not. He could not read what he had written, nor has he read any thing since 1836, or at latest 1838. Being shown the will of Judge Martin, witness says the testator could not have read it; it is written in his hand-writing ; believes the testator could have written the will by means.of bars to confine .the .edges of the paper or other mechanical means, or by feeling the edges; but thinks he required assistance to take his pen and getthe ink. Witness was present when the will was opened. It was folded in the form of a letter. Thinks that the testator could have folded .the will by feeling, but does not know about the sealing. The testator told witness, upon .one or two occasions, when they had cases before them growing out of the .ten .per cent tax, that it was a tax which might easily be evaded. Witness neyer had any conversation with Judge Martin relative to the disposition .of his property. Has no recollection of Judge Martin's ever having revealed to him the manner by whieh the ten .per cent tax might be evaded, nor does he believe he had the intention of evading it himself. When he spoke of it, it was as a general question. Judge Martin may have said that the tax might be evaded by testamentary disposition ; thinks he spoke of it several times, but it was not in reference to himself, but to cases before the Supreme Court. It was only on those occasions that he spoke of it; he never spoke of it afterwards. Witness believes that he was on .good terms with his relations in France.</p> <p>says that he was on >the bench with Judge MaHin. He thinks he has been blind since 1837 or 1838 ; he was blind ,in 1839 when witness went,on the bench. He.could not .read any thing. During Judge Martin’s last years he had different persons to write his opinions. Witnesshas anly.seen him sign his name.to writs of emu*,.orders, licences, &c. Thinks o,n .one occasion he wrote an order in Rapides in .these .words, “Let it it be granted but has no distinct recollection; it was two or three words. Witness being next to Judge Martin «on the bench, generally directed the judge where to sign his name. Sometimes he placed., or touched, the judge’s hand, to direct him, where to sign, and sometimes.he.only.puthis,finger on the ,paper to direct him and always gave him a pen supplied with ink. When there ‘.were orders &c., to be signed, the judge .always directed witness to see that .the pen was well supplied with ink. Witness being shown the .will o.f testator .and asked how many pens full of ink it would take to write it, says he thinks jt would take four or five. Witness does not think.that Judge Martin could have gone to a tabla, and taken .paper and ink and.a pen, and .have written a will such as the present, without the assistance of some person. Witness .says it would be indispensable for some one to tell him when the ink had run .outof the pen, as he was unablehimself to discover it, and to show.him .where he ,-left off, in order that he might be able to commence writing .again. In the .opinion of witness, without the assistance of a rule, or something placed on the .margin of the paper, Judge Martin would not have been able to know where ,to commence or where to stop. Witness says that Jucjge Martin told him that Re had written the present will with the assistance of a rule, but as to how he was assisted by.,it, ,or how he used it, witness is unable to say. Witness has .heard Judge Martin speak of his relations in France, since his return in 1844. Previous to his going to Fi-ance he appeared a little vexed because his relations would not leave France and come and settle in this country, but there was nothing of ill feeling; he mentioned his proposition to buy a plantation if they would come here and settle. Witness has heard Judge Martin speak of the .tax, but it was when the question was before them.. Witness thinks he. mentioned that the law might be evaded. Judge Martin made the remark about the ten per cent tax at a meeting of judges to consult, in .cases before them, .but whetber.it was at the time the ten per cent tax .was before them, or on ,some other occasion, or jn.conversation at those .meetings, he is unable to say. Witness says the testator never intimated to him an intention of evading the Jaw; but, some time after the .arrival of his brother, he told witness that he had .induced his brother to come and reside here, and intended to appoint him his Jegntee, stating that in that way his estate would not be subjected to the tax. Witness .understood from this conversation that Judge Martin intended to .make his brother universal legatee, and that he .would receive all his property .as such; .he could infer nothing else; * * * * * * * that making his brother universal legatee, he would stand in his stead towards his relations in France,; but nev.er heard him say he intended to leave any thing to them, nor that his bz-Qthez- .would act well towards them. Judge Martin never told witness .that he had,put his brother under.any obligations as to the ulterior disposition of his property. Witness says that the testator could not have read the will after having writtan.it; .but .the same is written by Judge Martin, and his signature is genuine.</p> <p>The record shows that it was admitted that .the deceased was blind when he went to France and at the time .of making his .wilL</p> <p>says that he was on the bench with Judge Martin. Has seen him sign his name since witness was first on the bench. Witness thinks he has seen him write, one, tw.o, or three woz-ds; thinks also that he was assisted in putting his hand to the paper; but cannot recollect where or when. Judge Martin required assistance whenever he signed his ■name to licenses ,as he always signed first, and it was necessary to place his hand on a line opposite the first seal of the license. It was also necessary to fill his pen with ink, and to put the papez-, not under his eyes, but under his nose. Witness being asked if Judge Marlin could have gone to a table where there was paper, pens, and ink, .and have written such a document as the will jn question without assistance, answers — he could not. If Judge Martin had papez-, ink and pens before him to write, witness thinks it would be necessai-y for some one to fill- his pen with ink and give it to him-; and when- the ink- hr the pen was exhausted, it would be necessary for some one to replenish it. He thinks it would also be necessary for some one to show him where to write as was formerly done1 in-the- Supreme' Court; and also to show him where he' left off, when the ink in his-pen became exhausted. Witness thinks it would' he necessary to point the pen to where the line is to be commenced. He-thinks that when- he arrived at the margin or end of the line,, it would be necessary to inform him,-that he mightstop. Witness being asked if he thinks-the-will in question-was written-as above detailed, answers: He-thinks-so; but that he was not present. Witness has been told several times by the testator that he intended to-dispose of his estate in favor of his brother, and- that he had' appointed witness his executor, in case of the absence or death of his brother.When Judge Martin' spoke to witness about his succession, it was previous to-his going to France; when he sent for witness to know if he- would act as his-executor as he had appointed his brother his universal legatee; stating that,- in-case of absence or death, he had appointed witness his executor. Witness-promised him to accept the appointment. Witness- heard the testator often-speak of the disposition in-fávbr of his brother, saying that his principle was-w that a man ought to leave'his estate to his nearest relations; and not give any thing to strangers; that amongst his relations- he would select those living, nearest to him; and that if he had-none’here, he would still leave his estate to-his relations however distant, in preference to strangers.” This sentiment Judge Martin expressed to witness several- times in conversation. When witness, in April, 1846, was going to Attakapas, Judge- Martin applied to him-to* enquire if there was a plantation for sale,- intending to give $1-00,000-to two-nephews whom-he had in France, and whom he expected here. Witness-promised him-to dose-. On witness’ return he called to know if witness had made any enquiry about it. Witness-answered that there was none for sale-there at that time. He then replied, “ I am glad of it; my nephews will not come, and they shan’t have my money.” Witness has often heard- JudgeMartincomplain-of the ten per cent- tax,- and he often told witness that as he" could not give any property to his relations who were not here without subjecting his estate to that tax, he would- leave it all to his- brother. One day, in a conversation which witness had with Judge Martin, he mentioned to him that he had a- niece here-, and asked why he would not leave her any thing. The* judge answered that she- was well off; was worth $60,000-francs; and that Was enough for a woman. Witness never had any directions from- Judge Martin as to how he was to act as his executor. Witness never was told by Judge-Martin to whom he intended leaving his estate-than his brother.</p> <p>This witness being re-called, stated further : That he and, Judge MartinhoA many conversations about the succession, amounting to this:- That he would leave his estate to his- brother, as then it would not be subject to the tax; that this was his main object in-calling his brother to this country; but he never-told witness-any thing that could authorize him to say that his estate would go* to any person else. Witness was impressed with the idea-, that Judge Martin did not absolutely intend to disinherit his other relations; that as he intended-to dispose-in favor of his brother in order -to avoid- the effect of the tax, this was-not sufficient to destroy the ordinary order of things ;' but witness- repeats that he knows of no fact that would authorize him to say so-. It is only his own-impressions, nor did witness ever tell the testator what his (witness’), impressions were, as it was none of his business. Witness says that Judge Martin was much pleased when his niece came here,- and always appeared to him to-feel the affection towards her due from an uncle to a neice. She came here1 a year ago last December. P. B. Martin, came here about 1-837 or 1838,. and has been here ever since.</p> <p>deposed that in the latter part of 1841, he was Judge Martin’s amanuensis, and remained as such for five or six months; during this time witness saw Judge Martin frequently sign his name,, but does not recollect seeing him write any thing more. Whenever he had letters to write, he gave witness the subject matter; witness wrote the letters, and read them to him, and the judge would then sign them. Witness being asked, if pens, paper and ink were ¡haced on a table, whether Judge Martin could go to it and write such a thing as the will exhibited to him-, answers — that, without some assistance, does not think he could. His reasons for believing so are that when Judge Martin had to sign- his name, witness was obliged to lake his hand and show him where he was to sign ; and where he l6t it go, he would either sign running up or down, and sometimes he would run oft' the paper. From the way Witness has seen him sign, his writing running sometimes up and sometimes down, he thinks the lines would cross one another, and therefore he could not have Written the will without assistance. Witness says he generally gave Judge Martin the pen with ink in it; but supposes that he might have dipped the pen in the ink himself. Does not think, from merely feeling, judge Martin could tell when the ink in his pen was exhausted. Witness says that Judge Martin could not have known where to commence the lines in the will without assistance, or without placing some object on the paper to guide him.</p> <p>stated that he was the secretary for the deceased from the fall of 1836 till sometime in 1'8'40, and has often written for him since. When the deceased spoke to witness about his family, he spoke of them kindly. He often spoke of his sister.' He gave her $70ü per annum. When the ten per cent tax of 1842 was before the legislature the judge asked Witness frequently about what stage it was in, and as to the prospect of its passing, and was apprehensive it would pass. He said it was an unjust law and only known in Louisiana, and appeared to be uneasy about it; he also said it was a Very foolish law. Witness is acquainted with the judge’s niece. She came here about a year ago. Has heard the judge speak highly of her, and say that he enjoyed life better since her arrival than he had' before. The judge appeared to like his neice very much, and seemed to be very attentive to make her comfortable and happy, and enjoy herself. Has also heard the judge speak of his brother, but cannot say he cared more for him than he did for his niece. When Judge Martin removed from St. Phillip street to his late residence, P. B. Martin was very much opposed to the change; they sometimes had high dissensions about it; the brother did not like the change, because it was too- far. When Judge Martin returned from France he spoke to witness in very high terms of his relations. He always had a strong regard for his relations, and never heard him say any thing against them, either before or since his- return from France.</p> <p>deposed that he has a list of property from, defendant to sell. The fist was pretty much of the whole property left by the-late Judge Marlin. Defendant told witness that his intention was to realize the property and to leave the State. This was at the time he proposed to have the property sold, some five or six weeks since.</p> <p>that he became acquainted, with defendant here in the spring of 1830 ; met delendant in Kentucky in. the summer of 1830. Witness and defendant Were together in Lexington, where defendant was studying englisb. After their return to New Orleans, in the fall of 1830, witness continued to see defendant iu this city; and, in the" course of a conversation which witness had with Judge Martin at that period, he heard' that defendant had been sent to Lexington by Judge Martin in order to acquire-a knowledge of the english language so that lie might d'o the judge’s business..</p> <p>deposed that he had known the deceased' since 1834. That he was his notary. That since Judge Martin’s return from France he came to the office with notes written by himself on a sheet of paper,, which he handed to witness and requested them to be read. These notes wore to complete a judgment began by Air. Denis, and which witness finished under the dictation of Judge Martin. Theywere probably about half asheetof notes, all written by Judge Martin. Witness read them easily, because he was used to the judge’s hand writing; cannot recollect of what these notes were, whether authorities or not, as he paid no attention to them; does not recollect how many words there were. There may have been a word in a line, there may have been six lines, or ten. Witness did not count them. Thinks the notes could have been read, but not easily except by a person acquainted with the writing, as letters were sometimes on top of one another, and a letter missing, and words written crookedly. Judge Martin was at witness’ office every day nearly, and told witness of the contents of his will long before his death; told him that he had loft every thing to his brother, because, he said, he was of the same habits and the same way of thinking as himself, and would do for his relations in France as he himself had done — that he would be a second, “soi-méme euvers safamille.” That about two months previous to his death he came to witness’ office and appeared very uneasy. Witness asked him what was the matter. He áaid he was troublod ; that his brother would not remain here; that when he would .be dead he would sell all his property and sacrifice it, and return to France, and that it worried him a great deal.</p> <p>Visinier, a book-keeper in the Bank of Louisiana, introduced by the defence, stated that since Judge Martin became blind, three and a half or four years ago, he came to the bank and drew a check. He requested the witness to place the paper on the table in order that he might draw the check. Judge Martin, about that time, gave a receipt for a note which he wished to withdraw from bank, and, as he had not his bank-book with him, he gave a receipt drawn up and signed by himself. About that time the judge drew checks and signed them. When Judge Martin drew the check above alluded to in the bank, witness did not read it to him, nor did the judge request it to be read.</p> <p>The following interrogatories were propounded to the defendant:</p> <p>1. State the names of the heirs-of your late brother F. X. Martin, supposing that ho had died intestate.</p> <p>2. State their degree of relationship, parentage, residence and citizenship.</p> <p>3. State what portion of the property of your late brother would have fallen to your share, in case he had made no will.</p> <p>4. State whether your late brother left any children-or descendants. If yea, state their name or names, and their country and residence.</p> <p>5. State whether it was not understood between your late brother and yourself, that a portion of the fortune which you wore to inherit from him should go to his other heirs, orto some of said heirs.</p> <p>6. State whether you do not consider yourself morally and in duty bound to him to transmita portion of said fortune to his other heirs, or some of his heirs, or some other persons whom he mentioned to you.</p> <p>7. State whether your late brother has or has not given you any instructions or directions, verbal or written, how to dispose of the property he bequeathed to you, and what were those instructions and directions.</p> <p>8. Was it not his intention, though he may have left to you no positive instructions or directions, that you should transmit, give or remit the property he left you, or part of the same, or a sum of money to his other heirs or some of them, or some other persons ? If yea, state the names and the amount.</p> <p>9. State whether it is not your intention to transmit, give or remit, now or at a future time, or at your death, the property he left you, or part of the same, to his other heirs or some of his heirs. If yea, state the names and the amount.</p> <p>These interrogatories were answered by the defendant as- follows :</p> <p>Tolst interrogatory, he answered : Comme je suis le plus ancien de la.famillo, ce serait d’abord moi. Je me nomme Paul Barthilemi Marlin. Ensuite les représentar.ts de mon frére, Joseph Vincent Martin, qui sont Amelie Martin, Eugene Martin, et Adolphe Martin. Ensuite les representante de ma scour, Angclique Martin, décédée veuve Salony, qui sont Alfé Salony et Jules Salony.</p> <p>To the 2d, he answered: Amelie Martin est la niece de feu Francois Xavier Marlin. Elle est née á Marseilles, et se trouve présentement á ia Nouvelle Orleans ; son domicile est á Marseilles ; Eugene et Adolphe Martin sont les neveux de feu Francois Xavier Martin; ¡Is sont nés á Marseilles; y sont domiciliés et y resident. Alfé et Jules Salony sont aussi les neveux de feu Francois Xavier Martin. lis sont tous les deux nés á Marseilles; ilsy sont domiciliés. Alfé réside •i Marseilles, et je crois que Jules est dans ce moment ci en voyage en Italie. Je suis né a Marseilles et je réside á la Nouvelle Orleans, et je suis franqais.'</p> <p>To the 3d, he answered: Je suppose que cela serait reglé parle Code de la Lonisiane.</p> <p>To the 4th, he answered : Mon frére n’a jamais été marié ; jen’ai jamais oui dire que mon frére avait des descendants.</p> <p>To the 5th, he answered : II n’y a eu aueun entendu entre mon frére et moi it ce sujet. II m’a laissé son héritier, et c’est et moi á disposer de son bien co’mnie je 1’eutendrai.</p> <p>To the 6th, he answered: Je ne me considere aucun autie devoir que de faire ce que mon cccur me dirá. Je prendrai dans mon cceur ce queje ferai tin jour, ou ce queje ne ferai pas.</p> <p>To the 7th, he answered: Mon frére m’a donné la dcssus, ni instructions, ni directions aucunes.</p> <p>To the 8th, he answered: Monfrére ne m’a ríen déclarólá dessus — mon frére m’n dit: “ Je te fais mon héritier, et de disposer de sa fortune; qucc’était á moi.</p> <p>To the 9th, he answered : Je n’ai la dessus d’autre intention que celle de disposer de raa fortune selon ma.volonté. La dessus je dis' que je ne me erois pas obligó de faire dans ce moment ci un testament public. Je ferai mon testament comme je I’entendrai.</p> <p>The will of the deceased, and all the proceedings connected with the probate thereof and the succession, were offered in evidence by the defendant.</p> <p>There was a judgment below annulling the will, and declaring the State entitled to the amount claimed. The defendant appealed.</p> <p>The exceptions were properly dismissed. The first, that the State had no interest in the succession, takes for granted the whole matter in dispute. So long as the will is maintained, it may be true that the State has no interest in the succession ; but if the will be annulled, its interest becomes apparent, and the very object of the suit is to get at that interest. The State has the same interest in setting the will aside that any of the heirs have. So long as the will stands they receive nothing from the estate — but the moment it is broken they receive as if no will had been made ; the principle is the same, so far as the State is concerned. But the moment the will is broken, that part of the succession going to foreign heirs becomes liable to the tax of ten per cent.</p> <p>The exception to the supplemental petition, insists that the two petitions are inconsistent. The supplemental petition setsforth an additional ground why the will should be annulled. There is no inconsistency between the allegation to be found in the original petition, that the will was void on account of a physical incapacity in the testator at the time of making it, and that in the supplemental petition, that there was a secret understanding between the testator and executor, that the estate should be divided'among the heirs without reference to the manner of distribution pointed out in the will itself. Both may be true.</p> <p>A blind pers n is incapable of making an olographic will. See Duranton, v. 1, p. 161, no. 136. Grenier, v. 1, sec. 5, no. 281, p. 503. Rogron, Commentary on art. 978 Code Nap. Coin-Delisle, on the same art. p. 408., it is admitted that by the Spanish law a blind person is incapable of making an olographic will. As to the common law, on this point, see Swinburne on Wills, p. 2, s. 11, p. 166. Jacob’s Law Diet, vok 6, pp. 430. 1 Lovelace on Wills, Law Library, vol. 15, pp. 141-2. Because the Code does not expressly say that a blind man is incapable of making an olographic will, though the whole spirit and reason of the law is against it, it is insisted that this incapacity does not exist. But the Code contains general principles, and was never intended to provide for each particular case, as it may arise. Such a construction is to be given to it, as will make it consistent with reason and itself. It is indispensable that a testator should kno w what disposition he is making of his estate, when he makes his will. Now, it is impossible that the testator, in this case, could have known the contents of his will, tie could not read, and it was never read to him. If so, how could ho know what disposition he was making of his estate 1 The defendant will answer, that it was written by the testator, and the presumption will be, from that fact, that he knew its contents. That would be the presumption where the testator could read — because the law would presume that a testator, before executing his will, after having written it, would read it over before signing, to see if he had written it as he intended. But that presumption ceases when the testator is blind. He thinks his will contains certain dispositions, because certain ideas were in his mind at the time he was writing it — and he thinks that, by means of pen and ink. he has been enabled, to transfer to paper the ideas that were passing through his mind at the instant he was writing. But how does he know — how can he know, whether his pen has been a faithful reflector of the operations of his mind I How does he know but that his hand may have refused its office, and, instead of tracing particular words, have substituted other words, altering the sense of the writing, or have omitted words indispensable to convey the meaning. Persons in the possession of sight, and most skilful in the use of the pen, frequently use words not intended, and omit others, by which the meaning is entirely distorted. But in such a case it is competent for them to correct their errors — by the use of the eyes they can detect the'omissions and corroct them. But with the blind there is no such power. The evidence supports the decision of the lower court on the point that the will was not entirely written, dated, and signed with his own hand.</p> <p>The evidence establishes the fact that the testator made his brother his universal heir, for the mere purpose of avoiding the payment of the tax imposed by the stat. of 1842. The will was consequently in fraudem legis, and can have no effect so far as the State is concerned. Mitchell v. Smith, 1 Binney, 119. Davis v. Holbrook, 1 A. R. 176. Booth v. Hodgson, 6 Term R. 409. 2 Hovenden on Frauds, p. 19. Comyn on Contracts, p. 53. Law v. Hodgson, 11 East. 300. Bravo v. Turner, 7 Term Rep. 630. Wheeler v. Russel, 17 Mass. 280. Mitchell v. Smith, 1 Binney, 116. Bi.dd.is v. James, 6 Binney, 326. 3 Medíale, 471. Armstrong ,v. Toler, 11 Wheaton, 258-975. .Gravier v. Carraby, 17 La. 125.</p> <p>argued at-length the question of the capacity of a blind person to make an olographic will.</p> <p>I. As regards the interest of the State, it is self-evident. If the will be declared null and void, it receives a large sum of money, otherwinse nothing. If the State has an.interest, ithas aright to bring suit. C. P. 15. But.it is contended that the State has no right to avail itself of the nullity which results from the non-compliance with the-formalities required by law in the making of wills. That the nullities.complained of are relative, and not radical or absolute. That by absolute nullities, are .meant those which can be set up by all persons interested; by relative nullities, those which -can only be set up by the persons in whose favor they are established ;-and that.the nullity complained of, is a relative nullity, of which we .cannot take .advantage. I contend that the nullity complained of is absolute, and such as renders the will absolutely null and void. The formalities required in a will -are matters of strict law, and it is null and void if they are not complied with. C.iC. 1588, 19, 1543, 1553. Sterling v. Gros, 5 La. 100. G.aude v. Baudoin, -6 La. 722. lewis's Heirs v. His Executors, 5 lb. 387. .Stafford v. Villain, 10 La. 319. Hebert’s Heirs v. Legatees, 11 La. 36-1. Brittain v. Richardson, 3 Rob. 79.</p> <p>We find the same doctrine, both in the roman and the french law. See Pothier’s Pandectes de Justinien, val. 10,,p. 389, book 28, tit. 1, art. 3.</p> <p>“ Si un testament est fait suivant.le droit, disent Dioclétien et Maximien, et que l’hcritier soit habile Ale recevoir, on ne peut pas le rescinder en vertu de nos rescrits. Mais il n’est permis á personne d’en retrancher des formalités qui doivent y étre observées. C’esf. pourquoi les mémes empereurs disent dans un rescrit: Chacun a la faculté de disposer de ses hiens par testament, mais en observant certaines formes ; .il n’est, pas permis de rien changer á ces-formes presentes par le droit public. Il en est tellement ainsi que la fav.eur du prince n’en peut pas dispenser. O’est pourquoi, Valens, Valentinien etGratien disent dans un rescrit, par rapport au testamentiait en favour du prince,ou parle prince lui-méme : L’empereur et l’impératrice eux-raémes ne pourront instituer que d’apres les regies communes ; etil en sera de rué rae par rapport aux codiciles et aux fideieommis qui seroni faits suivant le droit. Et comme l’ont ordonné les anciennes lois, l’empereur ,et l’impératrice pourront faire des testamensetles rétracter.” “Alexandre dit ógalement: ‘ Suivant plusieurs constitutions, l’empereur ne peut pas revendiquer une succession,en vertu d’un testament imparfait: et en efiet, bien que la lol nitafl'ranchi le souverain des formalités, rien ne lui eonvient cependant mieux que d’obsarver les Jais.’ A plus.forte raison ‘le fisc ne peut pas s’emparer des biens de celui qui voulait laisser sa succession á l’empereur.’ Un testament oú l’ou n’a pas observé .les formalités nécessaiies.est tellement nul que Paul a répondu ‘quel’on ne pouvait pas máme demander en vertu du fidéicommis exprimé dans un testament qui n’était.nullement conforme au droit.”</p> <p>As to the old French law, Claude de Ferriére, in his.Common taires desCoutumes de Paris, art. 289, vol, 4, p. 99, des Testaments, Glose cinquiéme, says.: “ L’omission de l’une des solemnités requises, cause la nullité d’un testament. Nos coutumes ont introduit plusieurs solemnités requises dans-les testaments, pour les rendre valables en sorte que l’omission d’une seule rend les testaments nuls. Ces formalités ont été introduites pour empécher les suggestions et les fraudes qui se pourraient commettre dans les testaments.” No. 30, p. 118: “ Les solemnitiés requises par les coutumes, sont tellement essentielles que palie défaut d’une seule les testamens sont nuls, pour quelque cause et raison que ce aoit.”</p> <p>Antoine D’Espeisses,CEuvres Completes,vol. 2, tit. l,s. 4, De la Forme du Testament, says : “ Non soulement il est requis pour la validifé d’un testament,que le testateúr ait'la faculté de tester, qu’il en ait eu la volont.é, et qu’il parnchéve son testament, mais de plus qu’il I’ait fait en la forme prescrito par les lois. Les lois out donné une forme eertaine, ou des solemnités aux testamens, de la njoíñdre desquelles il n’est pas permis de se departir.”</p> <p>Pothier, Des Donations Testamen taires, chapter 1, says: '“Le testament est un note qui appartientau droit civil, et qui pour étre vnlable doit étre fait selon les formes prescritos par les lois” ; and see also Pothier, chap. S, sec. 2. Fur-go'le, Testa, chap. 3, no. 12.</p> <p>As to the law under the Code Napoleon, (see Duranton, vol. 8, p, 484, 1. 3, ¡sec. 5,) who says: “ Si le législateur a permis aux citoyens de régler la dévoIwtion dé leurs Mens, córame ils l’entendraient, et do faire ainsi en quelque sorte une loi sur leur patrimoine, dont l’exécut-ion n’aurait lieu qu’aprés leur mort, il U'.’avoulu du moins spnctionner ce droit qu’aufant que ceux qui en useraient, rempliraient ponctuellement les conditions et los formalitós qu’il a jugces utiles, indispensables méme, pour attester avec certitude lour volonté e\ cet égard. En .conséquence, il á décidé par l’art. 1001 du Code, de la maniére la plus a'bsolue et la plus générale, que, “les formalités aux quelles les divers testaments sont ass.ujétis par les dispositions de la présente section et de la precedente, doivent étre observóos, á peine de nullité.’ ” See also Merlin, verbo Testament, sec. -2, part 4, art. 2. Coin-Delisle, chap. 5, Des Dispositions Testamentnires. Solon, Traite des Nullités, chap. 9, nos. 426 et 427. Perrin, Traiíé des Nul¡lités, nos. 118 é. 122. Solon nos. 441, 442, says: Un acte radicalementnul, peut étre attaqué par ceux méme qui n’ontque faction en nullité relative, ainsi décidé par une nullité de mariage poursuivie par des eoilatéraux. Rollaud de Villargues, verbo Nullité, no. 43, says: Une théorieá la fois simple et vraie estcelle-ci, toute nullité .est absolue, lorsque la loi la prononce sans restriction ni limitation. If it be true then, ns is asserted by all these writers, that a will without the formalities required by law, is altogether worthless, how can it be pretended, that the nullity complained of is relative and not absolute, and that the State has no right to avail itself of it ?</p> <p>II. As to the second exception, that the grounds taken by the State in the ¡supplemental petition, cannot be cumulated with those of the original petition. The supplemental petition does not change the nature of the action. It adds new .grouuds why the will should be declared null and void. The nature of the action is hot changed by the supplemental petition. Theoriginal grounds are thatthe formalities required by law in the making of olographic wills, have not been complied with. The supplemental ones, that it is also null and void on the ground that there has been a fidei-commissum. 4 La. 298. 8 N. S. 488. And in both cases, the prayer is the same, to wit: thatthe will be declared null. Thus, it has been decided that in a suit for the possession of a slave, if plaintiff dies pending the suit, his heirs, in the supplemental petition making themselves parties, may amend by stating new facts, if they conclude with the same prayer As in the original petition. Rochelle v. Alvarez, 8 N. S. 171. It is a general principle, that amendments to the pleadings should be permitted for the furtherance” of justice and avoidance of costs, whenever the prayer is the same as in .the original pleadings.</p> <p>III. I now come to the merits of the case, and will examine the first point. Gan a-blind man mako an olographic will ?</p> <p>The olographic will is derived from the Romans, as shown in the Novel 4, de Testamentisfof the Emperors Theodosius and Valentinian, “ut quisquís per holographam scripturam snpremmn maluer-it ordinerejudicium, habeat liberam fa•cuJtatem: et si bolographa manu testamenta condantur, testes non sunt necessarii.” This novel was nGtiong in force, though many of the Romans continued to make olographic wills. Pliny in his Epistle 16, book 2, speaks of it. Justinian, however, in the law, Hac consultissima, established the necessity of witnesses in all kinds of wills, except in the case of a father disposing of his fortune in favor of .his children, and thus formally abrogated the use of olographic wills. We see, however, that in many countries -the use of olographic wills was continued. The Visigoths, expressly admitted them. Book 2, tit. 5,' eha-p. 15 of their laws. ‘‘Manu proprik scribat ea qüte ordinafe des'iderat: di.es quoque et annus habeaturin his ev-identer expressiiB: deinde toto scripturee te-xtu .e.o'F.seripto, fursum auctor ipse subscriba.t.”</p> <p>In Franee, it was admitted by the customs of most of the provinces. In the year 1629, by an ordinance of Louis XIII, it was permitted to make olographic wills, in all the kingdom of France. But this ordinance was not-enforced by some of the parliaments, and among others the parliament of Paris, and at last came the ordinance of Louis XV, which says, in speaking of olographic, wills, art. 20 : “ Les testaments, codieiles et dispositions si cause de mort, en forme olographe, seront entiérement écrits, dates, et signes de la main de colui ou de célle qui les aura faits.” Art. 970 of the Nap. Code is copied therefrom, almost verbatim : “ Le testament olographe ne sera point valable, s’il n’est éerit en entier, daté, et signé de la main du testateur; il n’est assujéti á aucune autre forme.” Art. 1581 of the Code of this State, is taken from the french Code. “The olographic testament is that which is written by the testator himself. In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even. out of the State.” Our law is, therefore, as regards olographic wills, the same as'thefrenehlaw, before and alter the Nap. Cole.</p> <p>The most eminent jurisconsults', almost without exception, have, in then-commentaries on the ordinances of Louis XIII. and XV, and on the Napoléon Code, taken the same view that we have of this matter. As we have shown, the formalities required in the making of wills are of a strict and essential nature, without which the will is absolutely void. “Une donation entre-vifs, un testament, sont des actes dont. tout la valour est dans la solemnité, et dont toute la solemnité est dans leur forme; si done en faisant un testament ou une donation entre-vifs, on négligeles formes qui leur sont propres, qu’est-on censé avoir veulu fairs ? Rien. La loi présume qu’on a rédigé un acte défectueux, pour se dérober á des suggestions importunes, en paraissant y céder; elle présume qu’en faisant semblant.de disposer, on n’a réellement voulu faire aucune disposition.” Merlin, verbo Testament, sec. 2.</p> <p>An olographic will, to be valid, mustbe entirely written, dated,and signed by the hand of the testator. This kind of will, say the french writers, is greatly to be favored, because itis less subject than the others to fraudsand deceptions. This is true in ordinary cases. But is it so when it is a blind man who may make an olographic will? “Ce testament est celui qui mérite la plus grande confiance; c’est le testateur lui-méme qui y consigne ses volontés; son étymologie grecque dósigne un testament éerit uniquement parle testateur.” Grenier, Traité des Donations, no. 226. “ Ouvrage du disposant seul (says Vazeille) le testament olographe dans sa simplicité appelie la confiance bien mieux que le testament authentique avec ses formes minutieuses et sévéres.” Toullier, vol. 5, no. 378 (Pans edition), adds: “ C’est la forme des testaments olographes qui.est la moins exposée aux surprises, eelle qui mérite la plus grande confiance, parce qu’elle est plus particullérement l’ouvrage du testateur.”</p> <p>See also, Journal du Palais, vol. 1, p. 906, 28 juin 1678, Affaire Demoiselle Blanche de Parant. “ La solemnité des testaments olographes est fort simple; c’est leur simplicité qui fait toute leur solemnité ; une personne qui veut ainsi tester, éerit elle-méme sa volonlé, elle n’a pas besoin de tous ces termes scrupuleux de nos coutu mes, dicté et nommé; lu et relu, parce qu’elle ne saurait se surprendre elle-méme, sa main et son esprit travaillent de concert, elle dicte, elle nomine, elle lit son testament par la merne action et au moment qu’elle l’écrit.”</p> <p>Ferriére, Coutumes de Paris, vol. 4, p. 75, sur 1’article 289, qui traite du testament olographe, quotes Charondas with approbation, who says: “Les testaments olographes ne sont pas si exposés que les autres espéces de testaments, aux fraudes et suggestions; c’est pourquoi nos coutumes n’ont requis aucune solemnité, autrement il arriverait le plus souvent que de te-lles dispositions seraient nuiles; la raison est que ceux qui les font, veulent les teñir secretes, et empécher qu’elles ne soient connues de personne. Le célebre avocat-général au parlement de Paris, Talon, dans son quatre-vingtiéme plaidoyer,vol. 6, p. 84 de ses muvres, dit; ‘Celui qui fait un testament olographe,doit étre certain de ce qu’il entreprend, non seulement dans la qualité des dispositions qu’il renferme, mais aussi dans la forme qu’il lui veut dnnner.’ Le méme avocat-général, plaidant une’ affaire rapportée par Dufrésne du 30 avril 1625, dit: ‘ Qu’un testament olographe était un enfunt posthume qui ne paraissait jamais qu’aprésla mort de son pére, comme le phoenix, par leqiiel l’homme revit á soi-mémé; que dans ce testament nous consignons nos plus importantes pensóes que nous n’avons voulu dócouvrir ápersonno.'" See also d’Aguesseau, vol. 3, p. 208, CEuvres Complétes.</p> <p>The above observations are strictly correct, and can apply only to him, who, making an olographic will, sees what he writes, and reads it when written. But is it true as to a Wind man ? He cannot malic his will in the olographic form, without the assistance of some person, who may impose upon him. He asks for paper, ink and a pen; a sheet of paper is handed to him; how can he distinguish whether it-be black or white, whether it be ink or any other liquid which has been brought, whether his pen makes .the proper .marks on the paper? He «requires the assistance of some one to tell him where to commence, where to .stop, and to guide his hand in the writing of the will. And when it is all finished, being unable to read it, he cannot discover whether he has not committed .an error, or been misled. Who among us has not often, in writing, put one .name or word for another,-whichis,however, afterwards corrected, when rending the original. Why is it that .we always read .what we have written, if it is «lot to revise the same, and see that no mistake has occurred ? But can a blind «nan do so ? And when his will is made, how.earn he know, that it will not be ¡taken from the spot where he has placed it, and an other paper substituted ? Can he with the .mere sense of touch discover-the deception? These are a Jew of the reasons which suggest themselves ¡to every mind, .and which show ••that a blind man .is really incapahle of making a valid will in the olographic form.</p> <p>We see that according to the roman .law, a blind man could make a will but in ¡the nuncupative .form. See Pandectes de Justinian, by Pothier, vol. 10, p. 306, Eb. 18. “ C<Bcus£estainentum facere potest, quiaaccire potest .adhibitos testes, et audire sibi testimonium perhibentes.” Paul. sent. lib. 3. tit. 4,<§ 4. “ Certain autem ae specialem coecis, testandi formam constitnit Justiniaiius.</p> <p>See also Don inf, .vol. 2, book 3, tit. 1, s. 1, nos. 12,13, who says: “Ilya des testaments de diverses sortea, et quisont distingués, non par J’essential de leur nature, qui est l’institulion d’héritier commune á tous, mais par les différentes formalités queleslois ont établies pour 1’usage des personnes qui veulent disposer de leurs biens, selon que ces formalités peuvent convenir ou a la qualité de la personae, ou aux.circonstances de ,1’état oil elle se trouve, comme on le verra ■par les articles qui suivent. Pource qui regarde les personnes des testateurs, .on peut faireune premiére distinction des cestamens, que peuventfaire ceux que .quelques infirmités rendent incapables de certainesmanieres dont Jes autres personnes peuvent tester. Ainsi les av.eugles, les sourds, les muets, ne sauruient faire leurs testament's que dans les formes qui peuvent leur convenir.” Also same book, sec. 3, des Formes ou Formalités nécessaires dans Ies Testamens, ,ao. 20. “ Quoique Ies aveugles ne puissent écrire, ni lire, ni voir les personaos qui peuvent étre presentes á leur testament,,i!s no laissent pasde pouvoir tester, de méme que Ies autres personnes, qui ne savent écrire ni lire ; car ils peuvent expiiquer et faire écrire leurs dispositions, et declarer en présence de ¡sept témoins etd’un notaire, que cequ’ils ont fait écrire, et qui sera lu en pr6-.senco des témoins et du notaire, est leur .testament,qui aura son effet, étant signé fies témoins qui sauront signer, et du notaire. Et s’il y a des témoins qui ne .sachent ou ne puissent signer, .le notaire en fera mention.”</p> <p>Let us refer to the Spanish law. “ El ciego non puede fazer testamento, fueras ende desta manera (1) : deue llamar siete-testigos, e .vn escriuano publico, e delante dellos deue dezir, como quiere fazer su testamento. Otrosi deue nombrar, quales son aquellos que establesce por sus herederos, e que es lo que manda; e el escriuano deue escriuir todas estas cosas delante los testigos, ó si eran ante escritas, deuen serleydas delante dellos ; e después que fueren escritas, e leydas, deue dezir el ciego manifiestamente, como aquel es su testamento. E de si, cada vno de los testigos deue escriuir su nome en aquella carta, si supiere escriuir; e si non, deuelo fazer escriuir a otro. E también el escriuano publico que escriuieire la carta, como los testigos, deuen sellar la carta con sus sellos: e si el escriuano publico non se pudiere auer, deuen auer otro que lo escriua, e que sean con el ocho testigos en lugar del escriuano. E esta guarda deue ser fecha en el testamento del ciego, porque non pueda ser fecho ningún engaho.” Partida 6, ley 14, tit. 1, vol. 3, p. 16.</p> <p>“Item adde, quod in .testamento cteci requiritur per nostram legem solemnitas quinqué testium. Et certe in hoc, nostra lox est valde dubia : an, cum-supra Iocuta sit, lam in testamento in scriptis quam nuncupativo, an inutroquesuffieiant quinqué testes in testamento cteci 1 Pro cujus peifecta declaration» dico etprrosnppono, quod ctecus non potest testari in scriptis: quia cum non possit videre et cognosces litteras suas vel alienas, posset decipi, et faciiiter contra eum committifalsitas : sed tantum potest testari nuncupative, et in tali testamento debent intervenir?. sequentes solemnitates. Prima, quod non possit testan in scriptis. Et sic nostra lex, qure simpliciter dicit et disponit, q.uod in testamento casci requirantur quinqué testes, necessario debet intelligi in testamento nuncupativo, quia in. scriptis non potest testari; et licet in aiiis personis requirantur quinqué vel tres testes, ut supra dictum est, tamen in testamento cteci necessario- semper requiruntur quinqué, et iste est verus intellectus hujus legis. Sed pulchrum dubiui» est, an hodierequiraturetiamTabellioetpradictEe solemnitates,quas supra numeravi velaliqua earum? Etteneo quod non, cum in nostra lege son ponantur ñequerequirantur; et si replices, ergo eademratione posset testari in scriptis, cum simpliciter et absolute nostra lex loquatur, dioendo, quod in testamento easci requirantur quinqué testes: quia respondeo, quod nulio modo potest testari in scriptis, quia in eo est major ratio prohibitionis quam supra dixi, de jure communi; Item, quia in testamento in scriptis nostra lex requirit septem testes in qualibei persona, etiam si testetur inter iilios:- ergo in cxco non coarctatur, vel tollitur prasdicta solemnitas etnumerns testium: unde, cum nostra lex loquatur in testamento nuncupativo et in seriptis, et dicat, quod in testamento casci requiruntap quinqué testes, aperte colligitur loqui tantum in testamento nuncupativo in quo est capax, et non in alio-’ Gomez, Opera Omni, 3d law of Toro, nos. 51, 52, p, 25.</p> <p>See also Molina (Madrid, edition,1.827), in his commentaireson the lawof Toro, vol. 1, p. 74, nos. 69 and 70-, -who says : “ La disposición que obra en el testamento del ciego, asi por derecho-civil como por el real de las partidas,-de que no pueda testar por escrito, sino-nuncupativamente, y la particularidad que por esta ley se observa tambien en el testamento del ciego, escita la duda- de si el que no sabe escribir ni leer podrá testar por escrito, ó deberá necesariamente otorgar nuncupativamente su disposición. El fundamento de- esta duda nace de que asi como al ciego para remover toda sospecha de fraude no se le permite otorgar su testamento- por escrito, á causa- de que por la falta de vista ni podia escribirlo por si, ni leerlo que otro hubiese escrito, y quedaría espuesta a-fraudes su disposición, concurriendo en el qae, ni sabe escribir, ni leer eí mismo peligro de ser suplantada su disposición por no poder escribir por si, ni leerlo que otro hubiese escrito, parece según aquel principio legal que d'onde se halla igual razón debe regir la misma disposición de dorecho, que el que no sabe escribir ni leer esta impedido de hacer su disposición por escrito, pues á la verdad la- única diferencia que media entre el ciego y el que no sabe leer ni escribir, es que- este puede ver materialmente los testigos; pero esta circunstancia ni auméntala fe y crédito que seles debe dar á sus- dichos, ni disminuye el peligro y sospechas de fraude en el que estendio por escrito su disposición.”</p> <p>“ El ciego no puede hacer sino testamento nuncupativo, y en el otorgamiento de él deben intervenir con precision cinco testigos, y no menos, como lo dice ex-presamente la ley : la qual corrige en quanto á su número la 14, tit. 1. part 6, que manía sean siete, y un escribano público, para que no sea engañado, ni se le suplante una escritura por otra, lo qual no puede suceder al que tiene vista.” Febrero Adicionado, vol. 1, part 1, ch. 1, § 1. no. 14.</p> <p>The olographic will was and is well known in the Spanish law ; it was permitted in certain cases, by a royal Cédula of October 1778, mentioned in note A. in Febrero Adicionado, p. 18, vol. 1, no. 20. Long before that time, the Visigoths who founded a kingdom on the ruins of the Roman empire in Spain and in the south of France, admitted in their laws the olographic will, as has been previously shown. This Code of the Visigoths, which had been compiled by persons well versed in jurisprudence from the Theodosian Code, from the enactments of the later emperors, and other sources, remained in force for some centuries. But when we examine the works of the jurisconsults of Spain, who have written since the Cédula of 1778, we do not find any change in their way of thinking as regards the wills of blind men. ’i hey state, in general terms, that a blind man cannot make a will except in the nuncupative form, showing clearly that the Cédula did not and could not apply to persons who were affiicted with blindness. The formalities required in the making of olographic wills, were the same under the french law, before and since the Napoléon Code, and we have already seen that they are the same under our own Civil Code.</p> <p>A majority of the eminent french lawwriters agree in the fact that a blind man cannot make a valid olographic will.</p> <p>Ricard, le judicieux et savant Ricard, as Pothier surnames him, says in his Traité des Donations, that a blind man can only make a will in the nuncupative form, by dictating it to his curate or to a notary, and he adds (no. 142) : “Quant aux aveugles, le droit leur a permis de disposer, soit qu’ils eussent apporté cette incommodité en naissant, ou qu’elle leur fut depuis survenu pur accident, á condition d’observer toutefois certaiues formalités particuliéres, décrites en la loi Hac consultissima.” In nos. 1470, 1474, he writes: De la forme des testaraens des aveugles : “ Le droit Romain a introduit une quatriéme espéce de testamens en faveur des aveugles, que la loi appelle testament nuncupatif.”</p> <p>Denizart, one of the groat lights of the law, says in his work, Collection de Dócisions Nouvelles et de Notions relatives á la Jurisprudence Acluelle, verbo Testament, no. 160. “ Celui qui est aveugle ne peut tester en pays de droit écrit que par la voie du testament nuncupatif. Si c’est en pays couLumier, un pared testament ne peut étre fait que pardevant notaires ou curés, en se conformant á I’art. 21 de 1’ordonnance de 1735. Dependant, par arrét, du mardi 29 mai 1770, rendu en la grande chambre au rapport de M. Béze de Lys, la cour a confirmé le testament olographe de la dame Menage de Pressigny, qui 6tn.it aveugle, etc.” This decision of one of the courts did not change the mind of Denizart, since he commences by laying down the principle, that a blind man can make a will only in the nuncupative form. This single decision cannot hold against the authority of the great names who contend against the rule there laid down.</p> <p>Lacombe is of the same opinion as Denizart.</p> <p>Pothier, Traité des Donations Testamenfaires, chap, ler, after speaking of the different formes of wills in France, of the olographic, mystic and nuncupative, says, in speaking of nuncupative testaments: Art. 4. “ Lorsque le testateur est aveugle, il faut appeler un huitiéme témoin qui signe avec les autres-” Antoine Despeisses, sec. 1, des Personnes qui peuveut faire testament, p. 11 et 12, vol. 1, says: “ L’aveugle peut faire un testament; mais parce qu’ily a plus de dangers qu’on ne commette fraude en les testaments des aveugles que de ceux qui ont lavue, on a requis é ce testament un plus grand nombre de témoins.” Sallé, in his Esprit des Ordonnances de Louis XV. says: “Córame les personnes privées de l’usage de la vue sont plus exposées á étre trompées que d’autres, on a toujours ajouté enleur faveur quelques formalités de surcroit.”</p> <p>1 proceed to quote the opinions of the modern french commentators on the Code Napoléon. We must bear in mind that ait. 1581 of our Code is copied from art. 970 of the french Code.</p> <p>Delvincourt, vol. 2, p. 85, note 12, says: “Et comme celui qui ne sait ou ne peut lire ne peut davantage écrire, il ne pourra faire de testament olographe, et ne pourra done tester que par acte public.”</p> <p>Grenier, Traité des Donations, vol. 1, p, 427, sec. 3, no. 258, says : “ De litil suit qu’un aveugle qui aurait su lire, qui pourrait méme écrire ou signer, ne peut point tester sous la forme du testament mystique. Cette observation a été judicieusement faite par Lacombe dans son commentaire de 1’artiele 9, de 1’ordon-nance de 1735 ; la méme décision résulte de ce que dit Ilicard, partie 1, no. 1474. En sorte que l’aveugle peut seulement tester sous la forme du testament fait par acte public, á moins qu’avant sa cécité, il n’eut fait un testament olographe, qu’il ne fut pas dans son intention de changer. The same writer, (same vol. no. 281) adds : “ J’ai eu occasion de dire dans cette seconde partie, au commencement de la section 3, que l’aveugle ne peut point tester sous la forme mystique, il ne le peut done que par acte public.” “Le caractóre du testament olographe, est d’étre fait par le testateur seul; or un aveugle, quelqu’habitude qu’il ait pu conserver de l’écriture, pourrait-il bien se flatter d’écrire son testament, de le dater et signer, de maniere á ce qu’il n’y eut aucun des ineonvéniens que cet état fait naturellement craindre, qu’on prévoitassez sans les détailler, et qui pourraient rendre le testament iliisible et nul. tíi on suppose qu’il se fasse aider et guider par un tiers, alors la possibilité des insinuations et des surprises ne se présentevt-elle pas á. üesprit? et ne s’óléve-t-il pas un dou,te légitime.sur la validity d’un testament fait dans une semblable circonstance ? Ou est cette garantie, si fortement exigée parla loi, déla certitude desvolontés du testateur? Asssi Deuizart, avait-il d’abord posé en principe, qu’un aveugle ne pouvait tester que par testament public faitdevantnotaire. 11 parait quo c’est un annotatenr, qui a ajouté de suite la citation de Yarrít de 1770. Les héritiers soutenaient avec force qu’une personne en état de cécité, n’avait pu faire un testament ologrape ; etun arrét isolé qui semble avoir jngé le centraire, peut-ótre par des circonstanees inconnues (la cécité pouvait n’étre pas complete) peut-il fixer les opinions surun fait surlequel le sentiment et la raison instruisent suffisamment? La prudence exige done qu’une personne aveugle, prenne la seule mesure que la loi permette relativement it son état, afin d’assurer 1’execution de ses derniéres volontés.”</p> <p>Duranton, vol. 9-, no. 134, says : “ Et eomme ceux qui ne savent ou ne peuvent lire, ne peuvent, pareillement éerire, ils ne peuvent non plus faire un. testament olographe.” Again, at no. 136: “ Celui qui est privé del’usage de la vue ne pouvant pas lire, il ne peut par consequent tester en cette forme, ni dans la forme olographe; mais l’aífaiblissement de la vue n’est point la cécité, et si le testateur peut lire au moyen d’une loupe, cela suffit, quoiqu’il ne pút lire quo lentement, et méme avec dificulté. C’est au surplus un point de fait que lea tribunaux jugeraient eomme tel, d’aprés les éléments de la cause.”</p> <p>Merlin, Rópert. verbo Testament, sect. 2. § 3, art. 3, quotes with approbation, Serres, Institutions du DroitFrancais, who says: “Les personnes incapables de lire, quand bien méme elles auraient appris á former leur seing, doivent ctre mises auméme rang qne les aveugles, pouvant étre exposces á la mauvaise foi de l’ecrivain et aux mémes surprises qu’eux ; il ne doit leur étre permis par consequent de faire non plus qu’aux aveugles, qu’un testament public et noncupatif.” “ Cattalon (liv. 2. chap. 12r) rapporte deux arréts du ¡larlement de Toulouse, parfaitement conformes it cette doctrine.”</p> <p>Boileux and Poncelet, the latter now a distinguished professor of the law faculty in Paris, in their late work on the french Civil Code, hold the same doctrine. In commenting on art. 979, they say : “ En tevmiuant cette section,</p> <p>il n’est pas inutile d’exposer les causes d’incapacités physiques, qui ne permettent de tester que sous certaines formalités ou qui empéehent de tester sous quelque forme que ce soit. L’aveugle ne peut tester que par acte public, il est incapable de faire un testament olographe, puisqu’il ne peut éerire, ni nn testament mystique, puisqu’au moment de I’acte de souscriptiou, il ne peut s’assurer' que I’acte présente, est son testament.”</p> <p>Rogron, in his valuable notes on the french Civil Code, says on art. 977 :• “ On ne ‘pewvent lire. Ils ne pourraient s’assurer si c’est bien leur volonté qui a été consignee par ccrit; ces personnes ne peuvent faire de testaments que par acte public.”</p> <p>Bergier, who wrote before the- Nap, Code, is the only writer of his time mentioned, who thinks that a blind man can make an olographic will. Does his name overbalance the names of Ricard, Lacombe, Deuizart, Serres and others? And under the new Code, Vazeille, and perhaps one or two others, think that as blind persons are not expressly excluded, they can make their wills in the olographic form; “mais il faut avouer,” says that writer, “que la faculté du testament olographe, par l’aveugle, présente de graves inconvéniens ; c’est sürement par oubli que le législateur ne l’a point interdite.” Will this opinion, of Vazeille, flanked by one or two writers, outweigh-the opinions of such men as Merlin, Duranton, Grenier,, Deivineourt, Boileux, Poncelet, Rogrou and others ?</p> <p>But it has been said in argument, and this is the only reason given by Vazeille, that inasmuch as the law does not expressly forbid a blind man to make an olographic will, he has a right to do so. I admit the general rule, that incapacities are not to be presumed. But I contend that to all general rules there are exceptions. The spirit of the law must be looked into ; the legislator very often deals in generalities. The courts, in their wisdom and discretion, should interpret the law in- such a manner as not to make it appear absurd. Hear what judge Martin himself says on that subject. (Bullard’s discourse on his life and character.) “ I remember that perhaps on more than one occasion, when reminded by counsel of that instruction of the Louisiana Code, which forbids the judge to disregard the words of a law under the pretext of pursuing its spirit, he (judge Martin) replied : certainly never under the pretext of pursuing its spirit, but if, in the sincere desire to ascertain tho will of tho lawgiver, y°u discover that it would be violated by giving a literal interpretation to the words he has employed to express it, you are bound to give those words a reasonable interpretation, rather than that which corrodes the text and frustrates in truth the will of the legislator.”</p> <p>I will now show that Vazeille himself is of a different opinion in a case analogous as to the principle. Art. 980 of the french Civil Code, says: “ Les témoins appelés pour étre présentsaux testaments, doiventétre máles, majeurs, régnicoles, et jouissant des droits civils.” These qualities, are according to the french Code, the only ones required. A blind man therefore, who is mide, majeur, regnicole, et jpuissant de ses droits civils, can be a good witness to a will, according to therule laid down-by Vazeille, “que la loi n’interdisant pas le testament olographe aux aveugles, ils peuvent le fair.e.”</p> <p>But neither does-the french law incapacitate, or interdict a blind man front being a witness to a will. And yet Vazeille,.and almost all other writers have agreed on this point; “that a blind man cannot be a-good witness to a will.”</p> <p>Hear what Coin Delisle, commenting (art. 980) on the french Code, says. No. 21: “ Voilá done tout ce qpe contient le Code Civil-sur les incapacités absolues? il'ne s’est ocoupé que sous le rapport civil; iln-’arien dit des incapacités. naturelies que le droit romain rangeait au nombre des incapacités proprement dites, en rejetant du nombre des témoins testamentaires, les aveugles, lessourds,.les muets et les insensés; les auteurs admettent,.presqpetous, ces incapacités. Cependant les lois romaines sont abrogées, et il. est de principe que lesincapacités ne s’étendent pas. Aussi avons-nous dit ailleurs que ce n’étaienfc pas lá de vraies incapacités, mais-des impossibilités physiques, et qpe les questions sur ce genre de difñcultés devaient étre jugées suivant les circonstancesL’ancien- doyen de la faculté de Paris, a dit av-ec un sens profond: ‘ Si le’ défaut physique est tel qp’il ait pu mettre le témoin dans lUmpossibilité d’affirmer líidentité de la personne du testateur, ou de s’assurer de la vérité de sesdispositions et de-leur conformité aux intentions des disposans, le témoignage’ doit étre receté et le testament déclaré nul, si ce témoin était néeessaire pour, eompléter le nombre exige par la loi.’ Delvincourt, tome 2, note 3 sur la p. 86.”</p> <p>“ Une régle (says Duranton) commune aux témoins, soit des testamens, soifc par acte public, soit en la.forme mystiqpe, c’est qu’ils doivent étre mides, ma-j.eurs, suj.ets du roi, efcjouissant des droits civils. Et córame il est necessaire-qu’íls voient la personne qui teste, afin deprévenir les fraudes, qu’ils l’entendent aussi dieter ses dispositions, et afin qu’ils puissentrendre témoignage des faits s’il. y-alieu, il.s’ensuiüque Uaveugle, le sourd et lemuet, qui ne savent pas écrire, nepeuvent étre témoins aux testamens.’” Duranton, vol.9, no. 204..</p> <p>Toullieiyvol, 6, río. 390, says: “La faculté d’étre employé comme témoindans les acles,. est un droit civil dont ne peut étx-e privé aucun frangais, qu’em vertu d'une disposition.de la loi, ou.d’un jugement rendu centre lui, lorsque d’aílleurs lanature ne lui a pas refusé les qpalités nécessaires pour rendre un. témoignage raisonnable et certain-de ce qp’il a vu et entendu. Les incapacitésdes témoins viennent done de la nature ou de la loi.civile. Le Code ne s’est. point occupé des incapacités naturelies, et s’en est rapporté sur. ce point á la. prudence du magistrate qui n’a point a. craindre de s’égarer, en. prenant pouiguides les juriseonsultes qui ont développé sur cette matiére des principesdictes par la raison.”</p> <p>Grenier, vol. 1-, no. 254, says: “‘II peut se presenter enoore des cas suiv lesquels la loi ne s’est point expliquée, et dans lesquels le sort d’un testament pourrait étre compromis, á raison de la qualité des témoins qui seraientappelés,. quoiqu’ils eussent d’ailleurs les qualités reqpises par l’article 980, c’est i-dire qu’ils fussent mides, majeurs, sujets de llempereur, jouissant des droits civils. 11 y ades personnes qui,. par leur état physique, doivent étre réputées dansl’impossibilité de rien comprendre et de rien attester, telles qu’un interdit, ce qui ne peut avoir lieu actuellement que pour cause d’ímbécilité, de démence ou de fureur, un muet, un.sourd-muet. On doit en dire autant d’un aveugle, qui, qpoiqu’il ait pu entendre pourrait étre surpris n’ayant pu voir ce qui se passait.” Merlin, Repertoire, mot Témoin Instrum.: § 2, no. 3, 4. Duranton, no. 104. Dailoz, ch. 6, sect. 4, art. 5, § 4, no. 6. Poujol, no. 2, sur Part. 974, contends-for the same doctrine. We have said, in our original petition, that Frangois Xavier Martin was physically incapacitated on account of blindness, from making a valid olographic will.</p> <p>There are many other cases in which it has been decided in France, that a man may possess all the qualities required in art. 980, that is'to say, he may be mále, majeur, regnicole et jouissant des droits civils, and yet not be a good witness to a testament. Thus, almost all the french commentators agree in saying, that a man who is not acquainted with the language in which an act is written, cannot be a good witness, and yet there is nothing in the french law that disqualifies him on that account. Toullier, vol. '5, no. 393. “ Ceux qui n’entendent pas la langue du testateur, sont comparables aux-sourds, et ne-peuvent étre témoins parce qu’ils ne peuvent comprendre ce qu’il dicte.” -.(And in a note of that writer:) “ II est vrai que le Code ne dit point qú’il soit nécessaire que les témoins entendent la langue du testateur, mais la raison le dit, cars’ils ne l’entendent pas, s’ils ne comprennent pas.le sens des derniéres volontés du testateur, á mesure qu’il les dicte, ils ne peuvent ni attester ,que le testament a été écrit tel qu’il a été dicté, ni savoir qu’il l’a réellement été. Grenier, vol, 1, no. 225. Merlin, Repertoire, .verbo Témoin Instruméntame. Delvincourt, vol. 2, p. 213. Vazeille on art. 980, no. 26,-Coin Delisle, art.-980, no. 26.</p> <p>The same question was raised in Louisiana, and was decided in the same manner as in Prance, in the case of Hebert’s Heirs v. Hebert’s legatees, 11 L. 361. There it was alleged that a will was null, because one of the witnesses did not understand the language in which it was written. It was contended on behalf of the defendants, that all persons are good -.witnesses to -a will, except those who are expressly-excluded by law. The court said: -“ But it is contended by defendants’ counsel that, inasmuch as all persons -who are bylaw incapable of being witnesses to testaments .are specially enumerated in art. 1584 of the Louisiana Code, it .follows necessarily, that all other persons whatever are competent witnesses for that purpose. In this .opinion, .we do not agree with the counsel.</p> <p>“The legislature have manifested great solicitude on the subject of last wills and testaments, and endeavored, by every possible safeguard, to .ensure their faithful execution. They have required that nuncupative wills, by public act, should be attested by three witnesses, and read in their presence to the testator. This wise precaution, and strongest barrier which the .law -interposes for the protection of the testators, -would be vain and nugatory, if the witnesses were incompetent to the trust they were called to fulfil. Language is -the -vehicle of thought, and if the witnesses could not understand that in which the will was written, it is plain they would be in no better situation than the deaf, who are expressly declared incompetent by the law cited by the .counsel. Eadem est ratio, eadem est lex. Louisiana Code, art. 1571.” I have mentioned these cases as tending to establish the fact -that there.are incapacities, which, though not mentioned in the law, are not the Jess incapacities founded on reason and nature, and it is left in such cases to the prudence and wisdom of the magistrate to decide according to the circumstances.</p> <p>It has been strongly contended for defendant, that -under our -Code a blind person could even make a mystic will. Art. 1579, C. C. The french text says: “ ceux qui ne savent ou ne peuvent .lirethe english text: “those who know not how, or are not able, to write.” The -word -write, is an -.unintentional mistake of the person who translated the french .into english. This art. 1579 is a literal copy of art. 978 of the Nap. Code. If we wish to go to a higher-source we find the same thing in the french ordinance, and in the Spanish and roman law. How could a blind man, who, according to them, is able to make a mystic will, be sure that tire requirements of art. -15.79 have been complied with? How does he know that the paper which he presents to the notary and witnesses, is really his will ? “ Pour pouvoir faire un testament mystique (says Grenier vol. 1, no. 258,) il ne suffit pas d’avoir su lire ; -ilfaut encore pouvoir lire. On sent aisément le motif de cette disposition. Celui qui lit pent, en dictant ses dispositions á un scribe, veiller á ce qu’elles soient fidélement écrites, au lieu que celui qui nepeutlire n’a pas cette faculté, et dés lors.la.loi n’a aucune garantió que le papier qu’il présente comme contenant ses derniéres volontés, les contient en eifet.” Merlin, Testament Mystique. Pothier, -Donations testamentares — du Testament Mystique. Delvincourt, v. l.;p. 252.</p> <p>IV. We will now examine whether the testator F. X. Martin intended, -in giving the whole of his fortune to his brother, to disinherit his other heirs, or whether it was not a device to avoid the payment of the tax of ten per cent to the State. It will be contended by the appellant that substitutions, or fidei-commissa prohibited by our laws, can never be implied; they must be expressed iu the act itself, or at least must result from it as a necessary consequence. Therefore when the charge to receive for and return to another is not expressed in the act, or does not necessarily result from it, the disposition, .even though it should contain a simulated donation, does not render the testament void, provided the real donee be capable of receiving from the donor.</p> <p>Should we admit the truth of this proposition, it could not apply to the present case, as we contend that a fidei-eommissum, was made to evade a law allowing ten per cent to the treasury, and that the donees, who are foreigners, could not receive their portion without committing a fraud against tho iisc. But far from assenting to sueh a d icf.rine, we say that according to art. 1507 of .our Code, all kinds of substitutions, or fidei-eommissa, are strict!y prohibited— it does not matter whether the real donee could receive, or not, directly from .the donor. The provisions of our Code are, on that subject, much more rigorous than those of the french Code. Our Supreme Court have in several decisions lately rendered so held, and it is now a matter no longer to be questioned.</p> <p>In the case of Tournoir v. Tournoir, 12 La. p. 23, the court said : “The law prohibits all fidei-eommissa even in favor of persons capable of receiving. The Civil Code provides, that when, to prevent fraud, or from any other motive ■of public good, the law declares certain acts void, its provisions are not to be dispensed with on the ground that the particular act in question has been proved not to be fraudulent, or not to be contrary to the public good.” The same principles were re-affirmed in Radial v. Radial, 1 Rob. 116. Liautaud v. Baptiste,, 3 lb. 454. Comptons. Prescott, 12, lb. 74.</p> <p>To show the existence of a Jidei-commissum, all kinds of proof are admitted, litteral, testimonial and presumptive, especially in a case like this, where it is .alleged that a prohibitory law has been violated, and a fraud committed on the fisc. “ Presumptions” (says the Code, art. 2267,) “ not established by law, are left to the judgment and discretion of the judge, who ought to admit none, but weighty, precise, and consistent presumptions, and only in cases where the law admits testimonial proof, unless the act be attacked on the ground of fraud and deceit.” In sueh cases, all presumptions, even of the lightest kind, are admitted. When aman intends to commit a fraudulent act, or to violate a prohibitory law, he uses precautions of all kinds not to be discovered; he covers, ,as with a thick veil, the object he has in view, and ail his actions are calculated to induce a contrary belief to what his real intentions are. And it is in order •to discover the true intent and meaning of parties, that the lawgiver has permitted all kinds of proof. Without this permission, how easy it would be to .commit frauds'! And how difficult to prove them, if we were to be held to Strict rules of evidence, as in ordinary cases. Cécile v. St. Denis, 4. La. p. 184. “ Where fraud is charged, direct and positive evidence is seldom to be .obtained. Circumstantial evidence is commonly all that can be had, and every ■circumstance becomes material, to ferret out the fraud.” The whole doctrine on this subject, is fully explained, in these few words. See also, Reels v. Knight, 8 Mart. N. S., p. 268.</p> <p>It is not even necessary for us, to show that there was an agreement made between the testator and the universal legatee. The intention of the testator, when it appears either by litteral, testimonial or presumptive proof, is sufficient to cause the nullity of the act to be pronounced. This is the opinion of the most eminent law writers.</p> <p>Chardon, chap. 2, art. 1, in treating of the interposition des personnes dans les libéralités, nos. 16, 17, 18, 19 and 20, says: “ Or, nos auteurs enscignent unanimement, qu;il n’est pas néeessaire de prouver le pacte: qu’il suffit que de fortes présomptions persuadent que telle a été la volonté du donateur en •nommant son donatajre, ot de celui-ci en acceptant le don. Ceux qui prétent leur nom á ces íidéicommis taches, dit Domat, p. 524, soit qu’ils s’engagent par ccrit ou verbalement, ou en quelque maniére que ce soit, s’ils recoivent á dessein de rendro aux personaos k qui le testateur ne pouvait donner, sont considéreos par la loi, coinme s’ils derobaient, etc. Les autres aute'urs vont plus loin: ils n’óxigent que Ja preuve de l’intenfion du donateur. Ricnrd, •part. 1, chap. 3, sect. 16, no. 749, ajoute a la théorie les examples qui lafortiiient: “Nous avons des examples....... auxquels les conjectures du tácito íidéicommis se sont trouvees si violentes, que la cour s’en est contentóe, pour ■declarer la donation nulle, sans qu’il y eut preuve formelle de la promesse de itendre .la chose donnte par le donataire á la personne prohibee. C’est ce qui a été jugó par tm arrét du 5 déeembre, 1644, par lequel le testament fait par une jeune demoiselle, pendant l’année de son noviciat en religion, au profit du frére de son tuteur, qu’elle n’avait jamais connu, et qui, n’ayant pas d’enfans, avait, pour lui succfder, son frére tuteur, fut declare nul.” Il cite également l’arret du 29 avril 1653, dont nous donnerons les details ci-aprés, p. 162. Il rappelle méme, comma consequent avec les premiers, un troisiéme arrét, du 18 mars 1652, qui a rejetó la demande des héritiers; en faisant observer que ce rejet n’a cté prononce, que parce que les conjectures du tacite fidéicommis alléguées par Ies héritiers de la testatrice, ne se trouvérent pas suffisantes.</p> <p>“ Deux nutres exemples sont donnés par Furgole, no. 224. “II y a dans le nouveau journal des Audiences, tom. 5, liv. 8, un arrét du 17 aout 1708, qui décide qu’il sufiit qu’il y ait preuve que le mari, en léguant une somme á un tiers, ait eu intention que le legs ffit resfitué á sá femme incapable de recevoír des libéralitcs de son mari, suivant l’article 282 de la Coutume de Paris, pour declarer le legs nul, comme un avantage indirect entre conjoints, quoiqu’il n’y ait point de preuve de la convention du testateur avec le légataire; et par un arrét du 2 juillet 1708, rapporté au méme endroit, chap. 26, il a été jugé que, pour prouver un fidéicommis, ou avantage indirect entre mari et íemme, il n’est pas nécessaire qu’il y ait preuve par écrit du fidéicommis, ni méme de présomption qu’il y avait convention entre le testateur et le légataire; il suffit qu’il y ait des présomptions violentes de l’int.ention du testateur.”</p> <p>“ Bourjon, dans son Droit commun de la France, tom. 2, p. 73, art. 10, professe la méme doctrine; et cite aussi l’arrét de 1708, dont les details répandront quelque lumiére sur ce que cette matiére peut avoir d’abstrait. Le sieur de Thiersault, eonseiller au grand conseil, s’était marié á soixante-onze ans, avec une trés jeune demoiselle. Ilvoulut ajouteraux avantages qu’il lui avait faits par leur contrat de manage, une rente de 701 fr. sur l’état qui lui avait été reconstitutée en 1700, pour la réduction au denier vingt, d’une rente de 708 fr. qui lui appartenait en propre. Pour cela, il fit un testament, par lequel il se borna á léguer au sieur de Serre, son ami, une pension viagére de 200 fr., etun diamant de 50 pistoles ; puis par un codicile, il lui légua sa rente de 701 fr. au capital de 14,020 fr. ; mais seulement au cas od elle serail contestée á sa femme, declarant qu’il croyait qu’elle lui appartenait par leur contrat de mariage, tant á cause de la donation de meubles et aequéts qu’il contenait, qu’á cause d'un arrét du conseil qui déclarait acquéts les rentes provenant de commutation; ‘n’entendant, ajoutait-il, ne diminuer en rien les droits de mon épouse, et ne léguant la dite rente audit sieur de Serre qu’au dit cas.’ Lors de son inven taire on trouva, dans la liasse de papiers eoncernant cette rente, un mémoire fort long et écrit en entier de sa main, dans lequel il exposait que Titius avait legué á un de ses amis une rente viagére de 200 fr. et 1,000 fr. ; qu’il lui avait dit en conversation qu’il lui laisserait encore une rente de 700 fr. ; qu’il aurait désiré la léguer é Sempronia, sa femme, si la coutume ne s’y opposait; qu’il l’en laisse le maítre et ne l’oblige en rien; qu’il peut affirmer n’étre engagé ni de parole, ni par écrit, d’aucun fidéicommis, son intention étant eependant qu’il la restitue volontairement é Sempronia.</p> <p>“Ce mémoire contenait ensuite une explication de l’article 282 de la Coutume de Paris, des details sur la famille et les biensa de Titius, et sur le désir qu’il avait eu de laisser á sa femme les moyens de soutenir sa qualité. Le sieur de Serre, avait, en 1705, formé demande contre la veuve, en paiement des deux legs contenus au premier testament, sans faire mention ni du second, ni de la rente de 701 fr.; mais une instance s’étant engagée entre la veuve et les héritiers, réclamant eette rente, il intervint et Ja revendiqua. Le 15 juillet 1706, une sentence des requétes du Palais condamnales héritiers á lui payer tous ses legs, méme celui de la rente de 701 fr., en affirmant qu’il n’avait aucun dessein de la rendre á la dame de Thiersault, et qu’il n’y avait pas, entre elie et lui, de convention de partager ce legs entr’eux. Le sieur de Serre, malgré que les héritiers se fussent retires, íut admis au serment et le préta. Les héritiers ayantappelé au parlement, cette affirmation admise par les juges de premiére instance, contra des parties qui, loin d’y avoir consentí, s’étaient retirees, fut comptóe pour rien, et au fond le legs de la rente fut annulé; parceque, dit l’arrétiste, le mari, en la léguant, avait eul’intention qu’elle fét restituée á sa fem-me, quoiqu’il n’y eút pas de preuve de la convention du testateur avec le légataire.</p> <p>Rien ne peut étre plus conforme aux premiéres notions du droit, que cette decision. Un légataire ne peut étre propriétaire legitime de la chose légucc, que quand In valouté du testateur a été qu’il le devint; du moment done qu’il apparaít une volonte-contraire, la chose léguée ne peut rester légitimement, ni A eelui queje testateur a nommé, parcequ’il.n’a pas voulu lalui donner, ni á eelui qu’d avait en vue, pareeque la loi s’y oppose. Loin que le Code puisse autoriser un .changement de jurisprudence, on peut .conclure de ,1a régle écrite dans l’art. 911, qu’il l’a trés positivement confirmee. ‘ Toute disposition au profit de l’incapable sera nulla, suit qu’on ,!a déguise sous-la forme d’un eontrat onéreux, soitqu’on la.fasseeous.le nom de personne interpasée.’ Ce texte, com-me onlevoit, n’.exige la preuve ni de pacte ni de promesse; mais seulement que le don soit destiné á l’incapable, quoique adressé un autre. Tel est dans cette action le point principal qu’il faut éclaircir.</p> <p>“II en est un second qui ne doit pas étre négligé, et que les.auteurs ont sagement prévu. II peut arriver que pour autariser le préte-nom á déclarer á la justice qu’il entend garder l’objet donné, il.ait été.convenu directement, ou par ces voies obliques dont le sieur Thiersault a donné Tidée, entre le donateur et son confident, quecelui-ciresteraitréellement propriétaire de cet objet, mais en ■donnerait la valeur á la personne incapable. 11 est evident que la fraude serait absolument la méme, et que dans cecas, comme .l’enseigne JPothier, dans son Traité desDonations.entre Mari et Femme,no. ,98,1a chose destinée á l’incapable devrait étre remise aux héritiers du donateur.</p> <p>“II peut se faire encore que le donataire nommé le soit sérieusementpour une partie, et que le surplus seulement doive étre remis par lui 'a l’incapable ; ce qui n’en serait pas mains pour cette portion une infraction á.laloi. C’est done á l’éclaircissement de ces faits divers que doit tendre la preuve du fidéi-commis.</p> <p>Tous les genres de preuves, conséquenunent cello socale, sont admissibles ; aousavons déjási souvent ditet établi que, quand il s’agit de .fake connaltre á la justice la violation frauduleuse d’une prohibition d’ordre public, cette preuve ne peut pas étre refuséa, que nous nous serions abstenu d’une démonstration particuliére pour ^interposition de personne, si en ,1819 on n’avait pas soutenu le contrake, av.ee beaucoup d’éclat, devant la cour royale de Paris.” •</p> <p>See also, Merlin, Rép. de Jur. Verbo Fidéi-commis taeite, who holds the same doctrine, and cites the same, and other cases. The provisions of our Code on fidei-commissa, are still more rigoi'ous .than those of the french Code. What Chai’don therefoi’e says, applies with still greater force to a case arising jxnderown Code, where all kinds of Jidei-commissa are prohibited, even in favor of persons capable of receiving.</p> <p>It remains then to show, what was the intention of F. X. Marlin, in making his bx-other P. B. Martin liis sole heir. But we will go farthei’, and establish .satisfactorily, that the object the testator had in view was well known both to •the univei’sel legatee and to the apparently disinherited heirs, and we will also show what were and are the intentions ,of the said legatee. Interrogatories were propounded to P. B. Martin, the universal legatee. Being asked ; whether he does not consider himself morally and in duty bound to his late biothex-, to transmita poi'tion of said fortune, to his other heirs or some other persons .to him mentioned 1 He answer’s: “ Je ne me considéi’e aucun autre .devoix-, que de fake ce que moa cceur me dka. Ja prendrai dans mon cosur ce que ja ferai un jour, ou ce que je ne fei-ai pas.” And again being asked : Whether it was not his intention to transmit, give or remit, now, or at a future .time, or at his death, the property left to him by his brother, or part of the same to his other heirs, or some of his heirs.? He says; “Je n’ax lá-dessus d’autre intention que .celle de disposer de ma fortune selon nía volonté. Lá-dessus je .dis que je ne me exeis pas obligé de faire, dans ce ixioment-ci, un testament public. Je fei’ai mon testament comme je l’entendrai.”</p> <p>To the question, whether it is not his intention to transmit, give or remit now, or at a future time to the other heirs ? His only reply is, that he will dispose of his fortune as he pleases, and that he is not obliged to make his will. We must therefore take, as confessed, the facts which we sought to discover-, and concerning which he refused to answer. Art. 34y, C. P. provides that: “The parly interrogated on facts and articles,is bound to answer under oath, and categorically, each of the questions put to him, unless he cannot do so without confessing himself guilty of some crime. Except In the above case, if the party interrogated refuse or neglect to answer on oath to all the questions put to him, the facts concerning which he shall have so refused, or neglected to answer1, shall be taken for confessed.” This fact is now jixdicicially admitted and taken for confessed-, that P. B. Martin intends to transmit, give and' remit, now, or at a future time, the property left to him by his brother, or part of the same, to the other heirs. We have there-the clearest proof of the' intention of the-universal legatee.</p> <p>_ Two cases having a good dealof analogy with this, and cited by Chardon, ins his Traite de la Fraude, chap, 2, nos. 28, 29 and 30-, establish the true principles-by which we should be guided, in arriving at a correct decision of the matter.</p> <p>I give them-at length, with-the judicious observations of Chardon.</p> <p>“ Deux arréts solennels du parlement de Paris, des 24 janvier et 11- fevrier 1716, qui ont ordonné cette derniére-affirmatioBi,-et les sentiments uniformesdes jurisGonsultes qui ont écritdepuis sur cette matiére et applaudi-it ces decisions, semblaient avoir iixé ce peint important de jurisprudence. Mais MGrenier, dans son Traite des Donations, ayant cm-is une opinion tout-a-fait contrail's, la question mérite de notre part un examen- d’autant plus sérieux, quenous sommes trés éloigné de partager son sentiment, Suivant lui-, vouloir- quele donataire affirme que memo au moment ou il> affirme, il-n’a pas 1’intention de1-remettre le-dondun incapable,c’estsepermettreuneinquisition-odieuse: il-ajoute que le donataire qui n’a pas promis de rendre- á Vincapable et le déclare, n’estengagé ni par une obligation civile, ni- par une obligation naturelle,et que s’ifc remet la chose- donnée d l.’ineapable, cekii-lá la tient de lui et non du disposant,</p> <p>“ D’abord, il-est difficile d’apercevoir une odieuse inqpisition-dans les effortsque feraient les raagistrats pour connaitre la vérité dans une telle eoajoncturei. D’une part, leur but estlouable,puisqu’il-ne s’agit que de savoir si une prohibit tion qui tient á l’ord-re public a été enfreinte ; de l’autre, le procédé n’a rien¿’inquisitorial, puisque la délationdusermentrend-celui á qui ilestdéféré maitredesa cause. En second lieu, ou il- affirme qu’il-entend- conserver, et dans cocas, la demande q.ui lui. a été faite n’a rien eu d’offensant pour lui; ou if refuse, et ce refus ne permet plus de ¿outer quo son intention est de faire la remise dudon a l’incapable. Or, nousavons établi, no. 24- et suivans, d’aprés Domat, Ricard, Furgole, Pothier, et les nombreux arréts par euxrapportés, qu’en quelque tempsque se fasse la remise, ce fait seul prouve suffisamment l’interposition, et il faut en eonclure que la disposition dans laquelle est le donataire dels-faire, décéle également cette interposition. Eifectivement, pour que eette remise déj.á faite, ou q.ui va l’étre, ne fdt pas reputée la consommation de la fraude, il faudrait qu’onpftt la eonsidérer comme une libéralité pure, á- laquelle le donataire se seraitporté de son mouvement propre, sans aucune autre impulsion, comme on la de-finit en droit, nullo jure cogente facta : or, cette libéralité pure ne se présuinejamais, et doit étre prouvée,surtout dans un cas oú- la fraude est redoutée.- Laconséquence naturelle de la remise est done que le donataire a été ehargé de lafaire, ou au moins qu’il présume que telle- a été 1’intention du disposant; et il* suffit qu’il-se détermine á la faire par cette présomption,. pour qu’on soit persuadé qu’en la faisaut, il ne pense pas á faire un don, mais Saequitter une dette.1-1 peut se méprendre, dit M. Grenier; leshommes sont assez. elairvoyans suir leurs intéréts, pour qu’on ne puisse pas imputer á méprise la crainte de con-server un-accroissement de fortune, et le désir de la faire passer dans d’autresmains. C’est, d’ailleurs, une hypothése qui ne peut pas se vérifier: lorsquecelui á qui un don est adressé n’ose plus le conserver, et croit, pour l’acquit desa conscience, devoir le remettre á un autre; qui pourrait faire connaitre sa* méprise ? le défunt, et il a emporté son secret. Les motifs de M. Grenier, pour faire abandonner Gette jurisprudence, sont done fort légers ; et nous croy-ens en apercevoir de trés graves pour la maintenir. Les tribunaux sont lesgardiens des prohibitions: et c’est du partí qu’ils prendront sur le serment quites concerne, que dépendra le respect ou la derision de ces prohibitions. Nouste répétons, dans ce genre de fraude, te remede est dans te mal méme. Celui. & qui le don est confié a été choisi comme homme loyal-; s’il a tes qualités quil-’ontfait choisir, et qu’il. soit pressé de questions autant que tes eirconstancesltexigeront, la vérité l-’emportera, surtout quand pour étre fidéle- á un- dange-reux ami, il faudra s’exposer á étre infidéle á la société, á la religion, et á l’honneur. Pourremporter eette victoire, il faut done que la formule du serment embrasse tous tes cas possibles, tels que nous tes avons prévus, no. 17; il faut que te donataire soupgonné affirme qu’il n’est pas ehargé de remettre la chose donnée á un incapable : qu’il n’a pas 1’intention de la lui remettre, ni en nature, ni en équivalent, ni en tout, ni en partie, ni aetuellement, ni á l’avenir.</p> <p>“ C’est pour enchainer ainsi \e fidéi-commis sou&toutesles formes que la malice ingénieuse des hommes pourraitlui donner, qu’a été imagined la formule adoptee, en 1716, parle parlement de Paris ; les détails des espéces dans lesquelles sont intervenus ses arréts, achoveront de justifier sa jurisprudence. La Piincesse d’Isenghien avait laissé son immense fortune é. l’abbé de Thou, inslitué par elle son légataire universe!; aucun motif raisonnable n’expliquait cette largesse démesurée envers un abbé ; etbeaucoup de probabilités désiguaient le prince, son mari, comme levéritabie objet de sa disposition. Les héritiers de la princesse en demandérentla nullité. L’avocat général de Lamoignon, pour pénétrer dans tous les plis de la conscience de l’abbé de Thou, proposa de lui faire la délivrance du legs, mais á la charge par lui d’affirmer, ‘qu’au moment méme de son serment, il n’avait pas intention de remettre le legs á personne prohibée, directement ni indirectement, ni en taut, ni en partie.’ Ses conclusions furent adoptées complétement par l’arrét du 24 janvier 1716.</p> <p>“ Le mois suivant, une cause absolument semblable en droit, quoique beauGoup moins-importante, se presenta* Charles Seuret, menuisier á Nesle, ayant des enfants de sa filie d’un premier lit, et marié en secondes noces avec Marguerite Desmarets, fit, en 1711, son testament; légua 50 fr. seulement il ehacun de ses petits enfants, etle surplus de ses biens au sieur Soucanier, chanoine de Nesle. Sur la demande en délivrance de ce dernier, la mere des mineurs soutint que le sieur Soucanier était interposé pour faire parvenú Ies biens de Seuret i sa seconde femme. Le bailli de Nesle, par une premiere soutonee, ordonna que le sieur Soucanier affirmerait q,ue le legs était-sérieux et á son profit, qu’il n’avait fait aucun pacte á ce suj,et,ni avec le testateur, ni- avec sa veuve; et qu’en acceptant le legs, il n’avait pas eu l’i-ntention dele remettre á la veuve* Le sieur Soucanier afirma qu’il n’avait fait aucun pacte avec le testateur ; que la veuve lui avait dit n’avoir pas oonnaissance du legs; mais il refusa son serment sur tout le surplus de la formule, en déclarant qu’il était maitre de son-bien-et ¡pouvait en disposer á son gré. (The precise declaration made by P. B. Martin.) Une seconde sentence ordonna qu’il se conformerait á la premiere, et que, faute de ce faire á l’audience suivante, il serait débouté de sa demande. Disposé á consommer sa fraude á la loi, si son affirmation équivoque pouvait étre admise, mais non pas á se parjurer, s’il fallait donner it eette affirmation toute l’étendue exigée, il appela au pa-rlement. Le méme avocat général sout-int le bien jugé des sentences du bailli de Nesle. S’appercevant méme que la for-mule de ce premier juge était moins complete que celle prescrita á l’abbé deThou, il conclut á ce que le sieur Soucanier fút assujetti au méme serment, quoique les parties n’y eussent pas conclu, mais attendu qu’elles étaient mineures. L’arrét fut également conforme á son réquisiloire; et l’on voulut, disent les auteurs qui rapportent ces arréts, rendre la jurisprudence uniforme* Ge-second arrét est dull février 1716.</p> <p>“ Veut-on unenouvel-le preuve des eftets salutaires de cette- jurisprudence, on la trouvera dans un trait fort honorable pour l’ordre des avocats, que rapporte Bannelier, jurisconsulte tres estimé du parlement de Bourgogne, dans ses notes sur les Traités de Druit Franjáis, á l’usage de ee Parlement, note-573. Une dame Meignien, de Dijon, ayant deux enfans, un fils et une filie, avait marié sa filie au sieur Guy de Labergemont, conseiller,- avec promesse d’égalité entre lefrére etla scour. Par son testament, elle les institua effectivement ses héritiers par égale portion ; mais en léguant á M. Melenet, avocat au parlement de la méme ville, une somme de 80,000 fr., á prélever sur sa succession. M. Melenet avait été le conseil de cette dame, pendant longues annóes, sans en avoir rien reju,- et si le legs eét été modique, dit Bannelier, son confrere et son ami, il eút pu le croire á lui; mais i’importance de la somme lui donna la persuasion qu’il était destiné auíils déla testatrice, pour rendre vaine la promesse d’égalité. Ne sachant pas, ce sont les expressions de Bannelier,, se porter á aucune contravention soit aux lois soit aux contrats, il répudia- le legs en entier.Ce trait de délicatesse et de respect pour la loi,console un peu de tous ceux en sens contraire que nous sommes obligó de retracer á chaqué pas dans ce traite; et il est, il faut le reconnaitre, la plus ferme critique qu’on puisse faire du systeme de tolerance de M. Grenier. M. Melenet n’avait fait ni pacte, ni promesse; il ignorait absolument les intentions de la dame Meignien ; mais il ne se fit pas d’illusion ; il ne voulut pas prendre le legs pour lui, persuade que l’intention de la testatrice n’ était pas de l’en gratifier ; il ne voulut pas accepter pour le remettre au fils, parce qa’il sentait qu’en faisant cette remise, il n’aurait pas l’esprit de bienveillance et de génórosité qui conslitue la libéralité, et ne forait que so rcndre complice do la fraude concue par la dame Moiguien ; il ne craignaitpas de so meprendro sur son mouvement de délieatesse, commeM. Grenier le redouto ; il ne I’cprouva quo porn- céder kl’impulsiou qu'il en recut, en hommc d’honneur, ami des lois. Sans cherchcr it diminuer le mérito de cetle action,ne peut-on pas prosumer que la séverité avec laquolle M. Melenet se jugea lui-mcme, ne fút que la consequence de celle dont le parlement de Paris venaitde donner l’exemple quelques anneesauparavant? Ce qui nous suggere cette' reflexion, e’est que Bannelier ne rapporte eette anecdote qu’b l’occasion des deux arrets de 171G.</p> <p>** Eufin l’opinion fondée par ces arrets estdevenue, pendant un siécle et plus, la doctrine universelle. M. Grenier ne cite que Purgóle et Pothier.pourl’avoir cnseignée, ce qui pourrait déjá paraitre determinant; ínais il faut y ajouter los deux célebres avocats généraux, de Lamoignon et .Toly de Fleury, sur les conclusions desquels ces arróts ont éte rendus ; Bannelier dans sa note 573 ; Roussaud-Lacombe dans sa Jurisprudence Civile, aumot Avantage Indirect, s. 1, no. 2; Dénisart au mot Fidéi-commis; et MM. Camus et Bayard au memo mot, dans le nouveau Dénisart. Tous ces auteurs en font une régle élémentaire ; et nous ne connaissons ni un auteur, ni un arrét qu’on puisse leur opposer. Noas ne craindrons pasde ¡e repeter : si le sentiment deM. Grenier obtenait la préférence, le procédé de la princesse d’lsengkien, du menuisier de Nesle, et de la dame Meignien deviendrait familier, et les lois prohibitivos seraient audacieuseinent méprisées.-”</p> <p>The deceased intended to appoint his brother his universal legatee, to deprive the State of the ten por cent allowed to it by the law of 1842, withouthowever intending to disinherit his other heirs; In 1828, .the legislature of Louisiana passed a law similar in all respects to the law of 1842, creating a tax of ten per cent on all sums of money or property, belonging to a succession opened in this State, and going to foreigners not domiciliated in Louisiana. Soon after this law was passed,- Judge Marlin sent for his brother P. B. Martin, for the express purpose of evading that law, as he often declared to his late colleagues on the bench, Judges Morphy and Simon. His brother, P. B. Martin, left France iti accordance with his instructions, and came to this country, previously to the year 1830. We discover this fact in the testimony of Grailhe,- who says, that he became acquainted with P. B. Martin at the commencement of the year 1830. The statute of 1828 was repealed in 1830; and soon afterwards, we find that P. B. Martin; being no longer wanted to accomplish the object Judge Martin had in view, returned to his native country. But in 183G, the same law was again revived (seo Acts of 1836, p. 146), and we again find P. B. Marlin, the defendant, returning to this country at the request of his brother, in 1836 or 1837 (Grima’s testimony). This law of 1836 was declared, in May, 1838, by the Supreme Court, not obligatory, it not having received the approbation of the governor. Clayton’s Heirs v. Attorney General, 12 La. 350. Judge Morphy says that Judge Martin told him, some time after the arrival of his brother in this couutry, that ho had induced his brother to come and reside here, and intended to appoint him his universal legatee, stating that; in this way, his estate would not be subject to the tax; and that he has often heard judge Marlin complain of the ten per cent tax; he often told him, that as he could not give any property to his relatives, who were not here, without subjecting his estate to this tax, he would leave it all to his brother. J udge Simon also tells us, that he and Judge Martin had many conversations about his succession; when Judge Martin &mA, that he would leavo his estate to his brother, as then it would not be' subject to tho tax, and that was his main object in calling his brother to this country. If it be true that Judge Martin really intended to leave the whole of his fortune to his brother, P. B. Martin, why the great uneasiness he manifested about the passage of the law of 1842? Greiner says, that when the tax of 1842 was before the legislature, Judge Marlin asked him frequently about it, and as to the prospect of its passing, and was apprehensive it would pass. He said that it was au unjnst law, only known in Louisiana, and appeared to be uneasy about it. lie also said that it was a- very foolish law. Again, we hearliim on several occasions, stating that the law of 1842 might bo easily evaded, by testamentary dispositions. (See testimony of Bullard, Morphy, and Simon.) And in vvliat way has ho sought to evade that law? l>y lostamenlary dis¡ osition !</p> <p>' J udgo Marlin was very fond of all his relativos; he always spoke highly and favorably of them. Greiner says that Jndge Marlin had a strong regard for his relatives, and never heard him say any thing against them. Curry says that Judge Martin always spoke kindly ofhis family. Judge Bullard believes that he was on good terms, with his relatives in France. Can we then reasonably suppose that a man, who always appeared so very fond of his relatives, at the very moment too of going to meet them in his native country, should have really had the intention of disinheriting them ? Can it be believed, that he then intended to disinherit his nephews and nieces, for whom he had a great regard and affection. This will was made on the eve of his departure for France. When Judge Martin returned,-he often spoke in high terms of his relatives; they had travelled with him. And yet he did not change his will! Can any one believe, that it was because his relatives did not come to this country, that he disinherited them? This has been contended for by the counsel for the defendant. But, if this be true, how is it that he made no distinction between them, and his niece, A. B. Marlin, who left country, friends and every thing dear to her, to come here and take care of her uncle in his old age.</p> <p>“■ Celui qui amasse une grande fortune,séme des procés qui ger nerontr apros sa snort.” Cette sentence d’un philosophe indien, si je ne me trompe, n!a jamais empéché certains homines dans aucun pays du monde civilisé, ancien ou nouveau, d’accuinuler, pour ains dire, tous les jours de leur vie, des richesses-dont ils ne savaient jouir'qu’á leur maniére — • en les contemplant. Mais l’expérience asouvent prouvé qu’elle était vraimenfe juste; et le procés actuel en est un exemple.</p> <p>Francois Xavier Martin, artisan de sa propre fortune, arrivé dans sa- jeunesse' aux Etats-Unis, était un de ces hommes'comme.on n’en voit peut-étre pas beau-coup aujourd’hui, pour-qui Fétude, un travail-opiniátre, etl’éxerciee constant dela faculté pensante, étaient autant de bósoins de premiere- nécessité. Deuxpassions semblaient le dominer: celle de la célébrité comme savant et profondjjiriste, et celle des richesses. Sa vie extér-ieure était, en quelque sorte, céll®d’u-n philosophe revenu du toutes les vanités mondaines. Etrdans son intérieur, le plus souvent seul avec lui-méme, il développait avec une sagesse toute parti-euliére, les ressources que lui eréait son propre génie, soit pour- étendre sa imputation comme légiste et magistral, soit pour augmentar le trésor qu’il avail? amassé par son travail et-son éeonomie. Ufut trente ans juge de la Cour Supreme de notre Etat* et il enétaitde president lorsque l’organisation j.udiciairev-oulue par Dotre constitution nouvelle le fit descendre de son siége. Trente ans„son oreillefut caressé destémoignagesles plus flatteurs d’une-trés haute eonsidération, et comme savant et-eomme juge intégre et incorruptible. II est descendu dans la tombo, escorté par un nombreux convoi, composé de ce que uotre cité r-enferme de plus respectable. Mais,-en rendant sa dépouille mortelle á la terre,notre mére commune, il a laissé un testament par lequel jl a disposé, en faveur de son frére, d’une fortune de prés de quatre cents mille piastres! Et ee juge,oe-président de notre Cour Supréme, oélébre par ses capacités intellectuelles,par une- judiciaire distinguée ; par des lumieres d’un ordre supér-ieur; qui a pu,pendant trente ans, durant-les neuf ou dix derniéres desquelles il-avait perdu l’usage de la-vue, rédiger, rendre et prononcer des decisions, des sentences quebeaucoup de gens considéraient comme autant d’oracles, n’a pas pu échapper á la sévérité de la sentence du philosophe indien 1 Sa mort a donné naissance stun procés, et dans ce procés, fait au nom de l’Etat, il est representé commeayant été physiquement incapable de faire un testament olographe ; et on endemande l’annulation ! Une pétition supplémentaire est présentée, dans laquelleon reconnait manifestement que cette prétendue incapacité n’était que l’efietd’une imagination échauífée par l’envie d’obtenir au moins quelque lambeau de son opulente succession; et dans laquelle, voulant arriver plus sarement é. cebut, on l’accuse de n’avoir fait par son testament qu’un ficléi-eommis prohíbe par notre Code.</p> <p>I. Lepremier pas daDS ce procés a done été la presentation de la pétition, introduisant Faction en nullité du testament olographe. Deux allegations sont faites dans cette pétition. L’une, qui est la seule base de Faction, porte que le testament dont il s’agit est nul et ne peut produire aucun effet, attendu qué, lorsqu’il a été fait, Francois Xavier Martin était physiquement incapable de le faire, étant aveugle. La seconde que sa succession passe á des héritiers domiciliés hors de cet Etat et de tout Etat et Territoire des Etats-Unis.</p> <p>Hé bien ! sa succession ne pouvait passer á ceux que Fon dit ses héritiers domicilios hors des Etats-Unis, qu’autant que le testament, instituant un légataire universe], serait annulé. Alors et alors settlement ces héritiers succédaient ab intestat au défunt; jusque 1A ils n’avaient rien A prétendre, ils n’étaient rien. Je ne prétends eependant pas dire que ces étrangers, étaient sans qualité pour agir. Mais eux seuls avaient une action — c’est du moius ce que je crois pouvoir démontrer. J’y procéderai dans un moment. En attendant je reprends la petition que l’Etat a présentée, ou qu’on a présentée en-son nom; et je me demando comment les organes de l’Etat ont pu demander i’annulationdu testament, sur le seul fondement de l’incapncité physique A sa date. N’était-ce pas agir directement et principaloment dans l’intérét des prétendus héritiers étrangers, et leur ouvrir la voie afin do les rendre.hábiles A mettre la main .sur la riche succession du testateur, et de la transporter ci ez eux, hors de notre jurisdiction, aprésl’avoir convertie en piastres? L’Etat de la Louisiane avait-il intérét A ce que cela se fit? Et remarquons-le bien; c’était.l’Etat que ses organes employaient pour faire tous les frais de cette singuliére entreprise, au profit de citoyens ou sujets d’une nation, amie il est vrai, mais ótrangére. Ce n’est pas tout: ooncoit-on que l’avocat général et ses collágues aient poursuivi, contre Paul B. Martin, et l’annulation du testament, se fondant sur l’incapacité physique alléguée par eux, et le payement des 5539,608? Employerai je la forme dubitative pour poser et résoudre une question qui est, peut-étre, plus sérieuse qu’elle ne me semble l’étre, et que voici: Le testament étant annulé, comme on le demandait, n’en résultait-il pas que Paul B. Martin, qui n’était quelque chose que par lui, n’était plus rien, aussitét la nullité prononcée ? -Que l’avocat général veuille prendre la peine de decidor cette petite question, je lui en serai vraiment obligó. En attendant je dirai que, sauf meilleur avis, il me paraíton ne peutplus raisonnable de résoudre cette question par l’affirmative. Si cette consequence est juste et irréfutable, nous dira-t-on comment Paul B. Martin pouvait étre condamnéau payement des 3¡!39,G08 demandóos? Avecquoi aurait-il dú Ies payer? Avec les biens ou fonds de la succession ? Mais.Ie testament étant mil, il n’avait aueun' droit de disposer, ni de ces biens, ni d’aucune partie de ces biens, pour payer cette reclamation ou aucune,autre.</p> <p>L’Etat n’avait aucune action, aucun .droit de demander l’annulation du testament, sur le fondement de la cécité alléguée. Tant que le testament n’était pas annulé, l’Etat n’avait rien A róclamer contre qui que ce fút; car ce ne pouvait étre qu’aprés la nullité prononcée, que ,1a succession s’ouvrait en faveur d’héritiers étrangers, etceab intestat; méme aprés la nullité prononcée, l’appelant cessant d’avoir qualité, puisqu’il n’est rien qu’autant que ce testament soit maintenu, l'Etat n’aurait pas pului demander le payement de la taxa,, A moins qu’ií n’eñt été nominé curateur ou administrateur de la succession ab intestat; et A plus forte raison, avant cette nullité déclarée, par jugement en dernier ressort, l'appelant ne pouvait ni étre poursuivi, ni se défendre, sur le chef de cette demande de payement. Nous rtferons la ,cour A .Merlin, Repertoire, Verbo Nullité, see. 2 et 3. Toullier, vol. 7, no. 553, jusqu’A 564. '6 Mart. N. S. 362 A 365. 3 Ib. N. S. 458 A 461.</p> <p>En général et A trés peu d’exceptions pres, il n’y a de vraies nullités, absolues ou relatives, que celles qui résultent de la disposition de la loi, so.it qu’elle prohíbe un acte, soit qu’elíe prescrive impérativement une formalité sans laquelle Pacte est imparfait. Cela me conduit A faire reraarquer :1o. qu’il n’existe chez nous aucune loi quidófende A un aveugle de faire, de dater, de signer, de sa propre main un testament; 2-° . que, dans sa petition, l’Etat n’allégue point que le Juge Marlin, aveugle, était- frappé d’une incapacité légale de faire son testament dans cette forme, c’est A dire olographe; 3o. que, quand méme une loi lui aurait interdit la faculté de disposer dans cette forme, il aurait fallu que l’Etat eút un intérét né, un intérét actuel, échu, pour en demander la nullité,: et certes rien de tel n’existait, tant que les prétendus héritiers ne jugeaient pas convenable de demander A justifier de leurs qualités et de .leurs droits, et surtout, tant qu’ils ne réclamaient pas, en ces qualités et en vertu de leurs droits reconuus, la nullité du testament. En vain aurait-on voulu, si la prohibition ou l’interdietion de tester dans la forme olographe, eút existé, avancer ou prétendre que le testament fait contre la prohibition ou interdiction était comme s’il n’eut jamais été fait. On aurait bien pu, d’aprés le sentiment de Toullier, considérer ce testament comme infecté d’une nullité absolue; mais ce n’aurait été qu’une de ces nullités absolues établies pour le seul intérét des particliers; et, consóquemment, rien ne pouvait autoriser l’Etat A faire prononcer cette nullité. La raison la voici: c’ost que nul n’est hérilier s’il ne vout i’étre, et que, par son act,ion, s’il efit tripmphc, l’Etat airrait fait declarer hcritiers, des p.ersonnes qui, par les motifs les plus respectables, auraient pu ne pas vouloir prendre cette qualitc, au detriment de celle favoriséo par le testament. Au surplus, aucune incapacité légale, rien autre chose qu’uue incapacité physique, n’ctaít allegué par la petition : et ce que j’ai dit plus hanf X ce sujet suflit, je pense, pour me dispenser de répeter, que l’Etat agissait sans .droit aucun, ¿’action pu autrement. Mais je ne puis laisser passer une reflex ■ ion dont je suis frappé, s,ans la cpmmuniquer X la cour. Le testament, je le répéte, avail etc ouvert pt prouvé ; lo légataire universel avait fait inventairo, et était ext possession. Que signiñait done l’allégation contenue duns la pétition présentéo aprés, de ¡’incapacité physique dont ctait frappé le testateur de faire un testament olographe 1 Que signifiait-ello, si ne n’est une accusation de faux .quant au testament lui méme, et de prejure, quant aux témoins qui, sous lour serment, avaient attesté que ce testament était entiérement écrit, daté et signó de la main du Jugo día?*’»? Elle ne signiñait que cela et rien do plus; car s’il était A, la d.ate de co testament, physiquemeut incapable de l’éerire, le dator, et le signer, il n’y avail pas X balancer'; il fallait conclure de suite quo le testament présenté était l’osuvre d’un faussnire, d’un contrefacteur, et le serment dos témoins qui ont juré quo ce testament ítait de la main du défunt, un parjure. L’avocat general, s’il ctait convaincu de l’ineapacité physique par lui allcgnée, avait, j’en conviens, un devoir X remplir envers l’Etat. Ce devoir était, non pas ,de demander X l'appolant §39,008 41 e., mais bien de chercher quel ctait le faussnire, ie contrefa.eteur, et de Je metlro, aiiisi que les témoins jiarjures, en accusation.</p> <p>II. Voyons maintenant la pétition supplémentaire que l’on a présentéo au pom de l’Etat. Elle, on la pétition origínale, devait élre rejetée.</p> <p>Áinsi quo la cour peut ie voir, en lisanfc cette assez curíense production, le défunt Francois Xavier Martin n’est plus representé comme frappé' d’une incapacité physique de faire un testameut olographe ; on lui reproche, littéralomeut et avec une ciarte ¿’expression peu commune, non píus d’avoir cté aveuglo; mais d’avoir, parson testament olographe, legué tont son bien X sonfrére, Paul BarlhíUmi Martin, résidant X la Nouv.elle-Oricans, aprés s’étre bien entendu aveo cehü-ci, níin quo tout sou bien, ou partis de son bien, passílt a ses antres hcritiers, tons étningers et résidant en France, pour étre partage comino s’il n’efit été fait aucuné disposition mortis causa. Et l’on ajoute que cela s’est ainsífait coptro ialoi pt 1’or.drepublic, etavec l’intention de violerlakú da 1843.</p> <p>Les conseils ou organes de l’Etat voudraient-ils bien prendre la peine de nous expliqaer, comment l’homme qui était physiquement incapable de faire nn testament olographe, a cependant légué, par son testament olographe, tout son bien X sonfrere? En attendant, je prendrai la liberté de dire que, sur l’exception qui fut proposce en tenis convenable, la cour de district aurait dú rejeter do suite la pétition supplémentaire. Mass la cour de district a jugó X propos de rejeter cette exception comme elle a aussi rejeté la premiere.</p> <p>III. L’aveugle Francois Xaxier Martin, a-t-il faitlui-méme, a-t’il écrit, dató, et signé, de sapropre main, le testament olographe déposé á la cour de district aprés son dócés? Examinons d’abord cette question de fait.</p> <p>Un des légistes qui figurent dans ce procés, du eóté du demandeur, a prótendu que le testameut olographe était, de sa nature, un testament secret; je sais qu’un ou deux des nornbreux commentateurs du Code Napoléon en out dit aula ti t. Rien n’est plus hazardé, pour ne pas dire rien n’est plus faux, que cette proposition. Nous ne counaissons, sous l’lieureux empire de notre nouveau et do iiotre premier Code Civil, et nous tie connaissions, X la Louisiane, avant que la manie de codifier ne nous saísit, qu’une seule espéee de testament qui, de sa nature, soil ou fut secret; n’en déplaise aux doctours qui disent le contraire, c ’est, comme c’ctait, le testament mystique. Sous la loi espagnnle ce testament, qu’on appelait testament in servj/tís, avait lieu, ou se faisait, quand le testateur •voulait tester en secret de maniere qu’on ne sút pas son eontenu, “en poridad, .que non sepan ninguno de los testigos lo que es escrito en él.” Loi 2, litre 1er, Partida 6. Sous nos Codes, et nolmnment sous le nouveau, il est intitulé : “ Testament mystique ou secret, autrement appelé fermé.” Code, art. 1577. Et ce dernier nom, qu’on me pormotle de le dire, est évidémment pris de l’espagnol; car les juristas les plus renommés ne l’appelaient pas autrement. Febrero l’appeile “testamento cerrado (ce qui, en franjáis signifie fermé) que en pajip s.e llama, in scriplis. Escrituras, parte la. tomo lo, capit. 1, § 19, lio. 212-” page 17G, édition de 1797. Aucun autre que le testament dont je parlo ne fut jaimis et n’est point ¡I présent, ni de sa nature ni autremont, un testament secret.</p> <p>Me dira-t-on que le testament olographe était inconnu dos Espagnols, et cherchera-t-on á argumenter de la qu’on ne peut pas dire que do sa natnre aussi il n’était pas secret? Le testament olographe, était et est tres connu de la loi espaguole. Par une ccdulé royale du 24 Octobro 1778, tons ceux qui ne sont justiciables que des tribunaux railitaires (fuero de guerra), et c.e ne sont pas les militaires seuls qui sont dans ce cas, mais bien d’autres personnes selon leurs emplois ou missions, (destinos) pouvaient faire eux-mémos, de leur propre main, ■leurs testamens. Ces testamens faits dans un moment de danger imminent, comme dans un combat, n’avaient pas besoin de la présence d’nucun témoin, et ils étaient valides pourvu qu’on prouvíit qu’ils étaient écrits par le testateur. Depuis 1778, et en vertu de la eédule dont je viens de parler, les testamens de .cette espéce ont été dispensés de toute autre forme, ils ont, ph clre écrits sur papier non timbré, e.t, pourvu qu’ils fussent écrits et signes de la main du testateur, cela suflisait pour leur validité. Voyez Febrero, Escrituras, parte la. capit. 1. § 1. no. 15, page 26 de l’ódition susdite. Or, on conviemlra je presume quedispenser d’une formalité, génante quelque fois, n’est pas restreindre une faculté existante. Si je dis que je n’exige plus tout ce que j’exigeais autrefois, on ne peut point me reprocher d’avoir commandé de faire comme si je n’avais pas changó de disposition. Or quand le législateur a dit: Je vous dispense de la formalité des témoins, il ne serait pas logique de concluro que, sous peine de nullité, il faut user de la dispensation, et ne pas écrire sou testament devant témoins. “iVo«, solent que abundant vitiare seripturas.”</p> <p>Si l’on ne savait que les plus grands esprits s’égarerit, se trompent quelque fois, sans qu’on ajt le droit d’en manifester tout haut son étonnement, on pourrait assurément témoigner une grande surprise, en entendant unlégiste prí tendré qu’un testament olographe est de sa nature un testament secret, lorsqu’on a lu Pai-ticle 1581 de notre Code, qui dit: “Le testament olographe est celui qui est écrit parle testateur luiméme. 11 faut pour qu’lsoitvalide, qu’il soit écrit entier, .daté, et signé, do la main du testateur lui-meme. II n’est assujettiáaucunneaulre forme." Car cela signifie elairement, bonnement, et sans plus de finesse que, si un autre que le testateur en écrit une partie, et le signe, ou le date, ce n’est plus un testament olographe. Mais cela ne peut jamais vouloir dire que lorsqu’il est réelement écrit en entier, daté, et signé-, par le testateur, s’il y est ajouté quelqu’autre forme, cette autre forme le videra, le fera annuler. Si l’on en dou.tait il suffirai.t, pour s’.en bien assurer, delire Particle 1583, que l’onme dispensera j’éspere d’écrire ici. De ce que je viens de dire, il suit tout naturellement, que je puis, aveugle ou non, faire mon testament olographe si bon me semblo, devantun nombre quelconque de témoins, le leur lire ou faire lire, prendre mémo ■leurs conseils, les suivre et les faire tons signer apres moi, au nombre de sept méme. Cela n’empéchera pas mon testament d’etre tout écrit, daté, et signé, de na propj-e main ; cela pe l’empéchera pas d’etre olographe.</p> <p>Aprés avoir parlé d’un arrét d’un parlement qui en 17/9 déclara valide le testament .olographe d’une personne aveugle. et nous avoir dit que cet arrét “can throw no light on our case,’' le juge de la cour inférieure nous dit: “The commentators are divided on the subject and leave us to x-ecur to our law, the text of which does not declare null an olographic will made by a blind man.” Delá il était assez sense de présumer que l’État allait étre debouté sur la premióle de ses allegations au moins. Pasdutout: Le jugement continue: “But that veiy text of our laws says: “In order tobe valid it (the olographic will) must be entirely written, dated and signed by the hand of the testator.” Et portant delá il nous dit: “The testimony shows that neither according to the letter .or to the spirit of the law, the testator in this case could, at the date of that document, have entirely written, dated and signed his olographic will with his own hand.”</p> <p>Je m’arréte ici un moment et je dis: Oh! Honoi-able Seconde Cour de District, la question soumise á votre sagesse, était moins de savoir si d’aprós les dires de témoins entendus, il pouvait écrire en entier son testament, le dater, et le signer; que de savoir si en effet ill’a écrit en entier, daté, et signé de sa propre main? Croyez vous, que c’est remplir suffisamment votre mandat que de prononcor avee n’importe quols temoignages de gens plus ou moins instruits, plus ou moins réfléchis, ou plus ou moins légers, ou plus ou moins judicieux, qui vous diraient qu’un aveugle ne peut pas écrire, ou qu’il-ne le pouvait pas-quand ¡1 a fait son testament, & moins que, par exemple, on ne l’assít k une table, qu’on n’y mít devant lui du papier,qu’on ne luimit & la main une plume eliargée d’encre, qu’on ne lui posát la main sur le papier á l’endroit ou il faut commencer, qu’on ne rechargeát sa plume d’encre quand il est aécessaire de le faire, qu’on ne lui remit, ensuite cette plume á la main, qu’on ae dirigeát cette main 'á l’endroit.oü il fallait reprendre pour continuer d’écrire, qu’on ne l’avertit de revenir á gauche quand sa plume s’écartait de la page, et que lá encore on n’y dirigeát sa main; croyez vous, dis-je, qu’il soit logique de -conclure de la que ce n’est pas lui qui a pu écrire en entier, dater et signer son testament da sa propre main? N’est-il done pas excessivement clair qu’avec ces secours il peut fort bien, l’aveugle qui sait écrire, écrire en entier, dater et signer son testament? Est-ce que l’aveugle qui ne se.conduit dans les rues qu’;\ i’aide de son domestique, sur l’épaule duquel il appuie sa main, ne marche pas? ne par-court pas lui-méma en entier la distance qu’il y,a d e son point de départ á son point d’arrivée? Selon vos idóes, ó Honorable Cour Inférieure, l’homme dont la main tremblerait trop pour signer, sans qu’on la lui tint, ne signerait done pas lui-méme, si on la lui tenait quand il signe? Sans me donner la peine de fouiller dans les commentateurs du Code Napoléon, je trouve dans les auteurs qui ont écrit sur nos anciennes lois, et auxquels malheureusement, je crois, on n’a pas assez emprunté; dans Febrero, par exemple, des contrats “Eeritur»s,” chapitre ler., sec. 19, no. 214, page 178, édition de 1797: “Esta legal forma, y,solemnidad como derecho mas nuevo que el de las Partidas és la que se observa: de suerte que si el testador no sabe, 6 no puede escribir á lo menos llevándole, 6 gobernándole aluguno lamano trémula (pues en este ultimo caso puedo harcel'lo á presencia del escribano y testigos sin que por esto se vicie ni anule,y asi se practica) debe firmar por él uno de ios testigos, &c.” Remarquons bien que lá Febrero traite du testament mystique, tel.quel’a établi une loi de Toro qui est Ja 2c, tit. 4, liv. 5, de la Recopilación: etque cette loi de Toro, .exige que le testateur signe, quand il peu-t signer, l’acte de suscription avec les • temoins, auxquels il doit, ainsi qu’au notaire, presenter -son testament signé par lui, s’il sait et peut écrire, ou, sinon, écrit par toute autre personne de sa confiance; en leurdisant: “Este es mi testamento, ruego os que escribáis en él vuestros nombres.” Avec les notions que parait avoir la cour de district sur ees matiéres, il est trés probable qu’elle dáclarerait nul un testament mystique, fait sous notre propre Code, s’il lui était prouvé que la signature que doit j apposer sur l’acte de suscription le testateur, n‘y a été apposée qu‘á l‘aide d’une autre personne qui lui tenait la main ei la guidait. Ne dirait-elle pas cette cour: c’est le testateur luimeme qui doit signer; la signature que le Code exige de lui doit etre toute .entióre de lui-meme, de lui seui; or il n’a pas signé luiméme, il n’a pas signé lui seui; sa main tremblante ne le lui permettait pas ; il -était physiquement frappé de l’incapacité d’écrire á moins qu’on nel’aidát; .done ce qu’on appelle son testament n’est pas écrit, daté et signé selon la lettre ,et l’esprit du Code ; done son testament est nul?</p> <p>II .convient d’autant plus d’adopter et suivre ce qu’enseigne Febrero, que ce qui est prescrit dans notre Code pour le testament mystique, n’est que ce qui était prescrit pour ce testament dans notre ancienne loi espagnoie sur laquelle il écrit. Et j’ajonte qu’il n’est aucune de nos lois qui, en exigeant ce qu’elles .exigent, soit pour le testament mystique, soit pour le testament olographe, indique ou prescrive que, pour écrire ou signer, on sera teuu de prendre soi-méme la plume, deja plonger dans l’encrier pour avoir de l’encre, d’employer tel ou tel instrument, de faire usage de tel ou tel fluido ou matiére pour le faire, sous peine de nullité.</p> <p>La cour inférieure nous a parlé de 1’esprit de la loi relativement au testament olographe; je relis cette loi: voici ses termes : “Il faut, pour qu’il soit valable, qu’il soit écrit en entier, deté et signé de la main du testateur lui-meme.”</p> <p>Rien n’est plus explicite á inon gré que c.e texte. Or, je suppose qu’un particulier, saehantetpossédant l’artmécanique d’écrire, de former les lettres, et de les joindre et les Her, dans une perfection admirable, se mette dans la tete d 'écrire son testament olographe ; mais, qu’ignorant I’orthographe il demande, á quelqn’un qui se trouve auprés de lui, comment s’écrivent les mots dont il veut se servir; la personne présente leluidit; et il écrit correctement, et il date et signe, sans faire aucune faute. Il meurt; son testament est presenté á l’homologation; des amis aussi peu savans que lui, mais qui l’ont vu écrire etsigner centfois, qui connaissent son éeriture aussi bien que la leur propre, víennent á la cóu'r', e£ sous leurserment, déclarent,ce qui est bien vrai, que ce testament, corps, date et signature, est tout entier de son éeriture. Le testament est homologué. Ce' testament est ensuite attaqué ; son annulation est demandée, sur une allegation’ qu’á l’époque oú le defunt parait avoir fait ce testament, il était incapable de le' faire, c’est á dire del’écrire tel qu’il est écrit. Des témoins sont cités ; ils com-paraissent; le testament leur est montré; ils reconnaissent trés bien les carao-teres; ils pensent et disent bien que c’est de la main du testateur; mais ils ajou-tent, ce qui est encore vrai, que' la veille méme de'la date du testament, il ne" savait, ni un mot de grammaire, ni un seul mot d’orthographe'; et ils declárente en leur áme et conscience, qu’il-n’a pu le faire tout seul, qu’il n’a pas pu lui-méme l’écrire tel qu’il est écrit, daté et signé — qu’ila fallu pour cela que quelqu’un, plus habile que lui, l’écñvit d’abord, et qu’ensuite il le eopiát; enfin que,sans une telle aide, un tel guide, il était incapable d’en venir á bout.</p> <p>Yoilá une hypothése dans laquelle il faut convenir qu’un homme qni a une' vue parfaite,- resemble passablement á un aveugle; n’est-ce pas étre intellectuellement aveugle que' de ne pas savoir Forthographs usuelle des mots ? celui-lá est-il bien súr, peut-ill’étre,qu’il n’exprime pas une idée pour une autre 1 Eh-bien! vient,- d’abord, un- praticien, appelé avocat, légiste, qui-nous dit: “Le' testament olographe est de sa nature secret; or eelui-ci n’est pas seeret, puis-qu’avant sa naissance méme il était connu de la psrsonne qui Pa écrit- pour que’ le testateur le copifit; done il est nub” Ensuite on entend la com-qui,- doctement, declare que, d’aprés les témoignages^il est impossible que le testateur ait écrit le testament qu’on dit étre de lui, puisque ce testament est correetement orthographié,et que la preuve constate qu’á la date de cet aete important,-le testateur était tout á fait incapable d’orthographier deux mots; et elle casse le testament, comme n’étant pas conforme á ce qu’il lui plait d’appeler la lettre eftl’esprit du Code — comme n’étant pas écrit, mais seulement copié, par le- testateur.</p> <p>Autre hypothése ; on sait que le testament olographe, pour étre valide',-doitétre écrit en entier, daté et signé de la main du testateur lui-méne.- On a vu á la Nouvelle-Orléans-, il y a quelques annéss, un jeune homme de la race Anglo-Saxonne, qui n’avait ni bras ni mains. Ií découpait d’une maniere parfaite' avec ses pieds toutessortes de fleurs et de dssseins ; il ouvraitune montre et lamontait; il chargeait une arme áfeu et la tirait; il écrivait une lettre,la ployait,etla cachetaií. Supposons qu’il-eüt eu lafantaisie defaire, d’écrire, de signeiy de dater son testament; et qu’il fut mort aprés.- La cour de district auraitellecasséson testament? Je n’ose le croire; cependant son attachement álalettre de la loi,-lui en aurait fait un-devoir; car le testament,-pour étre valide,devait étre écrit en entier, daté et signé de la main du testateur lui-méme, efr malheureuseuient, parl’eífet irrémédiable d’une bien cruelle incapacité physique, le testateur n’a pu Féerire que du pied.</p> <p>“ Pitoyables jouets de notre’vanité</p> <p>“ Faisons au moins Paveu de notre- infirmité !”'</p> <p>A-rrétons-nous; et, surtout, gardons nous,-en nous a-ppuyant sur des principes’ qjie nous entendons mal, que nous appliquerions de travers, de teñir.d’une ma^ niére toujours inflexible á la régle qui-veut que “ qnand les termes de la-loi sontclairs et exempts d’ambiguité, on ne s’écarte pas de la- lettre sous le pretexte" d’enpénétrer l’esprit;” car la lettre, dans l’hypothese présentée ici,comme dáosles précédentes-, ferait commettre une grande absurdité, une énorme injustice,, une iniquité révoltante; elle tuerait. Jamais un homme bien organisé, sous le’ rapport intellectuel, ne doit admettre que l’intention du législateur ait été,ou soit susceptible defaire donner á sa loi des efíets aussi afl'reux. Inclinons-nous, re-spectueusement, devant cette sage loi Romaine qui, vraiment, consaere un principe d’une vérité éternelle; “ Scire leges non est hoc verbaearum tenere, sedvim ac potestatem-.” Q,ue veut le législateur en disant que “le testament olographe, pour étre valide, doit étre éc-rit en entier, daté, et signé de la_main du testateur lui-méme ?” 11 veut bien clairement et bien- explicitement"que Fon respecte, que Fon exécute, un testament olographe; mais, comme, pour étre olographe, un testament doit étre écrit par le testateur et non par une autre personne, il exige que ce soit bien le testateur qui ócrive, date et signe lui-méme, et non pas un útranger ou un autre individu. 11 ne dit point au testateur: fais y attention; tu ne dois écrire que tes propres idees, soit qu’elles te viennent tout d’un coup, soit que tu les aies muñes. Il ne lui dit point: neprends cooséil de qui co soit; ne communique tos volontcs A personne; ne charge personne de to Ies ródiger convenabloment pour les copier cnsuite. Non; il do dit rieu de semblable; et pourvu que l’acte prodult A l’homologation soit un testament ccrit, dató, et signé par le tostateur lui-mome, quel que soit le membre dont il se sera servi pour l’écrire, c’est tout ce qu’il lui faut; il n’en demande pas davantage; il est satisfait; sa volonté régulatrice est obcie.</p> <p>IF.' Je demande la permission de faire quelques observations sur la pretention élovée A la cour infcríeure, etqu'on renouvclfera peut étre ici, de faire casser le testament qui nous oc'eupe, sur le fondement, excessivo'ment fragile, je crois, que, légalement parlant, un aveugle ne peut pas faire un testament olographe.</p> <p>Je rappellerai, en comfmencant, que, ni dans la pétition origínale, ni dans eelle supplómentaire, on ne trouvé aucune allegation d’incapacité légale; eteependant il a plu la cour de district d’examiner Cette question,' comme' si elle' avait oté soulevée par les actes de' la procédure !</p> <p>J’examine'rai done', et je discuterai la question d’incapacité légale, selon los' lois francaise's qu’inv'oquent les commentateurs que l’on a cites- A la cour inférieure. En expliquantParticle 978 du Code francais qui porte ; “ceux qui' ne savent, ou ne peuvent, lire ne pourront faire de dispositions dans la forme' mystique,” M. Duranton nous dit, (tomo 9, page' 159, no. 134)': “ Et comme ceux qui ne savent ou ne' peuvent lire, ne peuvent pareilleWrent caire, ils ne peuvent pas non plus faire un testament olographe.” Ilajoute (page'60, no. 136)' “ celui qui est privé de l’usage de la vue no pouva'nt pas lire, ne peut par consequent tester en la forme mystique, ni en la forme olographe,”</p> <p>Parlant de cette opinion ou décision, bien trinchante' comme on le voit,- et quicen verité, pourrait bien- finir par n’otre pas d’un trés grand poids dans notre affaire, on nous saisit au corps; on nous enferme hardime'rít dans les limites' étroites' d’un petit sorite, d’oú l’on se ílatte que nous ne pourrons pas sortir. On nous dit: “ Pour faire un testament mystique, il faute étre en état de lire; pour lire, il faut regarder; pour regarder, il faut voir; or l’aveugle ne voit pas: done' il ne peut pals regardér; il ne peut pas regaíder, done i'l ne peut pas lire : il ne peut pas lire, done il ne peut pas faire un testament mystique: il ne peut pas' faire un testament mystique, done il ne peut pas faire un testament olographe. Duranton l’a dit, done le testament de Francois Xavier Martin e'st nnl. Jadis,' en France, qunnd oír invoquait le grand nom de Dumoulin, présidons, conseillers, avócate, dans les’ parlemeus, se découvraient et s’inclinaient en tómoignago' de veneration. Le temps ou l’on en fera de méme ehez nous, quandon citera; Duranton, viendra peut-étre : en attendant, et sans vouloir me soustraire au' ‘tribuí d’admiration si légilimement dú A ses ceuvres immortelles, on me permettra, j’espére, de m’inscrire en faux eontre cette proposition de son' cru, que' “ ceux qui ne peuvent lire',' ne peuvent écrire.” Cette proposition peut étre' vraie, et je n’en doute point, A l’cgard de personnes qui n’ont jamais su lire ;; milis elle est certainement fausse, quant A celles qui ayant su lire et écrire parfaitement, ont eu le malheur, dans un Age avancé, de perdro' la vue, de devenir avengles. Avant de le prouver, ce quine sera pas difficile, je pe'nse, oserai-je' demand'erA Monsieur Duranton, pourquoi “ ceux qui sont privés de la vue' ne peuvent pas, en France, tester dans la forme mystique? II me repondrá do-suite, et sans hésiter, j’imagine; c’est parce que Particle 978 du'Code Napoleon le dit bien e'lairement, quoique et d’autres termes.</p> <p>Maintenant, comment se peut-on permettre, n’ayant sous les yeux que cet article 978, d’en conelureque celui qui ne sail, ou ne peut lire, ne peut pas faire an testament olographe ? Comment? La raison en est de suite donnee par Mr. Duranton: “ comme ceux qui ne savent ou nepeuvent lire, ne peuvent pareillement écrire, ils ne peuvent pas non plus faire un testament olographe. Celui' qui est privé d e la vué ne pouvant pas lire ne peut, par conséquent, tester en la forme mystique, ni dans hr forme olographe.” Ou a-t’il trouvé cela le doclcur' Duranton ? est-ce dans son Codo Napoléon ? Oui, qtiant A la’forme mystique. Non, quant A la forme olographe. Car Particle 970 de ce Code no porte que ceci: “ Le testament olographe no sera pointrvaIable, s’il n’est écrit en entier, daté, et signé de la main du testateur: il n’est assujetli a aucune nutro forme.” Nous voyons done ici: Io. Que laformalité de lire le testament olographe, n’est pas proscrito. 2o. Que c’ost, dans son propre fonds, ou en se rendant i'ócho de, Dieu sail, qui. quo M. Duranton a trouvé, et a bien voulu enseigner que, “celui qui no pout pas lire no pout pas faire un testament olographe.” 3 ° . Que, s’il nous l’onseigno, c’est parce que lui, professeiu' de droit et membre do la légion d’honneur, croit que quiconque ne peut pas lire, ne peut pas écrire!</p> <p>Comment Un piefe'sseur de droit francais peut-il bien faire cette erreur? Il ine serait difficile de le c'oncévoir.' Si M. Durauton était ici je pourrais lui dire* “Daignez voir le testament olograplie qu’a dertaineinent bien éerit, daté, et signé de su main, le défunt Francois Xavier Martin, aveugle, qui, depuis plusieurs annóes, ne pouvait plus lire dutout ; et j’ai trop bonne opinion de vous pour m’imaginer que vous n’éco'uterez pas la voix de votre raison, qui, óclairpe par le témoignage de vos sens, vous dirá qu’un aveugle peut écrire, quoiqu’il ne pent rien lire dutout.” Et si ce grand hotnme refusait de se rendre ; s’il exigeait, avant de c'éder, qu’on lui montrát un aveugle écriva'nt; je luidirais: O seeptique! approehoz! posez-níoi. sur les yeux, tel bandeau que vousjugerez assez épais pour empécher tout rayon de lumiére d’y avoir accés • Je m’engage á écrire en votre présence, un testament tel que Ja loi de votre pays— tel que celia du mien, veut qu’il soit pour étre valable'.</p> <p>L’aveugle, en France, ne peut pas faire un testament mystique; rien n’est plus positif, d’aprés les termes de Particle 978. Mais lorsque, j'e vois, ce que M. Duranton ne peut pas voir mieux, mais peut voir aussi bien, que moi, que Particle 970 du niéme Code, dit; “le le'staníeut olograplie ne sera point valable, s’il n’est éerit en entier, daté,- et signé de la main da testateur” : et qu’ii ajoute de suito : “ il n’est assujetti á aucune autre forme” — je ne puis m’ampéeker de laisser' parler ma raison, qui me dit tout haut, “l’aveugle qui peut écrire peut faire, en France niéme, un testament olograplie.”</p> <p>Grenier, dans son "Truiló des Donations, des Testamons,” &c., volume ler. partie 2e., chap. let'., sec. 5, no. 281, page 285, 4e. ódition, nous dit; “ J’ai' eu occasion de diro dans cette seconde partie, au commencement de la section' 3, que l’aveugle ne peut point tester sous la forme mystique; il ne le peut done que par acte public.”</p> <p>Si, comme' on Pa vii, Paveugle ne' peut pas tester, en France', sous la forme' mystique, ce n’ost que parce que Partido 978 dn Codo Napoleon ne veut pas' que ceux qui no peuvent pas lire fussent leurs testamens dans cette forme. Mais, eu résulte-t-il qu’ils ne peuvent tester que par acte public ? c’est ce dont il est pe'rniis de douter; ear il n’est assurement pas logique d’e'n conclure que' les aveugles ne penvent pas tester sous la forme olograplie. M. Grenier semble' lui-méme n’étre pas tres súr de la justesse de sa conclusion; car il continue, ct, au troisiéme alinóa plus loin, il veut bien nous dire : “ M. Bergier, dans une note sur Ricard, des Donations, pages 32 et 33, a pensé que rien n’empéchait qu’on ne déclarát valable le testament olograplie qu’un aveugle aurait pu faire niéme dans son état de cécité. II invoque un arrét du 29 Mai 1770, rapporté par Denisart, au mot testament, no. 160, qui a ordonné l’exéculion dtí testament olograplie de la dame Ménage de Pressigny, qui était aveugle, atí moment oú elle l’avait éerit, daté, et signé.”</p> <p>M. Grenier ne se permet pas de condamner ee que ditBergier. II se borne k dire : “ Cette opinion n’est pas sans dificulté.” “ Le earaclére du testament dographe (continue-t-il) est d’etre fait par le testateur seul.” Sans doute, si, par ces paroles, vous entendez que c’est lui et non pas son voisin qui doit Vécrire, La datar, et le signer; inais si vous voulez dire que, pour faire un testament olographs, le testateur doit s’isoler, se séquestrer, se teñir bors de la vue de tente1 autre personne que lui-méme, je m’inscris en faux; car des qué ilion testament est éerit en entier, daté et signé de ma propre main, la loi est satisfaite; et il lui importo fort peu que je Paieécrit, soit retiré dans mon- cabinet; soit dans un salon, au milieu de nombreux visiteurs qui se disposaient k recevoir mes derniers adieux; soit assis sur le seuil de ma porte, á la vue de tous les passans. “Or. un aveugle, quelqu’habitude qu’il ait pu conserver de Pécriture (ajoute-t-il) pourrait-il bien se llatter d’écrire sou testament, de le dater et signer, de maniere k ce qu’il n’y eñt- ancun des inconvéniens que cet état fait naturellement craindre, qu’on prévoit assez sans les défailler, et qui pourraient rendre le testament illisible et nul.” Le probléme á resondre n’est pas de savoir s’il y k quelqu’inconvénient k ce qu’un aveugle derive lui-méme son propre testament, mais seulement de ' savoir si la loi veut ou ne voul pus, lui permet ou lui défend de le luiré.</p> <p>“ Si on suppose (ajoute M. Grenier) qu’il se fasse aider et guider par un tiers, alors la possibilité des insinuations et des surprises lie se présente-t-elle pas á Posprit? et ne o’éléve-t-il pas un doute legitime sur la validite d’un testament fait dans une semblable cireonstance 7” No suppo3ez pas, mais, prouvez qu’il a été aidé et guidé.non seulement pour tremper de nouveau sa plume dans l’encrier, quand il, le fallait; non seulement pour recommencer au point ou il s’était arrété pour cela; caril n’y a ríen lá que de purement méchanique; mais qu’il a oté aidé et guidé par la volonté d’autrui, quant á la maniere de disposer de son bien ; et-alors vous pourrez raisonnablement-et légalement douter que son testament contionue bien ses pro pros volontés; mais á moins de cela, no nous parlez pas de la possibilitc des insinuations et des surprises. Car si, ófant alléguées-, elles n’étaient pas prouvées avoir oes caracteres, aucun douta légitime, aucun donte raisonnable méme, ne pourrait, dans l’esprib d’un juge sage, s’élever sur la vaiidité du testament: L’aut'eur termine ce- paragraphs-par ces mots: “ Ou est oette garantió, si-fortement exigée par la loi, de la certitude des volontés du testateur ?” La garande exigée par ia loi- de la certitude de la volonté du testateur, qui apréféré á une-autre la forme olographe, setrouve tout entiére dans le testament lui-méme, quand il est ócrit en entier,, daté, et signé de la main du testateur. La loi chez vous n’en exige-pas d’avantage. Oette certitude ne cesse, et ne peut cesser, que lorsqu’il est allégué etprouvó que le testament n’est que i’effetde l’erreur, de la c-rainte,.ou de la violence, ou du dol ou de lafraude.</p> <p>A l’alinéa qui suit immédiatement M. Grenier, que l’ou serait tentó de cioire' persuadé qu’ila, sinon détruit, da moins singuliérement affaibli, l’offet que pouvait produire l’-arrét du 29 mai 1770; nous- dit: “ Aussi Dónizart avait-il d’abordposó en principe qu’un aveugle ne pouvait tester qpe par-testament public faitdevant notaire.” Cela manque un-peu d’-exnctitude. Dénisart n’avait point, et n’a point,-posé d’abord- en principe qu’un aveugle ne-pouvait tester que par actopublic devant notaire. Voici, mot í! root c» qu’il a-dit: “ Celni qui est aveugle ne peut tester, en pays de droit ócrit, que par la voie du testament nuncupatif-;sur quoi voyez l’article 7 de l’ordonnance de 1735, et-testament nuncupatif. Si-1 c’est en pays confumier, un pared testament ne pent étre fait que pardevant notaires, ou curés en se conformant á l’article 25 de l’ordonnance de 1735.” — -VoilA ce qu’il-adit : et il y a, je crois du moins, entre celé, et ce que dit M. Grenier,■ une difference assez-sensible. Poser en principe, n’est point invoquen une régletracce par la volonté législative. La volonté législative recommit un principe etle consacre, mais ne le cree point. Elle crée, elle établit, elle present des regles, elle les fait observer, et-voilá. tout. Dans les pays de droit ócrit, la loi roinaine prévalait,.et depuis Juslinien, qui avait réduit le testament olographe iln-’étreemployé valablement que dans les téstameos de péres de famille; disposant’ de leurs biens entre, lefu-s enfans, il n’y. avaif plus que le testament public notarié: Dans les pays coutumiers, l’ordonnance de 1735, article 7, le dit ex-pressement: le testament de l’aveugle doit étre fait dans la forme nuncupative.Je ropéte done que c’est d’aprés des regles íracés par les lois, qu’a parlé Dénisai't, et qu’il.n’a point lui posé en principe, ce qu'il a-ditdu testament de 1’a.veu-gle- J’obswrverai en outre, que l’arrétdu 29 mai 1770,que l’on trouve cité dansDénisart,.contrairement aux regles suivies en pays de droit écrit, et dans les pays coutumiers soumis á l’ordonnance de 1735, a posé en principe que l’aveugle' qui peut écrire peut valablement tester dans la forme olographe. Et certes rienn’est plus conforme aux himióres du sens eommmi, dont s’écarte bien évidemment toute disposition ou régle arbitraire ou- positive, qui priyeruit un-aveug]®-de la faculté de faire ce que l’homme qui a l’usage déla vue no pourrait pasmieux faire que lui:. savoir, disposer par testament olographe.</p> <p>Mais écoutons M. Grenier jusqu’au bout. Il continue: “ 11 parait que c’est un annotateur qui a ajoutó de suite la citation de I’arrét de 17-70.” — Chícelaparait-i) 1 il serait difficile de lo dire. Mais que ce soit un annotateur qni ait ajouté cetfe citation, ou Dónizart lui-méme qui l’ait faite, l’arret n’en est pasmoins lé, et il n’est pas aisé d’écarter l’obstacie qu’il oppose á toute prétentionde déshériter légalement l’avengle qui sait écrire, qui peut écrire, et qui écrit, du droit qui lui est garantí par l’article 902 du Code Napoleon, qui porte: “ Toules personnes pouveni disposer el recevoir, soit par donation enlre-vifs, soil par testament, excepté cellos que la loi en déclareincapables.” M. Grenier semble, pourtant. vouloir alténuer le coup que lui porte cet arrét, en nous disanl: “ Les héritiers soutenaient avec force qu’une personne en état de cécité n’avait pu faire un testament olographe; et un arrét isoló qui semble avoir jugé le contrairo, peut-étro par des circonstancos inconnues (la cécité pouvait n’étre pas complete) peut-il-fixer les opinions sur un fait sur le quel le sentiment et la raison instruisont suffisanunont?” — II y ourait eu, peut-éfro, un peu plus de bonne foi, a rapporter en son entier la citation prétendue ajouteo par mi anuotateur, qn’:\ prendre la peine assez inutile, selon moi, do parler de la sorfe. L;\ voici dans son intrgrité cette citation, vraiment mnlencontreuse pour tous ceux qui s’eflbrcontdo fair© dire la loi pins qu’ello ne dit:</p> <p>“ Cependaut, par arrétdu mardi 99 mai 1770, rendu on la Grand-Chambre, au rapport do M. Beze de Lys, la cour a confirmé le testament olographe de la -Dame Menage de Pressigny qui était aveugle (qui éiaü aveugle, c’est-positif,) au terns auquel elle 1’avait icrit, signé et daté. .Ses.hóritiers at.taquérent de nullité.son testament qui ne contonait que des legs .pieux et des rentes viagores faites áses domestiques. On pense bien que le moyen dcs.hévitiers était qu’un aveugle ne pouvant écrire, cela emportait la .nullitó .d’un testament olographe. Mais M. Gouvé qui dófendait le Sieur Gamier, exécuteur testamentaire, répondait que la testatriee avait pu écrire, puisqu’elle avait écrit, quoiqidelle fíit aveugle.; ab actu ad posse valet consequontia; et il était prouvé que le testament et les codiciles étnientbien efiectivement l’ouvrage de sa main et les traits de son écrituro. Enfin M.,Gouvé établit dans le mémoire imprimé dans cette instance, qu’on ne pouvait conclure, de ce que la loi Romaine, 8-cod. Qui testam. facere possunt, et l’ordotinanee de 1735 n’avaient parlé que des testamens nuncupates et mystiques, elles eussent limitativement assujetti .les aveugles á sa servir de l’une ou l’autre de ces deux formes.”</p> <p>Que deviennent, en face do cette citation, la supposition des .circonstances inconnues, etla probabilitó que la cécité ne íut pas complete?</p> <p>Venons a nos propres.lois.</p> <p>V. Est-il vrai que, dansl’Etat de la Louisiane, la date du testament de feu Francois Xavier Marlin, la loi interdisait <\ l’aveugle qui saifet pent écrire, et qui écrit, la faculté de.faireun testament olographe ?</p> <p>Dans l’examen de cette question je remonterai aux lois qui.nous régissaient avant. la naissanco de notre Code actuel. Je ne remonterai point, cependant, jusqu'aux lois roinaines, qui, furent abrogées en Espagne des le 7me. siécle de notre ore, par une loi du roi Chiudasvindo, qui est la 9mo. tit. 1er. .lib. 2, De las leges de los Visogodos. — Abrogées de nouveau par la loi 8, tit. 1er. lib. 2, del Fuero Juxgo : puis, successivement, par la loi 15, tit. 1er. Part. .la. et par la loi C, tit. 4, Part 3, qui défendireut expressément, que Ies lois romaines .fussent observées; et, depuis lors, elles n’ont jamais été remises en force. On sera peut-étre étonné de.ce que je viens de dire ;\ ce sujet, quand on se -rappelera avoir lu dans pluiseurs traités justement appréciós sur.Ies contrats et méme sur les testamens ot donations, de nombreuses citations faites par Ies juristes Espangnols, des principes du droit romain ; inais I’étonnement cessera dés qu’on saura quo l’abrogation n’a jamais pu porter et .n’a porté .en efiet que sur ce qui était de droit positif ou arbitraire, établi ou preserit par la puissance legislative ; et que, dans toutes les possessions soumises il la .eouronne d’Espagne, tout ce qui, dans le droit romain, était principe, ou pr&cepte tiré du droit de la nature et des gens, était respecté et.considérécomme inviolable : car, si, conune je l’ai dit plus liaut, les lois créent et prescrivent des regles, etne eréentpas des principes, (les principes existant par eux-mémes,) les lois ne peuvent pas abroger les principes: lis sontéternels comine Injustice. — Vide en téte de la Instituía civil y real de Joseph Berni, la Carta de Dn. Gregorio Mayara y Sis-ear, page 25 et precedentes.</p> <p>La loi 14, tit. 1er. Partida 6, porte en termes exprés, que l'aveugle ne peut faire de testamens que dans la forme nuncupative en presence d’un notaire ,et de sept témoins. Cette loi était en force lorsqu’en 1808 la législature du Territoire d’Orléans nous donna le Code appelé “ Digeste de la loi Civile, &e.” Ce Code ne statua rien á l’égard du testament de l’aveugle spécialement, et l’on pourrait inférer de ses dispositions que l’aveugle pouvait testar méme dans la forme mystique, car tout ce qui, lá, est exige de lui, pour ce testament, est qu’il l’écrive, ou le fasse écrire ; qu’il le signe, s’il sait signer; qu’il le close et le cachette, ou le fasse clore et cacheter; qu’ensuite il déclare au notaire et aux témoins que le contenu en ce papier clos est son testament, écrit par lui-méme, ou par un autre, et signé ou non signé de lui; enfin qu’il signe l’acte de suscription, s’il sait signer. Voyez art. 99, page 229, Code de 1808. Quoiqu’il en soit, en 1895, la sagesse codificatrice, mit au monde notre Codo actué), dont voici les dispositions textuelles qui ont déjá été eitées en partie:</p> <p>“ Article 1456. Toutes personnes peuvent disposer ourecevoir par donation entre-vifs, ou par cause de mort, excepté celles que la loi en déclare expressément incapables.”</p> <p>Jepourrais m’ar.réter iei etsornmer PEtat demandeur, l’Etat qui lui-méme a fait cette loi, de ipe tronver .dans tout le Code, qni est son ouvrago, un endroit qui déclare quo l’aveuglo ost .expressément déclaré incapable de disposer par testament. Mais, m’objo.ctera.-t-on: on ne yous dit pas qu’il est incapable de tester; ,o,n soutient seulement qu’il ne p.eut pas le faire dans la forme olographe. Je .v.ous entends; mais j.e vous réponds qu’il me suffit de voir qu’il p.eut tester, pour .avoir le droit d’exiger de vo.us de me montrer, dans votre Code, que cette faculté est restrejn.te, quant á lui, k telle ou telle forme; et je crois pouvoir m’engnger,.comme je le fais dés ce moment, á prouver qu’il a le droit de tester dans la forme de testament public ijotairié, dans la forme de testament mystique, .et dans la forme olographe.</p> <p>Commencons par nous rappeler quien supposant que la loi d,es Partidas relative & Paveugle pRtcpexister avec notre Code .actuel, elle était abrogép depuis seize années quand I.e Juge Martin a fait son testament; d’oú il faut conclure que cette ancienne loi est nécessairement s.ans iníluenco sur ce testament. Cela posé, jo passe á l’ac.compjissement do mon engagement.</p> <p>ler. L’aveugle peut te.st.er par testament ¡njancupatif notarié. C,ola va sans Contestation.</p> <p>2. Il peut. tester par testament mystique.</p> <p>C’est ,ce qqe 1’on conteste: Vpyons done ,ee que porte notre Code <\ ce sujet. Article 1577. “ Le testament mystique ou secret, autrementappelé testament fermé, se fait dans la forme suivante : Le testateur doit signer ses dispositions, spit qu’il les ai.t éerites lui-jnérae, soit qu’il ¡bs ait fait écrire par un autre.” '•* Le papier qui c,onti.endj-¡a ses dispositions, pu le papier qui leur servirá d’enveloppe, devra étre clos et scellé; le testateur le presentera ainsi clos et scellé, .au notaire et it sept témoins, ou il le fera clore et sceller en leur présence; en-suite il déelarera au notaire en présence des témoins, que le eontenu en ce pa-pier est bien son testament, écrit par lui, ou par un aptre par ses ordres, et .signó de lui testateur; le notaire dressera nussitót l’acte de suscription, qui sera écrit sur ce papier ou sur la feuille qui lui sert d’enveloppe, et cet acte sera .signé tant par le testateur que par le notaire.”</p> <p>Quiconque saitlire le franjáis voit etcomprend fort aisément, qu’il n’est rien .dans cet important article, qui indique au testateur, ou k qui que ce soit. qu’il a .quelque chose á jire, soit au notaire, soit aux témoins ; rien qui lui en fasse un .devoir. On voit de méme, que le notaire, qui doit dresserl’acte de suscription, n’est pas non plus obligó de lire quoique ce soit, pas méme cet acte, soit aux té¡moins, soit au test,ateur. Ainsi, pourvu que le testateur, tout aveugle qu’il est, .signe ses dispositions festamentaires, éerites par lui ou par une autre personne; que le papier contenanf ses dispositions soit clos et scellé; qu’il le présente, ainsi clos et s.cellé au notaire et a sept témoins, ou qu’il le fasse clore et sceller ,en leur présencp; qu’ensuite il leur déclare que le eontenu en oe papier est .son testament ccrit par lui, oupar un autre par ses ordres, et signó de lui, testateur; pouyyu eníin qu’il signe Pacte d© suscription quapd le notaire J’aécrit, la loi ost satisfaite: elle nlexige rien de plus que cela de lui.</p> <p>Dira-t-on qu’un aveugle ne peut pas faire tout cela! c’est une question de papacité physique que Pon soulóve alors, et ici nous traitons de la capacité légale. Au surplus je dis qu’un aveugle pout fort bien écrire; je dis qu’il peut ployer, fermer, olpr.e, cacheter uu papier écrit par lui, ou par uns autre personne. Mais revenons á la question d’incapacité légale; sans perdre de vue cependant, que Paveugle qui sentirá qu’il ne peut pas faire ce que notre article 1577 exige, att.achpra assez d’importance á faire un testament d’une exécution facile, pour ne p.as commettre Pimpruden.ce d’entreprendre rien .au dessus de .ses forces. On m’aprétera peut-étre, en me citant d’un air de triomphe Particle 1579 qui porte :</p> <p>“ Coux qui ne sayont ou ne peuyent lire, et ceux qui ne savent ou ne peuvent .signer, ne peuvent faire de dispositions dans la forme du testament mystique.”</p> <p>Jeconfesse que.cet article (surleque) je pourraisfaireies mémes remarquesque j’ai faitessurl’ayticle 978 du Code franjáis, auquel il a emprunté une partie de ,ce qu’il dit,) présente toutd'abord quelque ressource au systéme embrassé par les cominentateurs Duranton et autres, et á nos adversaires qui se sont faits leurs echos; mais je ne crois pas trop présumer de mes forces en pensant que cette ressource est de bien peu de valeur ou d’importanee. Si, dans la redaction d’un certain nombre ¡Particles, nos ppdificateurs se sonf montrés copistes, on ne gauniit cert.aipement point comment contesten que, dans celui-ci, ils se sont montrés, au moins, un peu originaux; et, sans le respect, dont jo suis penetré pour leur mémoire, je ne sais pas trop si je ne tlirais pas quo cet article est tout á fait absurds.</p> <p>Un aveuglo se présente, nyant ¡1 la la main son testament, qu’il a bion soigneusement pris, term et garde, depuis le moment oú il l’a écrit, ou fait écrire par son ami, homme digne de tout sa confiance ; et il dit au notaire et aux sept témoins, en le leur remetfant, dos et seellc : “Le contenu en ce papier est mon testament, signé de moi. Notaire, éerivez Pacte de suscription.” Vous plaisantez mon ami; vous ne pouvez pas lire car vous étes aveugle ; ainsi vous no pouvez pas faire un testament mystique. C’est vous qui voulez rire, j’inmgine ; si je ne peux pas lire, j.e peux signer durnoins: si vous en doutez, je vais signer devantvous; or, la derniére partie de votre article 1579, que l’on m’a lue, vent bien que je sois privé de la faculté de faire un testament mystique, si je ne peux pas signer; mais, si je peux signer, il est clair qu’il me doune cette faculté; car, si celui qui ne peut écrire ne peut pas tester dans cette forme, celui qui le peut, ne peut pas manquer d’etre admis á le faire valablement. Réfléchissez done, je vous prie, que votre article 1577 ne me charge point de lire, soit ce que j’aifait, soit ce qu’a fait mon ami par mon ordre.</p> <p>Faisons bien attention ici áce qui est statué par les arts. 1570, 71, 72, 73, et 74 pour le testament nuncupatif sous signature privée ; Láune lecture estexpressément exigée de la part du testateur, comme formalité essentielle; mais, á Regard du testament mystique, il n’y a rien de semblable : non, rien n’a besoin d’etre lu. soit par le testateur, soit par le notaire lui-méme. Dites que je ne puis pas fair cun testament nuncupatif sous signature privée, je n’aurai rien ü repliquen mais ne drtes pas que je ne puis pas en faire un mystique.</p> <p>On me réprondra: c’est la loi; il faut s’y soumettre. Je ne l’avouerai pas comme je lai avoué quant é farticle 978 du Code francais. Eh! pourquoi me demandera-t-on ? C’est parce que le veritable texte de votre Code est le texte anglais; ainsi le voulait la constitution sous l’empire de laquelle le Juge Martin a testé; etce texte ne contíent pas l’absurditc que renferme ce que vous appelez le texte francais. — Maistoutes nos lois sont bitextes; — devaient-elles l’étre? — Je le nie. Quand cette constitution vous a dit que vos lois seraient dans la Pingue de la constitution des Etats-Unis, elle n’a point ditqu’ellespourraientl’étro aussi dans la Pingue du Code francais; — mais elle ne l’a pas défendu! — Inclusio unius estexdusio alterius; voilít ma réponse. Je prends done notre texte anglais, de farticle 579, et je lis: “Those who know not how, orare not able to write, and those who know not how or are not able to sign their names, .cannot make dispositions in the form of a mystic will,” Maintenant, soit queje combine cet article 1579 avec Particle 1577, écrit en anglais, soit que je le combine avec ce mérae article écrit en francais, je vois que l’article 1579 est une conséquenco qui découle tout naturellement de farticle 1577. En effet, par cet article 1577, je puis faire mon testament moi-méme, mais pour cela il faut que je puisse écrire : je puis le faire par une autre personne, et pour cela il n’est pas nécessaire que j’écrive, il suffit que je puisse le signer de ma maine (sign my name.) Le t.exte anglais se lie avec ce qui le precede; le texte francais ne se lie pas; l’un est dicté par le bon sens, l’autre est une absurdité. J’en conclus done quo, rigorousement et constitutionellement parlant, l’aveugle qui peut ccrir.e, celui qui ne peut que signer son nom, peuvent faire un testament mystique.</p> <p>3. L’aveugle qui peut écrire peut faire un testament olographe.</p> <p>Inutile, je pense, de répeter iei ce que j’ai dit, sur le testament olographe, dans mes observations critiques sur les passages cites de Messieurs Duranton et Grenier ¡a la cour inférieure. Je me bornerai rappeler la disposition de notre Code, telle qu’elle est contenue dans l’article 1581. La voici encore.</p> <p>“i<3 testament olographe est celui qui est écrit par le testateur lui-méme. 11 faut pour qu’il soit valable, qu’il soit écrit entier, daté et signé de la main du testateur lui-méme. 11 n’est assujeiti á aucune autre forme, et peut élre fait en tous tems, meme hors de l’Etat.”</p> <p>Ce texte qui est aussi intelligible que concis, est parfaitement d’aecord avec le texte anglais qui se trouve en regard avec lui dans le Code. II n’est susceptible d’aucun commentaire. 11 n’est nécessaire d’aucune interpretation pour le comprendre. La prétenduo incapacité légale, n’est qu’un ridicule songe-creux, á moins qu’on ne trouve dans les lois qui existaient á la date du testament olographe du Juge Martin, une disposition qui exclue expressement f aveugle qui peut écrire, dater et signer de sa propre main, de lalaculté de faire un tesloment do cette espece. Oil est elle cotto disposition! nulle part. Mais a-t-on ditii la com' inferieuro, et, peut étre dira-t-on ici, los aveuglos sont, par Particle 1584, absolumentincapables d’étre témoins dims les testamens. Rien n’est plus vrai. Mais qu’inférer de la ? Un esprit non prévonu dirait do suite: dédarer un.aveugle incapable d’étre témoin dans les testamens, n’est pas dédarer cet aveugle incapable de faire un testament. Il continuerait et ne pourrait s'empccher de se demander: ne sait-on pas, ou ne peut.on pas faire, la difference enfreun témoin etun testateur? Le testateur peut .bien assurément tester quoiqu’il n’y vote pas, quoiqu’il soit aveugle, car, s’ii ne peut pas écrire son testament, il peut le faire écrire, le dieter: et pour cela il ■n’a pas besoin d’y voir: mais le témoin-^comment pourra-t-il dire, lo. qu’il a vu le notaire écrire et signer; 2°. que les témoins dont les signatures sont apposces an testament sont indentiquement les retomes personues qui sont dites y avoir été presentes ; 3 °. que tout le testament a été confectiohnc, achevé, etc., .sans divertir á aueun autre acte; 4o. que toutes les signatures qui se trouvent .au testament sont bien les retomes qui y.ont été écritesensa presence; 5 ° . que, pendant que le notaire écrivait, pas un seul témoins n’est sorti et n’est reutré plus tard ; 6°. que tous ont, ainsí que.Iui, signé ensemble? &c. &c. Quoi! ces inflexions n’ont pas frappé les organes des pretentions de PEtat! Mais ces Messieurs ne voient done pas que, pour que leur Jogique ne fit pas un peu lire aux dépens do leur sagacité, ils devraient non pas se contenter d’avancor, avec cette disposition it la main, que Paveugle ne peut pas faire uu testament olographe, mais bien qu’il ne pout faire de dispositions testamentairos sous aucune forme ? Je ve,ux bien, pour ma part, leur passer d’assimiler un testateur a un témoin instrumentaire, mais j’y mets une condition qui, je erois, ost fort juste: assimilez tant que vous voudrez, reíais que votre assimilation soit entiore. Ifit .dites, si vo.us en sentez la force: un aveugle ne peut étre témoin il auenn testament; done un aveugle ne peut faire aucun testament. Ruis Pon prononcera sans lire, si Pon peut. /</p> <p>En m’excusant autant qu’il et en moi de le faire, d’avoir lionorc cette question de mes remarques — question vraiment oiseuse, puisqu’il n’y avait dans la procedure aucune allégation ¿’incapacité légale, je passe á Pexainen de la question de simulation ; etyoici comment je la pose :</p> <p>VI. Est-üvrai que l’insiitution'de tégaiaire universel, faite par le testament ■olographe de F. X. Martin, en faveur de son frére Paul Bmi. Martin, n’est qu’une simulation ; qu’en réalité, et en vería de convention arrétée, du vivant du testateur, entre luiet son frére, il doit, par rapport é ses héritiers du sang, étre consideré comme s’il fút mort sans avoir tosté ; et sa succession étre paríagée entre eux tous selon lours degrés respectiís de párente avec lui ? Enfin ,que le testateur n’a eu recours í\ cette simulation que dans la vue illicite de frust.rer PEtat de la Louisiane de la taxe de dix pour cent, imposée par la loi sur .toute succession échéant dans le dit Etat, á des aubains non résidens soit de ,ceü Etat, soit de tout autre Elat ou territoire do ¡’Union ? La cour sait aussi bien que moi que Particle 343 de notre Code de Procedure, fait ü la partió interrogée sur fails et articles un devoir d’y repondré, sous serment et catkógoriquement, sous peine de voir tenus pour confessés les faits sur les quols elle aura refusé ou négligó de repondré. Elle sait aussi que, dans un esprit d’équité, .de justice natureÜe, Particle 354 du raime .Code, veut que les réponses des I’inlerrogé fassent preuve, sans pourtant exclure la preuve contraire; mais •quelle ne puisse étre contredite que par le serment de deux témoins, ou d’nn seul .témoin corroboré de circonstances graves; ou par une preuve littérale. Ces deux dispositions sous les yeux, l’on doit, ce me semble, conclure que l’alíégation de simulation, faite dans la petition supplémeutaire, etait réduite au néant par les réponses du défendeur; et Pon dóit, conséquemment, resoudre la question que faisait naítre cette allegation, et que j’.ai posee plus haut, par une négative tronchante; il moins que deux témoins, ou au moins un témoin seul, soutenu de circonstances graves, ou une preuve littérale, n’aient douné aux réponses assermenté.es du défendeur un dementi clair, non equivoque, form el.</p> <p>II s’agiü done maintereant de cherchen, dans les pieces au procés, dans le dossior, si cette exigence de la loi a été satisfaite — si le dómenti a été donne, com-me il est prescrit qu’il soit douné, pour nous empéchcr de proclamen tout haut que Pallégation était fausse, ou du moins tout.it fait contraire á la venté. — Je n’ltosite point á dire, des ce moment, que, quolio que pointilleuse attention que l’on veuille porter, á rocueillir, épelucher, disséquer chaqué phraso, chaqué parole sortic'de la bouche des témoins que los organes del’Elntont juge ú próp'os' de produire, dans l’espoir do justifier la grave accusation renfermée dans lour allegation, ou n’y trouvera rien sur quoi l’on puisse asseoirun jugoment qni leur soit favorable. Serait-ce'dans le témoignage de M. Grima que l’on se flatterait de trouver une base á cette étrange accusation ? Eli! pourrais-je dire á nos1 adversaires: songez done que ce témoin vous a appris, que le Juge Martin voulait que la fortune, qu’il avait amasses ici, par son travail et son économie, y restét; que c’est dans cette vue qu’il avait institué son frére son légataire universe!; mais qu’il craignalt qu!aprés son décés, ses biens ne fussent vendus par ce frére. Cette partie du témoignage de M. Grima ne Kepousse-t-elle pas du pied et de la main l'idée d’un dessein illicit© de luiré passer les biens du testateur á seslicritiers étrangers, dans la vue de fruslrer l’Etat de sa taxe ? — -Mais ibaimait, et affectionnait tendrement ces mémes individus ! — Sans contredit; et certes il’ voulait leurfaire beaucoup de bien: vous en avez la-preuve encore dans le témoignage de M. Grima; mais il voulait que ses neveUx vinssent se fixer,s’établir ici, y demeurer, y travailler; et, a cette condition, il* leur aurait acheté une habitation-de la valeur de ¡¡¡>150,000. Prenez-y bien ga-rde; c’est letestateur lui-méme qui vous le dit par l’orgaue de M. Grima ; c’est lui que vous avez aiusi' rondu témoin- dans cette- cause; témoin contra producentemi il est vrai, mais1 témoin que vous avez clioisi, élu, que dis-je? exhume, pom> venir ici déposer de' la turpitude dont vous n’avez pas hesité é le dire coupable. Si-vous eussiez pu' rcussir ü faire-passer par la bouche'de M. Grima, un aveu-,-une conversation,u-ne confidence du défunt quifút susceptible da vous aider á soutenir Votre sysüéme d’attaq-ue, vous ne manqueriez pas de nous dire; et ce- d’une voix triomphante: “ nous avons la-confession du coupable 1 Avouez done que ce pretenda1 coupable s’éléve contre vous du fond de la tombe, oú vou&l’auriez dú respecter' peut-étre; et, parla voix-de M. Grima, eonfond, pulyérise, anéantit votre accusation.</p> <p>Mais me- dira-t-on peut-étre, M. Grima nous apprend aussi, que Paul B. Martin a offert de vendre, veut venclre les biens á lui laissés par le défunt, etpartir ¡lour France 1 Et quelle consequence en pourrait-on en tirei1 qui deposit en faveur du demandeur ? Le- Sieur Paul B. Martin estfranpais : n’est-il pas naturel qu’il désire aller jouir de sa belle fortune sous le doux climat de la-Provence, son pays natal? Que prouve la disposition de vendre oü ibest ? ríen,si ce n’est que le Juge Martin avait raison de craindre, comme il ie disait ú M.Grima, qp’aprés son décés, son frére ue vendít tons les bieus qu’il lui laissait ici? Mais cela prouve-t-il, que dis'je ? cela- donne-t-illieu á une présomption de notre' part, que le testateur et son légataire se fussent entendus comme on l-’a allégué, afín de frustrer l’Etat de-sa taxe? L’espritle plus injustement prévenu n’ose-rait le dire. La réponse de ce légataire, que, trés délibérément, les organes des pretentions de l’Etat demandeur, ont eux mémes rendu témoin dans cette cause, estlá; oui, elle estlú cette réponse qui leur dit bien clairement, sans equivoque, sans ambiguilé, que jamais rien de semblable n’a été entendu- entre luiet son frére; que son-frére luí a dit: •• Je t’ai fait mon héritier ; dispose de ma‘ fortune; c’est átoi.’’ Or, ce ne sont pas des présomptions tiroes par nos preventions aveugleseu intéressées qui peuvent étre opposóes á une réponse aussi ca~thégorique, aussi ibudroyante pour le systéme aocusateur que je oombats ; cesont deux témoins qui dementent cette réponse ; c’est au moins un seul témoin,' témoin non suspect, (cela va s’on dire,),soulenu de circonstances graves, ou une 2?reuve littcrale, qui oontredise cette réponse, que la loi exige. Oü sont les deux> témoins? oú est le témoin unique, aooompagné de ces circonstances 1 oü est la’ preuve littcrale, qui disentid le contraire de ce qui est declaré sous la religion-du serment, par Paul B. Martin, daas ses réponses aux interrogatoires qui luient été proposes ? Nulle part.</p> <p>II ne reste méme pas á l’Etat ou á- ses organes, la ohétive ressource de dire que les réponses du défendeur ont été étndiéés ; car je le dis, et ils ne peuvent pas le nier, c’est ex abrupto, á l'audience, sans qn’il en eút aucun avis próalable, que ces interrogatoires on oté présentós; et c’est lá,- sur le champ, qu’il a répondu á chacun, aufur et á mesure qu’on les les luía lus.</p> <p>Voyotis lo témoignage donno par le Juge Simon. Aux questions qui lui sont faites de la part de l’Etat. il dit, le 25Février: “ J’ai souvent entendu le juge (Martin) parler do la disposition on favour de son frére : 11 disait que son principe était qu’un homme eleváis laisser son bien a ses plus proches parens, et do ne rion laisser ú dos étrangers. Qu’ontre ces parena il choisirait ceux qui demeureraient le plus pres de lui, et que, s’il n’en avait aueunici, il leur Iaisserait encore son bien it quelque distance qu’ils fussent, de prtféence it tout étranger.”</p> <p>Une pause d’un moment ici. Ces sentimens du Juge Martin sont, peut-elre, difficiles it eoncevoir pour les personnes qui, en brisant les liens politiques qui les atlachaient it la terre natale, brisent également tous leurs liens de famille. Mais, si le gouvernement de ma patrie m’oblige, par ses actes tyranniques, par ses lois arbitraires ennemies de toute liberté rationnelle, de tout principe d’équité, ou de de justice, it le luir, á me faire ailleurs etloin de lui, une patrie qui me fasse jouir, & l’ombre de ses lois sages et protectrices, de tous les avanlages qui font le bonheur de l’homme digne d’étre libre, la nature n’en conservera pas moins sur moi toute sa douce et puissante influence en faveur de mes parens; car ils nesont pas complices du despotisme qui m’ainduil á m-’expatrier; ils en sont euxmémes les victimes ; et je dois les plaindre de n’avoir pas eu, soit le courage, soit les moyens de suivre mon exemple; parce que je les aime,- et qu’il ne dépend' pas plus de moi de les aimer, qu’il ne dépend d’eux, de tressaillir de joie quand je leur prouve par ma correspondance que je ne les ai pas o-ubliés; qu’éloigné des lieux qu’ils habitent, ils me sont toujours présens par la pensée. — Or, se fondera-t-on sur ces sentimens du Juge Martin que je n’ai fait qu’essayer de développer, pour assaillir sa mémoire ? pour l’accuser d’avoir voulu, par amour' pour ses parens aubains, se rendre coupable d’isne detestable fraude? Si on le' íaisail, rien ne serait plus vain, plus puérile méme,-que de se flatter d’étre écouté favorablement.</p> <p>Ne divisez pas sa pensée : vous n’en avez pas le droit: elle est toute entiére' dans ce que vient de dire le Juge Simon, qui n’est en cela que l’ócho du Juge5 Martin. Preñez la done entiére comme elle est, et dites nous, messieurs lesorganes des prétentions de l’Etat, dites nous, si son testament n-’est pas parfaitement d’accord avec cette pensée. II l’est bien certainement ; et il n’y a nisubtilité, ni tour d’adresse, ni sopliisme habile ou ingénieu-x, qui puisse faire pencher unhommeaussi honnéte que sensé á en douter un seul-instant. Voild done, jusqu’ici, encore un témoin qui, au lieu de contredire les réponses du défendeur, vient et leur donne uno nouvelle force!</p> <p>Poursuivons! “J’ai (.dit ce témoin) souvent entendu le Juge Martin se' plaindre de la taxe de dix pour cent; et il m’a souvent dit que, comme il ne' pouvait rien douner á ses parens a-bsens, sans faire subir cette taxe á sa succession, il Iaisserait. tout é son frére.” Encore une pause, et lisons la loi qui établit cette taxe: la voici.</p> <p>Section 4. Tout individu non domicilié dans cet Etat, et qui n’est pas citoyend’un autre Etat ou Territoire de l’Union, auquel écherra é tilre d’liéritage, de' legs ou de donation, la totalité ouune partie de la succession d’une personne décédée dans cet Etat ou ailleurs, paiera une taxe de dix pour cent sur le montantde toutes soramesd’argentou sur la valeur, &c.</p> <p>J’ignore s’il s'est trouvé un bien grand nombro d’individus qui- ayant des amis' ou des parens hors des Etats-Unis, et non-citoyens d’aucun des Etats ou Territoires de la République, en faveur des quels ils auraient eu quelque penchant á faire quelques dispositions testamentaires, aient appris avec joie l’existenee decette loi bursale; mais je ne serais point surpris d’apprendre qu’un nombre bienplus grand s’en soit plaint ou en ait murmuré: car rien ne me semble plus naturel. Nous sommes, en général, les meilleurs gens du monde, et notre patriotismo est á toute épre-uve, á nos intéréts prés cependant. Mais, pour dire toute ma pensée, je ne saurais flétrir d’aucun reproche l’homme qui ayant payé eonstamment et avec toute la ponctualité desirable, sur ses biens, á mesure qu’il les nequérait du fruit de son labeur, taxe d’Etat, taxe de paroisse, tax de ville, &c., fronce un peu le sourcil etlaisse échapper quelques paroles expressives de son’ mécontentement, en songeant qu’outre ces tributs passablement onnéreux, il faudra s’il veutlaisser vingt mille piastres á son frére qui est né en Fi-ance, et qui n’est jamais sortide Bordeaux, par exemple, que ces vingt mille piastres qui lui appartiennent bien, se rédeisent á dix-huit mille. Sera-t-il raisonnable de le blfuner, s’il se récrie, en disant: mais ce que mon frére me donnerait, parrécipi'ocité d’aliections, s’il décédait avant moi, ne supporlerait point une reduction semblable, au profit du trésor de France. Eh ! je le crois sans paine, et bien d’autres personnes le croiront avec moi de Irés bonne foi, Franpis Xavier Martin, qui, ilfaut qu’on le sache bien, lenait á la matiére en raison compensée des peines qu’il s’ctait donnóes pendant soixante ans pour acquérir sa fortune, a du muimnrer, se piaindre tout haut de cette loi, parla quelle 1’Etatse fesait l’héritier foreé de la dixéime partie dece qu’il avait tant travaillé pour gagner, s’ilosaic ceder á ces sentimens de la nature qui devaient le porter á laisser en mourant, sa succession k ses parens aubains domicilies en France. Mais, en se plaignant a-t-il dit; En dépit de cette lei arbitraire je ferai passer mes biens, ma succession, en France, et l’Etat n’aurapas les dix pour cent qu’il veul s’appropriersur les fruits de mes travaux, de mes economies, de mes privations de soixante longues années ! Il n’a rie’n dit de tel. Il a dit, je laisserai le tout á mon frére — -it mon frére qui n’habite pas la France, qui est ici, qui demeure avec moi, qui depuis plusieurs années gére mes affaires en vertu de ma procuration. Voy ex pour ces faits le témoignage de M. Guyol et celui de Greiner.</p> <p>Observons bien que ce n’est point une seule fois que le défunt a dit é son collegue Simon qu’il laisserait tout son bien au défeudeur. Ce témoin dépose qu’il le lui a dit en différentes circ'onstauees. II declare aussi qu’aprés le testament fait, le Juge Martin í’avait envoyé ehercher pour s’informer si lui, témoin, voudrait agir comme son exécuteur testamentaire, lui disant qu’il avait fait son frére son íégataire universe!, et que, pour le cas d’absenee ou de mort de celui-ci, il avait nominé le témoin son exécuteur testamentaire. Observez- bien encore que ce témoin a declaró au testateur, qu’il consentait á étre son exécuteur testaméntame dans les cas prévus ; mais qu’il n’a jamais reyu de lui aucune direction quant it sa maniere d’agir en cette qualité ; et que le testateur, ne lui a jamais parlé d’aue'une autre personne que son frére & qui düt aller sa succession. Réunissez toutes ces circonstances et, assurément, il sera impossible de rien y trouverqui contredise les réponses du défendeur aux interrogatoires sur faits et articles. Elles les corroborent en elfet dans toutes leurs parties.</p> <p>Et qu’on me dise s’il tombe sous le sens que le testateur, ayant prévu le eas de la mort de son frére et ayant pourvu, pour ce cas, k le remplacer par M. Simon, comme exéeuteur testamentaire, ne lui aurait pas dit : en cas de prédécés de mon frére, vous voudrez bien agir de telle ou telle maniére ? II ne lui dit rien á ce sujet. Or quel aurait été le résultat si, le Iégataire mourant avant le testateur, et ne pouvant recueillir sa succession, ni la transmettre conséquemment, M. Simón eüt etc appelé á agir ? N’est-il pas d’une évidence irrésistible que la succession du juge passait sans obstacle á ses collatéraux de' France? On done était le dessein de frauder l’Etat de sa taxe? Et si le Juge Martin, prévoyant le cas du p.'édéeés de son frére, eüt voulu, par une institution simulée, frustrar l’Etat de sa taxe, croit-on qu’il lui aurait óté impossible de trouver un bienveillaut qui sefüt prété k íigurer comme son Iégataire universel,- moyennant une commission de deux ou trois pour cent, afín de bien assurer,- dans ce cas, l’exécution des prétendues intentions illicites qu’on a la charité toute chrétienne de lui préter ? Au lieu de tout cela, le testaLeur agit d’une maniére conforme á ses principes. II laisse sa fortune <1 son plus proche parent; il la lui laisse parce qu’il est ici auprés de lui, avec lui: et, aprés ce parent, advienne que pourra. Voilit fuñique conclusion raisonnable ÍL la q.uelle on puisse arriver. Voilit la vérité. Ainsi point de fraude présumable méme. II laisse son bien á son frére, parce qu’il a l’espoir qu’il ne le vendrá pas, qu’il- ne le sacrifiera pas: il le lui laisse, parce qu’il a coufiance' dans- l’avenir de son pays adoptif; parce qu’il sait que la prospérité toujours croissante de ce pays ne peut que donner un accroissement de valeur aux immenbles qu’il laisse á sa mort; il le lui laisse, parce qu’il sait bien que son frére n’est pas un evaporé,un dilapidateur, et que, célibataire comme lui, mais rnortel comme lui, sa succession ira tout naturellement á leurs neveux et nieces de France, un peu plustard il est vrai mais, un peu plus considérale qu’á present.. 11 a eet espoir, ce désir, et c’est pourquoi il craint que ce frére, usant de son droit, ne s’empresse do' vendré, de réaliser, de sacrifier ses propriétés pour aller jouir plus vite. — Revenons au tcmoignage de M. Simon. II déela-r© que; “Lui et le Juge Martin ont eu plusieurs conversations, au sujet de' sa succession, qui se résument en ceci: qu’il laisserait son bien á son frére, parce q.u’alors il ne serait pas sujet it la taxe; que tel avait été son principal objétenle faisant venir dans ce pays-ci. Mais que le juge ne lui a jamais rien dit qui puisse l’autoriser á dire, que son bien irait a aucune autre personne.” A une question de l’avocat-gónéral, il repond : “ Qu’il ne sait aucun autre fait que ceux qu’il a déjá declares; mais qu’il avait été pénétré de l’idée que le Juge Martin n’avait pas absolument l’intention de déshériter ses parens ; et les raisons qu’il avait pour cela étaienl que, comme il voulait disposer en í'aveur de son frére, pour cvílerla taxe, cela n’ótait pus suffisant paur délruire Pordre ordinaire des choses.” Il ajoute : “Mais je rápele encore queje ne con* nais aucun fait qui puisse m’auloriser á le dire; ce sont seulement mes impressions if moi. Je n’ai méme jamais communique mes impressions au testateur; car ce n’était pas de mes affaires.” — M. Simon termine sa deposition,en nousapprenant “que feu Francois Xavier Marlin, était tres content de voir arriver sa ui&ce ici, ot qu’il pnraissait avoir pour elle ¡’affection que doit avoir un onde pour sa niéce,” &c. — Or, je dois ne pas omettre qu’álafin de son témoignage,M. Simon avait declaré que : “ Un jour, dans une conversation entre lui et le défunt juge, il lui avait demandé pourquoi il ne Iaissait rien á cette niéce, et que Ie juge avait répondu; elle a soixante mille francs,-et c’est assez pour une femme.”</p> <p>Comme on ne peut guére écrire aussi vite qu’on lit, il faut qpe je confesse qu’il me tardait d’avoir transcrit tout ce qui, dans ce témoignage, peut avoir trait directement, ou indirectement, á la question qpi nous OGOupe; et c’est á ce point que j’nllais passer sous silence un fait qui n’est pas sans importance,.et qu’a relató M. Simon; levoioi: “Lorsqu’en 1846, je partais pour, les-Attakapas. le juge Martin me chargea de m’enquérii: s’il y avait lá,. ¡1 vendre, une habitation ; ayant, disait-il, l’intention de donner cent mille piastres á deux neveux qu’il avait en France et qu’ii attendait id. Je lui promis de ie faire. A mon arrivée, if vint me demander si j’avais fait quelque recherche ; je lui repondis qp’il n’y en avait point & vendre alors ; il me répliqua: j’en suis charmé; mes neveux naveulent pas venir; ils n’auront pas mon argent-” J’ose á peine me permettre de demander id, s’il est possible qu’aucune personne se ílatte de tirer quoique ce soit de celong témoignage qui contredise auoune desréponses du dd'endeuiaux interrogatoires sur faits et articles qui lui ontété posés ; ear je ne puis vraitnent point me le persuader. Rien dans ce témoignage ne soutient 1 allegation accusatrice du demandeur. Jusqp’ici nous devons dire,'au contraire, que le testateur ne voulait point qu’aucune partie de sa succession allát, aprés sa mort á des parens aubnins domicilies hors des Etats ou Territoires de l’Union. Ainsique j’en ai fait la remarque, il voulait que le bien qu’il avait amassé restátioi dans sa patrie adoptive, autant qu.’il était en lui-de I’y faire roster ; il aimait, sans doute, ses neveux; maisil voulait qu’ils vinssent jouir de ses bienfaits á laLouisiane ; il voulait qu’ils s’y fixassent, qu’ils s’y établissent, [qu’ils y travaillnssont avec ce qu’il leur donnerait; mais des qu’il est informé qu’ils ne veulent pas venir: j’en suis charmé, dit-il, ils n’auront pas mon- argent. — fl avait pour sa niéce faffection naturelle d’un onde ; il ne veut rien faire pour elle, et pourqpoi?. c’est parce qu’elle a soixante mille francs, et que c'est assez pour une femme.</p> <p>En voilá assez, j’ose le dire avec confiauce, pour laver le testateur. de ¡¡’imputation odieuse qu’on avait eu ie courage de faire á sa iné-moire. Les morts, disait Cromwell, ne se vengent pas; mais je dls q.ue les morts peuvent parier et confondre leurs injustes accusateurs, qjiand ceux-ci osent trouble!- Jeurs cendres, les évoquer des regions cternelles, et les interrogar. Ce procés qui, je l’espére, ne sera pas une legón, perdue pour tout de monde, en. est la preuve.</p> <p>Je passe il un autre témoin, produit, comme les precédeos,, par le demandeur; au Juge Alomo Morphy. Etici, je prie la eour de m’éviter la peine de 1’ex-aminer, de le coimnenter, de le crítiquer, de 1 expliquen. Ce témoin. ne suit rien, ne ditrien qui puisse étre d’aucune influence sur la decision de notre question ; et si fon veut le lire avec quelqu’attention et se rappeler c.e que j’ai dit sur plusieurs endroits des témoignages de Messieurs Grima et Simon, on sera couvaincu que je ne ferais ici qu’une fastidieuse repetition de ce que ¡'on a dejá lu.</p> <p>Reste un témoin entendn aussi de cote de l’Etat, M. Greiner.</p> <p>“ Le juge (dit M. Greiner) pnraissait uneasy, inquiet, pendant que la loi de 1842, était en discussion.” On Je croira sans peine; car il pouvait lort bi.en, ea 1842, avoir lapensée de laisser une grande partie de son bien & ses parens ab-sens, et cette loi le contrariait d’autant plus, si elle passait, qu’elle faisait l’Etat héritier d’un dixiéme de ce qu’il leur destinait; ee qui, en réalité, augmentait le nombre de ses héritiers, et diminuait d’un dixiéme ee que, sans elle, ils auraient eu; mais, s’cn suit-il, qu’il ait violé cette loi, qu’il ait fait un testament simulé, frauduleux, pour affranciiir ses parens abseus de la taxe ? Répondez qu’on pourrait se l’imaginer; mais songez que l’on peut aussi, en respeclant et les lois de la morale et celles .de la iogique, vous dire que ce ne serait ni charitable ni conch ant, et que tres logiquement il serait pennis de présumer le contraire.</p> <p>•‘Le Juge Martin a dit que la loi pouvait étre aisément éludée”; rmi, etilacfit en cela une vérilé palpable; s’on suit-il qu’il ait testé frauduleusement pour l’cluder: non, car il n'avaitqu’& faire venir ici un de ses parens, quit l’y faire résider auprés de lui ; et, en lui laissant tout son bien, il le soustraiait á la taxe, mais il ne violait point la loi qui l’établissait; .careettedoi n’imposait la taxe quo sur les successions,ou parts do successions,échéant á des anbainsrésidant en pays étrangers. II est deux manieres d’éluder cette doi; l'une trés licite et autorisée par elle, l’autre fort reprehensible, et qu’elle condamne. Celle licite consiste, comme je viens de le dire, il faire venir auprés de soi, ses parens etrangers, ¡\ les y reteñir, jusqu’au moment oú Ton pourra disposer en leur-faveur, et á leur donner son bien, par testament, quand le-,tenis de,-le faire sera venu. L’autre, celle illicite, ou au moins tros ¡llégale, consiste á faire d’un mannequin son hcritier apparent, aprés avoir obtenu definida promesse de transmettre au veritable héritier ce qu’on lui confie. Il n’y a rieu dans la premiere qui répugne ;VIa loi ; au contrah-ejla loi.'l’autorise. -Dans lasecocde, ou eonrt-Ie<risque de sien-rapporter a un fripon qui garde tout; et il suffit d’y réfiéchir pour n’y pas avoir recours, si l’on ne vent pas frauder en pure perte. — Quand on.voit deux maniferes, l’une honnéte et-licite, 1’aut.re frauduleuse, de-se soustraire á une taxe, á un impót, á un tribut, il une charge; c’est s’écarter de tout principe moral, que deprononcer sans prauve et sur de vagues soupjons, que c’est la maniéro illicite et frauduleuse que l’on a choisie. “On ne doit jamais juger sans preuve, ni présumer qu’un homme sage ait'fait une action indigne de sa conduite ordinaire, ni qu’une personne ait mangué á sen devoir. Domat, Dois Civiles, liv. 3, tit. 6, see. 4, no. 7.</p> <p>Tout ce que.ee témoin a déclarésous son sarment peut-étre admis sans aucune defiance, sans -aacune observation; tout cela peut-étre vrai sans que qui ce soit au monde, á moins qu’il ne soit frappé d'aJiénation mentale, puisse prétendre, tout haut, ni toutbas, que les réponses du défendeur aux interrogatoires sur faits et articles qu’on a jugé convenable de lui proposer, en reqoiveni. la plus légére atteinte. Oes réponses restent intactes: elles étaient invulnerables, car elles étaient vraies. Ainsi.il m’est permis, je pense, de dire tout liaut ici, sans craindre d’etre dementi par le jugement de la corn-, que ¡’imputation de simulation, l’allégation de fraude, surlaguelie on afondé une demande en nullité du testament olographe du Juge Martin, est tout á fait erronnée ; et que, conséquemment, ce testament doit sortir son plein et entier eflet. Et comment en pourrnis-je douter ? ©n adémandé que ce testament fut déclaré nul sur le fondement d’une incapacité physique ; et ce fondement-a disparu devantla vérité. Au sceptique insensé quiniaitle mouvement, il dut étre suffisant qu’on répondit par faction de marcher; comme il aurait suffi qu’on lui dít: Malheureux! que fais-tu quand tu parles? ne remues tu pas ta langue? De méme ici, f allégation d’incapacité était et a été eonfondue par la preuve d’un fait encore plus simple, savoir, que le testament était bien réellment écrit, daté, signé de la main du testateur lui-méme__Et, ce qu’i'l y a de remarquable, c’est que c’est le demandeur, auteur de cette allégation, qui a bien voulu le prouver par ses propres témoins. Pressé que l’on était par la conviction acquise, avant toute preuve, que fincapacité physique n’était q’une risihle chimé-re, on a tentó d’y suppléer par une allégation plus grave, qui, -outre l’eftet de faire metlre le testament au néant, devaitproduire celui de flétrir.-a jamais-la mémoire du testateur comme coupable d’une fraude insigne; on a avancé qu’il avail fait son testament dans ¡’intention réfléchie,froidement délibérée, devoler áJ’Etatprésde §40,000., pour en enrichir, en violation d’une loi précise, des collatéraux, non citoyens des Etats ou Territoires de l’Unioa, habitant le sol d’une nation étrangére 1 Et, tel était l’esprit de vertige qui animaitles moteurs de ceprocés que, ne pouvant s’apercevoir que cette allégation détruisait la premiere, ils ont persisté & demander l’annulation qui formait l’objet de to us -leur voeux, en maintenant (sans abandonner, disaient-ils) l’incapacité physique.</p> <p>Or cette seconde allégation qu’est-elle devenue ? .-elle a eu le sort de I’autre ; et ce sont encore les zélés organes des prétentions de l’Etat, -qui -ont pris le soin de la tuer, et par les témoignages qu’eu-x-mémes ils ont fait entendre, at par la bouche du testateur qu’ils diffamaient; et par les déclarations assermentées faites par le défendeur — par le défendeur qu’ils ont fait juge dans sa propre cause, en lui proposant des interrogatoires sur faits et. articles.</p> <p>I: The judge below pronounced the will null and void, because substitutions and fidei-commissa are prohibited by outlaws. The judge labors under a very erroneous impression of what fidei~commissa and substitutions aro. Wljat is the substitution or fidei-commissum prohibited by o.ur laws? It is a disposition either inter-vivos or mortis causa, by which the .do,ne.e or instituted heir is bo.und to preserve, .and return to another, the thing donated. That disposition cun never be im plied ; it must be expressed in the act, or at least it must result fr.om it as a necessary consequence. Why .does the law discounten.an.ce a.nd prohibit substitutions and fidei-commissa ? Because they either .change the legal order of succession, or tie up for a length ¡of time in the hands of individuals property which is thus placed out of the reach of .commerce. Therefore, when the chargo to preserve for .and return to another is not expressed in the act, or does not necessarily result fr.om it, ¡the disposition, eve,n though it should contain a simulated donation, do.es not render the testament void, provided tho real donee be capable of receiving from the donor. The law says that no man shall do indirectly what he is not permitted to do directly, .and 1 hold the conyerse of this proposition to be equally true, to wit, that a man has an unquestionable right to do indirectly what the Jaw permits him to do directly. See Tonllier vol. 5, nos. 21, 24, 25, 27, 28, 30. Villargues, verbo Substitution, nos. 2,3,4, 9, 10,14. Merlin, Répertoire de Jurisprudence, yo. Substitution, sec. VI [I, no. 2; sec. X, § 1, no. 1. “Questions ,de Droit,” vo., Substitution Fidci-Commissaire, § IV, p. 29: § VI, p. 46; § XIII p. 84. It may, then, safely be stated that the jurisprudence of Francois positive that, such substitutions má fidei-commissa only as impose the charge of preserving and returning a thing to a third person, are to be considered as prohibited by law; and that those dispositions alone can have the effect of avoiding a testament or donation.</p> <p>Let jts now see what the rule is under the jurisprudence of this State. '</p> <p>In the case of Matkurin v. Rivaudais, 5 Mart. N. S. p. 302, the Supreme Court spoke as follows: “ Our Code, it is true, declares that substitutions and Jidci-commissa are abolished. But the object of this chango in our jurisprudence was, as it is well known, to prevent property from being tied up for a length of time in the hands of individuals, and placed out of the ream, of commerce. The framers of our Code, certainly never contemplated to abolish naked trusts uncoupled with an interest, which were to be executed immediately. If they had, they would not have specially provided in a subsequent part of the work for testamentary executors, described their duties, and recognised the validity of their acts. The obligation imposed on the legatee by the will of the testator in this case, .cannot be distinguished from that of an executor, except jn th.e name; and it is the duty of the court to look to things, rather than to the words.” See also the case of Milne’s Heirs v. Milne’s Kxecutors, 17 La. p. 57. In another case, that of Duplessis v. Kennedy, 6 La. p. 246, we find the following language: “ This court has already decided in more than one .case, that whenever it necessarily results from the language of the instrument, that a substitution was intended, its entire nullity must be pronounced. That it is of the essence of a substitution, that the original donee .should be bound by tlje terms of the donation, to preserve the property given for, and to transmit it fo, another person or class of persons, which persons .are appointed to take after the original donee, ordine successivo, and in derogation of the legal order of succession.”</p> <p>But it will perhaps b.e contended that the mere charge to return, uncoupled with that of preserving the thing donated, annuls the disposition, and reference will be had to the .case of Tournoir v. Tournoir, 12 La. 22, and that of Radial v. Radial, 1 Rob. 115, in which it was held by the late Supreme Court that “ the law prohibits all fidei-commissa, even those in favor of persons capable of receiving, and although the donee is not bound to preserve but simply .to return.” These .cases a re in contradiction with the decisions above quoted, in which it was distinctly held “ that in abolishing substitutions má-fidei-commissa, the law did net mean to prohibit naked trusts, uncoupled with an interest. which are to b,e .executed immediately.” They are incompatible with, .and repugnant to, the very letter of .our law. Article 1507 of the Louisiana Code reads thus:</p> <p>“ Les substitutions et Ies fulei-commis sont prohíbes. Toute disposition, par la quelle le donataire, l’hcritier on le légataire est. charge de conserver et de fendre á un tiers, est nulle, mérae á l’égard du donataire, de l’héritier institute, ou du légataire.” ,</p> <p>It is an elementary principle, in th.e interpretation .of statutes, that a Jaw should be considered ns a whole; that effect should be given to every part of it, and that the words of restriction found in a law should he extended to each nnd every portion of it. Under this principle, it is plain that the second paragraph of the article above quoted applies to Jidei-commissa as well as to substitutions, and that consequently such dispositions only, be their names what they may, as impose the charge to preserve for, and return to, a third person, are prohibited by our laws. True it is, the expressions in the english text are that “ every disposition by which the donee is charged to preserve for or to return a thing, to a third person, is null;” but article 1507 was reprinted in the new Code from art. 40, p. 217, of the old Code, and it is well settled that under such circumstances, effect must be given to both texts. Durnford v. Clark's Estate, 3 La. 202. Merlin, in his “ Repertoire de Jurisprudence, verbo Fidéi-commis” and Villargues, “eodem verbo,” make a distinction between a “fidéi-commis and a “ fidéi-commis tacite.” The former is synonimous with, and means “ substitution fidéi-commissaire.” This distinction strengthens the construction we have justput on article 1507, which speaks of “ fidéi-commis,” but not of “fidéi-commis tacite.” Besides; Merlin, whose correctness cannotbe questioned, in speaking offidei-commissa, says: “ Une autre condition essentielie pour établir un fidéi-commis est que les termes dont on se sert pour l’exprimer emportent l’ordre successif ou le trait de tems, c’est á dire qu’ils n’appellent le substitué qu’en second ordre et aprés que l’instituté ou donataire immédiat aura recueilli.” Répertoire, verbo, Substitution fidéi-commissaire, section 8, n. 3. This author again says: “ II y a, en efifet, fidéi-commis toutes les fois qu’il existe une •disposition par la quelle les deux gratifiés sont appelés á recueillir successivement et non concurremment. Questions de Droit, verbo Substitution fidéi. .eommissaire § 6, p. 46.” Thus clearly showing that he made no difference between a fidei-commissum and a substitution; and thereby accounting for ¡the distinction which he establishes between a “ fidéi-commis” and a “ fidéieommis tacite,” the former being a “substitution fidéi-commissaire,” and the latter a naked trust, without term, condition or delay. But should it be contended, in the very teeth of the distinction thus made by Merlin and Villargues, that the word fidéi-commis as used in art. 1507, means “ fidéi-commis tacite,” let .us see whether, in that broad signification, the word would also cover disguised donations made to persons capable of receiving.</p> <p>Merlin, in his “Repertoire,” verbo, Fidéi-commis tacite, no. 2, says: “ Ces sortes de fidéi-commis ne se font ordinairement que pour avantager indirectement quelque personne prohibée, comme le mari ou la femme dans les cas ou ils ne peuvent s’avantager, ou pour donner & des batards (adulterios ou ineestueux) au delk de leurs alimens.” Villargues, verbo Fidéi-commis tacite, remarks: “ Toute disposition au profit d’un incapable sera nulle, soit qu’on la déguise sous la forme d’un confrat onéreux, soit qu’on la fasse sous le nom de personnes interposées.” C. N. 911. Louisiana Code, art. 1478. “ C’est ici qu’est le siége de la matiére. Nous retrouvons dans la disposition que la loi annule Je fidéi-commis tacite, ou secret, qui était réprouvé parles lois romaines; méme but de la part de celui qui dispose, comme identité de vues de la part du Icgislateur, pour annuler la disposition. * * * * Voilá ce que les lois appelérent fidéi-commis tacite ou secret. Et eette sorte de disposition était annulée comme fait en fraude de la loi.”</p> <p>Thus, had the words “ fidéi-commis tacite” been inserted in article 1507 of the Louisiana Code, they would not have applied to dispositions made to persons capable of receiving.</p> <p>II. Was the deceased physically incapacitated on account of blindness, from making an olographic will ?</p> <p>It is contended that secrecy is of the essence of an olographic testament; whence the inference is drawn that any assistance giyen to the testator is fatal, and that, consequently, the olographic will is void, because the testimony shows that the testator would have been unable to make it, had not some assistance been extended to him. The proposition from which this inference is drawn, is palpably erroneous ; for there is nothing, either in the spirit or in the letter of our laws, which can authorize the assertion that an olographic testament is essentially a secret one. Indeed, secrecy is of the essence of no kind of testament known to our laws. A testator may, if he think proper, keep his last dispositions secret; but he is not bound to do so, nay, not even when he selects the form of a mystic or secret testament, as even then he can require the as-' sistance of a st-rungerand have the testament written by the lattes-,, iCiv. Code art. 1577. But, is it true that every assistance in the making out,of an olographic will, annuls that will? I think not. A testament inust.be the sole and exclusive work of the testator’s will. Hence, il it was shown that, through fraud, violence or error, a testament did not.con tain the testator’s will, it should be declared null. T he.opposite party have shown that there can have .been no fraud, -violence, or suggestion practised upon -the testator, and that .no error could have existed on his part. All their witnesses concur in saying that, before making his testament, the deceased declared that his intention was to leave the whole of his.estate to the defendant, and, since it was made, thathe.-had carried his intentions into effect! So that, by-the plaintiff’s own showing, not a doubt can be reasonably entertained as to the fact, that the olographic testament under consideration contains the testatoEs last will and dispositions. How, then, can that instrument be declared null, simply because some physical or external assistance may .have, or has actually, been extended to the testator, when it is shown that it was entirely written, dated and signed .by him, and that it is a -faithful repository of his last .will and intentions ? Toullier, in his 5th vol. no. 347, holds as follows: “ Le testament ne .doit émaner que de la volonté du testateur; i?fautqu’ilsoitl’acte propre,.l’acte-personneldu testateur. Celui-oi peut néanmoins s’aider des lumiéres d’un conseil,-la.loine ie lui défend pas; mais savolon-té -ne pent jamais étre supplée parle ministére d’autrui, ni subordonnée á celle d’.une autre personne. Si le jurisconsulte peutdonner ses avis au testateur, ce n’est que sur la forme ,et non sur le fonds du testament; ce n’est que pour préter aux pensées du testateur le secours nécessaire des expressions propres ou.legitimes. Ainsi le testament ne serait pas nul, quand on en trouverait le modéle écrit de la main dlun conseil ou méme du lcgaraire ; il sruffit que.le testateur l’ait adopté, etse.le soit rendu propre, soit en I’écrivaut, s’il slagit d’un testament olographe, sotan le dictant, s'i! slagit.d’un testament public, -soit en le presentan! aux ttmoins, s’il s’agit d’un testament mystique.” This shows incontestably, that assistance may be afforded to a testator, provided :that assistance does not operate upon the substance of the testament, which must and should always be the work of his own free will.</p> <p>The testament itself shows that the deceased was not physically incapacitated from making it. Let us see how far the opposite .party has succeeded in showing .that, under .our laws, a blind man has no right to make an olographic testament, when he can do it. The counsel rely first >on art. 1579 of the Civil Code, which provides that •“ those .who know not how, or are not able, to write, and those-who know not how, or are not able -to sign their names, cannot make dispositions in the form of the mystic will.” This is not contested. Indeed the very definition of the olographic testament, shows conclusively that no man has a right to make such a testament .unless he can write and sign, as the olographic will is that “ which is entirely written, dated and signed by the hand of the testator-.” Now, the fact that the -deceased could write and sign, is not denied; at .all .events, it is clearly established by the testament itself, which is proven to be entirely written, dated and signed by him. What effect, then, this article ean have on the question before the oourt, I am at a loss to conceive, -unless the learned counsel should contend that the positive enactment.of the legislature in the english text of art. 1579 must yield and give way-to‘tire french text, which inhibits from making a mystic testament those who cannot read, -whereas-theenglish text, disqualifies those alone who cannot write. But granting that due effect should be given to the french text, although the article itself -was not reprinted -from the old-Code, (seepages 226, 228, 230, 232,) what would the consequence be? Unquestionably this: that a blind man could make no dispositions in the form of a mystic will, because he is unable to read. But that does not show that.a blind man cannot make an olographic testament. Incapacities are stricti juris, and cannot be extended decasu in casum, nor de persona in personam. This is well settled. Therefore the law which disqualifies a man from making a mystic testament because he cannot read, does not thereby incapacitate Mm from making an olographic will. Art. 1579 contemplates mystic testaments only, and has no application to this case.</p> <p>The counsel next array against us a host of commentators : Duranton, vol. 9, no. 139. Delvincourt, vol. 2, note 12, p. 309. Boileux, on art. 979 of the Napoléon Code.' Rogron, on the same article, and on arts. 977 and 978. Domat> des Testamens, titre 1, sec. 3, § 20. Merlin, verbo Testament. -Coin Delisle, on art. 980,-aud Grenier on Donations, vol. 2, no. 258 and 281.- There is no® a; syllable in Merlin-tending, to establish what is contended for By the opposite party; and the only reasonable inference that could be drawn from the silence¡ of this learned and distinguished author, would be that, in his opinion, a blind man has an unquestionable right to make an olographic will. Incapacities are stricli juris; and as there is no express provision of law prohibiting a blind man. from making an olographic testament, and this is attempted by inference only, it is rational to suppose that, had Merlin, thought that that incapacity could be established by inference, he would have so stated in his profound and interesting commentary on last wills and testaments. The passage quoted from Coin-Delisle can have no bearing upon this case. He says that a blind man-cannot be a witness to a testament, although not disqualified by the Napoleon-Code. This may be true.- But our Code says in positive terms, that persons insane, deaf, dumb, or blind, are absolutely incapable of being witnesses to testaments. Art. 1584. But admitting that a blind man should be declared incapable of being a witness, even though no express provision to that effect had. been inserted in our Code, could it be inferred that a blind man is incapable of making an olographic will, because he is not capable of being, a witness to a testament? This would be a non scquitur. A blind man who is not so by birth, can-write. And as any man who can write, can also make an olographic testament unless incapacitated therefrom, by an- express provision of law, the consequence is that, under the general-rule of law, a blind man- can make an olographic rule, unless deprived of that right by an- exception to that rule. But' the object of the lawgiver in-requiring that publie'téstaments should be made in-presence of witnesses was,- unquestionably, to guard against the fraudulent practices which might otherwise be resorted to. How could the witness know that there was no substitution of persons, unless he could see the testator, and thusncq.uire the proof that he was not imposed upon. The object of the law might then be defeated were persons who are blind permitted to act as witnesses to-testaments, because they are physically incapable of ascertaining the truth of the external- acts of others.- All the remaining, commentators quoted by the opposite party unite, save one, in saying that a blind man cannot make an olographic testament, because he cannot write; and this shows that they had in contemplation- those persons only who are blind by birth. Far,- then, from-, supporting, the position taken by our adversaries, these commentators are clearly in our favor, because their opinion is grounded upon the sole fact that a. blind man is physically incapacitated of writing, and is therefore pregnant with-the affirmative that a blind- man who can write can make an olographic will. Cessante causa, cessat effectus.</p> <p>After alluding to a decision-reported in Dénisart, by which the olographictestament of a blind person- was held to- be valid, Grenier, vol, 2, p. 281, says: “ Cette opinion n’esl pas sans difficulté. Le caractére du testament olographe est d’etre fait par le testateur seul: or, un aveugle, q.uelqu’habitude qu’il ait pu conserver de Pécriture, pourrait-il bien se flatter ¡i’cerire son testament,, de le dater et signer, de maniere a ce qu’il n’y eút aucun- des inconvé-niens que eet ótat fait naturellement craindre, qu’on prcvoit assez sans les detailler et quipourraient rendre le testament illisible et nul. Si on sitppose qu’il se fasse aides etguider par un-tiers, alors la possibilité des insinuations et des surprises ne se présente-t-elle pas á l’esprit? Et ne s’óléve-t-il pas un doute legitime sur lai vafldité d’un testament fait dans une semblablo circonstance ? Oñ est cette garantie, sifortementex-igée par la loi, de la-certtiude des volontés du testateur?” Thus Grenier no where says that the law prohibits a blind man, who can writo, from malting an olographic testament. He simply states that the question is not free from difficulty, and that it would be more prudent for a blind man to make a nuncupative testament by public act. The advice maybe good. As to the arguments against the dangers of permitting a blind man to dispose mortis causa by an olographic will, they might be entitled to some weight were they pressed upon the lawgiver, but they certainly can be of no influence upon the mind of a judge who is called upon to apply the law, not as it should be, but as it is. What are the extraordinary dangers pointed out by the author ? He says that the testament might be illegible ; that, if aided and assisted by a third person, the testator might fall a victim to insinuations and deceits; that, the will of the testator might be uncertain. If therje is no possibility of reading the testament--if frauds and deceits have been practised upon the testator — if his will Cannot be ascertained — surely, for these reasons, or for any of them, the testament must be declared null; but the nullity would not be pronounced on account of the testator’s blindness.</p> <p>Our Code provides that “ all persons may dispose or receive by donation inter vivos or mortis causa, except such as the law expressly declares incapable.” Art. 1456. It then divides testaments into three classes, nuncupative, mystic, and olographic (art. 1567); and provides that in order to be valid, an olographic testament must be entirely written, dated, and signed by the hand of the testator, but is subject to no other form. Art. 1581. That Judge Martin had a right to dispose of his property by a donation mortis causa, is not to be disputed ; that a blind man is by no express provision of the Code declared incapable of making an olographic testament, cannot be denied; that the testament under consideration is entirely written, dated and signed by the hand of the testator, must be admitted,- as it is abundantly proven by the testimony; that there is no proof, and hot even a suggestion, of fraud, or mistake, on this branch of the case, clearly results from the original petition and the proofs adduced by the plaintiffs themselves. But it will perhaps be contended that, although a blind man is not expressly, yet he may be impliedly, incapacitated from making an olographic testament. This may be true. Indeed, any man is incapable of making an olographic testament, who is unable to fulfil the formalities without which ne such testament can exist. Thus a man who cannot write, is incapable of making an olographic testament, because that testament must be written by the testator. If therefore a man, who cannot write, has the misfortune of being blind, he is incapable of making an ologruphie testament, not because he is blind, but because he cannot write. Coin-Delisle,in commenting upon article 978 of the Napoleon Code, says (at page 408, no. 4): “ La loi no' declare pas spéeialement l’aveugle incapable du testament mystique ; et la nullité n’est prononece en ce cas que par une consequence directe de 1’a-rt. 978, qui- interdit cette forme á ceux qui ne peuvent lire. Nous pencherions done pour la validité d-’un testament mystique dont un aveugle doué d’une instruction sufffsante, aurait imprimé ou fait imprinter les dispositions en caractere saillans, et qu’il aurait su et pu lire par le toucher.” In this opinion Coin-Delisle has-the concurrence of Marcadérwho says (vol. 4, p. 48): “ M. Coin-Delisle dans- un autre passage va bien plus loinque nous,et présente une doctrine qui doit paraitre plus douteuse, quand-ilactenea la validité du testament qu’un aveugle aurait fait imprimar en caracteres saillans, et qu’il aurait pu lire par|le toucher. Nous partageons cependant son opinion.” Our laws do not declare a blind man incapable of making an olographic testament. If unable to write, his incapacity to make such a testament Would result from the express provisions of art. 1581, which provide that that testament is not valid, if not written by the testator. Therefore a blind man Who can write,- is neither expressly nor impliedly incapable, under our laws, of making an olographic testament.</p> <p>Toullier in his “Droit Civil Franyais,” 5th vol. no. 477,- in fine, says: “ Sous i’empire du Code, touts personne qui sait éerire peut faire un testament olographe, excepte cedes que la loi en declare incapables. Or, il- n’y a- sur ce point aucune incapacité contre les muets ; ils peuvent done,- comma to-ute autre personne, faire un testament olographe.”</p> <p>Marcadé, vol. 4, p. /, no. 2, ¶ 3, says: “Du moment que fe testament est écrit en entior de la main du testateur, la prescription de la loi est accomplie et l’acte est valable, de quelque maniere et sur quelque substance qu’il soit écrit. Du moment que cet acte contientdes dispositions de derniérevolontó, e’estdone un testament; et du moment que ce testament est ecrit en enlier, daté et signé de la main du testateur, e’est done un testament olographe valable.” And farther, at page 13, no. 5 : “ Une fois que le testament est écrit, daté, et signé de la main du testateur, il est parfaitement valable ; car il n’est assujetti á aueune autre forme.”</p> <p>Coin-Delisle, in commenting upon the Napoleon Code, p. 332, no. 7, says : “ Il n’était point inutile d’établirpiusieurs espbees de testamens; la forme olographe est, par la nature des dioses, interdite á ceux qui ne savent pas ecrire; la forme mystique a. ceux qui ne peuvent pas lire ; le testament public aux personnes qui ne peuvent pas parler. La diversité des formes répond done a la diversitft dos besoins. Ainsi le sourd-muet fera valablement un testament okn graphe, á moins qu’il n’ait pas ^intelligence de ce qu’il écrit; l’aveugle, qui estrarement assez habile pour faire un testament olographe, et áqui il est defendu de prendre la forme mystique (and this shows that he is not prohibited from making an olographic will, but, on the contrary, has an unquestionable right to select that form when assez habile,) a pour ressource le testament public. Celui qui ue peut pas parler et qui ne pourrait écrire un long testament, lera connaítre ses derniéres volontés par un testament mystique. La loi ne touche en rien it la capacité sur ce point; elle exige seulement l’accomplissement de eertaines formes, aux quelles une maladie, une infirmité, ou le défaut d’instruotion, font obstacle.”</p> <p>Villargues, Dictionnaire du Notariat, vo, Aveugle, no. 5, says: “ Remarquez qu’on devrait en général decider autrement (the court of Pau had pronounced the nullity of a sous-seing privé, signed, but not written, by a blind man,) si l’aveuglo avait lui-méme cerit l’acte, quoiqu’alors la surprise soit encore possible; mais du moins cette circonstance devrait étre prouvée.” No. C. “ Un aveugle peut-il tester ? Il ne le peut pas dans la forme mystique; mais il le peut par acte devant notaire, et rigoureusement aussi dans la lorme olographe.”</p> <p>Yazeille, Donations and Testaments, art. 978, p. 498, says : “ M. Grenier, suivant Ricard et Lacombe, a decide que l’aveugle était incapable non seulement du testament mystique, mais mime du simple testament olographe. M. Bergier, annotateur de Ricard, a pensé que le testament olographe qu’un aveugle aurait pu écrire, dater et signer, pourrait étre valable: et il cite un arrét de 17ÜÜ qui, en eftet, a rejeté la demande en nullitc du testament olographe fait par la dame de Pressigny en état de cóeité. Cette note fait dire á M. Grenier que la chose n’est pas sans difficulty. Il ne pout y avoir de dificultó que pour la verification de l’ócriture, si elle est eontestée; car la loi n’interdit pus le testament olographe aux aveugles. Ceux qui peuvent écrire, malgré leur infirmité, ont certainement le droit de tracer eux-mémos leurs derniéres volontés, quoiqu’ils ne puissent pas les lire. Us ne sont exclus que du testament mystique par 1’art. 978.”</p> <p>See also the extract from Dénisart, vol. 4, p. 715, cited by M. Mazureau, ante pp. 698-699.</p> <p>A question, not identical with the one now under consideration, but which hasconsiderable analogy with it, has been recently decided by this court. In the case of the Union Bank v. Morgan, ante p. 418, it was contended that certain endorsements given by one of the defendants were null and void, because he was blind, and that a letter of attorney which had been signed by him before a notary public, but not in presence of three witnesses, as required by the Code, was not good as an authentic act, and still less as one sous seing privé. But it was decided differently. Neither fraud nor error had been alleged or proven, and this court placed the case upon the broad ground that all persons have the capacity of contracting, except those whose incapacity is specially declared by law. In that case the court went further than Yillargues, who simply holds that the sous seing privé of a blind man is valid when signed and written by him. It disregarded the decision of the court of Pau, which had pronounced the nullity of a sous seing privé signed, but not written, by a blind man, upon the ground that it was impossible for him to ascertain the truth of what he bad been called upon to sign. The decision in Morgan’s caséis correct, because fraud and error are never presumed; and that court must be ignorant of the first principles of law, which would supply an incapacity not created by the legislator, on the apprehension of a mere possibility of fraud being practised upon, or error being committed by, the person thus illegally deprived of his rights. Therefore, in matters of contract, the case of the Union Bank v. Briggs decides that, when no fraud or error is proven, the contract sous seing privé of a blind man is good and valid, because the law does not declare him incapable of contracting. The court is now called upon to decide what the rule must be in matters of donations mortis causd. If this court has ruled that a sous seing privé signed, although not written by a blind man, is valid in law, it must rule that an olographic testament entirely written, dated, and signed by a blind man, is equally valid in law. Indeed, the case of Morgan is a stronger one than the present; for it is impossible that a blind man can know by himself the contents of a paper written by another, which he is called upon to sign. But in the rase of an olographic testament, no such impossibility can exist, ns a testament of that description is nothing but a sous seing privé not only signed but onliroly written by the party himself. Besides, in this case, no fraud or error is alleged.</p> <p>III. The agreement to-defraud the State being disproved, has it a right to pr'áy for the nullity of the will upon the technical ground that it is irregnlarin point of form ?</p> <p>This question brings us at once to the merits of the exception to the original petition. Admitting, for argument sake, that the testament is irregular in point of form, the State has no right to avail itself of- the nullity which may result from that irregularity.</p> <p>Nullities are either absolnte'or relative. By absolute nullities are meant those which can be set up by all persons interested ; by relative nullities, those which can only be set up by the persons in whose favor they are established. Merlin, Répertoire de Jurisprudence, 'to. Nullité, §, 2, no. 1. Zacharies, Droit Civil Franpais, vol. 1, p. 6t). Under what head of nullity does the objection to Judge-Marlin's testament fall ? Viliargues, do. Testament, no. 547, says: “ La nullité quirésulte, par rapport áun testament, d’un vice de forme, n’estpas absolue;. elle n’estque relative, ou, en d’autres termes,, elle n’est qpe relative 1 l’héritier légitime.” Biret, in his treatise on Nullities, vol. I. p. 42, remarks: “ Dans1’ancienne jurisprudence on reconnaissait aussi cette-régle que la volonté tacite ou expresse d’une partieintéresséefaisait disparaítre les effets déla nullité relative. Un testament nul, soit dans sa formej-soit par défaut de capacité dans le testateur, est valide par l’exéeution qu’en fa¡t rolontairemenh-et én oonnaissance' de cause, l’héritier dont il blesse les droits.” Merlin, in his Répertoire do. Nullité, § 3, no. 12, says: “Du principe que les nullités respectivas sont couvertespar le consentement des parties intéressées, il résulte qu’un- testament nul, soit dans la forme, soit par défaut de capacité dans le testateur, est valide par l’exécution qu’en fait l’héritiér dont il-blesse les droits.” These quotations show that nullities in a testament, growing out of a defect of form, or.a-wantof capacity in the testator, are notabsolute but relative,-and therefore cannot be set up; by all persons interested, but by those only to whom the succession- would devolve should the testament be annulled.</p> <p>Admitting that the State has an interest in seeing the testament annulled, it' certainly has no right to pray for its avoidance on the mere allegation of a]relative nullity, which none can set up but those whom the law would have called to the succession, had no testament been made. As was observed by Judge Porter-in the case of Spencer v. Grimball, 6 Mart. N. S-364: “ Invito beneficiwm now datvr, is as well the maxim of law as it is of common sense; and if the party, who is empowered to set aside a contract, does not choose to do it, no other can.” The nullity of the will, admitting it to be irregular,, either in point of form or through the incapacity of the testator, being relative only, could not be prayed* for by the State, whose petition ought to have been dismissed on the exceptionBonne v. Powers, 3 Mart. N. S. 461. Fletcher v. Cavelier,-2 La. 271. Toullier, vol. 7, nos. 554, 564.</p> <p>Dunod, as reported by Toullier, vol. 7, p. 729, says that every act, the nullities of which are relative only, produces a natural obligation, and Grenier seems to concur in that opinion. After holding, that the heir who has paid out the legacies cannotclaim them back on the ground, that the testament is null, he says, vol. 2, p. 422: “ Il a pu vouloir exécuter le testament malgré la nullité, soit parce qu’ainsi que l’observe Chabrol, les formalités n’ont pour objet que d’as-surer la vérité du testament, et que l’héritier,. qui a bien voulu executer un testament nul, est censé s’étre rendu certain par d’autres moyens de la volonté du testateur, soit parceque, malgré la nullité il subsite une sorte d’obligation naturelle, qu’il doit étre libre á l’héritier d’accomplir.” This opinion is in harmony with reason and morality. It is founded on our own laws, which provide that those obligations are natural which the law has rendered invalid for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust; and that there is a natural obligation upon the heirs to execute the donations or other dispositions which the former owner has made, but which are defective for want of form only. C. Code, art. 1750. It is true that natural obligations cannot be enforced by action. Code, art. 1752. But it is equally true that when a party has voluntarily fulfilled a natural obligation, he has no right to revoke his performance of it. Pothier on Obligations, no. 195. The conclusion is irresistible that the party who is bound by a natural obligation cannot be compelled to consider and treat ¡tas null and void, and that, consequently,no third persons can set up a nullity which the party directly interested is, inforo conscientia,bound to respect, and eannotbe compelled to set- up. How,then, can the State of Louisiana, whose laws make'it the duty of the relations of the deceased in France not to disturb his will, since its nullity, if any there be, arises out of a defect of form only, herself .pray that that will be annulled, the performance of which, by her own laws, constitutes a natural obligation upon those relations ?</p> <p>But whether the heirs be morally bound, or not, to leave -the testament undisturbed, it must, be conceded that the nullities by which the testament could be vitiated, are relative,and can only be set up by the hairs themselves. Even their creditors would have no right to avail themselves of those nullities. Such, at least, is the opinion of Toullier, Which, although not concurred in'by all the french commentators, must be adopted by our courts, as no provisions-similar to those of art. 1<167 of the Napoleon Code.are to be found in.any.of our.Codes. Toullier 7, no. 564. Court of Cassation, Bonnecar&rev. Soulié, June 11, 1828.</p>

<p>Appeal from tire Court of Probates of West Feliciana, Weems, J.</p>

<p>To relieve an appellant from the consc'qüenCé's of hid omissioii to file the récord of appeal in time, on the ground that it was uot filed through the mistake or misconduct of the clerk, a strong and clear case must be made out. The testimony of the counsel for the appellant that he was under the impression that the record had been filed, and that he had given to the-clerk the name of a person, as surety'for the costs, with whom the-cleik was satisfied, in the absence of any proof of the-waiver by the-clerk of a written bond for the costs, is not sufficient proof of a compliance by the appellant-with the rule of court as- to security for costs, or of a violation of duty on the part of the clerk in omitting to file the appeal.</p>

<p>To malee a vendor liable under his- warranty, the purchaser must be evicted by some lawful authority. Pe)' Gúriam: The latter must maintain and vindicate his possession against intrusion, or any force but that of the law itself.</p>

<p>One who lias paid for services rendered at a higherrate-than-that stipulated in the contract between the parties, cannot recover the amount so overpaid, where the original contract was a hard one, and the amount pai'd not more than a fair compensation for -the services, and cannot he considered as'having'been paid-in error. <C. C. 2280,2281.</p>

<p>APPEAL from the District Court of Plaquemines, Rousseau, J. The facts of this case are stated in the opinion infra.</p> <p>The order for the execution of a will is a judgment which, though rendered on insufficient evidence, must have full force until reversed. Legendre v. McDonogh, 6 Mart. N. S. ,514. Fulton v. Welsh, 7 Mart. N. S. 257. Clark v. Barham, A Mart. N. S. 411. Such a judgment .cannot be attacked collaterrally. Psyche v. Paradol, ,6 La. 577. Broussard v. Bernard, 7 La. 223. Kilgour v. Ratliff, 2 lb. N. S. 292.</p> <p>The act of partition was never perfected. It can 'have no effect as a donation. C. C. 184. Bullard &.Curry’s Dig. pp. 428 ito 430, nos. 4, 8,14. A date is essential to a nuncupative will, because the ■precise time at which the testator makes his will is material. He must be of ..sound mind. Arts. 1461, 1456. Pothier, Testaments, art. 1, ch. 11, p. 531. The place is essentia] in nuncupative testaments, because it is material to know whether the witnesses reside in the place where the will is made. The place is .the parish. Arts. 1578,1574. Where it does not appear that the witnesses reside in the parish, it is presumed they reside out of it. In this case, it does not appear that a greater number of witnesses could not be had. Art. 1576. The will is signed by five witnesses, and their residence does not appear; the •judge reports, that the four first reside in the parish of Plaquemines, and the ‘last in the city of New Orleans. It does not appear, however, that that was their actual residence at the time the will was made. In which parish was the will made? The want of the formalities to which testaments are subject, renders a will null and void. Art. 1588. Benj. & Slidell’s Dig, p. 194, nos. 2, 30, .42, 44. “ The object of these ceremonies is to prevent impositions being practised on men in their last moments.” 5 La. 396.</p> <p>The admission of a will to probate and the order for its execution are only preliminary proceedings necessary for the administration of the estate, and do -not amount to a judgment binding on those not parties to them. 10 Rob. 196. ■See also I Rob. 196. 9 Mart. 90. 12 lb. 263, 503. 3 Mart. N. S. 376. 11 La. 385. 12 lb. 214. The case in 18 La. 552, and that in 5 La. 387-395, which declares that “no other tribunal can examine into the correctness of the proceeding by which a will is probated” than the one by which it was .admitted ■to probate, relate to cases where the “ genuineness of the execution of the will” is contested. See 9 Mart. 90, before cited. 4 Mart. N. S. 413. 3 Ib. N. S, 461.</p>

<p>A sale of community property surrendered by a surviving husband to his Creditors, made by order of court without the advice of a family-meeting, is irregular, so far as the minor heirs of the wife are concerned; hut as this irregularity may be cured, and the sale be ratified under art. 1788 of the Civil Code, by afterwards obtaining the ratification of the sale by a family-meeting, the court may make a ratification of the sale by the heirs the condition of allowing them relief on other points.</p>

<p>Rule to show cause why a mandamus should not be issued to the judge of the Second District Court of New Orleans, Canon, J.-</p>

<p>RULE to show cause why a mandamus should not be issued commanding the judge of the Fifth District Court of'New Orleans to állow a suspensive appeal. The manager's of the Consolidated Association of the Planters of Louisiana allege : That on the 1st of March last-a judgment'was rendered against them in the Fifth District Court of New Orleans, in favor of Jacob Little Sf Co., in the following words: “ It is ordered that the said Jacob Little Co. recover of the defendants, the Managers of the Consolidated Association of the Planters of Louisiana, the sum of $5,000, with legal interest from the 3d October, 1846, till paid and costs ; to be satisfied and paid by the said managers'in the course of administration of the affairs of the Consolidated Association of the Planters of Louisiana; and that said plaintiffs do .furnish satisfactory personal security according to art. 2258 of the Civil Code of Louisianna.” That from this judgment the petitioners took a devolutive appeal. That subsequently, on the 7th May following, the plaintiffs, Jacob Little S¡- Co., took a rule on petitioners to show cause why the bond filed by them should not be approved, .and petitioners should not allow-the judgment-to be-received in payment of any claims of said bank as provided by law; -whereupon a final judgment was rendered on the 27th of said month of May, ordering that the objections filed to the said rule be overruled, and that the bond filed by said plaintiffs be approved, and the defendants in said rule allow the said judgment to be received in payment of any of their claims, as provided by-law. Petitioners further show that considering said judgment might cause them an irreparable injury, they applied to the judge of the court for a suspensive appeal therefrom, but that the said judge declined granting said appeal.</p> <p>Wherefore they pray, that- a wx-it of mandamus .may issue, directed to the said judge, commanding him to grant said appeal.</p> <p>showed.cause against the rule.: That the petitionei's have never applied for a suspensive appeal from the judgment rendered on the 1st of Mai'ch: Thaton the ,7th of May the plaintiffs took a rule on the petitioners to show-cause why the bond filed should not be received, and why the latter should not receive the said judgment .in payment of any claim of said Association pro tanto, as provided bylaw: That subsequently to the rule taken by the petitioners in .the District Court on the 7th of May, they obtained a devolutive appeal from that judgment: That by an act of 26th March, 1842 (Sess. Acts, p. 454.), the legislature required the banks, in course of liquidation, to receive their obligations in payment of notes and obligations due to them : That the petitioners not having taken a suspensive appeal from the judgment of the 1st March, were bound to settle it in the course of liquidation, without delay: That the order made on the rule in the Disti-ict-Court-was a modification of the foi'm of execution of said judgment; and that Little et al. .are entitled to the benefit of it, as they would have been to an execution under an ordinary judgment; That to .allow the ¡mandamus to bo issued will be, in effect, to grant th® petitioners a suspensive appeal, to which they are not enfitled.</p>

The defendant claims from this court a reversal of the judgment and proceedings below, upon the following assignment of errors : 1st. That the indictment does not set forth the value… Held: therefore, that this was not matter of challenge, and could be taken advantage of after verdict. The remarks already made, furnish a full answer to the cases of Amherst v. Healey, 1 Pick. 38, and Howland v. Gifford, I Pick. 43. The .attorney general refers to the case of Dovey v. Hobson.

<p>Whore the original entry on the minutes of a court makes no mention of the swearing of the grand-jury, merely setting forth the names of the jurors, how they were selected, and the term for which they were to serve, on an affidavit by the clerk that the jurors had been regularly sworn and that the omission to state the fact was an inadvertence of his own, the minutes may be afterwards amended so as to conform to the fact. Nor will it be any objection to making the amendment, that the omission occurred while another judge presided. Per Curiam: The power of correcting the minutes of its proceedings so as to make the entries conform to the truth, whenever errors or omissions are satisfactorily shown, is inherent in every court. In criminal proceedings all ministerial acts are amendable at any time.</p> <p>No writ is required to be issued from the court for selecting and summoning a jury; nor is any order, under the seal of the court, necessary for that purpose. The stats, of 25 March, 1831, ss. 10,11, and 13 March, 1833, s. 1, direct the clerk and sheriff, or deputy sheriff; to draw, at stated periods, the requisite number of jurors, who are to be summoned.</p> <p>It is not necessary to the validity of an indictment that the day on which it was found, or the name of the judge presiding, should appear on its face.</p> <p>It is not necessary that the foreman of the grand-jury should sign his name at full length to the finding endorsed on the indictment. An indictment signed “Geo. W. West, foreman,” is sufficient.</p>

<p>APPEAL from'* the-Fifth District Court of New Orleans, Buchanan, I. The facts of the case are stated in the opinion infra'.</p> <p>The court below erred in considering that the sale was made on a suspensive-condition as to the delivery. The Civil Code declares that conditional obligations are such as depend on an uncertain event. Here there was nothing uncertain in the obligation to deliver. The sale was complete, independent of the delivery.- See Delvincourt, vol. 2, p. 16, note 1; p. 52G, note 2; p. 537, note 3. Civ. Code,-2414, 2431-, 2437, 2442, 2443, 2446, 2450, 2452, 2456, 2458, 2459, 2527, 2528. Pothier, Vente, pp. 179,180. 18 La. 235. 3 Rob. 331.</p> <p>This is an agreement to take effect in future, on account of the postponement of the payment of the- price, and of the delivery of the goods. The rule in such a case is, that if nothing remains to be done on the part of the seller, as between him and the buyer, before the goods purchased are to be delivered; the property in the goods immediately passes to the buyer, and-that in the price to the seller; but if any act remains to be done on the part of the seller, the property does not pass until that act has been done. In this case the seller was to ship the goods to New Orleans, and they were to be paid foi" on delivery; the transfer of the goods to New Orleans was part of the contract,-and a condition precedent; the seller had still something to do. The meaning of this stipulation by the purchaser was to free himself from the expense of insurance, and from all costs of charges, freight, warehousing, &c. The seller’s duty was to have insured ; he does not declare whether he did or not; he has neglected his own interest and is his own insurer.</p> <p>In the case of Tarlin-gv. Barton,-6 B. &C. 362, the defendant agreed to sell the plaintiff a stack of hay standing in Canonbury Field, for ¿6145; the contract was dated 4th January, the money to be paid the 4th February ; and the hay to stand upon the premises until the first day of May; the hay not to be cut until paid for. The purchaser accepted the sellers draft on him for ¿6145, dated 4th January, and payable at one month. The hay- was consumed by fire on the samé field. Held to be the loss of the purchaser, because there was nothing that remained to be done by the vendor as between him and the vendee.</p> <p>In Pragano v. Long, 4 B. & C. 219, the plaintiff, residing in Naples, sent an order to Mason Sf Sons, of Birmingham, for a cask of hardware, to be despatched to him on insurance being effected; terms, three months’ credit from the time of the arrival. The cask was lost on the quay at Liverpool, before being put on board the vessel for Naples. Held to be the loss of Pragano. The arrivnl at Naples was not a condition precedent. The court, Bayly, J., says: “If the goods were not be paid for unless they arrived, why should Pragano insure them; that shows that the arrival was not considered as a condition precedent to the payment. If the goods arrived, three months from the arrival was to be the period of credit; if they did not arrive, still the plaintiff would be bound to pay in reasonable time after the arrival became impossible. If this were not so, the insurance would be altogether nugatory, for Pragano could not sue upon it, neither could the vendor, the interest being declared to béin Pragano.” Halroyd, Justice, in the same case says: “ It was not contended that Pragano was not liable to the vendor unless tlio goods arrived; but the order for insurance is decisive ofthat. The policy was to protect Pragano, and shows that lie considered that lie was to be the sufferer if tlio goods were lost on the voyage ; which he coulJ not have been, had the arrival of the goods been a condition precedent'to his liability to the vendors.</p> <p>In Simmons v. Sivift, 5 B. & C. the court says: “Generally speaking, when a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he cannot take them away without paying.the price. If any-thing.remains to be done on the part of |the seller, until that is done the property is not.changed. See also 2d Bing. p. 146.</p> <p>In the case before the court, the seller liad something to do.to the goods.; .he was to land them in New Orleans.</p>

w Orleans, McHenry, J. The facts pf this case are seated in -the opinion infra,. contended thattfie point-,to bedocided,ina(?ase like this, is not .whether the disease was or .not possibly .curable, but whether or not it .existed ,at .the time of the sale, and was of such'a nature as is contemplated by .art. 249G ,of thefii-v. Code.

<p>Appeal from the District Court of Carroll, Curry, L</p> <p>1. The parties were joint tenants. That there had .been no partition, is proved by the institution of a suit to effect.a partition, after this action was commenced. From the very nature of ihe title of joint tenants, o.ne joint tenant cannot maintain a possessory action •against his co-tenant. 2. The cumulation of an action for a partition with the possessory action — in fact,'the mere institution of an action for a partition after .the possessory action- — mustjdismiss the latter ; the action for a partition being in its nature petitory, and .consequently incompatible with a suit for a partition. ¡C. P. 57, 150.</p>

<p>Notoriously bad conduct, or unfaithfulness in the administration of the property of the minórsj are the only causes for which afather canbe legally excluded; or removed, from tile-tutorship of his children. C. C. 326. Proof that a father is improvident, careless in pecuniary matters, and wautingin habits of industry, or that he had not" caused an inventory to' be made, where the delay resulted from no indisposition on his part to taire the necessary steps to protect the interests of the minors, are not sufficient to- Warrant his removal from-the tutorship,</p>

<p>Appeal from the District Court of St. Mary, Boyce, J.</p>

<p>ife-appellee is not entitled to have the appeal dismissed-on the ground that the bond, given for a suspensive appeal, is not-for as large an amount as the law requires, where it is sufficient for a devolutive appeal.</p> <p>Where a lost-instrument is made the foundation of a suit-or defence, the loss must be shown by direct evidence, or be rendered probable by circumstances, supported by the oath of the party ; and it must be’shown that its loss was advertised in some public paper. C. C. 2258, 225».</p>

<p>Where an action, as,shown by the original petition, is neither petitory nor possessory, the plaintiff may amend his petition so as to make it clearly petitory.</p> <p>A third person, who claims tobe the owner of. the-land in. controversy in a petitory action, has aright to intervene, and try liis- title intho suit, provided he.oall.no otherparties in warranty, nor in any other way arrest the progress of the litigation.</p>

<p>Wiere the record of a judicial partition from another State, properly authenticated, is offered in evidence, any objection to it as not being a complete transcript of all the proceedings, or on the ground that the partition is of no effect, not having been homologated, goes to its effeet and not to its admissibility.</p> <p>Where a party is present at the trial he may be ordered to answer interrogatories instantcr, though then propounded to him for the first tii.ne, where the questions require no recourse to bpoks or papers.</p> <p>The provision of art. 3491 of the Civil Code, that'-* prescription is suspended during marriage in every case when the action of the wife maybe prejudical to the husband,” must be construed with reference to the french text. That article is taken from the Code Napoleon, and its meaning is settled in the jurisprudence of France, as embracing all cases in which the action of the wife would, if ipainlained, give .the defendant, or any other person, a right of action against the husband.</p> <p>Though a wife suffer her property to be splgl to pay he;:husband’s debts,without opposition, she will not be thereby precluded from reclaiming jü. fho law presumes that she was prevented by her husband from asserting her rights.</p> <p>Where, by agreement of counsel, a jury is permitted to separate after the adjournment of the court, .the defendant cannot complain that, after having sealed their verdict as directed by the court, the jurors separated for the night, and that, aftpr their vordiot was delivered into court the next morning, they were sent out again, with the papers of the suit, to make the verdict more explicit.</p> <p>Xn an action by a wife against the purchaser of slaves .claimed as ^paraphernal property, bought by the defendant at a sale under execution, in which the husband is cited in warranty, judgment may be rendered against the defendant for the whole of t.he slaves and their hire, though the co.mnmjuity had been dissolved by the death of the wife pendente Hie; nor will the death of one or more of the slaves defeat the right to recover their hire while alive., on the ground that eviction was a prerequisite to its recovery.</p> <p>Acts or omissions which would constitute fraud in other persons, will not necessarily be construed to be fraudulent against married women.</p> <p>The discontinuance of a suit cannot affect the legal rights of a party.</p> <p>Jn questions of title silence does not, in any case, show consent, unless continued during the .time necessary for prescription.</p> <p>Where a purchaser of property sold under execution is .evicted, the plaintiff in the execution, cited in warranty, can .be condemned to pay legal interest only from the date of the purchase.</p>

<p>In an action against the endorsef'of a note who resided at the time of the protest in fclie’parishof S-, the certificate of a notary, by whom the note was protested, “ that the' parties were duly notified of the protest thereof, by letters to them written and addressed'/ &c.,- and served upon them in'the manner following, by means of writfccn-nofcices;addrcssod; to the endorsers, all of the parish of St. Mary, which notices I deposited in the post-office/” &c.,-will be insufficient to charge the endorser. Per Curiam: The notary certifies that the’ endorsers- were “ all of the parish of S.”> but we are not permitted to infer that the notices were addressed “ Parish of S.” In the, absence of any further direction, the letter enclosing the notes would have remainedin the office in which it was-depositod.-</p>

<p>The claim of one whose occupation is that of a-school-master, for the hoard and lodging Of pupils, is prescribed by one year, under art. 3403 of the Civil Code.</p>

<p>Appeal from’ the District Court of St. Mary, Voorhies, J.</p>

<p>The profits of all the* effects of which the husband has the administration, and all the estates-which either spouse may purchase during the marriage, though the purchase be only in the name of one of them, are considered by la-# to belong to the community, and are liable' for the debts of the husband whether contracted before or during’ the marriage, C. C.-493, 2371.- To establish a title in the'wife, in her separate right1, to property purchased1* under such circumstances, she must show that the price was’pnid with paraphernal funds* of which she had the‘administration:</p> <p>One who claims a privilege on a crop for the wages of her slaves employed in xn'oducing it, must assert it by way of third opposition; it is no ground for enjoining the sale of the crop.</p>

<p>Appeal from the District Court of St. Mary, Voorhies, J.</p>

<p>Appeal by the Planters Bank of Mississippi, from a judgment of the District Court of St. Mary, Voorhies, J.</p> <p>cited 6 Rob. 387. 11 Rob. 286. 12 Rob. 125.</p> <p>cited 7 La. 91. 1 An. R. 9.</p>

<p>Appeal from the District Court of St. Mary, Voorhies, J.</p> <p>contended that the mortgage claimed by plaintiff was extinguished by the novation of the debt it was executed to secure, citing 1 La. 527. .4 La. 247. 8 La. 270, 531. 16 La. 370. 2 Fob. 59. 9 Fob. 484.</p>

Mary, Voorhies, J. contended that an act of donation inter vivos of moveables must contain a detailed estimate of the effects, citing C. C. 1525. 3 Rob. 194. 8 Toullier,-no. 180.

<p>Where a donation inter vivos, though styled by the donor a remunerative donatSbii, does not exceed the disposable portion, the heirs of the donor cannot dispute his estimate of tho value of the services. Per Cwriam.- The donation may be'treated as ah'ordinary one; the announcement of the donor’s motive cannot affect' it.</p>

<p>The o'ffcót of tiro registry of an act conferring a privilege ceases by the omission to ro-inscribe it within tin years from the date of the first inscription. C. C. 3333.</p>

<p>An appellee cannot require an appeal to be dismissed on the ground that he has not been cited. It is the duty of the clerk to issue; and of tbe'slieriff to serve, the citation; and- their neglect of duty cannot deprive a party of the right to be heard on appeal. In such a case farther time will be allowed to cite the’ appellee; Stat. 20 March, 1839, s’. 19.</p>

<p>Where the transcript was not filed at the time when the appeal was made returnable, and no application was made to extend the time, the appeal must be dismissed.</p>

<p>Appeal from the District Court of St. Martin, Overton, J.</p> <p>cited 3'Mart. 296, 496, 303. 11 lb. 620. 2 lb. N. S. 317. Greiner’s Dig. Laws of La. art. 2936 ; act of 1808. 5 Mart. N. S. 410. 3 Ib. N. S. 140. 5 La. 145, 132, 174. 1 La. 153. 13 lb. 328, 331. 18 lb. 286. 10 Rob. 357,- Act of 1809, ch. 13, s. 2.</p> <p>The judgment below should be reversed. The warehouse erected by defendant, was not constructed for any purpose of public utility, in the meaning of art. 859 of the Civil Code. The use of the banks of navigable streams is public. G. C. 446.</p> <p>urged that the erection of the warehouse was legal, under the authority conferred on town corporations by art. 859 of the Civil Code; which limits the effect of art. 446.</p>

<p>Appeal from the District Court of St. Martin, Overton, J.</p> <p>Dotal property may be alienated after separation of property. C. C. 2410, 2411, 2343, 3490. 8 Rob. 457.</p>

<p>Appeal from the District Court of St. Martin, Overton, J.</p> <p>contended that an authority conferred on one partner to liquidate a partnership, is an express and special power, within the -meaning of art. 2966, authorising him to execute notes for balances d,ue to the .creditors of the partnership.</p> <p>After dissolution, a partner .cannot bind the firm without a special power. C. C. 29G6. 18 La. 332. 5 Rob 172. 6 Rob. 70. 11 Rob. 95. Story on Partnership, 1G1, 460. Answers to interrogatories can only affect those immediately concerned in asking or answering them. 10 T.oullier, n.o. 391.</p>

<p>Appeal from the District Court of St. Martin, Overton, J.</p> <p>cited C. C. arts. 852, 853, 860, 861, 862, 863.</p>

<p>Appeal from the District Court' of St. Martin, Overton, J.</p>

<p>A husband, on whose property a legal mortgage existed in favor of his wife, having borrowed money from a third person to purchase lands from the government, after making the entry, andón the same day, executed a mortgage on the land in favor of the lender to secure the amount loaned, and, a few days after, registered the mortgage: Held, that the mortgage in favor of the lender was inferior to the wife’s, which existed before it, and took effect on the land the instant it was purchased by the husband.</p> <p>Where a sale is made for cash, and the price paid at the time, no vendor’s privilege can •exist.</p> <p>Privileges are stricti juris. They exist.only when expressly allowed. C. C. 3152.</p>

<p>APPEAL, by the parties cited in warranty,from a judgment of the District Court of St. Martin, Overton, J. The facts of the case are stated in the opinion infra.</p> <p>The sale under which defendant claims, is null, the execution not having the seal of the court affixed to it. C. P., 179, no. 7, 625, 626, 627, 774. 7 La. 70. 9 La. 542. 10 La. 483. 12 La. 573. 2 Rob. 377. 3 lb. 155. 17 La. 40. Unless the forms of law have been complied with, a purchaser can acquire no title under a sheriff’s sale. 4 Mart. 513. 5 lb. 625. 11 lb. 610. 3 La. 421. 9 La. 543. 10 Rob. 32.</p> <p>We contend : 1. That neither the seal of the court, nor the signature of the clerk, are necessary to authorise the sheriff to carry into effect an order of seizure and sale granted by the judge; that it is sufficient for him to have a memorandum or list of the property to be seized, and that the order of the judge is a sufficient authority to act. 2. That if a seal is required to the list of property or to the writ, its absence is not sufficient to annul a sheriff’s sale, which, in all other respects, has been made with all the formalities of the law.</p> <p>1st. The sale was made by virtue of an order of seizure and sale granted by the judge at chambers, a proceeding which our Code of Practice calls “ executory process.” C. P. art. 732 etseq. The rules of proceeding pointed out by arts. 734, 735, 736 and 737 of the Code of Practice are the only ones under which the sheriff derives his authority to seize and sell. They require a simple petition to the judge, who thereupon grants an order, under which the creditor may proceed against the debtor, by causing the mortgaged property to be seized and sold. Art. 736 says: “The judge has the power to issue the order of seizure and sale,” and nothing in any of the provisions of the law relative to this subject shows that an order of seizure and sale ought to issue in the same manner asa writ of Ji. fa., which the Code, art. 641, says, the party in whose favor a judgment has been rendered must apply for to the clerk, who, under art. 774, is bound, in issuing all orders or writs, to seal them and sign them. Here, the order was granted, that is to say, issued by the judge, and it was undoubtedly a sufficient authority for the sheriff to act under, from the moment that, according to art. 735, in obtaining the order of seizure and sale, due notice was given to the debtor'. Itfollows that a writ issued by the clerk was unnecessary; that the order of the judge was a sufficient authority for the sheriff to act; and that, in order to enable him to seize the property, a list or memorandum of its description is all that was required to be given to the sheriff. Thus, it is immaterial whether there was a seal to the certificate signed by the clerk, and even whether the clerk had signed it or not, for the sheriff does Hot derive his authority to act in executory process from any writ or order issued by the clerk, but from the order granted or issued by the judge to whom the petition is presented.</p> <p>2d. But if it be necessary that there be a regular writ issued by the clerk, after having obtained the order of the judge, the law does not say, in any of its provisions, that its absence shall be a cause of nullity. This court have decided that they would never recognise any nullity as resulting from irregularities or informalities, unless positively pronounced by law. The want of a seal to a writ issued and signed by the clerk, does not and cannot lessen the authority which the sheriff had to carry the order of the judge into execution. The order is a sufficient warrant; and no injury can ever result to the party against whom the order is obtained, from the absence of a seal, or of the mark, which it is customary to affix to judicial proceedings. In the case of The Stale v. P. B. Martin, ante p. 667, this court have, to a certain extent, expressed views similar to these with regard to nuilites resulting from informalities, and have said that they would not recognise such nullities, unless expressly declared by law.</p>

<p>An actionby a factor against his principal, for a balance of account, one item of which is for tbe amount of a bill accepted by the former for the accommodation of the latter, and paid by the acceptor, is prescribed only by ten years. C. C. 3508. .The action is not upon the bill, but upon the contract for reimbursement between-the drawer and accomodation acceptor.</p> <p>In an action by a factor on an account current between him- and his principal, embracing their dealings in that relation, the latter will not be,permitted to.isolate the items, and apply to any particular item tbe prescription-which might be applicable if it stood alone, and if the relation of factor and principal did not exist. The various items are component parts of one account, which is to be regarded as a whole, and tbe prescription to be applied to an action on such an account is that of ten years, established by .art. 3508 of the Code.</p> <p>An agent who advances money for the business of bis principal is entitled, without any.express agreement,-to legal .interest from the day on which the advance was made. -C. C. 2994.</p>

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

<p>Where prescription is pleaded, for the first time, in the Supreme Court, the parly to whom it is opposed may require the case to he remanded for trial upon that plea. C. P.902.</p>

<p>.A .judgment creditor having a judicial mortgage upon all the immovables of an insolvent succession, may sue a third person alleged to have in his possession property belonging to the succession, to .compel its delivery ¡to’the administrator. Per Curiam: An administrator is only bound to account for what lie ¡receives; and if he-could not be compelled by the creditors to take possession of all of -the .assets of the succession, they would be left without a remedy.</p> <p>The deliberations of ¡creditors •touching’fclie sale of the .property of an insolvent succession must, in all cases, be homologated, or the sale willbc.null.</p> <p>Clerks of courts have,no power to homologate the deliberations of creditors touching the sale of the property of insolvent successions. Const, art. ¡79. Stat, 29 May, 1846. 'The homologation is a judicial act.</p> <p>Where the mortgage creditors of .an insolvent succession have declared’their wish to exercise the right of requiring fcbat-so much of the property should be sold for cash as may be necessary to satisfy their claims, they should not be-considered, in counting the votes to as certain the. wish of the majority of the .creditors in number and amount, as to the terms of sale of the residue of the property.</p> <p>Where an administrator, charged with the sale of -the property of a succession, acts at the salo as the agent of one who purchases a large portion of the property, the sale will be nulL It will make no difference that he did not act from improper motives. C. C. 19.</p> <p>Under the laws in force in 1805, the appraisement in the mavriage contract of a slave brought into the mavriage by the wife transferred the right-of property in the slave to the husband; and the only claim of the wife was for the amount of the appraisement.</p>

<p>A bond can be legally seized by a sheriff only by his obtaining actual possession of it. A purchaser at a sheriff’s sale made without a previous seizure, acquires nothing.</p>

<p>APPEAL from the District Court of Natchitoches, Campbell, T.</p>

<p>A wife lias no privilege .on-the immovables of her .husband, for dotal or paraphernal funds received by him. The only privilege given to a wife on the property of the husband is for her dotal rights, and is restricted to .moveables. ,C. G. 2355, 2356, 3219. jPor the protection of lie.r paraphernal funds, the wife has a mortgage only. C. C. 2367.</p>

<p>Appeal from the Court of Probates of Natchitoches, Greneaux, J.</p> <p>contended.that the note was sufficiently identified with the mortgage by the paraph of .the notary, citing Civil Code, arts. 3273, 3274, 3277.</p> <p>The mortgage is a nullity, the exact amount fpr which it was given not being declared in the act. C. C. 3277. Bosquet, Diet, des Oblig. vol. 2, p. 399. Sirey, 34, 2, 279. 9 Rob. 482.</p>

<p>A notice of protest addressed to tlie post-office at which an endorser habitually receives lifs letters, though not the nearest to his residence, is sufficient to fix his liability.</p> <p>Any address of a notice of protest which will ensure its transmission to the proper post-office, is sufficient. Thus where it is shown that by addressing a notice to an endorser " at the parish of R.,” the letter will be talren-out and retained for delivery at the office to which the notice should he sent, the name of the office need not he mentioned in the address.</p>

Appeal the District. Court of Rapides, Boyce, J. The maker and endorser of a' note1 are bOundim solido. The case of Attain v. Longer, 4 La. 152, is opposed' to' the decision in Jacobs v. Williams, 12 Rob. 183. The first question to be answered is, what is an obligation in solido?

<p>Appeal from the District Court of Caddo, Campbell, J. Roysdon,</p>

<p>Judgments or mortgages registered ia the parish of the supposed domicil of a party, will not be affected by a>subsequent discovery, made in running the boundary line, that tlio residence of the debtor was beyond the line, and within the adjoining parish. Per Curiam: Cerreur commune fait le droit..</p> <p>Where a mortgage enslaves has boon-recorded in, the mortgage office of the place where the debtor had his domicil at the time of the inscription, his subsequent removal to another parish and acquisition of a domicil there, will not make it necessary to register the mortgage in tlio parish to wliiohhe removes, in order to preservo-its effcGt.</p>

<p>Bail not fixed with tho debt before the passage of tho act of 28 March, 1840, “ abolishing imprisonment .for debt”, were discharged by that act.</p>

<p>Appeal from the District Court of Rapides, Boyce, J.</p>

<p>Appeal from the District Court of Avoyelles, Cushman, J.</p>

<p>The right of a master, under art. 181 of the Civil Code, to exonerate himself from responsibility for the offences or guasi-ofFenees of a slave, by abandoning the slave to the person injured, is not affected by .tho circumstance of the slave being at the time confined in prison at hard labor, under a judgment of a court condemning him to imprisonment for .a term of years as a punishment for the offence .committed by him; and a notarial act of abandonment transfers-to'tbe party in \vhose favor it is made, all the possession which the law will, in such a case, permit the master to give. .C. C. 2*155.</p>

<p>Appeal by the defendants and -warrantors from a judgment of the District Court of Natchitoches, Olcotl, J.</p>

<p>Whore an act of sale is inscribed among tho notarial records in the office of a parish judge bat not registered in the separate volume kept by him for the inscription of mortgages, the privilege of tile vendor will not be preserved. C. C. 3238, 3331, 3353.</p>

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

<p>Appeal from the District Court of Natchitoches, Taylor, J.</p>

<p>Where an attorney .at law consents to release a judicial mortgage.in favor of his client in consideration of .a payment of a part of the debt, and of having a certain note, made by a third person, placed in his hands, as collateral security, it being stated in the receipt given by him, “ that the proceeds of the note are to be first applied to satisfy the remainder duo on said-judgment, and the balance to be paid over to the party depositing it," he will not be liable, in the absence of any proof of an undertaking on his part to put the note in suit in case.of non-payment .at maturity, for any injury which the owner of the note may sustain by the failure to sue on it in time.</p>

contended that the act or omission of the sheriff is not an offence ,or quasi-offence. G. P. arts. 29 to 32. 2 La, 429. Civil Code, arts. 2271, •2272, 2294. If there has been a breach of the sheriff’s bond, the action .should have been on it. If there has been no breach, no action lies.

<p>/A married woman will not be bound personally by a note executed m solido with her baseband, whernat tbe time a community of acquets existed between her and her husband, and the latter had tbe exclusive administration of her paraphernal property.</p> <p>Where there is a community of. acquéts, and the husband has the exclusive administration outlie paraphernal property of ihe.wife, purchases made during marriage fall into the comma, nity.</p>

<p>Appeal from the District Court of Natchitoches, Greneaux, J., presiding.</p>

<p>Answers to interrogatories on facts atid.- articles can only be used- against tlie party interrogated, and not against other parties to the action; the-latter have aright to insist on-a cross-examination of the witness by whose testimony they are to be bound.</p> <p>ího fact that property belonging to a succession was purchased at the probate sale by an agent of the administrator, and afterwards transferred to him, will not entitle the lieirs to recover theproperty against'a third'person, a purchaser from the administrator, in good fa'ith, without notice.</p> <p>The powers and rights of an administrator under the common law, are not the same Us in'this State. By-tlie common law he has the same property in the-goods and- chattels of the deceased as the latter had when living ; lie may, without a decree of court, sell the assets, and convert them into money for the payment of debts; and to effect a sale made by him, so as toletin the claim>of’the heir, some fraud, collusion, or misconduct between the parties, must bo shown;-</p>

<p>Appeal from the District Court of Natchitoches, Oleoit, J.</p>

<p>AS PPEAL--from* the District Court of Rapides, Campbell, J. The defend-IX ant and Clcmton were ordinary partners in the cultivation of a plantation in-the parish-of Rapides, and Lambeth Thompson, the real'plaintiffs in interest,-were, for many years, their factors in New Orleans. In 1836, the defendant and- Clanton' purchased a tract of land, and, for the fast instalment of the price,.a note was made by them for ®6,670, jointly and severally, payable to the order of the vendor, Neal, and secured by a special mortgage and the vendor’s privilege. This note was transferred before maturity to R. C. Martin. Martin was a debtor of Lambeth &f- Thompson, who, in December, 1838, wrote to him that: “ Bullard, having heard that Neal has passed off the note of B. 8f C-, has sailed upon us with an urgent request that we would pay it. We must, therefore, take the note of you as cash, the day it is due. You will please enclose it to us by first boat, and it shall* be passed to yourcredit.” Martin forwarded the note to Lambeth ¿¡- Thompson, without any endorsement but that ef the original payee,, and Martin's account was credited with the amount. Lambeth ¿y Thompson subsequently put the note in circulation, and this suit is instituted upon it by the plaintiffs as holders, against Bullard as maker, and Neal as endorser- Plaintiffs acquired the note after maturity. The judgment below, rendered on the-verdict of .«. ..jury,-was in -favor of the endorser, but against Bullard, as maker. The -latter alone has appealed. The other material facts are stated in the opinion of the -court.</p> <p>The sole defence is, that Lambeth Sf Thompson, from whom the plaintiffs received the note sued-upon,-had been the factors and commission merchants of Bullard'Sf Clanton-fox many ..years before and after, the maturity of the note sued upon ; that they ,(B. §• C.-) had shipped their crops to their said factors; and that the note sued on, being the most burthensome debt, the first moneys that came into their hands from said crops, should have been applied to the extinction and discharge thereof.</p> <p>To meet this special defence, plaintiffs contend that their transferrers did impute the proceeds of said cotton to the payment of such debts as '-they had a right to impute them to, to wit, the payment- of the drafts of said Bullard.$* Clanton, and cash, provisions, supplies and other advances made by them .in the regular course of business ; and secondly, that even if the defendantscou-ld at the time have required a special, or other application of die fund, that not having done so, and having for years acquiesced therein, neither law nor equity will now permit him to change the imputation. C. C. 2161. 2 Pothier, -Obi. 528, 529. C. N. 1255-7. Duranton, no. 193. Paillette, notes to art. .1255 C. N.</p> <p>On the trial the defendant opposed the introduction of the accounts of Lambeth Thompson, and notes signed by him, and the testimony of the -witness Edmund Harding, to prove .the same, or any other imputation of the moneys received by Lambeth Sf Thompson than to the notes sued on, on the ground that plaintiffs had not declared upon sueh accounts or sued to recover the amounts thereof, &c-, and because no notice had been given him, that such accounts would be introduced, and that nothing but a receipt accepted by the debtor could be admitted, &c. This reasoning goes to the effect of the testimony, and not to its admissibility. The testimony was legally-admitted. The plaintiffs proved the defendants note, and asked for judgment. The defendant shows that at certain times, sums of money had come into the hands of plaintiffs’ transferers, which he contends extinguished the note. The plaintiffs, then, by rebutting evidence had the right of showing that -these funds -were applied to pay other debts of the defendant — and further too, that defendant had acquiesced therein. It being a plea of payment, it was incumbent on the defendant -clearly to make outhis case (C. C. 2229); and we had the right of opposingto it every legal defence; and there exists no necessity of giving hita -notice that he owed other debts, whieh it was his duty to discharge fiist.</p> <p>The defendant contends that this was a pure factorage transaction between himself and his merchants, and that it was the same as if he had written.an order on them in favor of Martin. He further contends, that, therefore, -when -they purchased the-note., or paid Martin for.it, it was a dead piece of paper in their hands, and they only had a right of charging him with so much money laid out and expended for his use; that this view of it must prevail because Lambeth Sf Thompson took the note from Martin without any express subrogation ; and that there was no legal subrogation,-as it was taken up at his request, and eould only form against him an item in an account-current. To complete the defendant’s hypothesis, it is presumed that it will be contended, that being ,a mere charge in an open account interest ceased on the note, and that his .solidary liability was destroyed, and he only bound for half as an .ordiunry partner. We contend that the transfer to .them of the note transferred all the .right attached to it (C. C. art. 2615), without .the necessity of subrogation.</p> <p>But-the plaintiffs urge that it was not such a transaction as the defendant-supposes; and that there is ample evidence to the contrary in the record; -and if -there was not, thatat would result from those grave presumptions, 'whieh, in the absence of positive evidence, influence .men, and govern their actions in ■-their intercourse with each other. The evidence shows that, at -the cióse of ¡the business season in 1838, Bullard, 8f Clanton owed their merchantsabalance of §12,547 98, for which they executed their two notes, bearing ten per cent interest after maturity, one for §6,246 37, due 2d and 5th of January. 1-839,-and one §6,301 61, due -1st and 4th February, 1839. and that Bullard Sf Clamton'-s additional liabilities and payments to be met out of the -.crop which went to market in the spring of 1839, was some §14,000, about §3,-000 of which the merchants-had also advanced between July, 1838, and 1st January, 1839. It is fair to presume that Lambeth Sf Thompson were aware of the position of Bullard 8f Clanton, and of the heavy debt they had to meet, and that they only consented to acquire tho note from Martin because it was solidary and bore ten per cent per annum interest, with the vendor’s lien and privilege. This was not intended as a factorage transaction- — Bullard 'Sp Clanton were heavily indebted to them — they had an interest in preventing others from holding a debt of so high h character, and consented to become tire owners because, 'by taking up the note, they acquired the fight of their transferrers; and doubtless that was their inducement and the true understanding at the time. The defendant maintains an affirmative, that he has extinguished a debt by some legal method, and he must make it appear; he has failed in doing so, and he must take the consequences of the conclusion that, in matters of doubt, the construction put upon an act, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation. The imputation made by the creditor shows his view of it, and the knowledge of that fact by the defendant implies his assent thereto. 'The relations of the parties, tho testimony of the book-keeper, showing the regular adjustment and making up of the accounts — their delivery to Mr. 'Thompson to be delivered to defendant — his frequent visits to their counting-house — his acknowledgment on the record, and production of so much of the accounts of sales as he considered necessary for the establishment of his defence — his silence for four successive crops, and all the surrounding circumstances, leave on fhe mind not the shadow of doubt of the defendant’s'know’ledge of the imputation of the proceeds of the cottons in the year 1839 to the discharge of other debts of Bullard ¡ÍJ- Clanton, regularly created in their factorage transactions— .and so the jury and tho-court below concluded.</p> <p>The defendant in order to avoid the effect of a knowledge of the application .of the crop in question, denies that he ever acquiesced in the application, by •urging that 'it was enough for him to see that “the .account contained the usual reservations of errors excepted,” and “ that he had no curiosity to look into it, until a final settlement,” and “ that he never was called u.pon for such final settlement.”</p> <p>In the case of Blood,worth v. Jacobs, ante p. 24, this court said, 'in relation to the reception of accounts-current and their effect, that article 2161 of tire Civil Code relative to the imputation of payments was applicable, to wit: that ■when the debtor had accepted a receipt, by which tlio-creditor has made an imputation of money he has received to one debt the debtor cannot change the imputation, unless in case of fraud or surprise. In the .case of Millaudon v.. Arnaud, 4 La. 545, the court said; “It .was the duty of the-defendant to have made his objections to the plaintiff in a reasonable time ; and the act .of receiving the .account-current, and retaining it for so long a period without .observation-or opposition, is an assent to the application which the plaintiff ■made of the funds of the defendant..’” If further authority is necessary on-.this point, itis to befound in the case of Flower v. Jones, 7 Mart. N. S. 143, where .the principle is settled, that when one party .receives accounts, without malting .objection .to the conduct of the other’s acts, it is considered as complete an acquiescence therein ns if he had expressly done so. See Merlin, Questions ■de Droit, verbo Compte-courante, vol. 1, p. 482. Paillette, note to art. 1985 Code Napoléon.</p> <p>The defendant lastly contends that there had been surprise on his part; that ft is not shown that he had any knowledge that Lambeth S¡- Thompson had taken up the note, until the account was rendered ; that he had no-intimation previously thereto, that the payments made by Bullard ‘4' Clanton were imputed in .a particular mannor. Were this position tenable! it would not avail the defendant after four or five years silence. It was the place of the defendant at ■once, on the receipt of the account,to have set up his objection thereto, or at least within a reasonable time. Duranton says (vol. 7, No. 193, in commenting on art. 1255, which is the same.as.art. 2161 of the Civil Code,) where a debtor is deceived in the imputation made by the creditor, it is his duty immediately to .set up his opposition to the imputation, otherwise it would be presumed he had acquiesced iu it; and.as the law has affixed no prescription within which to do iso after having discovered the fraud or surprise, this should be a matter left to ;the tribunals to judge, according to the circumstances of the case, if there has ¡been a ratification or not of the fraudulent imputation.</p> <p>'I. 'The note having been paid by the defendant’s agents and factors, at his request, was by that fact alone extinguished, and could not be revived and put in circulation, leaving to the mandataries their right to be reimbursed, the note remaining in their hands merely as a voucher in support of that item of their account with their principals, Bullard, Sp Clanton.</p> <p>It is clear the note was not received by Lambeth Sp Thompson in the ordinary course of business, but that it was paid at the request of Bullard. It was paid as the note of Bullard Sp Clanton, and is so referred to in their letter to Marlin. They took no transfer from Martin, no subrogation; they had no interest in paying other than as factors of Bullard Sp Clanton, in the 'daily expectation of receiving their crop, out of which this advance would be more than reimbursed. It is a maxim as ancient as the Roman law, and retained as a formal text by Justinian, “ Qui mandat, solvi, ipso videtui solvere.” The payment, therefore, made by Lambeth Sp Thompson, was a payment by Bullard Sp Clanton, The amount paid was an advance to Bullard Sp Clanton, which formed a charge against them in the account-current to be rendered by their mandataries or factors. The note, after it had been taken up by order of the maker, ceased to have any force as evidence, per se,-of an existing obligation. It had done its office. Could the endorser be again exposed to the risk of paying? Could the note be resuscitated as to him ? The defence did prevail as to him, and the plaintiffs have not appealed. Could it be extinguished as to one party, and not as to another? We contend that' the .only right of Lambeth Sp Thompson is to recover what they had advanced to take up the note, by the actio mandaii contraria,</p> <p>Duranton, says: “ Bien plus, un tiers qui n’est nullement intéressé a l’extinction de la dette peut la payer au nom eten l’ncquit du débiteur, sauf ce que nous dirons biontót en parlant des obligations de faire. Cette disposition a lieu égaiement quoique le débiteur s’oppose au paiement de sa dette: car la máxime “Invito benejicium non dari," n’est point applicable k,ce cas, &c. Quand nous disons qu’il est permis il un tiers tout-k-fait étrauger á l’obligation, de l’ac-quitter, nous entendons principalement cela du cas oú il agit au nom de ce débiteur, en luí procurant sa liberation; car, s’il agissait en son nom propro, il pourrait bien, k la véritó, payer la dette, mais il ne pourrait. dit cet article, étre subrogé aux droits du cróancier. Cependant cette derniére disposition a besoin de quelque explication. D’abord il n’en faut pas inférer, par contraire, que si le tiers agissait au nom du débiteur, il serait nécessairement subrogé aux droits du créancier : ce serait une erreur de le croire. lors rnémo que le paiement serait fait du consentement du premier, si les formálités presentes par l’article 1250,2°, n’étaientpasobservées, seulement, si le créancierle veut, il peut, aux termes de la premiere disposition du méme article, consentir k la subrogation, pourvu qu’il le fasse lors du paiement et non depths; car la dette une fois éteinte ne saurait revivre. L. 7Gff de Solut. Duranton, Paris ed. of 1820, vol. 3, nos. 701 and 702, pp. 61 and 63.</p> <p>The same author in subsequent paragraphs enumerates several cases in which.a third person pays the debt of another. First, when it is done in the name of the debtor and to discharge him, but with subrogation — there is no difficulty; it is in truth a change of creditor under the name of payment. But he proceeds to say, 2dly : Le paiement fait par le tiers, aussi au nom et k Vacquit du débiteur, -mais sans subrogation: alors il y a vferitablement extinction de la dette, et le tiers n’a contra le débiteur ainsi liberé, que la simple action de gestión d’affaire” &c. No. 784, p. 175.</p> <p>In this case it is manifest, that. Lambeth Sp Thompson paid in the name, and at the request, and as the mandataries of the debtor, .and that they took no transfer of the note, much less a conventional subrogation to the rights of Martin, the then holder of the note. Nor had they an interest in paying, which would operate a legal subrogation.</p> <p>Let us suppose that, between the time the note in question came into the hands of Lambeth <!y Thompson and the institution of this suit, the five years from its maturity had elapsed, could Bullard have pleaded the prescription of five years? Most,clearly not, according to these principles, because the payment by an agent ora negotiorum gestor creates a-new debt .against the principal, to be recovered, by what the Roman law terms tho actio mandati contraria, or as it is expressed by the French jurists, “Vaction de gestión d’ affaires." See Duranton, no. 787. in the sumo work, tho author treats tho question, whether if the original obligation contained a special election of domicil, the third person, paying without subrogation, could avail himself of that right ? And he decides that he could .not, but would be bound to prosecute at the real domicil of the debtor. See no. 786. These are, in fact, but corollaries from the settled .principle, that the original obligation is absolutely extinct, and forms nothing ¡more than the basis or consideration of a new indebtedness which dates from the payment. These principles would hav.e .been.applicable, even if this had ibeen the only transaction between BulLarcl, or Bullard 8f Clanton, and Lambeth Thompson. If the former had requested the latter to pay their note, and they had consented to do so, that alone would have created the relation of mandatary and principal between them in relation to that transaction, and the payment by them would have been a payment by Bullard 8? Clanton to every legal (intent. See Pothier, Mandat. A fortiori, when that relation already existed . — when they were in the habit, and had been for years, of acting as the general agents and factors of Bullard 4* Clanton, and admit in .their letter to Martin, that their intention was to pay the note for the drawers. This being the case, how could they legally, or with any propriety, after holding ,tbe .note for several years, again put it in circulation? Plow could they revive an .obligation to pay a.sum of money to the order of Neal, which had been .extinguished by their own act, and when they were not holders as the endorsers of Neal? How could they revive the obligation of Neal, the e-ndorssr ? It is true, as it may be contended, that a note endorsed in blank by the first endorser, passes by mer.e delivery ; but in this case the whole evidence repels the idea that LambethJSf Thompson received.the note in that way. There never was any privity of -contract between them and Neal, or between them and Martin. They took the note from Martin as cash, on the day it fell due, and he regarded the transaction as a payment made by Bullard 4* Clanton, through their agents.; .and we repeat the old maxims : “ Qui:mandat .solvi, ipse solvere videtur,” and “ Quifacitper alium, facit per se.”</p> <p>Towards Lambeth 8p Thompson, Bullard, as a partner-, never was liable for more than one half of the amount due to them ,by the partnership; .and although, as to Neal, the parties were originally bound in solido, yet for.any advances made to the firm by Lambeth 8p Thompson to pay the n.ote, the .partners were ■bound only .each for one half. The putting of the note in circulation by Lambeth 4* Thompson, was contrary to their duties and obligations as .the mandataries .of Bullard Clanton, and charged by them to pay the debt. .Story says, in so many words, .that an agent employed to settle a debt, cannot purchase it for his .own account, and he cites the case of Reed v. Norris, 2 M. & .Craig, 361, 574, .and his own Equity Jurisprudence, vol. 1, § 321, 322. He adds: “Indeedit may be laid down as a general principle that in all cases where n. person is either actually or constructively an agent for other persons, all profits and advantages made by him in the business, beyond his ordinary compensation, are to be for the benefit of his employers.” Story on Agency, § 211, p. 250.</p> <p>II. Even supposing Lambeth 4* Thompson to have been the holders of the note when it fell due, and subrogated to all the rights of the original payee, it ■was extinguished within three months, by imputation of payment, by the proceeds of cotton sold by Lambeth 4- Thompson for the makers.</p> <p>It was the most onerous debt due by Bullard 8f Clanton to that house. It was .secured by mortgage and vendor’s privilege, on a valuable part of their plantation, and bore an interest at ten per cent after maturity, if not punctually paid. It was hesides, first due. It ought to be premised, that the open account between Bullard 8f Clanton, and the house of Lambeth Thompson, commencing in July, 1838, when the last settlement took place, was neither due nor liquidated in January, 1839, when the mortgage note fell due, nor at the time .the remittances were made, which we contend ought .to have been, and were by operation of law, imputed to the payment of the note. The dealings of Bullard 4" Clanton were, from year to year, and all supplies and advances were made on that term of credit.</p> <p>The doctrine of imputation of payments has undergone little or no change since the publication of the Pandects. It is now, by our Code, precisely what it was in the age of Justinian. The principles are few and simple. The general rule is, that the debtor of several .debts equally due., when lie makes a payment, has a right to apply it to whichever debt he thinks proper. When no .direction is given by the debtor, the creditor has a right, at the time of payment, to impute it as he thinks proper, and the debtor wiil be bound by such application, if he accepts a receipt, showing such special appropriation, given at the time of the payment, in re agenda, m re presentí — statimatque solutum est. If no such special application is made and accepted, expressly, or tacitly, then the law imputes the payment to the debt which the debtor has the greatest interest in paying.</p> <p>Article 2161 of our Code declares that, “when the debtor of several debts has accepted a receipt by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to-be made to a different debt, unless there has been fraud or surprise on- the part of the creditor.”</p> <p>Art. 2162': “When the receipt bears bo imputation, the payment must be imputed to the debt which the debtor has the greatest interest in discharging, of those that are equally due.”</p> <p>Toullier, in treating upon the corresponding articles in the Code' Napoléon, says: “ Si le débiteur ne fait pas l'imputation, le créaneier a le droit de la faire, pourvu que ce soit fait á l’instant méme du paiement et dans la quittance. II ne pourrait la faire depuis: comme aussi le débiteur qui n’aurait pas fait i’imputation au- moment du paiement, ne pourrait plus la faire arbitrairement sans le eonsentement du créaneier. C’est encore la regie ancienne.” In a note he quotes-the Digest: “ Permittitur ergo creditor constitaere, in quod’ velitsolutum..., sed,constituere in re prassenti, hoc est statim atque solutum est.”’ “ Mais lorsque le' débiteur a consentí & l’imputation, eu recevant la quittance', en pleine connaissanee de cause etsans surprise,- il ne pent contredire cette imputation, quoiqu’elle-lui soit préjudiciable, suivant la máxime, volenti non fit injuria.” 7 Toullier, nos. 176, 177. Rothier is to the same effect. Treatise* on Obligations, nos. 528 and 529.</p> <p>To apply these principles to this case: A receipt is nothing more than a written acknowledgment of payment; whether couched in the form of a letter' missive, or an account of sales,showing the amount received, is immaterial. The two letters of Lambeth Thompson, acknowledging the receipt of proceeds of’ cotton sold and-placed to the credit of Bullard Sf Clanton, the one of $6,708' and the other of $2,225, making together nearly $9,000, and dated in March,. 1839, about twomonths after the note fell due, are undoubtedly receipts give» at the time, for that amount, and contain no special imputation. The law, therefore, eo instanti, made the imputation to the most onerous of the debts then du®' by Bullard Sf Clanton. If those letters had informed Bullard Sf Clanton that the amounts thus received'had been-applied by the house to discharge an open> account, rather than the notes then due, and no objection had been made at the* time, they would have been bound by that application of the fund. But the' law having fixed, the appropriation in the absence of any such special imputation, it cannot afterwards be changed without the express consent of the debtor. The debt was extinguished, and could not afterwards be revived by any mercantile arts in the mode of stating the accounts between the parties.</p> <p>But the plaintiffs contend, in the teeth of these well settled piinciples, that accounts rendered long afterwards, showing a different disposition of those-funds, and-not objected to within a reasonable time, conclude the defendants.. To this we reply that no- such accounts ever were rendered to Bullard, although they may have been- to his partner Clanton, and that even if Clanton had-expressly assented to that mode of stating the accounts and applying, the funds, it would not have bound bis partner. They were-ordinary partners, and neither' could bind the other without special authority either in the articles of partnership or otherwise. How then could he bind him by implication l One half of the funds belonged to Bullard, subject to his exclusive control and disposition. The testimony is far from showing that Bullard ever saw the accounts as rendered. But after all, what do the accounts show? In an account-current, a note held by Lambeth Sf Thompson at the time, is not charged as an item, but at the foot of the account is a remark, that they are holders of the note. Here then the account itself shows the- existence of two debts, one by note and the-other by account. What had the note to do- with the running account of supplies for the platation ? The account shows precisely that state of things which, gives the debtor a-right to choose which he will pay. The account was clearly not due at the time the money came into- the hands of Lambeth Sf Thompson. It was not due until July, 1839. It was unliquidated, and consequently they had no right to make the imputation. But the account does- not show any express imputation to the account independently of the note. The credit is general, and the note was referred to as an existing debt due at the time.</p> <p>According to article 2161 of the Code, the debtor is precluded from insisting on the imputation to the most onerous debt, when he has accepted a receipt by which the creditor has imputed what he has received to one of the debts specially. Now the converse of this proposition must be true, that until such receipt is accepted-showing a special imputation, he may insist upon and require the proper imputation. Nothing of the kind is shown here. The account, we repeat, does not show a special imputation, but shows on its face that the higher debt was then due to Lambeth 8f Thompson.</p> <p>But the rule upon- which the plaintiffs appear to rely, has no application to accounts rendered between debtors and creditors. This court is surely not prepared to infer the correctness and justice of an account rendered, merely because no objection was made to it at the time it was rendered. The rule applies only between merchant and merchant, in relation to their dealings with or for each other. It is stated by Judge Story in the following words:</p> <p>“ In respect to silence, whether it operates as a presumptive proof of ratification,may essentially depend upon the particular relations between the parties-, and the habits of business and the usages of trade. In the ordinary course of business between merchants and their correspondents, it is understood to be the duty of the one party receiving a letter from the other, to answer the same within a reasonable time, and if he does not, it is presumed he admits the propriety of the acts of his correspondent, and confirms and adopts them.”' Story on Agency, § 248.</p> <p>Greenleaf on Evidence,to the same effect, lays down the doctrine of acquiescence in the following explicit terms: “Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the affect of an admission, must exhibit some act of the mind, and amount to a voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct, or in the language of others, it must plainly appear, that such conduct was fully known, or the language fully Understood, by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply from men similarly situated.” 1 Greenleaf, p. 229, no. 197.</p> <p>The case of Bloodworth v. Jacobs, is clearly distinguishable from this. In that case, a third person, without any allegation of fraud, complained of the improper imputations of payment made by a common debtor. Several years had elapsed from the time the payments were made, and there was evidence of .a settlement with Hunter, and his acquiescence in the disposition of his funds. The whole fund belonged to him. In-this case one-half of the fund belonged to Bullard as an ordinary partner, and no settlement had taken place. At the time the proceeds of the cotton were received- by Lambeth <iy Thompson, the account for provisions for the current year was not due. The course of dealing was from year to year. There had been a settlement in July, 1838, and the funds arose from the sale of the crop of that year, which was sold in January, February and March, 1839. If the fund in the hands of Lambeth Sf Thompson, the factors, is to be regarded as a trust fund, according to the idea of the court in the case alluded to, it could not be disposed of by them contrary to the wishes and interest of the owner of that fund ; and, even if there had been a settlement, it would have been liable to be opened on showing error. In the case of Bloodworth, the court seems to have regarded the account rendered as equivalent to the first receipt spoken of in the Code, which was received without objection and therefore conclusive on the debtor. But in this case there was a previous step, to wit: the rendering accounts of sales, and letters acknowledging the receipt of the money, and which do not make the least allusion to a particular appropriation of the fund, and which fund was consequently, by operation of law, applied, eo instanti, to the extinguishment of the most onerous debt then due, that is to say, the three notes held by Lambeth bf Thompson. After receiving these accounts of sales and the letters of Lambeth b( Thompson, the appellant supposed the proceeds would be by law imputed to tlie discharge of the most onerous debt, and that it could not afterwards be changed without his consent.</p> <p>“ These accounts,” says the' court in BloodworlWs case, “ were necessarily provisional until settled; and, even after settlement, may be rectified by either party on account of errors or omissions, subject to which every settlement is held to be made.”</p> <p> Texts of Ike Roman law in relation to payment. </p> <p>“ Tollitur autem- omn-is obligatio solutions ejus- quod debetur; vel- si quis, consentiente creditore, a-liud pro alio solverit. Nec interest q.uis solvat, utrum ipse qui debet an alius pro eo ; liberatur enim- et alio solvente, sive seiente, sive ignorante debitare.” In. lib. 3-, t. 30, De Solutions.</p> <p>“ Qui mandat solvi ipse, solvere videtur.” Dig. lib. 46.</p> <p>“ Si pro me quis solverit ereditori meo, licet ignorante me, adquiritur mil» actio pignoratitia.” Ib.</p>

<p>defendants, holders of a note endorsed by plaintiff, gave it up to him, on the latter’s executing his ownnote for the amount, payable at a future period. Judgment was obtained upon the last note, without defence j and the present plaintiff purchased the property seized under execution against him, and gave a twelve-months’ bond for the price. An order of seizure having been issued on the twelve-months’bond, plaintiff enjoined it on the ground that he had executed his note in error, not having been aware at the time-that he-had been discharged from allliability as endorser by the laches of the defendants, but he made no tender of the note on which he was endorser: Held, that the injunction mast be dissolved, the plaintiff having no right to require the second note to be cancelled without restoring the original note received from the defendants.</p> <p>Under see. 3 of the stat. of 25 March, 183.1, fees of counsel may he- allowed to the’ defendant on dissolving an injunction, without proof of their having been actually paid by him, where they do not exceed twenty per cent'of the amount of the judgment enjoined, and no other damages are allowed.. Per Curiam: The judge is authorised, on the dissolution of the injunction, to allow- damages to the amount of- twenty per cent on the judgment enjoined, without proof.</p>

<p>To entitle the’ holder of a promissory note to recover against an endorser, on the ground of a promise to' pay made after the latter had- been discharged by failure to- protest, the-plaintiff must show that the promise was. made hy the endorser with full, knowledge of his discharge.</p>

<p>Where a slave, purchased a'nd paid for by the wife before marriage, is sold during its continuance, and it is not shown that the wife had the separate administration of her property, no proof will be necessax-y to charge the husband with the amount.</p>

<p>A" party may proceed by a motion to dissolve, in case of a sequestration. Peí- Gúriam: A-sequestration is a harsh remedy, and, if sued out withouteause, the party'whose property is1 unlawfully taken from him should have a summary redress.</p>

<p>The right of an endorser, who has pat his name on a note on the faith of the signature of the maker, and who has been compelled to pay the amount by a party by whom, it was discounted before maturity, to recover against the maker,, cannot be effected by the .fact of the latter’s being creditor of a prior endorser at the-time of his endorsement.</p>

<p>'Whoro-a surviving-husband, to whom, after the death of tho wife, the-community property had boon adjudicated, executes a mortgage in favor of the minor children of the marriage, ,on tho real property thus adjudicated, but afterwards sells it, and dies without; having set-died his wife’s succession, or satisfied the claim of the minors, who accept his succession with benefit of .inventory, the minors cannot require payment of any portion of their claims from the last purchaser until the successions ot the husband and wife are finally settled. The husband is-the warrantor of the purchaser; and it is only in case of his succession being insufficient to pay the.claim of tho minors, that.the purchaser can be made liable for the deficiency.</p> <p>After pleading the general denial, a defendant may avail himself of an exception taken by a party cited by him in warranty.</p>

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

<p>A surety, who has bound himself in solido with his principal, cannot reipiire the property of the latter to be discussed before.recourse is had against him (C. C. 2089,3014); nor, though the debtbe secured by a mortgage.on -the property of the principal, .can the surety compel the creditor to resort to his mortgage.'before calling upon him.</p> <p>A bank will not be responsible for any injury resulting from the omission to protest notes deposited with it .for safe-keeping, ,-and not for collection.</p>

Appeal by T. J. Wells, one of the defendants, from a judgment of the District Court of Rapides, Cushman, J, contended that the notice of protest in this case was insufficient to bind the endorser, citing Mechanics Bank v. Walton, 7 Rob. 452. Palmer v. Lae, 7 lb. 538. Marsoudet v. Jacobs, 6 lb. 283. Harris v. Allnut, 12 La. 467.

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

<p>Appeal by the defendant Chambers, from a judgment of the District-Court</p> <p>of Rapides, Cushman, J.</p> <p>con:tended that an endorser warrants the genuineness of the instrument, and that it is incumbent on him to prove that any alterations in the instrument, apparent on its face, were falsely or fraudulently made.</p> <p>cited Chitty, 212; Bailay, 98, 99; -19 Johnson, 39.X, to show that it was incumbent on the plaintiffs to prove that the note was altered under circumstances to-render it available against the parties.</p>

<p>The jurisdiction of the Supreme Court in appeals in criminal eases being confined by-the-constitution, art. 63, to questions of law alone, the judge of the inferior court is not bound in any case to make a statement of facts. The questions for tho decision of tho Supreme Court must be presented by bills of exception or assignments of error. The stat. of 30 May, 1846, sec. S, which provides that, in certain criminal oases, " an appeal may be taken on behalf of-the accused, returnable to tho Supreme Court as in civil eases,” does not alter in any respect the method of trial or rules of proceeding in the inferior court, merely provid- . ing for bringing the case before the Supreme Court by appeal, in contradistinction to the proceeding by writ of error.</p> <p>It is no objection to an indictment under the stat. of 2 April, 1833, against a person for selling intoxicating liquors to a slave without the consent of his master, that the accused is described as a “ tradeV in goods, wares, and merchandize, and spirituous or intoxicating liquors.”</p> <p>An indictment-under the stat. of 2 April, 1832, against a person for selling intoxicating liquors -to slaves, which charges that the accused “did unlawfully-sell, give, and deliver inpayment, and.cause to be sold, given, and.delivered in payment" spiritons or intoxicating liquor, is not defective on the ground of repugnarme or duplicity in tho allegations. Per Curiam: The allegations are merely cumulative. A general verdict of guilty on such an indictment would be sustained by proof of any one of the acts charged.</p>

<p>Appeal from the District Court .of Rapides, Cushman, J.</p>

The attorney at law of an executor may accept service of petition and waive citation. C. P. 177. 8 Mart. N. S. 233. The minors, being properly represented on the trial of the cases in which judgments were obtained, their only remedy was by appeal. 4 Mart. N. S. 415. 5 lb. N. S. 165. 8 Ib. N. S. 233. 7 La. 17, 223. 3 Rob. 69.

<p>Where on the dissolution of a partnership one of the partners purchases the “ other's interest in-the partnership books and accounts,” making the books the basis of the settlement and purchase of that interest, and it appears from entries in the hooks made by the latter before their sale, that a third person, to pay a debt due by whom a note had been executed by the selling partner in the name of the partnership, had advanced to the partner, ship 'a-*sum of "money a little less than the amount of the note, and that the partnership had assumed to pay the debt, the facts will amount to a ratification of the act of the partner by whom the note was executed, and the purchaser of the partnership books and accounts will be bound for the note, though not originally liable, as it was executed without his authority, and not in the business of the firm.</p>

<p>Appeal from the District-Court of Rapides, King, J.</p>

<p>Where a party is required to answer interrogatories in open court, a day must be appointed for that purpose, and he must be notified thereof unless present at the trial or when the order was made, or, in case of failure to answer, he cannot be -considered in default, nor can the interrogatories be taken for confessed. C. P. 351.</p> <p>A clerical error, in the name of a plaintiff, in whose favor judgment was rendered in an inferior court, may.be corrected on appeal.</p>

A* PPE AL from the District Court of Rapides, Murray, J. The facts of this-AL case are stated at length in the opinion of the late Supreme Court, delivered by Garland, J., infra. prayed for a re-hearing in this case, on the grounds : 1st. That all the property sued for, was, at the time of the respective sales under which the defendants claim, subject to a special mortgage in favor of Clements' heirs for the-sum of $60,000 ; and -that the .price -bid at none of said sales…

<p>‘Whore acts- of sálo under which a title to land is set up have neverbeen recorded in the parish in which the land is situated, and no act of possession is proved to have been exercised by the purchasers, the acts of sale can have no effect, as. to third persons, as transferring: either* title or possession.</p> <p>Titles to lam! held under claims reported for confirmation /by commissioners of.fclie United States, whoso report has been approved.by act of Congress, emanating from the sovereign authority, need not be recorded.</p> <p>Prescription will run in favor of a purchaser of land who has exercised no -act of possession, only from the date of the recording of his title in the parish in which-the'land is-sitnated. "Where an appeal taken by the purchasers .of a tract of land, and their warrantors, from-a judgment by which the former are evicted, does not stay execution, the judgment in favor of the former against the latter.should bear interest from its date.</p> <p>If ees of counsel, as a part of the expenses necessarily incidental to tho defence of -a-suit hy which a purchaser is evicted, maybe recovered against his warrantors. C.;C. 2482.</p>

<p>fir a. proceeding by a creditor, who had obtained judgment against a succession represented by executors, instituted against the latter in the Probate Court, to compel them to sell sufficient property to pay his claim and to file an account, .proof that their accounts had been •homologated and a judgment rendered discharging them and authorising the delivery of the estate to the widow and heirs, where the application of the executors was never advertised, and the proceedings were ex parte as‘to the creditors having been carried on between the •executors and'the widow and heirs alone, will not authorize the dismissal of the proceedings at the cost of the creditor, though, by-the recovery of a judgment against the widow and heirs in a suit against them instituted subsequently to the commencement of the proceedings in the Probate Court, the controversy is important only so far .as the costs are concerned.</p>

<p>Where a judgment against parties cited in warranty, improperly allows'interest on the price paid by the parties evicted from judicial demand, instead of giving it from the date of judgment, but toe warrantors have not asked for the correction of the judgment, either in the inferior or Supreme Court, it will be affirmed as rendered.</p>

<p>APPEAL from* the District Court of Rapides, Cushman, J.</p>

<p>Sec. 29 of fclae stat. of 1 April, 1835, incorporating the New Orleans Gas Liglifc and Banking Company, authorized any married women of age to bind herself and her «property, in any hypothecary contract lawfully entered into by the husband with the hank, as a surety for the bebfc due by the husband to the bank#</p> <p>Under sec; 3 of- the stat. -of 25 March, 1831, fees of counsel may be allowed to the defendant on dissolving an injunction, without proof of their having- been actually paid by him, where they do not exceed twenty percent on the amount of the judgment enjoined, and no other damages are allowed;</p>

<p>Appeal from the Court of Probates of Natchitoches, Greneaux, J.</p>

<p>A duly authenticated-copy of the section of a foreign statute on.'which a party relies, is sufficient. If the opposite party have reason to believe that other provisions of :the statute are favorable to him, he must produce them. If surprised by tho introduction of the extract only in evidence,.the courtvwill, .on a proper showing grant time to produce the entire statute.</p> <p>Defendants, acting as partners, purchased a.nuraber of slaves in another State and rc-sold .them.in a third, in both of which States they were personal property. They subsequently .employed plaintiff in this State, as an agent to purchase slaves for them in a State In which slaves were personal property, to be re-sold in this. .Purchases were made accordingly in-that State, and the slaves re-sold here. Meld, that as joint purchasers of personal property for sale defendants were commercial partners, and liable as such, before the employment of plaintiff as their agent (C. C. 9796);, that the-subsequent .purchases for re-sale here were continued -acts of the same partnership; and that the fact,of .the slaves hecoraing immovables, by destination of law, upon their introduction-into this State.,.cannot affect .. ’ .... • the responsibility of defendants.</p> <p>Answers to interrogatories on facts and articles .can only-be used against the party interrogated, and not against other parties to the action; the latter have a right to insist on a cross-examination of the witness by whose testimony -they are to he bound.</p> <p>The claim of an agent for compensation under an agreement allowing him a.certain commission on disbursements, is not prescribed by three years. Such an agent is not included anpong the persons enumerated in arts. 3503, 3504, of.the .Civ.il Code.</p> <p>Since-the stat. of 20 March. 1839., § 15, repealing art. 554 of the Code of ¿Practice, all sums due on contracts bear interest from judicial demand, though none,has been stipulated, and the demand is unliquidated.</p>

<p>An appeal from a judgment rendered against a married woman, taken by her without tiie'atU tliorization of her husband or of the court, must be dismissed C P. 106, 107,113: And where it does not appear that she was authorized-1 by either to defend the suit in- the court below, and judgment was rendered against her by default, an averment in the petition for an appeal that the petitioner is acting with the assistance of her husband, is not sufficient; nor will an affidavit by her attorney at law that the husband had authorized the appeal, be enough.</p>

<p>Where' one wlio’has obtained a judgment against the maker andendorsers' of anote, colludes' with the parties who were primarily liable on it, for the purpose of screening their property under pretended judicial sales; the liability of the last endorser will be discharged ; nor cam it be revived by the transfer of the judgment to third persons.</p> <p>The vendor of a debt or incorporeal right warrants’ its existence at the time-of the transfer, though no warranty be mentioned in the act of sale (0. C. 2616), and that it exists such-as-the parties understood it,, accompanied With all the securities contemplated by the contract' of assignment</p> <p>One who sells a judgment obtained against' several p ersons in- solido, impliedly warrants that-the judgment exists as it purports to do; and if, at the time of the sale, one of the debtors' had been discharged, the vendor will be liable on his warranty. Miter, if the purchaser, at the time of acquiring the judgment, was aware of collusion and frauds between the’ vendor of the judgment and other parties to it, by Which one of the debtors had been discharged.</p>

<p>The appearance of a husband as a co-defendant with Ins wife in a suit, is tantamount to an express authority on his par for ther appearance ; but where an appeal is allowed to a husband and wife on motion in open court, and the husband afterwards abandons the appeal, giving no bond and making no appearance in the Supreme Court, the prosecution of the1 appeal will be considered, as to the wife, as unauthorised. Affidavits of the husband, or of his attorney, exhibited on the motion to dismiss, to prove the authorisation of the wife, \VilI not be noticed; the case must be determined as it stood at the time of the motion to dismiss.</p>

<p>Where the ends of justice require it, the court will-remand a cause, with leave to the plain-' tiff to amend his pleadings. ,</p>

<p>A judgment obtained against a party on tbe ground of his illegal interference with the ‘administration of plaintiff’s property while tbe latter was a minor, which allowed a tacit mortgage oil the property of the party against whom it was rendered from the date of tlio interference, not alleged to have been obtained by fraud or -collusion, will be prima facie evidence, that tbe sura claimed was due and that it was secured by a tacit mortgage, in an action against a third person to enforce its execution on property held by the latter, alleged to have boon acquired from the defendant in tbe first suit while subject to the tacit encumbrance recognised by the judgment obtained against him. But where the rate of interest allowed by the original judgment is higher than the law authorises, the judgment will 'bo enforced against tbe property in the hands of the third possessor only for the amount for which it should have been rendered.</p>

<p>Appeal frora-'the District-Court of Avoyelles, Farrar, S.</p>

<p>Appeal the District Court of Rapides, Cushman, J.</p>

<p>Appeal from tlie District Court of Concordia, Curry, J.</p>

<p>Appeal from the Court of Probates of Ouachita, Lumy, J.</p>

<p>A testator bequeathed to the corporation of a city “ a settlement consisting of one thousand arpante of land, with tho appurtenances and improvements thereon, and all tho personal estate thereto belonging and thereon remaining, including thirty slaves and their increase ; directing that no part thereof should he sold or disposed of for twenty years after Ms death, should B-survive him and live so long, bat said settlement to be kept up by Br for said term of years as if it were his own,- that is, to remain under Ms sole care and control, all the nett profits thereof to bo enjoyedby B for his own use; he rendering annually an account to the city of tho state of the settlement, showing its income and expenses, the number and increase of the slaves, and its nett profits; the testator further directed that,at the end of said twenty years, or at tho death of B should he not live so long, the land, improvements, slaves, and other appurtenant personal property, should be sold as soon a» tbe corporation deemed it advisable; tho proceeds to be applied by the corporation to such uses as it might deem most beneficial to the inhabitants"Held, that the ownership of tho property was given to the city, and tho usufruct to B ; that the occurrence of circumstances' preventing tho establishment from being kept together, will not terminate th® usufruct; that the language of the will is merely descriptivo of tnc property, and not restrictive of its future nso, pre-supposing the employment of tho slaves on tho land, but not imposing it as a condition of the usufruct; and that the fact of such employment becoming impossible, or so onerous and inconvenient as to make it unreasonable to exact it, could not deprive theusufruotuary of the fruits of the ordinary labor of the slaves-elsewhere than on the land.</p> <p>The 1st sec. of the stat.of 17 February, 1805, restricting the right of tho corporation of New Orleans to hold real estate, to such as is situated within- tho limits of the city, does not include slaves.</p> <p>Slaves are not real estate. They are declared to be immovables by a positive provision of the Code (art. 4G1); hut neither in common parlance', nor in law, arc they designated by the term real estate.</p> <p>The owner of property subject to an usufruct has alone the right to call the usufructuary to-account.</p>

<p>'Where, in the settlement of a succession, two distinct judgments have boen rcndored, one upon a statement of debts filed by an administrator, and the other upon an account of his .administration, and the application for appeal is from the judgment upon the statement of . debts, but the bond is given as for an appeal from that upon the account, the appeal must be 'dismissed.</p> <p>It is no part o'f the duty of a. clerk to prepare an appeal bond, so as to bring any irregularity in its execution within the 19th section of the stat. of 20 March, 1839, authorising the Supreme Court, in certain cases, to" grant time for'the correction of errors or irregularities.</p> <p>An appeal.must be dismissed .where the appellant had not obtained an order authorising him ¡to appeal.</p> <p>.Parties claiming us creditors or heirs must prove in the lower court that they are such, or ■they will.notbe heard as appellants from a judgment relative to the succession.</p>

<p>Appeal from the District Court of Caddo, Campbell, J.-</p>

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

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

<p>An appeal must be-dismi3sed where the real-party in interest is not included among those to-whom the appeal bond is made payable.</p>

<p>APPEAL from the District Court of Ouachita, Selby, I.</p>

vol. 1, p. 548; lb. Cow. and Hill’s Notes, pp. 1384, 1420 el seq. 3 La. 459. 10 La. 172. 4 Rob. 290. 16 La. 129. The court did not err in striking out the part of defendant’s answer to the interrogatory, which was objected to. C. P. 353. 6 Rob. 1. 9 Rob. 173. The amount in controversy did not authorise an appeal. C. P. 874. 9 Rob. 153. The parol evidence should have been received. 4 La. 350. 19 La. 140. 2 La. 3. C.-C. 1818.

<p>Appeal from the District Court of Catahoula, Farrar, J.</p> <p>There is no seizure unless the sheriff takes possession of 'the property. 1 La. 491. 6 Robinson, 347. 9 lb. 182. 7 lb. 500. Pailhes •v. Tkielen, 1 An. R. 34.</p>

<p>Appeal from the District Court of Ouachita, Selby, J.</p>

<p>Continiiedpossession by a vendor, acting as owner, after a sale, creates the presumption of simulation, and imposes on the vendees, as to third persons, the burden of proving there'ality of tho sale. C. C. 2456, 1915. The mere fact of the vendor, who was the mother of the vendees, continuing to live with her children on the place sold after the transfer, is not of itself a badge of simulation.</p> <p>Where a, party enjoins an execution against a third person claiming the property seized by virtue of his possession under an act of sale duly registered, and defendent prays for the dissolution of the injunction on the ground that the sale was simulated and fraudulent. he must establish the simulation, or the injunction will not be dissolved. In such an action evidence will not be admissible to prove that the sale was fraudulent; for where there has been a real, though fraudulent, sale, detrimental to creditors, the title and possession of the purchaser cannot he disregarded; the creditor can only reach the property by causing the sale to be annulled in a direct revocatory action. It is only in cases of simulated sales, not intended by tlio parties to convey any property, that the creditor may disregard the title of tlic purchaser and seize.</p> <p>Where a married woman joins her husband'in an action, in which they assert title in the latter to property, conveyed to her by her tutrix, in settlement for her share in the succession of her father, by an act sous seing privé, duly registered, but signed by the husband alono, under which the latter was imactual possession, tho possession and registry will amount to notice to third persons ;.and the joining in the action is an approval of the acts of the husband.</p> <p>Art. 2417 of the Civil Code, which provides that a sale of immovables or slaves sous seing priv&has effect against the creditors of the partios and against third persons in general, only from the-day of its rogistry in the office of a notary, and the actual delivery of tho thing sold, must be considered as controlling art. 2242 which declares such sales to he valid from the dates of their registry in the office of a notary, or from tho time of the actual delivci'y'of Íhe'fchingsoíd.</p>

<p>•Where tho certificate of the clcirit, appended to a transcript of the record of-an action in another State, states that the document “ is a full and complete transcript of the record and proceedings, executions and returns thereon, except the t-wo first executions, 'which have not been returned,".and it appears.from the transcript itself that two other executions were issued subsequently to those stated not to have been returned, it ..will be presumed that tho fact of-tho two first executions not having been returned was -no obstacle 'to tissuing ■ the two last, and that the latter were issued according to the laws and practice in the -State in which the judgment was rendered; and the transcript will he admitted in evidence.</p>

<p>An absentee, wlio owns property in this State specially mortgaged, may be proceeded against judicially by the mortgagee, on being represented by a curator ad hoc. C. C. 57. C. P. 116.</p> <p>No amicable demand is required whore the action is aga'inst an absentee. In such a ease, it is impracticable.</p> <p>A cnratoi' ad hoc .appointed to represent an absentee may acknowledge service of citation and petition Such an acknowledgment is not a waiver of any right of the absentee.</p> <p>The acknowledgment of a debt made by one of two debtors in solido, or the institution of a suit and recovery of a judgment against one of them, will interrupt prescription as to the .other; but it will commence immediately after the interruption, .to run again as to the latter.</p>

<p>A judgment rendered,against defendants jointly, and registered in that form, cannot be enforced against property, in tho hands of a third, possessor, as a judgment in solido. Per Curiam: Mortgages only have effect against third persons as they are registered. Third persons are not required to look,beyond the register, to-asccrtain -whether the character of .the mortgage differ from that-exhibited on tho hooks of tho mortgage office.</p>

<p>The immovable property of tho.husband ie tacitly -mortgaged for the re-payment of paraphernal funds of tho wife received by him daring marriage; and -this mortgage takes effect as to third persons, without registry, from the time when the funds -were received.</p>

<p>fflie exclusive riglit'grantod-tb tho corporation of the town of Shrbveport, tiy sec. 6 of tho ‘ stat. of 20 March, 1830-, to establish fon-ios across tho Rod river within the limits of that"town, was not repealed by any thing in the stat. of 24-'3?ebruaiy, 1843, creating tho parish-of Bossier.</p>

<p>Ail affidavit for an attachment, which states thatthe defendant '■ is justly indebted to plaintiff in the sum of (mentioning the amount) for services rendered and to he rendered by deponent as clerk, part due, and a part of said sum not due; and that deponent verily believes said defendant has left tho State to reside permanently oat of it,” is insufficient to sastain an attachment for any amount. Per Curiam: As regards the amount not duo, the affidavit is clearly defective. To attach for a debt not duo, the creditor must swear that the debtor is about to remove his property out of the State before tho debt becomes due. As to the amount due, the affidavit is defective for uncertainty. To attach in any case, the creditor must declare on-oath tho amount due to him. C. P. 240, 243, Stat. 7 April, 1-S26, section 7.</p>

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

<p>The property of a succession is llie common pledge of the creditors, except so far as privileges have been lawfully .acquired.</p> <p>An administrator is the trustee of. the creditors; his first duty is to them; he is bound to watch over their interests.</p> <p>An attorney at law will not he allowed to testify as to communications made to him by a client in the course of his professional employment, -unless the client himsdlf consent to their disclosure.</p> <p>Parol evidence of declarations of a mortgageais admissible to establish the 'fraudulent character of a mortgage, when offered by one not a party to the act. The weight to be given to such proofs, goes to the effect, and not to the admissibility of. the evidence.</p> <p>If a creditor of a succession choose to show-that he has combined with the administrator to injure other creditors, no rule of law will prevent him from doing so,. nor the. creditors from availing themselves of the legal consequences in their favor.</p> <p>Although, under our laws, an attorney at law is a competent witness for his client, the position of an attorney offering himself as such is one of extreme delicacy both to the witness and the court; and it is always desirable, for the harmony of the profession, the independence of the bench, and the public confidence in the administration of justice, that an. attorney should not boa witness, except in extreme cases, when all other means of proof are impossible; and then the attorney should withdraw from professional.participation in the cause.</p>

<p>A1 purchaser at'aprobate'sale will not acquire the property free from mórtgages created by the deceased, where there was an express stipulation, at the, time of the sale, that the adjudication should not discharge the encumbrances.</p> <p>Where one or more of several notes secured by mortgage have been extinguished by proscription, the mortgage itself will be extinguishd pro ianto; and the maker of the notes cannot, by subsequent acknowledgments of the debt, made after the sale of the mortgaged-property to a third person,' revive the mortgage so as to affect the property in the hands of ’ the latter, without his express assent.</p> <p>The only demand which interrupts prescription is that made by a citation.</p> <p>Where the tutor of a minor receives and sues on notes taken at a probate sale for the price-of property inherited by the latter, he cannot question, the authority of the judge to receive such notes. »</p>

<p>APPE&L from'ihe District Coui-t of Caldwell, Mayo, J.</p>

<p>Slaintiff, .a- married woman, purchased certain property in her own name, at a prohate salo of the succession of her father, made for the payment of debts and to effect a partition, the price of which was less than her ¿hare in the succession. The sale of the property of the succession was directed to he made for one-tenth cash, and the balance on credit. The act of sale declared that the pvicd had been "in hand paid.” Tlie Succession was solvent. In a'partition subsequently made between the heirs, a note given by the plaintiff for the credit portion of-the price was given up to her/.as a payment pro tanio on her shave in the succession. Held? thattheinterest of plaintiffin the succession of-her father being paraphernal, the property so purchased by her must also he considered paraphernal, being an exception tó tlie general rule that property purchased during marriage, whether in the name of' the hushhnd or wife, belongs to tlie community; and that the law, in this respect, was tha same before the promulgation of the Civil Code of 18S5 that it is at present.</p> <p>One whose property has been seized’under execution against another, may recover damages against the sheriff and plaintiff in execution, in solido.</p>

<p>APPEAL from the District Court of Caddo, Taylor, I.</p>

<p>PPEAL from the District Court of Caddo, Olcoli, J. This was-an action against a sheriff and his sureties, with a prayer for judgment against them insólido, for the amount of damages alleged to have been sustained 'by plaintiff through the neglect of the sheriff. The plaintiff appealed ‘from a-verdict Naud judgment against him.</p>

<p>The aot of Congress of 23 January, 1832, relative to.the pre-emption rights of settlers on public lauds, only authorised the transfer of certificates of purchase, or final receipts. The prohibition to assign or transfer a mere pro-emplion right, before.a patent had been issued, imposed by the act of 2D May, 1830, was not repealed or affected by the stat. of 1832; any sale 1 or assignment made in violation of it is null; -and a title to the land, subsequently acquired by purchase from the government by the party entitled to the pre-emption, will enure to his benefit, and not to that of-the purchaser of the pre-emption right.</p>

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

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

<p>Appeal from the District Court of Claiborne, Taylor, J.</p>

<p>Appeal from the District Court of Catahoula, Mayo, J.</p> <p>cited 2 Mart. N. S. 84. 17 La. 371. 3 Rob. 258.</p> <p>relied on C. P. 347 to 350. 7 Mart. N. S. 269. Bradford v. Cooper, 1 An. R. 325. 12 Rob. 243.</p>

<p>Appeal from the District Court of Claiborne, Taylor, J.</p>

<p>Appeal fiom the District Court of Caddo, Taylor, J.</p>

<p>Appeal from the Court of Probates of Bossier, Scott, J.</p>

<p>Appeal from the District Court of Ouachita, Selfo/, J.</p>

<p>Appeal from the District Court of Morehouse, Copley, J.</p> <p>cited C. P. 242, 243 ; Irish v. Wright, 12 Rob. 568, 575.</p>

<p>Appeal from the District Court of Claiborne, Taylor, J.</p> <p>contended that plaintiff cannot recover without proving an actual marriage, co-habitation and reputation being insufficient, citing 4 Phillips on Ev. p. 206. Morns v. Miller, 4 Bur. 2057. But v. Barlow, 1 Doug. 170.</p>

The notes sued on were taken by plaintiff before maturity, and for a valuable consideration. The evidence does not establish concubinage between the woman, Patsy, from whom he received them, and Miller, the payee. The notes, being personal property, had no other situs than that of the domicil-of the owner,-which was in Missouri at the time of their transfer to Patsy ; and, by the laws of that State,- the transfer of negotiable paper, with or without consideration, is valid.

<p>Plaintiff cannot recover in an action to rescind tlie sale of a slave for a redhibitory disease, tvhere an offer to return .the slave is neither alleged nor proved.</p>

<p>Where there is nothing in the record to show that the amount in dispute exceeds three hundred dollar^, the appeal must be dismissed.</p>

<p>Where one of the parties lo a contract which stipulated for the payment.of .a fixed penalty in case of the failure of either to comply with its terms, notifies the other that itis impossible for him to comply with the contract, and that he must consider it as null, to exonerate himself from liability for the penalty on the ground of a subsequent promise by him to perform, he must show that the new promise was accepted by the other party. Per Curiam: The gratuitous abandonment of an acquired right is not to he presumed.</p> <p>•Where a party contracted witli another to deliver merchandize for a certain price, the latter binding himself to pay the price, under a fixed penalty in case of non-complianc/e on his part; and the purchaser notifies the seller of his inability to comply and declares the contract null, it will amount to an activo breach of the contract, and the seller will not be bound to tender the goods to enable him to recover the penalty.</p>

<p>Appeal from the First District Court of Jefferson, Clarke, J.</p>

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

<p>A keeper of public stables lias no privilege on horses placed with him on livery, for' money loaned to their owner, entitling him to be paid by preference to an attaching creditor.</p>

<p>A sequestration will be allowed to issue only where the party is clearly entitled to it.</p> <p>In an action by one partner against another to compel him to account for and pay over the share of his co-partner in profits alleged to belong to the firm, plaintiff is not entitled to a sequestration.</p> <p>Profits made by a partner in the purchase and sale of merchandize, in which his co-partners are entitled to share, are not subject to any privilege in favor of the latter.</p> <p>Privileges are stneti juris, and are only allowed where the lawgiver has expressly awarded them.</p>

contended that the defendants being bound in solido as commercial -partners, the residence of one partner within this State cannot prevent an attachment from being sued out against the non-resident partner. Smith v. Elliott, 3 Mart. 370. Cucullu v. Mangenal, 4 Mart. N. S. 185.

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

<p>The fact that the counsel of a party was not aware that the case hadheen set for trial will not entitle the party to relief from the effeet of a surprise and an ex parte trial, unless it he shown that the counsel could not, by the exercise of reasonable diligence, have ascertained the condition of .the .case, and been present at its trial.</p>

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

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

<p>Appeal from the District Court of Jefferson, Clarke, J.</p> <p>cited Jacobs v. Williams, 12 Rob. 183. Carrdby v. Navarre, 3 La. 362. Segond v. Landry, 1</p> <p>Rob. 335. Troplong, Préscrip. no. 45. Duranton, Préscrip. no. 117.</p>

<p>Appeal from the District Court of East Baton Rouge, Burk, J. Joor, and</p>

who appealed. A sheriff who abuses his trust is answerable only to the parties injured. His sending property seized beyond the State, in his own name, cannot destroy his special property in it, nor change its ownership. Brownwell v. Manchester, 1 Pick. 132. At common law a sheriff had authority to remove beyond his bailwick property levied on. Gilbert on Distresses, pp. 49, 50.

<p>The post-notes issued by the Citizens Bank of Louisiana, payable to order, at three, four and five years from date, out of the proceeds of the sale of the bonds of the State loaned to that institution, formed a part of its capital and not of its circulation; and they are not exempted on the ground of being circulated as money, from the laws applicable to stolen property. To entitle a possessor of stolen property to demand from the owner the price paid for it before the latter can obtain restitution of it, the possessor must show that he bought it at public auction, or from a person in the habit of selling such things. C. C. 3473.</p>

<p>Rule on Buchanan, Judge of the Fifth District Court of New Orleans, to show cause why a mandamus should not be issued.</p>

<p>Where moveables forming part oí a succession opened in this State are bequeathed to, or inherited by, a married woman, domiciled, with her husband, in a foreign country, and the wife subsequently dies, the law of the domicil of the spouses, in ease of a contest between the survivor and the heirs of the deceased spouse, will govern in determining to whom the property belongs.</p> <p>By the laws of England legacies to a wife, and residuary personal estate inherited hy her, are included under the term dioses in action; and it is only where they have been reduced into possession by the husband, that they become his property. To affect such a reduction the husband must exercise some act of dominion over the property; the mere intention to reduce them into possession is not enough. To effect a reduction the act must be such as to change the property; it must divest the wife’s right, and make that of the husband absolute.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>relied on Story’s Confi. Laws, § 323. Huberus, De Conflictu Legum, § 7, Harrison v. Sherry, 5 Crunch 298.</p> <p>who also appealed, relied on Whislon v. Stodder, 8 Mart. 135.</p>

<p>Appeal from the District Court of the-First District, Buchanan, J.</p>

<p>Where the laborers employed by a builder, and the furnishers of materials for its construction, deliver to the owner attested accounts of the amount doe to them for the purpose of having the amount retained oat of subsequent payments to the contractor, in pursuance of the stat;. of 18 March, 1844, and the amounts so claimed exceed the balance due to the builder, the owner may institute an action against the claimants, for the purpose of having the amount due by him distributed by order of court among the parties entitled thereto, .and himself relieved from liability on depositing the amount due by him in court.</p>

<p>Appeal by the defendants from a judgment rendered against them, by the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>relied on the case of Andrew v. Moorehouse, cited in Abbott on Shipping, new Am. ed. p. 495, and note to page 496.</p> <p>cited Avery v. Lauve, 1 An. R. 457.</p>

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

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

<p>Plaintiff, who bad applied for afi.fa. against a defendant, propounded interrogatories to c, third person under the provisions of sec. 13 of the stat. of 20 March, 1839, for'the purpose-of ascertaining whether he had in his possession any real or personal property belonging to defendant, or was in any manner indebted to him. The answers to these interrogatories were traversed, and a rnlo taken on the respondent to show cause why judgment should not be rendered against him for the amount of the plaintiff's claim. On the trial of the rule objection was made to proceeding until plaintiff declared in writing, specifically, what property he expected to prove to be in possession of the party interrogated; when the court ordered the plaintiff to specify “ what real estate or slaves ” he intended to prove to be in the hands of the party interrogated, belonging to -the defendant. The specifications filed by plaintiff not being considered a compliance, on motion of the party interrogated, the proceedings were dismissed. On appeal; Held, that the only effect of the non-compliance with the order to specify, would be to exclude any evidence as to the subjects embraced by it —real estate and slaves; that in relation to personal .property and debts, the. order was inoperative; and that the proceedings should not have been dismissed.</p> <p>Where one, to whom interrogatories are propounded under sec. 13 of the stat. of 20 March, 1839, for the purpose of ascertaining what property he may have in bis possession belonging to a defendant against whom an execution has been taken out, objects to the mode of proceeding, he should make such objections appear by exception or plea.</p>

<p>Where the certificate of the clerk does not show that the record contaius all the evidence upon which the caso was tried, and there is no statement of facts, bill of exceptions, or assignment of error, the appeal must b,e dismissed.</p>

<p>Appeal from the City Court of Layfayette, Burthe, J.</p>

<p>Where a person of color offered .as a witness is objected to as incompetent on the ground of his being presumed to be a slave, and it appears from evidence presented by the party by whom the witness was introduced that he had been emancipated by a notarial act, the witness will not be permitted to testify on the statement of another witness that he had formerly owned the person objected to, and had emancipated him a few years before. The production of .the written act of emancipation, if insisted on by the opposite party, could not be disposed with, nor be supplied by secondary evidence without proof of the loss or destruction of the written instrument.</p>

The facts of this case are stated in the opinion of the court infra* The power of attorney is general in its nature, and authorised McDonald to draw, endorse, or accept any bill or note, for any sum or sums. There is no prohibition to McDonald to endorse his own notes, and courts cannot supply the limitation.

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

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

<p>An entry made in a bank-book of a certain amount to the credit of tbo depositor, if made at the time of the deposit, by a clerk authorized to make the entry, in the absence of proof of any fraud or collusion between the clerk and the depositor, is conclusive on the bank, which will be estopped from alleging that the entry was erroneously made; hut where the book is written up afterwards, the entry is not an original one, and may he examined into. Where two witnesses, of unimpeaclied veracity, contradict each other, the presumption of truth is in favor of the"one who swears affirmatively.</p>

<p>Where in an action by the holder of a note, not endorsed by the payee, plaintiff alleges that he is the owner, the allegation of ownership sufficiently implies a transfer to authorise the admission in evidence of a notarial act of transfer and subrogation by the payee to the plaintiff.</p>

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

<p>APPEAL from the Fifth District Court of New Orleans, Buchanan, J.</p> <p>cited 6 Wend. 378. 2 Robinson, 113. 4 Washington C. C. 253. 5 Conn. R. 106. Chitty on Bills, 10th ed. note p. 260.</p>

<p>Appeal from the Third District Court of New Orleans, Kennedy, J.</p> <p>ARE-HEARING was granted in this ease on the application of Benjamin and Micou, for the plaintiff, and the final judgment was pronounced by</p>

APPEAL by defendants from a judgment in favor of plaintiffs, rendered by the Fourth District Court of New Orleans, Strawbridge, J. The only point made for the defence worthy of notice is, that the contract was made in a common law State, where parties owning and running ships and steamers are tenants in common and not commercial partners, and that consequently the defendants are not bound in solido.

<p>Where a plaintiff sues in a representative capacity, such as thatof acuratoror executor, want of authority to maintain the action must be specially pleaded in limine litis, in order to put him on the proof of his capacity. A plea of prescription is an admission of plaintiff's capacity, which will preclude the defendant from afterwards contesting it.</p> <p>Commercial partners being bound in solido, the acknowledgment of one interrupts prescription as to the other.</p> <p>One who sues as executor, and who declares that lie has no personal interest in the case, is competent as a witness.</p>

<p>An owner of property is justifiable in beating a trespasser, only whore the battery is necessary to the defence of his property.</p> <p>Where a party expressly waived his right to challenge a juror who declared .that he had formed an opinion on the case, the fact of the juror’s impartiality cannot be urged by him as a ground for a new trial.</p> <p>The fact of the existence of strong prejudice in the public mind against a party isa ground for an application for a change of venue (stat. 1 June, 1846, s. 3); but is no ground for a new trial, unless it be shown that the prejudice operated on the minds of the jurors or influenced their verdict.</p> <p>Where' a party resides in the parish in which a case is tided, and is not-absent at the time, an affidavit for anew trial on the ground that it had been discovered since the trial that some of the jurors had formed and expressed opinions before being sworn, must be made,by the,party and not by his attorney. Stat. 20 March, 1839, s. 16.</p>

<p>A factor who receives a note for collection on account of his principal, and collects and retains the amount of the note, does not act in a “ fiduciary ” capacity, within the meaning of the first section of the bankrupt act of 19 August, 1841; nor is the money so received a “ trust fund ”, in the sense in which those' words are used in the fourth section of that act* The statute was intended to embrace only the defalcations of public officers, administrators, &c.</p>