Volume 2 — Robinson's Louisiana Reports

This was an appeal by the defendant from a judgment in favor of the plaintiff, entered on the verdict of the jury, and also from an order denying; a new trial.

<p>Appeal from the District Court of Pointe Coupée, Nicholls, J.</p> <p>Magdelaine Michelle Bonneau, a married woman, separated from bed and board, and in property, residing in Nantes, in France, represents that she is a niece and one of the heirs of Julien Poy-dras, who died in this state, in 1824, leaving a will by which he gave the residue of his estate, after the payment of certain legacies, to his nephews and neices. That the succession consisted of real and personal property in this state, and in New York. That the executors had sold a greater part of the estate. That from an account of their administration rendered by them, in the year 1837, it appeared that they had received $1,297,845 40, of which sum $806,780 22 had been paid, in unequal portions, to the heirs of the deceased. That it appears from tbe accounts of the executors that certain real estate in the cities of New Orleans and New York, a plantation in the parish of St. Bernard with the slaves attached thereto, and other property, remain unsold. That no partition or settlement of the succession has ever been made. That the portions of the different heirs have never been judicially determined. That the defendant, Benjamin Poydras, one of the heirs, took possession of the unsold property and other effects of the succession, immediately after the executors had rendered their accounts as above mentioned. That he has continued ever since to enjoy the fruits and revenues thereof, and to collect the debts due thereto, without having rendered any account. That he received a balance in money, and a large amount of notes, &c., due to the estate, of which he has rendered no account. That the defendant claims to be the owner of the share of the succession belonging to the petitioner, in virtue of a compromise entered into between him and Pelagie Marie Mourain, petitioner’s sister, before a notary, in the city of New Orleans, on the 14th July, 1829, by which the latter undertook for herself, and as the agent of the petitioner, to transfer to the defendant, her own and the petitioner’s-share in the succession of their uncle, and that he also relies on an alleged ratification of the compromise by the petitioner, in certain letters subsequent thereto. The plaintiff alleges that at the date of the compromise and of the letters, she had not been separated in bed and board from her husband ; that her sister had no authority from her to make any such agreement, and that she herself had never been authorized either by her husband or by any court of justice to make such a compromise, or to ratify it; and that the title -of the defendant is, therefore, null. She prays that the agreement may be rescinded; a partition of the succession decreed; an inventory and appraisement of the remaining property ordered ; and the defendant condemned to render an account of the money and other property received by him.</p> <p>The defendant denied, generally, the allegations of the petition, and particularly plaintiff’s right to institute the suit; alleged that since the compromise of the 24th July, 1829, she had ceased to have any claim upon the succession of her uncle; that P. M. Mourain had been fully authorized to execute the act of compromise ; that the act had been since approved by the plaintiff, and was highly advantageous to her. That if the court should be of opinion that the plaintiff had no authority to execute, or to ratify fire compromise, the parties should be restored to the condition in which they were before its execution. That at the sale of the effects of the late Julien Poydras, on the 14th of March, 1825, P. M. Mourain purchased property, for herself and the plaintiff, jointly, to the amount of $128,000, for which she gave four notes for $32,000 each, payable at one, two, three and four years, from the 18lh March, 1825, secured by a mortgage importing a confession of judgment, on the property so purchased. That the purchase was subsequently ratified by the petitioner, who has never paid any portion of the price ; and that her inability to do so was one of the causes which led to the execution of the compromise and the transfer of her own and her sister’s rights in the succession of Julien Poydras to the respondent. That in consideration thereof, the petitioner and her sister were released from all debt to the succession for the said purchase, and the mortgage reserved thereon to secure the price was raised. That since the purchase the petitioner has caused her share thereof to be separated from her sister’s, and has disposed of a part of it. That in case the compromise should be set aside, the respondent, as one of the heirs of Julien Poydras, and the representative of the rest, will be entitled to enforce the mortgage given to secure the price of the property sold to the petitioner and her sister. The respondent prays that the compromise may be declared valid, and the petition dismissed with costs; but in case it should be annulled, that the petitioner may be condemed in reconvention to pay him the sum of $64,000, her share of the price of the property purchased, with legal interest from the maturity of the notes given for the price ; and that the property may be declared subject to the vendor’s privilege ; and for general relief.</p> <p>The evidence establishes that Julien Poydras died in 1824, .leaving an olographic will, by which, after a number of special legacies, he bequeaths the residue of his property of every kind whatsoever, of which he may die possessed, to his nephews and nieces, in equal portions. He directed all his landed estate and slaves, not specially bequeathed, to be sold within three months after closing the inventory of his succession, at one, two, three, and four years credit; and that the legacies should be paid at the end of five years from the time of his death, until which time his executors were to retain the seisin; recommending to them, however, to pay the particular legacies, only, sooner, should there be funds to do so.</p> <p>Soon after the death of Pojaras, Pelagie Marguerite Mourain, one of his nieces and legatees by universal title, arrived in this slate, the- bearer of a power of attorney from the plaintiff, another niece and legatee, dated the 18th of September, 1824. She subsequently received another power of attorney, dated the 27th September, 1827. It is admitted that the plaintiff was separated in property from her husband prior to 1825. On the 23d July, 1833, a judgment was rendered separating her from bed and board.</p> <p>At the sale of the property of the testator, on the 14th March, 1825, P. M. Mourain, purchased for herself and the plaintiff, a plantation, with 143 slaves, in the parish of Pointe Coupee, for $128,000, for which she gave four notes, payable at one, two, three, and four years from the day of sale. The payment of these notes was secured by a special mortgage on the property itself, and on her own and the plaintiff’s interest in the succession of their uncle. It was also stipulated, that the executors should retain these shares a valoir au montant desdits billets et en compensation (Eiceux; that the purchasers should not alienate any portion of the property to the prejudice of the mortgage ; and that if any of the notes should remain unpaid at maturity, the purchasers might be compelled to pay jointly and severally, and the plantation be seized and sold. This purchase was subsequently ratified by the plaintiff.</p> <p>Several suits grew out of difficulties to which the settlement of the succession gave rise. The plaintiff and P. M. Mourain were made parties to an action commenced before the Court of Probates of Pointe Coupée, by the other legatees by universal title, against the executors. On the 25th of April, 1827, a rule was entered by consent, by which it was stipulated that the executors should file an account within fifteen days, and deliver to the plaintiffs in the suit a plantation at Terre aux Bceufs, which had been sold by the testator on a credit, and had since been taken back by the heirs under a compromise with the purchasers, and pay over the balance in their hands. The executors were, at the same time, discharged. The executors filed an account on the 16th of August following, and on the 18th of the same month delivered to the defendant, who represented nine of his co-legatees, $20,675 in cash, the plantation at Terre aux Boeufs, a house in the city of New York, and the notes and accounts belonging to the succession. On the 5th of January, 1828, another suit was commenced before the Probate Court by the same plaintiffs, for the purpose of obtaining a sale of the remaining property of the succession, which was ordered by that court to be sold for cash ; but on appeal, a judgment was rendered by consent, in the Supreme Court, on the 6th April, 1829, authorizing the plaintiffs to take the plantation at Terre aux Boeufs for their own account, at $130,000 cash. On the 12th of February, 1829, Guy Richard, as purchaser of the share of one of the legatees, and as depositary of the share claimed by a grand-niece of the testator, filed a petition in the Probate Court, praying for a provisional partition of the estate, and, among other things, that the present plaintiff, and her sister, P. M. Mou-rain, might be compelled to bring into the mass the large balance due on their purchase, after deducting their shares in the succession, for which they were jointly and severally bound. On the 24th of July, 1829, while this action was pending, P. M. Mou-rain, in her own name, and in that of the plaintiff, entered into a compromise with the defendant, Benjamin Poydras, by notarial act, by which, on transferring to the latter all their rights to the succession of the deceased, Poydras undertook to procure them ■ a release from the payment of the price of the plantation purchased by them. The object of the present suit, is to set this compromise aside, on the ground that the plaintiff was not duly authorized to make it, either by her husband, or by a court of justice.</p> <p>There was a judgment below in favor of the plaintiff. The act of compromise was ordered to be cancelled, a partition of the succession to be made, and the claim in reconvention dismissed. From this judgment, the defendant took an appeal, which was before the court in March, 1839, (13 La. 177.) The case having been remanded, to enable the parties to prove the authorizations under which they claimed, the plaintiff produced an authorization from the Tribunal de Premiere Instance, at Nantes, empowering her to carry on the present suit. The defendant objected to the introduction of this evidence, on the ground that the authorization was granted subsequently to the institution of the suit: that it could have no retroactive effect; that the proceedings previous to its production were consequently void; and that the existing suit should have been dismissed, and a new one commenced. These objections having been overruled, the case was tried anew, and a second judgment rendered in all respects similar to the first, from which the defendant is appellant.</p> <p>In the decision previously rendered in this case, the court settled the following points :</p> <p>1. That the capacity of the plaintiff, a married woman, residing in France, was to be determined by the laws of her domicil.</p> <p>2. That the property embraced in the transaction of 24th July, 1829, was immoveable, and that an authorization to the wife was necessary.</p> <p>3. That by the laws of France the voluntary execution of the act, after the separation from bed and board, could not be opposed to her, because her incapacity continued until the dissolution of the marriage.</p> <p>The court then proceeded to inquire whether the plaintiff was ever authorized to make the transaction, or to- execute it after it was made, or whether there was any act, either before or after the contract, from which such authorization would result. The conclusion was that no evidence of such authorization was to be found, and the court would have decided in favor of the plaintiff, but that the plaintiff herself had shown no authority to institute the suit, as required by the laws of her domicil. The case was, accordingly, remandecl “ to enable the parties to make proof of the various authorizations under which they claim.”</p> <p>The authority to enable the plaintiff to stand in judgment, has since been obtained, and will have the same effect as if obtained before the institution of the suit. 4 La. 259. The exception could only compel the plaintiff to produce her authorization before proceeding farther. Code Pract. 321.</p> <p>The plaintiff having shown that she was separated from bed and board from her husband in 1833, was fully competent, by our laws, to sue without any authorization. The lex fori must govern as to the remedy, and in a suit involving the title to property in this state, if the plaintiff has, by our. laws, the capacity to sue, the judgment would be binding on her, though incapable by the laws of her domicil. Story, Conflict of Laws, 468, 4731</p> <p>The transaction required an authorization, though it should be considered to have been ah alienation of moveables only. Civ. Code, art. 2410. Pailliet, p. 379, note C. No. 4 to art. 1449. Civ. Code, art. 125. Code Nap. 217. Sirey, p. 56, 5 and 7. Note to art. 217.</p> <p>The transaction, if viewed as an act of partition, involved the alienation of immoveables as well as of moveables, and was null for want of authorization. Merlin, Questions de Droit, Partage, § 3, p. 632. Toullier, tit. 1, chapter 6, des Successions, 4 vol. 409.</p> <p>The wife cannot accept a succession without being authorized. Civ. Code, 998, 999. Toullier, 2 vol. p. 20. 6 Pothier, p. 14. Nor institute or defend a suit for the partition of the estate, and without such authorization she could not make a partition of a succession embracing immoveable property. Toullier, 4 vol. No. 408, p. 409.</p> <p>Until the dissolution of the marriage, she is expressly prohibited from alienating her immoveable property without the authorization of her husband, or in default of it, the authorization of the judge. Civ. Code, arts. 2410, 2412.-</p> <p>When separate in estate, she can only alienate her moveables in the regular course of administration. Pailliet, p. 379, note 6 to art. 1449.</p> <p>The sale of the undividéd share of the plaintiff in the succession of her uncle, J. Poydras, was the sale of an immoveable. Civ. Code, art. 462. 463. *</p> <p>This case is to be examined as if brought up for the first time. Nothing was determined by the former decision, but the exception of the defendant to the plaintiff’s right of action ; and the remarks thrown out by the court concerning the controversy between the parties, were simply obiter dicta, and probably attended to with the less care, as the merits were not then properly before the court, and it was evident that the plaintiff was bound first to show her right to appear in court, before the merits of her claim could be investigated.</p> <p>This case cannot be decided by the laws of France, because they are not in evidence. 12 La. 465, 589. 7 La. 539. 5 Mart. N. S. 176, 254, 270. 4 Mart. N. S. 419. 3 La. 358. 3 Mart. N. S. 149. 1 La. 255. 2 La. 154.' 3 La. 36. 4 La. 382.</p> <p>The .difference between the French law and that of this state, as applicable to this case, is that by the former, a woman separated from bed and board has not the right of disposing of her immove-. able property, nor, consequently, of ratifying by a voluntary execution a previous illegal alienation thereof, unless she be specially authorized by her husband or by the court, while by the law of this state no such authorization is required, It_ would be contrary to the policy of this state, and an unusual stretch of the comity of nations, to apply to a contract made here a disability not known to our law. Story, Conflict of Laws, 363. Ib. 366, note, and 390. 1 La. 254. 2 Mart. N. S. 98. 4 Mart. N, S, 2. 8 Mart. N. S. 221. 7 Mart. 709. Story, Gonflictof Laws, 154,156, 126, 73, 75. Cjv. Code, 125. Code Pract. 106.</p> <p>Admitting, for a moment, that M. Bonneau could not have made the compromise without the authorization of her husband or of a court, the question arises whether she was so authorized ?</p> <p>The authorization granted to her by the tribunal of her residence, is recited in her two powers of attorney to P. M. Mourain. That of 1824 contains these clauses : “proceder a tons compies, liquidation, et partage de ladile succession,” &c., “ et gén&rale-mentfaire tout ce que la mandátaire verra bien étre dans Tintérét d,e la comparante, quoique non expressément prévu auw presentes toutes lesfois que ce qu’elle f era, tendrá a la liquidation, partage, &c.” That of 1827 ^approves the purchase' of the plantation, authorizes M. Mourain to sue in all cases, to pay all accounts, &c.</p> <p>The plaintiff, therefore, had the amplest power to proceed to the settlement and partition of the estate. A suit for a partition was pending when the compromise was made ; and a married woman, thus authorized, can pass all sorts of acts which will complete the partition. Merlin, Répert. Autorization Maritale, Sect. 8, No. 4. That a sale between co-heirs is always to be considered as a partition, and subject to the same rules, has been decided in Duplantier v. St. Pé, 3 Mart. 155 and 138, and in a case in 11th Mart. 443.</p> <p>The second power approves the purchase, and consequently all the obligations assumed by M. Mourain in the-plaintiff’s name, in the act of purchase. By that act the two purchasers were bound jointly and severally, not only to pay the price of $128,000, v but its payment was secured by a mortgage, and by a pledge of tbeir shares in J. Poydras’ estate.</p> <p>.The plaintiff has ratified the compromise by voluntarily executing it. Civ. Code, art. 2252. Pier attorney, in fact, Delamarre, sold her undivided half of twenty-two slaves at auction, under a power of attorney, which authorized him to 'sell, and which was given by the plaintiff under a decree of court.</p> <p>She afterwards instituted an action for the partition of the plantation purchased for her, and on the 30th of April, 1834, after her separation from bed and board, her attorney in fact executed an act of partition in kind. This sale and partition would have been impossible,- had the mortgage reserved on the sale to herself and sister not been raised, which was done by the defendant in pursuance of the stipulations of the compromise. The plaintiff also approved in 1835, an account which contained several charges connected with, and arising out of, the compromise.</p> <p>Whether an imperfect act be void ipso jure, or only voidable, a distinction which, according to Duranton, vol. 13, p. 303, no longer exists, though maintained by other writers, it -will be equally ratified by voluntary execution. Merlin, Questions de Droit, verbo Mineur, § 3. 8 Toullier, Nos. 510, 511. Merlin, Répert. verbo Ratification. 2 La. 520. 7 Mart. N. S. 143. 4 Mart. 78. Even a partial execution will amount to a ratification. 13 Duranton, 295. Should the plaintiff pretend? that she did not know the contents of the act thus ratified, she will be bound to prove that she was ignorant of it. 8 Toullier, No. 519.</p> <p>No particular form is required for the ratification of acts done by mandatories. Art. 2252 (the same as art. 1338 of the Code Nap.,) refers only to obligations. Its dispositions are not repeated in art. 2979, (the same as art. 1998 of the Code Nap.) 13 Du-ranton, No. 265. 18 Duranton, No. 258. 3 Delvincourt, 243, note 5.</p> <p>But the plaintiff was competent to execute the compromise, for she was then separated in property, and the compromise was only a sale of moveables. Civ. Code, art. 2410 ; see also Civ. Code, 466, 467, 470, and the French Civ. Code, art. 1449. 2 Duranton, 449. 14 Duranton, 563. 2 Toullier, 20. 1 Eavard, 254. 19 Dal-loz, 502. Jurisprudence du XIX Siécle, année 1827, vol. 2, 296.; année 1833, vol. 2, 371. Merlin, Réperl. verbo Biens, § 1, No. 13. Voet, Comm, ad Pandect, lib. 2, tit. 8, No. 27.</p> <p>The legatees had no right, by the testament, to the immovea bles ; they were to be sold by the executors. It was only a portion of the price that the testator bequeathed to them. All the property was thus sold before the compromise, except a house in New York subject to a life estate. The plaintiff’s right td- dispose of her share in this house, must be tested by the law admitted to prevail in New York. The capacity to dispose of real property is determined by the lex reí sitce. This, according to Story, Conflict of Laws, 363, is the established doctrine. In New York a married woman may dispose of her separate estates, as if she were a feme sole. 5 Wheeler’s Abridgment, 563. 17 Johnson’s Rep. 548, (577.)</p> <p>But it is said that the plaintiff transferred an immoveable right, and art. 463 of the Civ. Code is relied on to sustain this position. If the expression “from the object to which they apply," which .occurs both in this and the preceding article, is properly weighed, it will be found that that article relates to successions of which immoveables are a component part.</p> <p>The words dwelt upon by the plaintiff’s counsel, to show that the plaintiff transferred an immoveable, are not found in the corresponding articles of the French Code, or in the Code of 1808. Code Nap. art. 526. Code of 1808, p. 98, art. 22. The compilers of the New Code did not intend to subvert the meaning of well known judicial terms. The heirs or legatees have a real action only when they have the right to elaim real property of the estate in kind. Merlin, Questions, verbo Légataire, § 8. Merlin, Répert. Légataire, § 6, No. 8.- For an analogous case see Civ. Code, art. 1240.</p> <p>• The same description of rights as were originally possessed by the plaintiff, were considered as moveables in the case of Withers’ Heirs v. His Executors, 3 La. 363.</p> <p>The expression “ universalité de biens," is applied to such testamentary dispositions only as transfer the whole succession, or the whole residue of a succession to one person, or to several persons jointly, without any assignment of parts, or in other words, to forced heirs and to universal legatees. 1 Grenier, 287. 5. Toullier, 485. Civ. Code, art. 1599. It is never used in reference 'to legatees by -universal title, such as the plaintiff, for their shares in the estate are assigned by the testament; and accretion, the distinguishing mark between universal legatees and legatees by universal title, could not have taken place between them. Civ. Code, art. 1700. 1 Proudhon, No. 702. 1 Grenier, 350. 2 Delvin-court, 341.</p> <p>Even if the plaintiff had no right to dispose of this interest, it would vitiate the transaction only in relation to the house ; it would remain valid as to all the other property. Utile per inutile nOn vitiatur. Civ. Code, art. 2410. Code Nap. art. 1449. 2 Duranton, 449. 14 Duranton, 563. 1 Favard, 254. 19 Dalloz, 502. Jurisprudence du XIX Siécle, année 1827, vol. 2, 296. Ib. année 1833, vol. 2, 371.</p>

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

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

• The plaintiff, by his complaint, seeks to recover of the defendants the sum of $>813.76, for the amount of work, labor, and materials furnished to and in repairing the schooner Signal, at the instance and request of the defendant, Jacob Voorhis, jun. who was the owner of said vessel, and alleges that' proceedings were taken to enforce payment of said sum as a lien on said vessel, in which proceedings a bond was given by the defendants, and the vessel discharged, the…

1. Every act of a party to whom a promise or guaranty is given, which tends to increase the risk of the promise, or to defeat the remedy against the principal, will vacate and discharge the guarantee. 3 Chilty’s Commercial Law, 324. Theobald, on Principal and Agent, 123. 2. Suretyship must be restrained within the limits fixed by the contract. It must be express, and cannot be presumed. Civ. Code, 3008. Guaranties must be construed strictly. Bell v. Norwood, 7 La. 103.

<p>Persons claiming a part of the estate of an insolvent, as heirs of a deceased wife, on account of the community of gains, must establish their right to recover by adequate evidence. It will not be sufficient to render it probable.</p>

<p>Appeal from the District Court of West Feliciana, Johnson, J.</p>

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

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

<p>1. Evidence of a mere sale and delivery by the plaintiffs of their own goods to. the defendants is not sufficient to sustain an action to recover for money laid out and expended by the plaintiffs, and for their commissions as the servants and agents of the defendants in the purchase of goods for such principals, and by their order.</p> <p>2. Where the sole cause of action set forth in the complaint was for money paid and expended at the defendants’ request, and for services rendered in buying and paying for a certain number of guns, and the defense was that the only transaction between the parties was a purchase and sale of guns, which was void because not in writing; and the case proved was not the employment of an agent, but either a purchase from a vendor, or an order to manufacture; Held that the contract set out in the complaint was not proved, but was disproved, and the complaint should have been dismissed, for that reason.</p> <p>3. Held, also, that the claim made in the complaint so entirely varied, in its scope and meaning, from that proved, that the defendants would have been entitled to a dismissal of the complaint, if they had put their motion, on that ground. Ter Robertson, Oh. J.</p>

<p>Appeal from the District Court of the'First District, Buchanan, J.</p> <p>This case was submitted without argument.</p>

<p>Appeal from the District Court for the parish of Assumption, Nicholls, J.</p>

Plaintiff’s vendor was not entitled to any right of pre-emption by the act of 1823. 1 Land Laws, 588, 777, 835. No legal entry had been made by him, nor had the title of the United States been divested. Ib. 456,457, 458, 460, 461, 570, 588, $ 4, and 586. 2lb.295. Civ.Code, arts. 2451, 2453, 2456. Jourdanv. Barrett, 13 La. 24.

<p>Appeal from a judgment entered upon the report of a referee. The action was brought to recover for sails, &c. furnished by the plaintiff in June, 1860, for the ship Sunshine, at the request of' Amos Howes, a part owner of the ship. The action was referred to a referee, who, by his report, found the following facts: That on or about the 11th ,day of June, 1860, the plaintiff sold and delivered to the ship Sunshine materials, (sails,) amounting to $1004.35. That such sale was on credit of six months. That interest was to he added to such bill from December 11, 1860, the time when the payment thereof became due. That at the time of such sale and delivery by the plaintiff, Amos Howes and James A. Suydam, .composing the copartnership firm of Howes & Oo. were the owners of five eighths of the said ship Sunshine. That.on or about the 8th day of November, 1860, Howes & Co. transferred all their interest in the said ship, being five eighths, to Williams & Guión, the ship then being on her voyage to San Francisco from New York, and in consideration of such transfer, Williams & Guión proposed to become responsible and pay all the bills against the ship; that' a memorandum of such bills was given at the time to Williams & Guión, who were to run the ship for Howes & Co.’s benefit, and until the bills.and any balance Howe & Co. owed them was paid ; and upon those terms a bill of sale was given by Howes & Co. to Williams & Guión. That at the time of the giving of the bill of sale, no money passed between Howes & Co. and Williams & Guión, the consideration of the purchase being the bills owing by the ship which Williams & Guión agreed to pay, and the bill of sale was intended as collateral security for the payment of the bills. That such agreement was not in writing, and no agreement to pay the bills was ever executed by the defendants. No memorandum in writing was made by Williams & Guión in relation to the bill of plaintiff, and the same had not become due and payable at the date of the bill of sale. That the said ship Sunshine was not delivered to the defendants. The plaintiff having rested his case, the counsel for the defendants moved for a dismissal of the complaint upon the following grounds •:</p> <p>1. It is a contract or promise to pay the debt of Howes & Suydam, and that contract is not in writing.</p> <p>2. It is, by the testimony of Howes and Suydam, an agreement merely to pay out of the earnings of the ship, and is not therefore a change of credit.</p> <p>3. There is no privity of contract between plaintiff and defendants.</p> <p>As a conclusion of law the referee found, decided and reported, that the plaintiff was not entitled to recover in this action, and that the complaint should be dismissed.</p> <p>The referee, in pursuance of an order from the court, made a further report, in which he stated that it appeared, by the plaintiff’s evidence, as matter of fact, that at the time of the delivery of the bill of sale by Howes & Co. of five eighths of the ship Sunshine, to the defendants, Howes & Co. were owners of such five eighths of said ship, and were acting as ship’s husbands and agents, and that it was agreed that the defendants should take the ship and act as ship’s husbands. That a list of the bills against the ship was given by Howes & Co. to the defendants, in which list the bill of the plaintiff was included. That the defendants would have a commission on all those bills, and that the regular commission is 2-| per cent. That the object of giving the bill of sale was, that the defendants -were to pay all the bills, and the agreement was that they were to settle all the bills included and not included in the bottomry, by compromise or in any way they pleased or thought best. That on such agreement the bill of sale was delivered to the defendants, and they were to take the ship and act as ship’s husbands until all these bills were repaid to them, and until all the indebtedness of Howes & Co. to them was repaid out of the earnings of the ship. That the defendants got a commission of the ship’s business, charter, &c. from $2 to $4000 a year, depending upon the business; they would have a commission of all these bills ; the regular commission is 2J per cent. That the bill of the plaintiff 'was one of the bills which was in the list given to the defendants, which they agreed to pay.</p> <p>The plaintiff excepted' to the report, and judgment being entered thereon he appealed therefrom.</p>

<p>Fraud will not be presumed. He who alleges it, must establish it clearly.</p> <p>A mortgagee who seeks to enforce his mortgage against third persons, must prove that it has been duly recorded.</p> <p>An order of seizure and sale obtained against a third person, will be set aside, where the mortgage was not proved to have been recorded.</p>

<p>Where, after a protracted illness, a disease, which existed at the time of the sale, assumes a new and different character, and finally causes the death of a slave, there may be reason to doubt the vendee’s right to recover in a redhibitory action. Ality, where the evidence proves that the death was the consequence of the original disease.</p> <p>Defendant having purchased a lot of negroes, in other respects sound, on placing them in the railway cars to be transported to his plantation, a distance of sixteen miles, discovered in one of them the first symptoms of the measles. The one thus affected was not separated from the rest, either in the cars or on his plantation, and no physician was sent for until four days had elapsed, when another was found ill of ■ the same disease. Both of these, and two others, died of the disease. In an action by the vendor for the price : Held, that the measles is not an incurable malady ; that defendant, by neglecting to separate the sick girl from the other slaves after notice of the disease, and by omitting to call in medical aid at once, failed to act as a man of ordinary prudence would have done ; and that the presumption created by sect. 3 of the act of 3 January, 1834, as to slaves who have been less than eight months in the state, that any redhibitory malady which displays itself within fifteen days after the sale, existed on the day thereof, does not apply to such a case.</p> <p>To recover in a redhibitory action, a purchaser must show that he acted with, at least, ordinary care and attention, and that no act or omission of his can have occasioned the loss he attempts to throw upon his vendor. -</p>

<p>1. An order appointing a receiver of a judgment debtor, in an action brought by a creditor, will not vest in such receiver the title to any part of the income of a fund bequeathed by a testator, whereof the income was to be paid to such debtor, accruing after the date of his appointment.</p> <p>2. A complaint, in an action by the receiver against the executors of such testator, which does not state that the defendants, at the time of the plaintiff’s appointment as receiver, had money, property or effects in their hands belonging to the legatee, is had on demurrer.</p> <p>3. Any accumulation of income in the hands of the executors, beyond what is necessary for the support of the legatee, may, under a proper complaint, he reached by a creditor; but the income cannot be anticipated.</p>

<p>Where the accounts of an executor have been homologated, he can no longer be held responsible for payments made by him under the orders of the Court of Probates. Should the heir discover that payments have been made which were not due, his recourse, if he have any, is by an action condictio indebiti, against the party who has received what he was not entitled to ; and where such payments have been made to the executor for commissions alleged to have been illegally allowed, an action to recover them may be brought against him, individually, before a court of ordinary jurisdiction. The defendant is no longer executor, nor is he sued as such.</p>

Exceptions ordered to be heard in the first instance, ait a general term.

<p>The substitution of a second note, payable to different payees, in place of the first, is a novation of the debt.</p>

Watts, J. The sale was complete by the adjudication. Civ. Code, 2431. The thing sold is at the ri^k of the purchaser, from the completion of the sale. Ib. 1913, 2442. There is no allegation in the petition that the property did not exist at the time of the sale, Ib. 2430 ; nor that it was destroyed, through want of care in the vendor. Ib. 2443. If any cause of action be stated in the petition, the judgment should still be reversed, the damages allowed being excessive.

<p>An agent is entitled to recover expenses incurred by him in the execution of his agency, even when he has been absolutely unsuccessful, unless it be shown that it was the intention of the parties that the principal should pay nothing in case of failure. Otherwise, with a broker employed to sell a house, who, whether successful or not, is not entitled to recover money spent by him in his agency.</p> <p>A broker can claim nothing unless a bargain be effected.</p>

<p>Builders who contract with tenants for alterations or repairs of the premises leased, have no lién or privilege on the premises. There is no privity between the builder and the owner.</p> <p>Art. 269 7 of the Civ. Code, which provides that a lessee may remove the improvements and additions he has made to the thing let, provided he leave it in the state in which he received it, cannot be extended by implication to builders who contract with such lessees. Such contractors must be considered as having done the work on the per- ■ sonal credit of the lessee ; and they have no right to remove the materials used in such repairs and improvements, on the ground that they have not been paid for.</p>

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

<p>A party having purchased of plaintiffs a quantity of flour for cash, to be shipped on a vessel bound to a foreign port, it was delivered on board and receipts taken for it in the name of the plaintiffs. The purchaser never.paid for the flour ; but obtained from the master of the vessel, to whom ho consigned it, bills of lading therefor without having produced the receipts given to the vendor, and an advance to be repaid with commissions and freight. In an action by plaintiffs against the master to recover the flour, Held: that it is an established usage, where goods are purchased for cash to be shipped for exportation, for the vendor to take the receipts of the officers of the vessel in his own name, to be delivered to the purchaser when the price is paid, that the latter may obtain a bill of lading from the master on their production ; that the possession of the flour never ceased to be in the plaintiffs ; and that the master acted in his own wrong in giving a bill of lading to the purchaser, and in making advances before delivery to the latter had been effected by the surrender of the dray receipts to him. ,</p>

This action comes up on an appeal from a judgment (upon the verdict of a jury) in favor of the plaintiff. The action was brought August 14th, 1856, to recover the amount of two checks made by the defendants for $20Q each, dated August 3th, 1856, the payment of which was stopped by the drawers, on the same day they were drawn. The plaintiff claimed to hold them for value from the parties to whom the defendants passed them.

<p>It will be no objection to the admissibility in evidence of an act, executed by plaintiff’s vendor, in relation to the land in dispute, that no evidence was adduced of its having been recorded in the office of the parish judge, without which it could have no effect against third persons. Whether the act is binding on the plaintiff, is a question going to the effect, and not to the admissibility of the instrument.</p> <p>An instrument offered in evidence, will not be rejected on the ground that it appears to have been wrongfully obtained. It will be received, and its effect tested after-wards.</p> <p>Parol evidence is admissible to sustain a plea of prescription, by establishing possession, its character, and other requisites to sustain the plea; or to disprove it, by-showing that the party did not possess as owner, or had renounced the benefit of prescription.</p> <p>The seventh section of the act of Congress of 11th May, 1820, reviving sect. 5 of the act of 3d March, 1811, authorizing the owner of any tract of land bordering on a water course in the territory of Orleans, to purchase, by preference, any vacant land not exceeding a certain quantity, in the rear of, and adjacent to his tract, continued in force b.y sect. 1 of the act of 28th Feb., 1823, requires that the land to which such privilege is given, should be included within limits produced by the extension of the side linos of the front tract in the same direction; it contemplates no variation, but in the event of its being found necessary to divide the back lands ' among several claimants. *</p> <p>Surveys made by surveyors in the service of the United States, though sanctioned . by .the Principal Deputy Surveyor of the District, maybe corrected when erroneous.</p> <p>A notarial act, by which it was agreed that certain lines should form the boundary between the lands claimed by the parties thereto, not recorded in the office of the Parish Judge, is void as to third persons, or innocent purchasers without-notice.</p>

The subject of controversy in this action is the ownership of two equal separate thirds of a policy of insurance for §9,375, issued by the defendants, The Atlantic Mutual Insurance Company, to the firm of Stanton & Thompson, of which the defendant Stanton is the survivor, on the 26th day of May, 1857, upon the ship Knickerbocker, for one year from the 27th of May, 1857.

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

<p>Art. 641 of the Code of Practice, exempting the tools and instruments necessary for the exercise of the trade or profession of the debtor from seizure, was intended to encourage such useful trades and professions, by enabling the debtor to sustain himself and family by his own industry, and to hold out to the creditor the prospect of satisfaction from the future labor of his debtor ; and in the cases to which it applies, will exempt the books of professional men from seizure. But where the debtor resides abroad, or has absconded, or permanently left the State, his linen,clothes, bed, arms, and the tools and instruments of his trade or profession, may be seized and sold for the payment of his debts.</p>

<p>Appeal from the District Court of Assumption, DeMieux, J.</p>

<p>Appeal from the District Court of Assumption, Nicholls, J.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>The case of Hill and another t. The Phoenix Tow Boat. Co., ante, p. 35, decided that a mortgage of a vessel was not binding as to third persons. In this case the nullity is set up by a party to the contract.</p>

The alterations effected by the municipal authorities, are binding on the whole world. To sell according to the old plan, would be injurious to all parties, and tending to the embarrassment of bidders. Would a purchaser be bound, should the sheriff tender him a square different from that described at the sale ?

<p>Payment of the price is not essential to the contract of sale. Proof of circumstances calculated to create doubt as to the fairness of the transaction, will not be sufficient to set aside a sale.</p> <p>Two things are necessary to constitute fraud : the intention to defraud, and actual loss or damage, or such strong probability of it as will induce a court to interfere.</p> <p>Plaintiff attached certain cotton as the property of defendants. Proof that it had been previously sold by defendants to intervenor, who had given a note for the price, which was protested at maturity, and still unpaid. The sheriff’s return showed that he had “ attached seventy bales of cotton, which was subsequently released on the execution of a bond by the consignees.” Urged on behalf of plaintiffs, that though the attachment could not hold the cotton, it was good as to defendants’ privilege as vendors. Held, that the return showed that no such right had been attached ; and that the lien, if any existed, attached to the cotton, which had been sold.</p>

This was an action before the Commercial Court of New Orleans, Waits, J.,- against the defendant as endorser of a note'for $2550 50 drawn by one Hall. A judgment by default having been confirmed, the defendant appealed, and the case was remanded in December, 1840, on account of illegality in the citation, for further proceedings. See 16 La. 572.

The testimony proves that there was no sale. The law relative to sales subject to a right of redemption, does not apply to moveable property. See Civ. Code, 3125. Williams et al. v. Schooner St. Stephens, 1 Mart. N. S. 417. Canizo’s Syndics v. Cuadra, 2 La. 459. Shaw's Syndic v. Newton et al., 3 La. 528. The plaintiffs’ right to seize is not •affected by evidence showing that the advances made by Charles were applied to the use of the creditors. .

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

<p>Where no place is designated for the delivery Of dftieleá Ordered of a manufacturer, delivery is to be made at the place where they are manufactured.</p>

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

<p>Appeal by Pierre Sylvestre Biron, from a judgment of the Court of Probates for the parish of Orleans, Bermudez, J.</p>

<p>Execution having been issued against defendant in an action on a note secured by mortgage, the proceedings were enjoined by a third person, the real owner of the mortgaged property, and the real debtor of the amount of the note; and a judgment was entered by consent, recognizing the property as belonging to the intervenor, and ordering its sale. The sale made in pursuance of this judgment having been set aside for irregularity, plaintiffs took a rule on intervenor lo show cause why a plv.ries ft fa. should not be issued. On an answer by the latter alleging the illegality of the judgment, and denying plaintiffs’right to proceed in the manner adopted by them, and praying for a trial by jury : Held, that the rule presented no issue or question of fact for a trial by jury, and that such trial was correctly refused.</p> <p>On a motion to dissolve an injunction, on the ground of illegality apparent on the face of the petition, no evidence can be introduced, except as to the question of damages.</p>

<p>A bank will be responsible for the amount of a note issued by it, on proof of its loss and of the contents of the note. So, on the production of the half of a note, where the absence of the other half is fairly accounted for, the bank will be bound to pay the full amount for which it was issued, on being secured against liability for the • other half.</p> <p>The half of a bank note, cut in two, is not negotiable. The negotiability of the note can only be restored by re-uniting the parts.</p> <p>In an action by the holder of the half of a bank note, where the half on which the president’s signature is usually affixed has been lost, the signature of the president need not be proved. It will not be presumed that notes were ever issued without the signature of that officer.</p>

<p>Notice of protest, loft with a black servant, in the office of the person notified, is sufficient.</p> <p>Notice of protest need not be sent by the mail which leaves on the day of the protest ; bat it must be deposited in the post office in time to go by the first mail of the succeeding day.</p> <p>Interest will be allowed on the amount of the damages on protested bills or notes.</p>

<p>. Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>1t A date is not necessary to the validity of a note. An impossible date, as the 31 September, is no date. A note, not dated, must be considered as bearing date from the day on which it was really made or delivered. Goddard’s case, 2 Coke’s Rep. 5. Lansing v. Ten Eyck, 2 Johns. 203. Armitt v. Breame, 2 Lord Raymond, 1079; Chitty on Bills, 59.-2. In computing the maturity of bills or notes, calendar not lunar months must be reckoned. A note drawn on the 30th of September, at six' months, must be protested on the 3d of April, follow*-ing. See Civ. Code, art. 2055. Chitty on Bills, 169, 267. Lef-jingwell, &c. v. White, Johnson’s Cases, 100. Putnam et al. v, Sullivan et al., 4 Mass., 53. Williams v. Matthews, 3 Cowen, 252.</p> <p>1. Anote bearing an impossi* ble date has no date ; and in such a case the party suing on it must prove when it was put in circulation, and the record contains no such evidence. 2. The note was not protested on the' proper day. There is no day in the year on which a note can be drawn payable in six months, so that the last day of grace shall fall on the third of April. If drawn on the first of October, it will fall due on the first and fourth of April. If drawn on the 30th September, it will become due ori the 30th March and 2d April. 2 Pardessus, Cours de Droit Commercial, part 2, tit. 1, ch. 1, § 1, p. 66. Armand Dalloz, Dictionnaire de Jurisprudence, title, Effets de Commerce, § 337. 6 Dalloz, Recueil Alphabetique, p. 623, 626-9, title, Effets de Commerce. Sire}r, Jurisprudence de la Cour de Cassation, year 1817, part 1, p. 382,3. Ib. year 1818, part 1, p. 187-9. Ib. year 1819, part 1, p. 237, 8. 3 Favard de Lan-glade, page 266, 7. Nougier, Des Lettresde Change, No. 25, p, 22. 2 Horson, Questions, p. 29-47. Rogron, Code de Commerce, p. 131. 4 Petersdorff’s Abridgment, p. 425, and notes, Kyd on Bills, p. 5. Foster on Bills of Exchange, ch, 7, p, 33 to 31.</p>

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

<p>Appeal from the Parish Court of New Orleans, Maurian, J.</p> <p>cited Dick et al. v. Leverich, 11 La. 573. Brown v. Depau, 1 Harper’s Constit. Rep. 258.</p>

<p>Where two persons are indebted to each other, compensation takes place from the moment the two debts co-exist. They extinguish each other, by the mere opera- •' tion of law, to the amount of their respective sums.</p>

<p>Under a policy of insurance on a house, with the condition that, in case of loss, the assurers may either re-instate the building, or pay the amount of the loss as soon as proved, rent for the period occupied in rebuilding or repairing, cannot be recovered' as part of the indemnity due to the assured. Such rent formed a distinct insurable, interest.</p> <p>The general principle, that the assurers are bound to adjust a loss upon the principle of replacing the assured, as near as may be, in the situation they were in before the fire, has never been understood to extend to the profits or fruits which the latter was drawing, or might have drawn from the thing insured.</p>

All constructions and improvements made on the soil, are presumed to have been made by the owner of the soil, and at his expense. Civ. Code, art. 498. The soil is proved to belong to plaintiff’s minor child; and no evidence has been adduced to repel the presumption' that the buildings were erected at his expense.

The plaintiffs, being merchants, doing business in Havana, were induced by representations made by the defendants, doing business in New York, under the firm name of William Grove & Co. as to their solvency (which representations are alleged to have been fraudulent,) to ship sugars from Havana on joint account, consigned to the defendants at New York, paying for the same by drafts drawn upon said defendants, on said consignments, and negotiated in Havana.

The action was brought against the maker and indorsers of a promissory note, the indorsers being sued as gurantors.

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

The plaintiffs are appellants from a judgment of the District Court of tbe First District.

This action was brought by the plaintiffs, as judgment creditors of William Habirshaw, to set aside an assignment made by him, of all his property, to the defendant Silas H. Dalrymple, in trust for the benefit of creditors.

<p>1. The 136th section of the Code does not alter any fundamental principle of law, as to the joint liability of joint contractors, but was intended to alter the common law on a point of practice only.</p> <p>2. The legislature intended by that section to change the former rule of practice by which, if any number of persons or joint contractors were sued, it was ' necessary to prove and establish an entire case against all the defendants, or the action would fail, so that the plaintiff might recover against so many of the defendants against whom he can prove a joint contract, and a consequent joint liability.</p> <p>3. That section does not permit a separate judgment to be entered against one of two or more defendants proved to be joint contractors, and therefore jointly liable, even thopgh that defendant should be the only one served, or who appears, while the .others remain on the record as defendants.</p>

<p>To construe a promise to accept a bill to be afterwards drawn, into an actual acceptance, so as to authorize a suit by the holder of the bill, as if accepted, the bill must be described in terms not to be mistaken. The description must be sufficient to identify the bill when sued on, and such as can apply to no other bill; it must-result from the promise itself, and cannot be aided by any statement on the face of the bill.</p> <p>The evidence necessary to support an action on a bill as an accepted bill, and on a breach of promise, to accept, is materially different. To maintain the former, the promise mustjre applied to the particular bill alleged to have been accepted ; in the latter case, the evidence may be of a more general character, and the authority to draw be collected from circumstances, and extended to all bills coming within the scope of the promise. '</p>

<p>Appeal from the District Court of the First Judicial District, Buchanan, J. This was an action against Hozey and J. M< Bach, on two promissory notes.</p>

<p>1. Sales for taxes and assessments, in the city of New York, are a mode of transferring title by operation of law, in the nature of a forfeiture; and all the conditions of such sale required by law being conditions precedent, must be literally followed.</p> <p>2. A notice, published by the assessors, requiring all persons opposed to an assessment to present their objections, in writing, to the assessm-s, instead of to the chairman of the board, as required by the statute, is not a compliance with it but is irregular, insufficient and void.</p> <p>3. The publication of a notice in papers, after the period for which they were appointed corporation papers, according to law, has expired, without any renewal of the appointment, is void.</p> <p>4. To render sales for assessments Valid and binding, the city corporation should, at the end of each and every year, designate, by ordinance, the proper newspapers for the publication of notices. Per McCtoN, J.</p>

The instrument sued on is a negotiable bill of exchange. The words “ being an amount due said College,” &c., on the face of the bill, is a mere statement of the consideration. The insertion of words to point out the consideration, will not vitiate a bill. Chitty, 159.

Appeals from judgments entered upon the reports of a referee.' The actions were brought upon leases dated March 18th, 1861, made by the plaintiffs as landlords, to the defendant as tenant of two adjoining houses, Nos. 1 and 3 East 20th street, for the rent which remained unpaid up to the time of trial.

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

<p>Application for a mandamus to the Judge of the Court of Probates of New Orleans.</p> <p>The question is the same as that presented in the case of The State v. Judge Bermudez, 14 La. 478, which was decided after repeated arguments and much consideration.</p>

prayed that the judgment of the lower court might be amended, so as to allow the plaintiffs the whole amount stipulated in the contract. Citing Civ. Code, 1298. Pothier, Contr. de Louage, No. 141-3.

The plaintiff is entitled to a judgment against the defendants in solido, for his commission and expenses. Civ. Code, arts. 2991. That the sale was not effected, was owing to the fault of the defendants, who refused to comply with their contract, after the terms had been agreed upon.

The plaintiffs and appellants, as ship brokers, sued to recover from the defendant and respondent, the sum of $1200, for services rendered in negotiating a charter of the steamer Massachusetts, owned by the defendant, and at his request, to the provisional government of Mexico, for six months, at #4000 a month.

<p>By the laws of this state, a contract tainted with usury, is voidable only as to the usurious interest, and valid as to the principal An offer of restitution must be proved, to maintain an action of rescission.</p> <p>Sect. 3 of the act of 25th March, 1831, authorizing the court, in case of the dissolution of an injunction, to condemn in the same judgment, tho plaintiff and his surety, jointly and severally, to pay to the defendant interest on the amount of the judgment and damages, appliesonly where judgments have been enjoined, in other cases, the defendant must be left to his remedy on the bond.</p>

This action was brought to compel the defendant to convey a lot of land, twenty-five feet wide by ninety-two feet, or half the block in length, known as Ho. 98 West Twentieth street, in the city of Hew York, for the consideration of $4750. The complaint states that the defendant, on the 8th day of July, 1863,' was, and ever since has been, the owner in fee', of the said lot of land, with the building thereon.

<p>Oh March 10th, 1860, the plaintiffs leased to the defendants, who were doing business, as merchants, under the name of Babcock & Milner, the marble store, Ho. 142 Duane street, for the purpose of the dry goods business, for the term of five years from May 1st, 1860, at the yearly rent of $14,000, commencing May- I5th, 1860, payable quarterly, on the usual quarter-days. The defendants were to keep the premises in repair, so far as they became out of repair by means of the use and occupation, and the plaintiffs covenanted that the sub-cellar should at all times, during the term, be free from the percolation of any water through the walls or floor thereof, not arising from the acts or neglects of the defendants. The parties mutually covenanted that the plaintiffs should not be liable for any damages that might arise from the overflow of water from any source whatsoever, except as above mentioned. The defendants covenanted that the plaintiffs, their servant, or agent, might enter into the demised premises, or any part thereof, at all times during the term, and inspect the same, and make such repairs therein as they should deem proper. The defendants entered, and paid the rent up to May 1st, 1861. On June 3d, 1861, they notified the plaintiffs that 'water had made its appearance through the floor of the sub-cellar, in a small quantity, and that it was desirable that the plaintiffs should give prompt attention to the matter. Thenceforward, the defendants refused to pay any rent, although the plaintiffs repeatedly made repairs in the floor of the sub-cellar, which was of cement, which did keep the water out for longer or shorter periods. Several successive actions were brought, the last about December 23d, 1862, for the several quarters’ rent accruing on August 1st, 1861, down to and including November 1st, 1862. The "balance of rent due the plaintiffs at the time of the trial was $22,821.82, including interest on the several amounts. The defendants set up by way of defense to each of the actions, that by reason of the presence of water in the sub-cellar, and the wet and dampness occasioned thereby, they had been during all, or a greater part of the demised term, deprived of its use, for the purposes of the business for which they had leased the premises, and that the difference in value for the business for which they were leased, by reason of the condition of the sub-cellar, was at least $1500 per annum, and that they had sustained damage to that amount. They also set up the same defense to the subsequent actions, and an eviction, upon which no question arose on the trial; and also, that their sub-tenants had not paid the rent to them, having been forbidden so to do by the plaintiffs. By several orders of the court, all the actions were consolidated. The cause was tried by a jury, who allowed damages to the defendants for the water in the cellar, from Nov. 1st, 1861, to Nov. 1st, 1862, being for the entire period for which the plaintiffs claimed rent, at the rate of $1500 per annum, with interest; and, dedqcL ing those sums from the rent due, gave the plaintiffs a verdict for $20,501.80. The plaintiffs appealed from the judgment entered thereon and moved for a new; trial,. upon the ground that errors were committed in the admission and rejection of evidence and in the charge, and that the allowance of damages to the defendants, for water in the cellar, was excessive. Also upon the ground that the judgment did not adjudge to the plaintiffs the sum of $2320.02, part of the sum demanded in the complaint, in addition to the sum adjudged and awarded to the plaintiffs by the judgment.</p> <p>The defendants moved to dismiss the appeal upon an affidavit stating that before the appeal herein was taken, the defendants paid, and the plaintiffs received, the amount of the judgment. They insisted that, by accepting the money, the plaintiffs waived their right to appeal. And it was claimed that the general rule is, that a party, by accepting the benefits accorded to him by a judgment or order, is precluded from objecting to its validity.</p>

<p>Pefendant commenced an action to rescind a contract of. loan for $200,000, the amount of which was secured by mortgage, and obtained an injunction to restrain the plaintiffs from summary proceedings under the mortgage until the further order of court. The injunction having been dissolved, himself and his sureties in the in. junction bond took a suspensive appeal, giving security in the sum of $6000. Plaintiffs thereupon applied for an order of seizure and sale, which was refused, on the ground of the pendency of the appeal from the order dissolving the injunction. On appeal by the plaintiffs from this judgment: Held, that a suspensive ap. peal having been taken from the judgment dissolving the execution, the injunction was thereby maintained until the final decision of the appellate court.</p>

, Appeal from the Commercial Court of New Orleans, Wails, J. This is an action for money lent to the owners for the use of the boat. Dunn was a-commercial partner of the defendant. Civ. Code, art. 2796.

This was an action before the District Court of East Baton Rouge, by Francis and Zenon Rivas, to recover two-thirds of a tract of land about nine miles below the town of Baton Rouge, of from twelve to thirteen arpens front on the Mississippi river, which they allege originally belonged to their grandfather, and on the partition of his estate fell to the share of their father, by whose death it descended to them, in common with their sister, Virginia Rivas.

This was an action brought to recover the price of a quantity of petroleum oil alleged to have been sold to the defendant in November, 1862, by the plaintiff, through his alleged agent and brother, Henry W. Stocker. Some negotiation in reference to such purchase, took place on the 18th of that month, between Stocker (Henry W.) and the defendant, as to the nature and result of which the testimony is conflicting. Stocker was a broker, dealing in that kind of merchandize.

<p>Where the creditors of an insolvént do not avail themselves of the privilege allowed them by the act of 29th March, 1S26, to fix the terms on which the property surrendered shall be sold, the sale must be made on the terms, and with the formalities prescribed for the sale of property seized in execution. Civ. Code, art. 2180. It must be appraised, and first offered for sale for cash, when, if it cannot be sold for two-thirds of its appraised value, it must be offered, fifteen days after, if immoveable property, on a credit of twelve months. .Code Pract. arts. 675, 680, 681. AUter, where the creditors have, under the act of 1826, fixed the terms of sale.</p> <p>The provision requiring that, in forced sales for cash, the property shall bring two-thirds of its appraised value, was intended for the protection of the debtor, whose property might otherwise be sacrificed. But this danger does not exist, where the creditors of an insolvent, who are interested that the property shall sell for as much as possible, have themselves fixed the terms which they consider the most favorable. In such a case, the syndic is not bound to act with the same strictness as a sheriff acting under a Ji. fa. He may, like other agents, exercise his discretion, and, under proper circumstances, may suspend the sale; if the property is iikely to be sacrificed. Act 20th Feb. 1817.</p> <p>The sale of an immoveable by the syndic of the creditors of an insolvent, cannot affect the rights of a creditor who never made himself a party to the insolvent proceedings, having a mortgage with a pact de non alienando. He may seize and sell the property into whosesoever hands it may have passed. But where, by appearing at the meeting of creditors, and fixing the terms of sale of the mortgage property, he has made himself a party to the concurso, he will be considered as having waived this right, and must look to the proceeds in the hands of the sy ndic, whom he has made his agent.</p>

<p>Where a collision between steamers or other vessels was the result of accident, the loss must be borne by the party on whom it has fallen. Where both were in fault, the damage must be divided Where one only was to blame, the whole loss must be borne by him.</p>

<p>In the above action, which was a partition suit, judgment of sale was rendered March 15, 1853, and the sum of $822.67, the property of the defendants, deposited to the credit of this suit in the hands of the city chamberlain, March 7, 1856, subject to a mortgage to Henri Schultz, and to the inchoate right of dower of Mrs. Burrowes. Schultz’s mortgage was paid out of other property on which it was a lien. On the 25th of October, 1861, Edward Fox commenced an action in the Supreme Court for moneys paid out against the defendant Burrowes, obtained an attachment and attempted to levy upon his interest in this fund by giving notice of such attachment to the city chamberlain as county treasurer. He afterwards obtained judgment in such action, issued execution, and demanded Burrowes’ interest in such fund in the chamberlain’s hands, which the latter declined to pay. ■ Without notice to Burrowes or his wife, Fox, then, on a petition setting forth the foregoing facts, applied to and obtained from this court an order of reference to Murray Hoffman, Esquire, directing him to report to the court upon the claims upon such fund, and their priorities. It appeared upon such reference, that in January, 1855, Philip Burrowes made a general assignment of all his property to Henry Hilton, and that the oldest unsatisfied judgment against Burrowes was a judgment recovered by Joseph R. Brandon and Judah S. Abecossis against Philip Burrowes, in the Superior Court, September 22, 1854, for $1768.88, and assigned to the said Edward Fox by the plaintiffs in that action, pursuant to an order of the Superior Court subrogating said Fox to all the rights of the said plaintiffs, subject to any equities that might exist between Fox and Burrowes ; the said judgment was recovered upon an accommodation note made by said Fox, and indorsed by said Burrowes. The referee reported that the note on which this last judgment wa's recovered, was Philip. Burrowes’ own debt, repeatedly acknowledged by him so to be, and that there was then due to said Fox, on such judgment, the sum of $1843.64. That said Fox was entitled to the share belonging absolutely to Philip Burrowes in such fund in the chamberlain’s hands, (being two thirds therepf,) to be applied in part payment of this judgment of the 22d of September, 1854/ Judge Hilton, the assignee of Burrowes, was notified of the proceedings on the part of said Fox, sworn by the referee, and waived all claim to the moneys in question as against judgment creditors of Burrowes prior to the assignment to him, in which class was Mr. Fox, as the oldest judgment creditor.</p> <p>On reading and filing the report of said referee, dated 5th August, 1863, and his supplemental report of the testimony and proceedings before him, and the affidavit of William R. Martin and the affidavit of said Edward Fox : And on motion of said Edward Fox, upon notice, for an order directing the said .chamberlain to pay to him the sum of $734.60, with the interest thereon, out of the moneys deposited undér the judgment in this action with the said chamberlain, and for the costs, counsel fee, &c. of said Fox: And on hearing Mr. Henry M. McQuoid for the motion, and Mr. David R. Jaques, attorney of Francis E. Parker, a judgment creditor of Philip Burrowes, one of the defendants, and Mr. William R. Martin, who appeared for the defendants Philip Burrowes and wife, “ solely to object to the proceedings of said Edward Fox for irregularity,” in opposition to said motion : It was ordered by Justice White, at special term, that the said motion of Edward Fox be, and that the same was thereby, in all respects, denied, without costs to either party, and without prejudice to any other, or further proceedings by Fox, &c.</p> <p>From this order Fox appealed.</p>

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

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

<p>The plaintiff is an administrator with the will annexed on the estate of Emily Olcott, deceased. The estate was possesed of certain leasehold premises, known as No. 114 Chambers street, in the city of New York. On the 13th day of March, 1862, the plaintiff, as administrator, leased the premises to the defendant for one year from the 1st day of May, 1862, at an annual rent of $1500, payable quarterly. The defendants refused to pay the quarter’s rent that became due on the 1st day of May, 1863, and this action is brought to recover the same. The defendants, by way of defense, state that on the 14th day of April, through a defect in the roof of the building, they were flooded and damaged to the amount of $1240, and they set up that there was an agreement to allow this damage by way of payment of the rent for which this action is brought. They also set up in their pleadings an agreement, upon a “ valuable consideration,” to repair. The lease contained no such agreement, and the defendants did not claim it under the lease.</p> <p>The case came on to be tried on the 18th day of February, 1864, before his Honor Judge Monell and a jury.</p> <p>The court directed a verdict for the plaintiff for $396, to which ruling and direction the defendants’ counsel excepted. The court then ordered that the exceptions be heard in the first instance at general term, and that judgment be in the mean time suspended.</p> <p>I. A landlord is in no case bound to repair, unless by force of an express covenant or contract. (Howard v. Doolittle, 3 Duer, 464. Sherwood v. Seaman, 2 Bosw. 127. Cleves v. Willoughby, 7 Hill, 83.) If a parol agreement to repair is proved to have been made subsequent to a written lease, it must be upon a “new and sufficient consideration.” (Post v. Vetter, 2 E. D. Smith, 248.) There is no pretense that there was an express covenant to repair. The only parol agreement attempted to be proved is at fols. 3 and 4. At fol. 9, this witness admits that he “ did not agree to pay any. thing for making these repairs.” The pretended agreement, as proved by the defendant, is therefore utterly void. There is not enough in the evidence, by the most liberal construction, to amount to a contract in any legal sense.</p> <p>II. As the plaintiff was not bound to repair in any manner, so also was he not responsible for the consequences of not repairing. . It would be absurd to hold him liable for the consequences of failing to repair, when he was not under obligation to repair. The pretended agreement to allow the damages as an offset to the rent, set up in the answer, is in the first place void, for a want of consideration, and secondly, is not proved by the evidence. If any agreement was made between these parties, as set out in the answer, it would, like all other legal agreements, require a consideration to sustain it. There are but two sources from which a sufficient consideration could have Drung. One source would be for the defendants to pay or do something for the plaintiff which would constitute a consideration. On the cross-examination of both of the defendants’ witnesses, they were asked for the consideration, and they agree that “ nothing was paid for the agreement. As no' obligation to repair rested on the landlord, and nothing was paid for any agreement to allow the damages on the rent, it follows that if any agreement was ever made it was a perfect nudum pactum.</p> <p>III. The pretended agreement to allow the damages as an offset to rent, is not proved. The evidence shows negotiations only, and before any bargain was closed, Mr. Walker consulted with the heirs and refused to close up the matter after they objected to it. This was the only course a prudent man could take.</p> <p>IV. There is nothing in the facts set out in the answer to constitute a defense or counter-claim, aside from the pretended agreements, which were made without consideration, and are therefore void. (Edgerton v. Page, 20 N. Y. Rep. 281.)</p> <p>V. The defendants’ offer to show neglect in repairing the roof was properly excluded. The pleadings set up no such matter by way of defense. The neglect proposed to be proved -was first, in “ construction.” A leaky roof cannot be contorted into a defect in construction. But whatever the defect in construction was, there is no implied contract or warranty on the part of the landlord that a tenement shall be, or continue fit for the purpose for which alone it is demised. (Howard v. Doolittle, 3 Duer, 464. Schermerhorn v. Gouge, 13 Abb. 315. Arden v. Pullen, 10 Mee. & Wels. 321. Post v. Vetter, 2 E. D. Smith, 248.) Secondly. The offer was to show neglect in “ repairing ” the premises. This the landlord was not bound to do. Thirdly. The offer was to show neglect in “ upholding.” This is a term of no very clear legal meaning in this connection, but probably means about the same as “ repairing.”</p> <p>VI. The offer of the defendant was to show the neglect of. the plaintiff to construct, repair and uphold the premises above those occupied by the defendants. There is no such distinction known in law. The common roof over the whole premises was as much a part of the premises rented by these defendants, as the common foundation stones under the whole building. The defendants rented the premises and took them as they were constructed, both as to foundation and roof, and exacted no covenants from the landlord as to the condition of the building, or as to future repairs. (Schermerhorn v. Gouge, 13 Abb. 315. Arden v. Pullen, 10 Mee. & Wels. 321. Sutton v. Temple, 12 id. 52. Hart v. Windsor, Id. 68.)</p> <p>VII. The case of Eakin v. Brown, (1 E. D. Smith, 36,) has been cited by the defendants to sustain this defense. A close examination of that case shows that it has no bearing upon the case now in court.</p> <p>First. The parties in that action were co-tenants of the same building. The relation of landlord and tenant did not exist between the parties, and of course all that great system of laws applicable to landlord and tenant, had no application in that case. .</p> <p>Second. The gravamen of that action was negligence in the use of internal machinery introduced into the building to control the flow of the Croton water. All that the learned justice says about the law as applicable to the relation of landlord and tenant, is obiter dictum. When rightly understood, the judge in that case does not say any thing which can susr tain the defense interposed in this action.</p> <p>VIII. There is nothing in the circumstances of this case that calls upon this court to override well settled rules, or to strain the law to fasten upon the heirs of this estate this loss. It was simply an accident, without bad faith or fraud upon any one. Neither party knew that the property was in so great peril. The defendants were certainly greatly to blame for leaving their goods so exposed, if they knew it, and in not communicating their knowledge to the landlord. The defendants, both in law and common justice, are the proper parties to bear the loss from this accident, and judgment should be ordered for the plaintiff.</p> <p>I. The agreement of the plaintiff to ascertain the amount of the damage done to the defendants’ goods in a certain way, and to apply the amount of such damage, when so ascertained, in payment of the. rent as it should fall due, is valid and conclusive. When the amount of damage was ascertained in the way agreed, no further act remained to be done, and the rent was pro tanto paid. The contract then became ipso facto an executed one, and ceased to be executory. (Flint v. Clark, 12 John. 374.)</p> <p>II. The agreement was in effect a submission to arbitration, and the fact of a controversy existing between the parties, and of the defendants agreeing to part with their property, and send the same to auction, was a sufficient consideration for the agreement of the plaintiff. The defendants having performed their share of the contract, the plaintiff is bound to abide by the result or award, and no special agreeement to do so need be proved, as the law will imply it. (Valentine v. Valentine, 2 Barb. Ch. 430.) And the fact of his being a trustee makes no difference in his power to make the contract. (Weed v. Ellis, 3 Caines, 253.)</p> <p>III. But there was a still further consideration for the agreement, in the liability of the plaintiff to the defendants for the damages in question.</p> <p>1. The plaintiff, as owner of the premises above those leased to the defendants, was bound to keep and maintain them in proper repair, and to use them without negligence, unskillfulness or malice. He was, as to those premises, an adjoining proprietor, and was liable to the defendants for any damage which arose from their defective construction or want of repair. (Eakin v. Brown, 1 E. D. Smith, 36 [43, 44.] 1 Hilliard on Torts, 2d ed. 129. Comyn’s Digest, Action on the case for Negligence, A. 3. Tenant v. Golding, 6 Mod. R. 311-315. Taylor’s Landlord and Tenant, 3d ed. § 197, p. 134.)</p> <p>2. The defendants had no access to the upper part of the building. The water which did the damage came from the upper part, though the ceiling of the premises occupied by the defendants, and, in the absence of any evidence to the contrary, the deluge must have arisen from the defective construction or want of repair in the upper part.</p> <p>3. But the defendants offered to prove affirmatively that the damage was caused by the defective condition of the upper part, and the exclusion of such evidence will be ground for a new trial, if the court shall decide that, on the case as it stands, the defendants have failed to prove their defense.</p> <p>4. Even if the damage had arisen from want of repair in the premises occupied by the defendants, the agreement of the plaintiff, made before the deluge, would render him liable. A subsequent parol agreement by the landlord to repair, made upon a new and sufficient consideration, is valid. (Post v. Vetter, 2 E. D. Smith, 248.) The premises had been rendered untenantable, and the rent was thereby suspended. (Laws of 1860, p. 592, ch. 845.) And the waiver by the defendants of their, right to claim a suspension of rent under that law, and their consent to remain on the premises, was a sufficient consideration for the agreement of the landlord to repair.</p> <p>5. And even if the strict legal liability of the plaintiff was not such as to form of itself a consideration, yet he had by his acts, representations, and promises, induced the defendants to act in such a way, and to relinquish such rights, as to create a moral obligation on his part, which will sustain the promise and form a sufficient consideration therefor. (Bentley v. Morse, 14 John. 468. Cameron v. Fowler, 5 Hill, 306.)</p>

<p>A sheriff, to whom an order for the seizure and sale of mortgaged property has been directed, has no authority to receive the amount of any other mortgage, nor any other sum than that which the writ commands him to make. If he take upon himself to receive money, not authorized by the writ, and to pay it over to persons not parties to the'process, he does not act officially, and the sureties on his bond will not be responsible for his conduct The purchaser, in paying to him what he had a right to retain, trusts him personally.</p>

<p>A balance due on an unsettled account cannot be pleaded in compensation in an action on a promissory note ; nor in reconvention, when unconnected with the plaintiff’s claim. It must be sued for in a direct action.</p> <p>Pleas in reconvention must be set forth with the same certainty as to amounts, dates, &c., as if the party opposing them Were plaintiff in a direct action.</p>

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

<p>The purchaser, at a judicial sale of the property of a succession sold for a debt due by the ancestor, will, where the proceedings have been fairly conducted/ acquire a title good against an heir who may subsequently make himself known.</p> <p>An heir to whose benefit the payment, by a third person, of a debt due by the ancestor, has enured, will be bound to Refund the amount.</p> <p>A wife can in no case sell to her husband, or contract towards him the obligations of a vendor, though the husband may, in some cases, sell to her. She cannot, consequently, be cited in warranty by the representative of her deceased husband.</p>

<p>A broker, having a quantity of merchandize for sale, for his principal, at a limited price, agreed with another person to pay him a portion of the profits on its sale, without specifying what portion. He subsequently agreed with a third person that the latter should sell the merchandize, and that they should divide whatever price was received over and above the sum fixed by the principal as such. ■</p> <p>Sold 1. That the agreement between the broker and such first person was void for uncertainty in not specifying the portion of the profits to which the latter was to be entitled.</p> <p>2. That such first person had such an intm-est in the subject matter of an action brought by such third person against the broker, to recover one half of the profits of the sale of such merchandize as to render him either a necessary or proper party to it.</p>

<p>Each of the joint owners of a steamer, or other vessel, holds an undivided share, which he may dispose of without consulting the others; but neither can sell the interest of a co-proprietor without his consent.</p> <p>Where the joint owners of a steamer employ her in carrying merchandize for freight, they become, quoad, hoc. commercial partners, and are liable, insólido, to third persons, for all debts incurred in prosecuting the business; but the boat does not thereby cease to be the property of the joint owners, and become partnership property. The manner of employing the boat does not change the title by which it is held. It will continue to be the individual property of each of the owners.</p> <p>Where a judgment has been obtained against the joint owners of a steamer, a waiver by one of the formalities required by law for the sale of the property, will not be binding on the rest. ♦</p> <p>The members of a commercial partnership have each the right to represent the firm. Service of citation on either, or admissions by cither, will be binding on the rest. But where it is attempted to satisfy a judgment against the partnership out of the individual property of a member, he alone can waive the formalities required by law for its alienation. In such a case, a partner has no more authority than a stranger.</p>

This action was brought to recover damages for personal property destroyed by a mob in the city of New York, in July, 1863. Held: it now becomes material to inquire in what particular and to what extent the act in question invades or violates the rights of the defendants. 1st. It creates a debt agqinst them without their assent, and charges their private property with its payment. 2d. In its' practical effect it transfers the private funds of the defendants,…

<p>The surety in an injunction bond may be surety for his principal, on an appeal by the latter from a judgment dissolving the injunction, and condemning principal and surety; in solido, to the payment of damages and costs.</p> <p>No appellant but the State, is exempt from the law requiring surety on granting an appeal, whether devolutive or suspensive.</p>

<p>Plaintiff having obtained a writ of provisional seizure caused it to be levied on a debt due to defendant by a third person, which the sheriff, without any order of court, released, on the execution of a bond by the defendant, with security, for the restoration of the property, and satisfaction of any judgment which the plaintiff might obtain.' The bond was assigned to the plaintiff, but no evidence offered to prove that he accepted the assignment. Held, that the release was illegal, and the sheriff responsible to the plaintiff for the amount of the seizure.</p>

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

<p>Where property, subject to a special mortgage, does not sell for enough to satisfy the mortgage, the mortgagee becomes an ordinary creditor for the difference ; and if there be nothing for such creditors, he must lose the surplus.</p> <p>The owners of notes executed each for a portion of the price of property, and secured by the same mortgage, are entitled to bo paid out of the proceeds of the property, in proportion to the amount of the notes owned by them respectively.</p> <p>Where the holder of a claim securedby mortgage, assigns apart of it, he cannot come in competition with his assignee, if theproperty prove insufficient to pay both. Though he warrant only the existence of the debt at the time of the transfer, it would be contrary to good faith, to permit him, after receiving the price from his assignee, to prevent the latter from recovering the amount paid by him.</p>

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

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

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

<p>By the laws of France the widow becomes the tutrix of her minor child immediately after the death of her husband, and needs no letters of tutorship to act as s h ; and, by the same laws, she is entitled to the enjoyment of all the property of her child, until he reach the age of eighteen, or be emancipated. A widow, residing in France, may oppose in the courts of this State, the homologation of the will of her husband, and stand in judgment for her child.</p> <p>The testator, a resident of Louisiana, made an olographic will on the 8th of May, 1836. On the 10th of the same month, he married, and on the next day sailed, with his wife, for France, intending to reside permanently in that country. On the 1 Oth of April, 1837, a child was born of the marriage, and in August, 1838, the testator died. Held, that under arts. 483, and 10, of the Civil Code, the will having been made in this State, its validity must be tested by the laws of Louisiana, and not by those of France.</p> <p>A will is not revoked, under the laws of France, by the subsequent birth of a child. Aliter, in this State. Civ. Code, art. 1698.</p> <p>The only exception to the rule laid down in article 483, of the Civil Code, “ that persons who reside out of the State cannot dispose of property they possess here, in a manner different from that prescribed by its laws,” is to be found in the 10th article of the Code; and it is only under the conditions mentioned in that article, that foreign laws are permitted to operate in the disposition of property in this State.</p>

<p>The meaning of the third paragraph of art 10 of the Civ. Code, is, that the rule that the effect of acts passed in one country to be executed in another must be regulated by the laws of the latter, does not hold in relation to testaments and donations mortis causa, where the testator or donor resided abroad when the act was executed and at the time of his death. It is only when both these circumstances occur, that he will be considered as having made his will with reference to the laws of his domicil.</p>

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

There was a concealment of material facts which greatly increased the risk, and which would have prevented the contract had they been known to the defendants. The omission to state material circumstances, though the result of accident or neglect, will vitiate the policy. A fortiori, where any suppression or misrepresentation has proceeded from a fraudulent purpose. Ellis on Fire Ins. 23. Ratcliffe v. Shoolbred, 1 Park, 270, 7th ed. Carter v. Boehm, 3 Burr. 1905.

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

<p>Appeal from a judgment dismissing the complaint. The plaintiff alleged in his complaint that, on the day and time hereafter mentioned, the plaintiff resided and was doing business in the city of Hew York, and the defendants were, and still are, a municipal corporation, charged by law with the preservation of the peace and order of the city of Hew York, and the protection of the property of its inhabitants. That on the 13th day of July, 1863, at the city of Hew York, and within the city and county of Hew York, the plaintiff was the owner, and was" possessed of, the ends and leaves of a covered mahogany extension table, then in the building known as number 1182 Broadway, in the said city of Hew York, and that, on or about the 13th day of July, 1863, in the said city and county of Hew York, a large assembly of persons, to this plaintiff unknown, constituting a mob, did unlawfully, riotously and tumultuously assemble together, to the disturbance of the public peace, and being so assembled, did then and there unlawfully, violently, and with force and violence of a mob, set fire to said building, containing the aforesaid property of this piaintiff, and by the acts of the said mob in so doing, the property of the said plaintiff, amounting in the whole to the value of fifteen dollars,, was totally destroyed. That the said loss and injury to the property of the plaintiff was caused by a mob or riot which arose in the said city and county of Hew York, on or about the 13th day of July, 1863, and continued throughout the said city for several days and nights thereafter.</p> <p>The plaintiff further alleged, that on the 28th day of July, 1863, and more than twenty days before the commencement of this action, the above mentioned claim of the plaintiff, upon which this action is founded, was duly presented in writing to the comptroller of the city of New York for adjustment and payment, and also that after the expiration of the said twenty days from the time of such first presentation of the said claim, and before the commencement of this action, a second demand in writing for the adjustment and payment was made, in behalf of the plaintiff,, upon the said comptroller, and that upon" such demand being made, the comptroller has neglected and refused, and still neglects and refuses, to make an adjustment or payment of the same.</p> <p>And the plaintiff averred that by reason of the matters and things hereinabove set forth, he had sustainedjóss and damage to the amount of fifteen dollars. He therefore demanded judg-° ment for the said damages in the sum of fifteen dollars, with interest thereon from the 14th day of July, 1863, besides the costs of this action.</p> <p>The answer was a denial of each and every allegation in the complaint contained, except the allegation of presentment of claim to the comptroller.</p> <p>The action came on for trial on the 1st day of February, 1864, before Hon. Jambs Moncrief, one of the justices of this court, and a jury. The defendants, upon the trial, admitted all the allegations in the complaint, excepting the ownership and value of the property.</p> <p>The plaintiff proved the destruction of the property, and its value, and rested.</p> <p>The defendants’ counsel thereupon moved for a dismissal of the complaint on the following grounds :</p> <p>First. That the act of the legislature, passed April 13,1855, entitled, “ An act to provide for compensating parties whose property may be destroyed in consequence of mob,s qr riots,” to be found in the session laws of 1855, does nqt appear to have been passed when a constitutional quorum of three fifths of the members elected to each house were present.</p> <p>Second. That the said act is unconstitutional and void for the reason that it violates that portion of section 6th of article 1st of the amended constitution of 1846, which declares that no person shall be deprived of his property without due process of law. '</p> <p>The judge granted the motion, and dismissed the complaint with costs, to which decision the plaintiff’s counsel duly excepted; And judgment of dismissal having been entered, the plaintiff appealed, uuw</p>

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

<p>Where notes given for the price of property, sold by one in insolvent circumstances for the purpose of giving an undue preference to certain creditors, have, in the ordinary course of trade, come into the possession of third parties, without notice of the nullity of the sale, the latter will be protected.</p> <p>The authority given by law to the Cashiers of banks to execute acts of pledge, confers on those officers only the powers of Notary Publics in relation to those contracts ; and none of the forms essential to the contract can be dispensed with.</p> <p>It is essential to the validity of a pledge, as to third persons, that notes or other obligations payable to bearer or order, which form the subject of the pledge, should be endorsed by the payee or pledgor C C. 3128.</p> <p>An action to rescind a contract of sale or pledge made by an insolvent, on the ground of its having been executed with intent to give a preference to certain creditors, is prescribed by one year. C. C, 1982.</p>

<p>1. Although a corporation can properly enforce only such contracts as are authorized by its charter, yet where third persons become interested by'dealing with the company in good faith, believing that a particular contract was made according !o its powers, every presumption and intendment is to be made in favor of the appropriate exercise of such powers, in the particular case.</p> <p>2. The defendant, by his promissory note promised, twelve months after date, or sooner, if required, to pay to the plaintiff or order a certain sum ($1000) or such assessment on the same as the trustees of the plaintiff (an insurance company) should find it necessary to impose, for the purpose of paying losses upon policies of insurance, agreeably to the terms of his subscription to a guaranty fund of such company. By the subscription paper so referred to, the subscribers agreed to contribute to a fund for the indemnity of persons insured by such company, as a security, in addition to expected profits, by their promissory notes, which were to be given upon condition that the same should be held by the company for the sole purpose of paying losses which should occur; and be had recourse to for any deficiency by being made subject to a pro rata assessment.</p> <p>Held that-such note not being strictly within authority given to the plaintiff by its act of incorporation, to receive notes or other securities for premiums in advance; in any action brought thereon by the company, before its dissolution, it was incumbent on the plaintiff to show that the note was not in fact at variance with the statute.</p> <p>3. The defendant, being one of the trustees of thb company, assisted in the passage of a resolution by them which authorized the raising of a guaranty fund “ upon such terms and conditions as were riot at variance with the charter and by-laws of the company.”</p> <p>JECeld that between him and creditors who gave credit to the company upon upon the strength of that resolution, it was to be presumed that the note conformed to the charter and by-laws of the company.</p> <p>4. Held, also, that the resolution, to which the defendant was a party, or of which' he had knowledge before giving his note, estopped him from urging want of authority, or non-conformity to the charter, as a defense to a creditor’s suit.</p> <p>5. Held, further, that an action upon the note could be sustained without the aid of the statute. That the general powers incident to all corporations and necessary to enable them to conduct their business, authorized them to receive such note, as forming a part of their guaranty fund; and that in the hands of a receiver of such corporation it was a valid security, for the benefit of its creditors.</p> <p>6. The statute of limitations begins to run, upon such a note; from the time of the making an assessment thereon and notice thereof to the maker.</p> <p>7. A foreign receiver cannot sue in his own name ás such in our courts. Hence an action upon such a note is properly brought, in this state, in the name of the company; notwithstanding such receiver has been appointed by the court in another state, in the exercise of its equity powers.</p>

<p>Under the Code of 1808, book 3, title 19, article 77, the vendor’s privilege was postponed to the law charges in general. By the new Code, the vendor is paid out of the proceeds of the thing sold, before other privileged claims, except the charges for affixing seals, for making inventories, and others necessary to procure the sale of the thing. C. C. 3234.</p>

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

<p>An act of sale stipulated that the notes given for the price were to remain with the Notary, until a mortgage existing on the property should be cancelled. Plaintiffs obtained an order of seizure and sale, without having produced any evidence of the can-celling of the mortgage. On an appeal by the defendant, and assignment of the want of evidence of the cancelling as error apparent on the face of the record, plaintiffs offered a certificate of the Recorder of Mortgages to show that the mortgage had been cancelled. Held, that the cancelling not having been alleged or proved in the inferior court, no evidence could be offered to prove it on the appeal.</p>

<p>Appeal from the City Court of New Orleans, Cooley, J.</p>

<p>1. A contract having been shown to have been once executed, the presumption of law, in the absence of any finding that it has been rescinded, is that it is still a subsisting agreement.</p> <p>2. A claim by one of two contracting parties that a departure from the contract by the other operated to cancel it, when the other denies that such an effect was produced, does not amount to a rescission.</p> <p>3. A rescission puts an end to the contract, in toto. After a contract has been rescinded a party cannot, of his own motion, proceed under it to finish a portion of the work agreed to be done by Mm, so as to acquire any rights under it.</p> <p>4. Upon a contract by one person to build nine houses, for another, the former, upon a refusal by the latter to permit him to build three of the houses, has a right to rescind and put an end to the contract; but if he elects to go on and finish the other six houses, he does not entirely rescind it.</p> <p>5. If the contractor, in such a case, continues a negotiation with the other party, for several months, while progressing with the work, he does not waive all right to abandon the contract as to the six houses.</p> <p>6. A party intending to abandon a contract while in fieri must act promptly and decidedly, on the very first discovery of a breach. If he negotiates with the other party, afterwards, and goes on with the work, he waives all right to abandon, for the breach complained of.</p> <p>7. An alteration of, or departure from, some of the terms of a contract does not per se operate as a rescission of the whole.</p> <p>8. Where work has been done under a special agreement between the parties which has not been rescinded, the party performing the same, cannot recover therefor, under a quantum meruit in disregard of such agreement.</p>

<p>No proceedings can be had in an inferior court, in relation to the subject matter of a case pending in the Supreme Court, until the expiration of three judicial days after judgment has been pronounced by the latter, within which time a re-hearing may be granted, and the judgment amended, or entirely changed.</p> <p>An attachment having been levied on the property of an absconding debtor, certain creditors, on the same day, prayed for a forced surrender of his property, and obtained an order for a meeting of creditors and a stay of proceedings. The proceedings for a forced surrender having been set aside on appeal, on account of the insufficiency of the petition, other creditors, not parties to the proceedings for a surrender, procured an attachment from the lower court on the day on which the judgment was pronounced by the appellate tribunal, which was levied on the property of the debtor. The property seized under the first attachment proving insufficient, the creditors who sued it out, caused a fi fa. to be issued on the judgment which they had in the meantime obtained, and seized the property, which had been attached on the day on which judgment was pronounced on the appeal. Held, that the seizure under the fi- fa. was good, and that the second attachment, having been issued before the expiration of three judicial days from that on which the judgment was pronounced, was null. ,</p>

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

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

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

This action was brought by the plaintiff, to recover damages for his losses and injuries, sustained by the falling of a wall in course of erection by order of the defendant. On the trial of the cause, before Justice Moncrief and a jury, December 8th and 9th, 1863, it appeared that the plaintiff and the defendant were formerly occupants of adjoining premises.

<p>Where a remunerative donation exceeds the disposable portion, the donee or legatee is bound to prove the value of his services. If proved to be equal to or greater than the bequest, no reduction can be made •, otherwise, it must be reduced to tbe estimated value of the services. C. C. 1500, 1512. But where such donation does not exceed the disposable portion, the declaration of the testator as to the services and their value, will be conclusive on the heirs, and no proof will be required from the legatee. In the latter case, the remunerative disposition must be viewed as an ordinary bequest, and the services as the motive or inducement for making it.</p> <p>One who avers that a remunerative legacy exceeds the disposable portion, must show it. Until this be established, the donee or legatee is not bound to prove the value of his services.</p>

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

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

<p>Acknowledgments by one since deceased, proved by a witness who could not be contradicted, much less convicted of perjury, though he had sworn falsely, is the weakest kind of evidence, and scarcely worthy of any belief. But where, in an action for the value of work done for the deceased, it was proved to have been performed ; and two witnesses testified to the acknowledgment of the debt by the deceased, in ex-tremis, in the presence of his wife and of the magistrate who was receiving his will, either of whom might have been produced to contradict the statement if false, and no other attempt was made to rebut or discredit the testimony, the claim will be considered sufficiently proved.</p>

<p>Appeal from the Court of Probates for the parish of New Or leans, Bermudez, J.</p>

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

<p>The plea of the general issue in an action againsUjje acceptors of a bill of exchange, admits their signature, which is allthjlifim'Qamt^^as bound to prove.</p>

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

<p>The provision of the second section of the act of 26th March, 1842, directing all judicial proceedings by individuals, against the Clinton and Port Hudson Railroad Company to be stayed, must be understood as suspending such proceedings, pending a suit by the State for the forfeiture of its charter, in order that no one creditor may gain an undue advantage over the rest. Such a temporary stay of proceedings, does not impair the obligation of contracts. It is a conservatory measure only. Otherwise, were the clause interpreted as-directing a stay of all proceedings from the promulgation of the act for an indefinite period, upon the mere authority of the legislature.</p>

<p>The plaintiff sues as receiver of William A. Hitchcock, a judgment debtor, to recover a quarter’s rent falling due May 1, 1863, of premises 188 West Eleventh street, to which Hitchcock was entitled as tenant by the curtesy. The premises in question were deeded to Mrs. Hitchcock in fee, in 1857 ; she had issue, born alive, which died shortly after; and she died in December, 1862, without making any disposition of the property by deed or will. She left her surviving her husband, the judgment debtor, and her father, the defendant; but left no surviving issue. At the time of her death, John Gr. Gfottisberger was tenant of the premises, under a written lease, which expired on May 1, 1863. On that day, the last quarter’s rent fell due, to wit, #125, which was paid into court. John Bancroft and others recovered a judgment against said Wm. A. Hitchcock and others, March 2, 1858, for #254.30, which is wholly unpaid ; the plaintiff was appointed receiver, in "supplementary proceedings on that judgment, by order dated January 18, 1863, and filed for record in the New York county clerk’s office, February 4, 1863. On the 21st day of May, 1863, the plaintiff, as receiver, commenced this action against G-ottisberger, claiming to collect such rent as part of the estate and interest of William A. Hitchcock, as tenant by the curtesy of the said premises, and as having been transferred to him by force of his appointment as such receiver. The defendant, William Hoyt, who is the father of Frances A. Hitchcock, applied to this court to be substituted, and was substituted as defendant in this action, in the place and stead of John Gfottisberger, claiming that the real estate of which his daughter, Mrs. Hitchcock,. died seised, ascended to him, and that he became seised thereof as an inheritance to him as her father, and that by the laws of this state the estate of a husband, as tenant by the curtesy, had been abolished. All the above facts were admitted, either in the pleadings or at the trial.</p> <p>The defendant moved to dismiss the complaint on the grounds:</p> <p>1st. That the judgment debtor had no interest in the premises as tenant by the curtesy.</p> <p>2d. That if he had, the judgment creditor’s remedy was by execution.</p> <p>3d. That the receiver could not take any rents accruing after his appointment.</p> <p>The motion was denied by the justice, and the defendant excepted.</p> <p>The justice directed a verdict for the plaintiff, and that the exceptions be first heard at the general term, and that the judgment, in the meanwhile, be suspended.</p> <p>The plaintiff now applied for judgment on the verdict.</p> <p>I. Tenancy by the curtesy is not abolished by the married woman’s acts of 1848, 1849 and 1860, in those lands which she leaves at her death, undisposed of by deed or will.</p> <p>(a.) The statute is in derogation of the common law, and therefore must be strictly construed ; above all, it is not to be extended by implication beyond its expressed object—the benefit of married women. It empowers the married woman, personally, to hold, enjoy, and dispose of the property, independently of her husband, by deed or will. If she does not choose to avail herself of this power, the statute has no farther object or effect; the succession devolves, according to all the former rules of law, and the husband takes an estate by the curtesy, the same as before. (Ransom v. Nichols, 22 N. Y. Rep. 110. Hurd v. Cass, 9 Barb. 366. Vallance v. Bausch, 28 id. 633. Moore v. Jackson, N. Y. Supreme Court, 1st dist. gen. term, Feb. 1, 1864.)</p> <p>(b.) The language of the statute embraces real and personal property alike ; and the true construction of the statute has been authoritatively settled by the Court of Appeals, in Ransom v. Nichols, (22 N. Y. Rep. 110,) in favor of the husband’s rights, precisely as they before existed, as to property undisposed of by the wife.</p> <p>(c.) Where property was given to trustees for the sole and separate use of a married woman, with power of disposition and appointment by deed or will, the husband took an estate by the curtesy in equity, if no disposition of the estate was made by the wife. (1 Cruise Dig. V. 2, § 11. 4 Kent, 30, 31. Morgan v. Morgan, 5 Mad. Ch. 408. Follett v. Tyler, 14 Sim. 125.) In these cases there was no estate whatever in the husband during the wife’s life ; and they furnish a complete refutation of the defendant’s argument of the necessity of a vested initiate estate in the husband during the wife’s life. Such an estate is nowhere claimed to be one of the foundation elements of the husband’s estate after the wife’s death. (Litt. § 35. 4 Kent, 30. 1 Cruise VI. §§ 3, 4.)</p> <p>(d.) The statute was intended to do away with the circumlocution of just such settlements as the above, but not to modify the rights of heirs or the regularly succeeding interests after the wife’s death, where she does not avail herself of the powers conferred on her. The analogy is perfect between the cases arising under these statutes and the settlement above described. The purpose of both is the same, and they arc obviously to be determined on the same principles of construction, and with similar results.</p> <p>(e.) Since the case of Ransom v. Nichols, we cannot regard the construction of the act as properly an open question. And besides that case, all the decisions are one way and in our favor, except the opinion in Billings v. Baker, which was, in fact, extra judicial, and in no way necessary to the decision of the question before the court. Two of the justices disagreed as to that opinion, though they affirmed the order on other grounds.</p> <p>II. The husband, being tenant by the curtesy, had an estate for life in the premises in question ; this estate for life was, on February 4, 1863, transferred to the plaintiff by the order appointing him receiver, filed for record on that day. (Laws 1862, ch. 172, p. 343. Hoffman’s Provisional Remedies, 521. Porter v. Williams, 5 Seld. 148. Edmonston v. McLoud, 16 N. Y. Rep. 543.) The right to receive the accruing rents thenceforward during the debtor’s lifetime passed as an incident to the estate so transferred. Rent is an incident to the reversion, and passes with it. (2 Cruise, 338. Coke Litt. 215, b. 1 Inst. 143 a, 151 b. Demarest v. Willard, 8 Cowen, 206. Birch v. Wright, 7 T. R. 378. Payn v. Beal, 4 Denio, 405, 410, and cases cited.)</p> <p>III. The plaintiff should have judgment upon the verdict, with costs.</p> <p>I. The plaintiff gave no evidence of any fact showing that he was entitled to recover; the testimony given having been in reference to the appointment of the receiver.</p> <p>II. The real estate in question being the sole and separate estate of Mrs. Hitchcock, the same was not liable, nor was any part of it, for the debts of her husband, William A. Hitchcock ; but it is now sought to have it so applied. (Laws of 1860, p. 157, § 1.)</p> <p>III. The real estate above referred to, of which Frances A. Hitchcock, the daughter of the defendant, William Hoyt, died seised,, ascended to him, and he, on her death, became seised thereof as an inheritance to him, as her father. By the laws and statutes of this state, the estate of a husband as tenant by the curtesy has been abolished.</p> <p>IV. The receiver cannot maintain this action unless the judgment debtor, Hitchcock, previously to the death of Mrs. Hitchcock, had an inchoate right of tenancy by the curtesy. That right is made up of a series of incidents. (Laws of 1862, p. 343.) The necessity for the continuance of this right no longer exist. (Billings v. Baker, 28 Barb. 349.) It was the intention of the legislature to abolish the right, and its action was dictated by enlightenment and progress.</p> <p>V. Tenancy by the curtesy is a common law right; it has its inception in marriage and seisin ; it becomes an estate initiate and is born into being at the birth of living issue,- and it becomes matured, or an estate consummate, at the death of the wife. Each of these elements is necessary to its existence; for if there is no estate initiate,- there can be no estate consummate. This being so, what is the effect on the wife’s rights of the statute of 1862 ?</p> <p>1. She can sell her real estate; she can enter into any contract with reference to the same with like effect as if she were unmarried.</p> <p>2. She can “in like manner enter into such covenant or covenants' for title as are usual in conveyances of real estate when at common law she could not covenant except when joined with her husband.</p> <p>3. The statute, in giving her these privileges in contravention of the common law, creates new rights, and makes no distinction, as to their exercise, between her having a child or not having one. The rights conferred are co-existent with her life.</p> <p>4. She can devise her separate real estate as if a feme sole. Could she do these things if her huband’s tenancy were a cloud on the title ? If it exists consummate, it is such a cloud initiate.</p> <p>VI. It cannot be that if she does not devise nor sell, a right of tenancy by the curtesy comes into being at her death. ■ That would be a new estate ; not created by the common law, because it has no preliminary or inchoate existence.</p> <p>1. If the right does not exist at law, it does not exist at all in this state.</p> <p>2. It can only exist at law through all the necessary conditions precedent which prevailed previously to the statute. By the statute she “ continues” to hold her real estate as if she were a single woman. This right continues until her grantees or devisees take her lands.</p> <p>VII. If a devisor could cut off the right' of tenancy by the curtesy, it surely can be cut off by statute. (Roberts v. Dixwell, 1 Atk. 607. Hearle v. Greenbank, 3 id. 695, cited 28 Barb. 348. See also same case, pp. 349, 350, 351, 356, 365, 370, 378)</p> <p>VIII. If the right exists at all, it must exist in all the lands of the wife. It cannot exist as to one parcel and not as to another. It cannot exist and not exist. It cannot, if it has a legal existence, be defeated at the whim, speculative tendencies, necessities, or judgment of the wife. This would be turning each woman in the land, who possessed separate real estate, and was married, into an individual legislator, empowered to annul an existing legal right under the dictates of her sole will, or suffer the right to continue in existence through her passiveness. This would declare a vested right to be suspended by the mere gossamer thread of a woman’s caprice. (Id. p. 368.)</p> <p>IX. The right, if it exists, could be assigned by the husband, or it could be taken on execution for his debts. (Id. pp. 345, 348, 362.)</p> <p>X. The existence of .the right is inconsistent with the intention of the legislature, and with a fair construction of the language of the act of 1862, and utterly incompatible with its necessary legal effect.</p> <p>XI. The case of Vallance v. Bausch, (28 Barb. 633,) upon which the Supreme Court of this district leaned in Moore v. Jackson, was decided previously to the statute of 1862, upon which we rely. The former named case was as to the distribution of personal property, and the opinion as to tenancy by curtesy was obiter dictum.</p> <p>'• XII. Assuming, however, that William A. Hitchcock had an estate as tenant by the curtesy in the premises, then such estate is a legal estate, and not a mere charge or incumbrance on the land, and can be and could have been sold under an execution issued on the judgment which forms the basis of this action, and hence these proceedings were unnecessary. (Adair v. Lott, 3 Hill, 182. Schermerhorn v. Miller, 2 Cowen, 439.)</p> <p>XIII. No receiver can be appointed in proceedings supplementary to execution, of property levyable upon and saleable under execution. The policy of the law is to discourage litigation.</p> <p>XIV. The only title or claim of the receiver to the real estate of William A. Hitchcock, (assuming that he has an estate of tenancy by the curtesy,) and to the rents thereof, is by virtue of the order appointing him such receiver. It is insisted that real property does not pass to the receiver by such an order, but that an assignment was necessary, which the court could enforce, and hence the receiver has no title or claim to the real estate of the judgment debtor, nor to the rents thereof, and cannot maintain this action. (Chatauqua Co. Bank v. Risley, 19 N. Y. Rep. 374. Moak, receiver, v. Coats, 33 Barb. 498.)</p> <p>XV. The order giving the receiver liberty to sue, was an ex parte order, obtained at chambers, and is not binding on the defendant, It simply gives the receiver leave to sue, but cannot confer on him any power or authority beyond that contained in the order appointing him. And if such last named order does not invest the receiver with, the right to maintain this action, the order giving him liberty to sue cannot do so. The plaintiff was appointed receiver, January 28, 1863, and the order and bond filed February 4,1863, and the rent which this action is brought by the receiver to recover became due May 1, 1863, three months after the appointment of the receiver. A receiver, in supplementary proceedings, can only take the property of the judgment debtor in existence and belonging to him at the time of the appointment of the receiver, and not that which the debtor subsequently acquires, or which subsequently accrues to him \ as, for instance, the salary of an office not yet due. Therefore it is urged that rent not due at the time of the appointment of the receiver cannot be thus reached, (Graff, rec’r, v. Bonnett, N. Y. Transcript of Sept. 7th, 1863, Superior Court, opinion by Justice Bosworth. Campbell v. Genet, 2 Hilton, 295.)</p>

<p>The defendants are appellants from a judgment of the Commercial Court of New Orleans, Watts, J., in favor of the plaintiffs for the amount of the bill sued on.</p>

<p>Every thing must be stated in the petition, which it is necessary for the defendant to know in order to put him on his defence.</p> <p>The allegation in the petition, in an action against the principal and sureties on an attachment bond, that plaintiff has sustained damages '• by the wrongful attachment, seizure, and detention of the slaves attached, whereby he has been deprived of his property, and of the services and wages of the slaves,” accompanied with a prayer for the amount of such damages, and for general relief, will not support a verdict for the value of the slaves.</p> <p>To recover damages for an illegal attachment, or for the hire of slaves seized by attachment, it is not necessary to put the attaching party in default. But where an attachment has been levied on slaves, and they have, with the consent of the debtor, remained in the hands of the plaintiff in attachment, to enable the former to recover their value, the latter must be put in default otherwise than by the institution of suit.</p> <p>Where a plaintiff voluntarily abandons his attachment, he renders himself and his surety responsible in damages ; and where such attachment has been set aside by order of court, it is prima facie evidence that it was illegally issued, and that damages to some extent have been sustained.</p>

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

<p>Appeal from a judgment entered upon the report of a referee.</p> <p>The action was to recover moneys collected by the defendants, as the attorneys of the plaintiff. The complaint alleges that on the 21st of April, 1859, the defendants were attorneys and counsellors at law, lawfully entitled to practice, and practising as such in the courts of this state, “ and were partners at law, doing business in the city of New York, under the firm name of QaNun, Jordan & Bain.” That on or about that date, the plaintiff retained the defendants as his attorneys, in and about a certain claim against one Hogan, and that the defendants in April, 1862, as such attorneys, collected and received upon such claim the sum of $866.66, over and above their costs and charges, which upon demand they have refused to pay to the plaintiff, and for which he demands judgment against the defendants.</p> <p>The defendants answered separately. The appellant, Jordan, in answering, alleged: “ First. This defendant admits that the said defendants were, at the time stated-in the complaint, attorneys and counsellors at law, duly practising as such. And this defendant denies each and every other allegation in said complaint contained, except as is hereinafter, specially admitted.” The answer then alleges that in 1852 Hogan and one Willock had entered into a contract, Hogan to sell and Willock to purchase certain lots in the city of New York, Willock agreeing to erect houses thereon, and Hogan to advance money therefor. That after a part performance of the contract, Hogan employed the plaintiff as his attorney, (said plaintiff being an attorney at law,) to extinguish the interest of Willock in the contract and premises. That as such attorney of Hogan, the plaintiff caused the interest of Willock to be sold, and produced a release from him to Hogan, under which Hogan afterwards held possession of the premises ; for all which services Hogan paid the plaintiff in full. That Willock, in 1859, claiming that his rights under the contract had not been extinguished, commenced an action against Hogan in the New York common pleas, in which action the defendants were the attorneys of Willock; and that the alleged claim of Willock against Hogan is the same claim, which, it is alleged by the plaintiff, was prosecuted by the defendants, for the benefit of the plaintiff, and to prosecute which, the plaintiff claims to have employed the defendants, and upon which the defendants collected and received the money demanded in the complaint. The answer denies that the defendants were employed by the plaintiff to commence or prosecute the actiop against Hogan, or that the plaintiff had any interest whatever in it. The answer then alleges that upon a settlement of said action, the defendants received from the settlement moneys their attorneys and counsel’s fees, and that said Willock the balance thereof received;</p> <p>The defendant G-aHun answered separately, to the same effect. The defendant Bain admitted the partnership of the defendants, and their employment by the plaintiff, but denied all the'othet allegations in the complaint.</p> <p>On the trial, the plaintiff offered in evidence an affidavit sworn to by the defendant Bain, proving, or tending to prove, the partnership of the defendants ; their retainer by the plaintiff to prosecute the suit in the name of Willock, against Hogan ; the plaintiff’s interest (two thirds) in the claim, (Willock being the owner of the remaining third ;) an agreement by the defendants to prosecute the claim, as the attorneys of the plaintiff and Willock; and the receipt by the defendants of the money in settlement of the claim.</p> <p>The defendant Jordan objected to the affidavit, on the grounds, that on its face it was an extra judicial affidavit, not made in any action or proceeding ; and also, that it did not appear that the defendants were partners at the time the paper was signed. The referee overruled the objection, and allowed the affidavit to be read in evidence. To which the defendant Jordan excepted.</p> <p>The referee found as facts, that in April, 1859, the defendants were attorneys and counsellors at law, and copartners as such, and were retained by the plaintiff, to prosecute the claim of Willock against Hogan. That previous to such retainer, Willock had agreed that the plaintiff should receive two thirds of the amount recovered. That the defendants took the claim to prosecute, upon the retainer of the plaintiff, with full knowledge of his agreement with Willock. That the defendants afterwards settled the claim, with the consent of the plaintiff and Willock, and received the sum of $3000, of which they paid Willock $700. That $886.66 remained in the defendants’ hands, after satisfying their costs and charges, which sum. was due and payable from them to the plaintiff, and for which amount he directed judgment.</p> <p>The defendant Jordan excepted to all the findings of fact and conclusions of law, and appealed from the judgment to the general term. The other defendants did not appeal.</p>

<p>The action was to recover damages for the loss of a number of horses.</p> <p>The complaint alleges that the defendants carelessly, negligently and improperly placed a large number of their horses, then infected and suffering from infectious, contagious and dangerous diseases, known as farcy and glanders, in their shed adjoining the stables of the plaintiff, and allowed them to remain there for a long space of time. That said horses so infected and diseased, by reason of the want of proper care, by the defendants, communicated the said disease to the plaintiff’s horses ; and that through the negligence, carelessness, and improper conduct of the defendants in placing said horses in the yard and shed of the defendants, adjoining the stables of the plaintiff, the said disease was communicated to the plaintiff’s horses, and they have died.</p> <p>The answer of the defendants alleges that their said horses were placed upon the defendants’ premises, contiguous to their railroad, and that if the plaintiff has sustained any damage, it was occasioned by his own negligence and not by the negligence of the defendants.</p> <p>The action was tried by a justice of this court- and a jury. A motion was made to dismiss the complaint, which was denied, and the defendants excepted. Several requests were made by the defendants to the court to charge the jury, which were refused and the defendants excepted ; they also excepted to such parts of the charge as were inconsistent with such requests. The jury found a verdict for the plaintiff, upon which judgment was entered and the defendants appealed.</p> <p>I. The defendants had a right to keep their sick horses upon their own premises. (Boom v. Utica, 2 Barb. 104.)</p> <p>II. The defendants are not liable for any injury to the plaintiff’s horses, if any occurred, unless it were proved that they were guilty of some negligence by which their horses came in contact with the plaintiff’s horses, on his own premises.</p> <p>III. If the plaintiff kept his own stables so insufficiently closed, that the defendants’ horses came in contact with his horses, from some neglect on the part of the defendants, he cannot recover. (Wilbrand v. Eighth Avenue Railroad Co., 3 Bosw. 317, and cases there cited.)</p> <p>IV. It was negligence in the plaintiff to water his horses at a tank on the public highway, where any glanderous or otherwise diseased horse might drink.</p> <p>V. The court erred in refusing to charge the four propositions laid down in the foregoing points.</p> <p>VI. The court erred in refusing to nonsuit the plaintiff upon the defendant’s motion. (Haring v. N. Y. and Erie R. R. Co., 13 Barb. 9.)</p> <p>VII. The evidence does not sustain the verdict, and the damages, if it does, are excessive.</p> <p>1. The whole damage actually proved by the plaintiff was $1396. The residue is so vague, uncertain and contradictory, as not to amount to any thing.</p> <p>2. The defendants’ horses were. only kept there from April until October, during which period the plaintiff lost fourteen horses. When he lost the residue does not appear, and certainly not until long afterwards.</p> <p>VIII. The only cases relied upon by the plaintiff are actions of nuisance, and there is no evidence in this case to establish a nuisance.</p> <p>1. The defendants have the same right to occupy a stable as the plaintiff.</p> <p>2. There is no analogy between this case and those cases which refer to slaughter houses and blacksmith shops^ which in some instances have been pronounced nuisances.</p> <p>IX. There is much vulgar "error touching rights supposed to exist, beyond the line of the lot owner’s boundary. Much of it has been exploded in this country. No judicial trace of it exists, except in England.</p> <p>1. The supposed riparian right. (Gould v. Hudson River R. R. Co., 2 Seld. 522. Lansing v. Smith, 4 Wend. 9)</p> <p>2. The supposed right of prospect and light from adjacent lands. (Meyers v. Gemmel, 10 Barb. 540.)</p> <p>3. The supposed right to have one’s building or earth supported by adjacent lands. (Radcliff’s executors v. Mayor, &c. of Brooklyn, 4 N. Y. Rep. 202, 203, 204.)</p> <p>4. The supposed right to ancient lights. (Parker v. Foote, 19 Wend. 318. 10 Barb. 546.)</p> <p>The only exceptions made are to the charge of the judge at the trial, and his refusal to dismiss the complaint.</p> <p>I. The judge did right in refusing to dismiss the complaint. The complaint alleged that the defendants, well knowing the horses to be infected with an infectious, contagious and dangerous disease, placed those horses in a place where they could and did communicate the disease to the horses of the plaintiff. This, was proved by the testimony, and was not attempted to be contradicted by the defendants. Upon these facts, as alleged in the complaint and proved, an action is maintainable.</p> <p>II. It is a rule of common law that a man should so use his own as not to hurt another ; and, therefore, if one carry on a lawful trade or business in such a manner as to prove injurious to his neighbor, he must answer in damages. (Bradley v. Gill, Lutw. 29. Aldred’s case, 9 Coke, 58. Jones v. Powell, Hutton, 135. Moreley v. Pragnell, Co. Car. 510. Fish v. Dodge, 4 Denio, 311. Selwyn’s Nisi Prius, vol. 2, 1124, title Nuisance.)</p> <p>III. It is not necessary to a right of action, that the owner should have been driven from his dwelling; it is enough that the enjoyment of life and property has been rendered uncomfortable. (Per Lord Mansfield, in Rex v. White, 1 Burr. 337. 9 Paige, 576.)</p> <p>IV. Where one erects a nuisance, he is answerable for the. continuance of it, as well as for the injury done. (Roswell v. Prior, 12 Mod. 635. 1 Ld. Ray, 713, and 2 Salk. 460, S. C. Boom v. City of Utica, 2 Barb. 103. Vedder v. Vedder, 1 Denio, 257. Fish v. Dodge, 4 id.311. Brady v. Weeks, 3 Barb. 157. Myers v. Malcolm, 6 Hill, 292. Butler v. Kent, 19 John. 223. 2 Denio, 443-446.</p> <p>V. As to the refusals to charge : 1st. The defendants had no right to keep their horses in the state they were, so near to the plaintiff’s stables as to communieate the disease to his horses, as it was proved they did, and after they knew the fact. (See cases cited above.)</p> <p>2d. The evidence of negligence consisted in the proof that their horses in a diseased state were allowed to gnaw holes in the stable of the plaintiff, and were permitted to run loose in the pen.</p> <p>3d. The plaintiff’s stables were sufficiently closed, and notice was given to the defendants of the mischief the diseased horses were doing. This question was properly left to the jury by the judge, who decided in the plaintiff’s favor; and it is not alleged that the verdict is against the weight of the evidence. The plaintiff was not bound to remove his horses ; they had become infected with the disease, and the defendants are responsible. He requested the defendants to discontinue turning their diseased horses into the pen, and they refused to do so.</p> <p>4th. The plaintiff was guilty of no negligence in watering his horses at his own tank, where he was accustomed for years to do so. The tank was his own private property, and placed in front of his stable door on the side walk. . It was not pretended at the trial, that any disease was or could be communicated by other horses than the defendants’. The only negligence was that of the defendants, in allowing their diseased horses to escape and drink at the plaintiff’s tank. There is no exception to any evidence given at the trial, and the defendants did not dispute the amount .of damages sustained by the plaintiff.</p>

<p>Evidence, presented by one of the parties, but not contained in the record, will not he permitted, under any circumstances, to influence the decision of the court.</p> <p>The demand to be made on a note payable at a particular place, cannot be assimilated to the amicable demand required by the Code of Practice. The want of the latter must be pleaded to put the plaintiff on the proof of it, and a failure to establish it does not prevent his obtaining judgment, but only subjects him to the payment of the costs incurred before the appearance of the defendant. The former must be alleged and proved, or the plaintiff cannot recover.</p> <p>Cases of Wetmore cj- Co. v. Merrifield, 17 La. 513, and Booraem v. Merrijield, lb. 594, overruled, so far as they go to establish that in an action against the drawer of a bill, or maker of a note payable at a particular place, proof of a demand at such place is not necessary, where want of amicable .demand has not been pleaded.</p>

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

<p>Plaintiff having offered, through a broker,, to sell a piece of property for a fixed price, placed a written memorandum in the hands of the latter, specifying the conditions. A list of 'persons willing to purchase on the terms proposed, with the proportion which each would take, and the names of their respective endorsers, was subsequently approved and signed by the plaintiff. These memoranda having been placed in the hands of a notary to prepare an act of sale, the completion of the sale was arrested in consequence of a difficulty raised by the defendants as to the validity of plaintiff’s title. Held, that the facts prove a contract binding on the parties; and that the assertion of title to the premises by the defendants, under such circumstances, and with such evidence of right, could not subject them to damages for slander of plaintiff’s title.</p> <p>In an action for slander of title, plaintiff must prove malice in the defendant. But . where it appears that the latter had no color of title at the time, malice may, perhaps, be inferred.</p> <p>The plaintiff in a petitory action, who has reasonable ground to believe that he has • good causo of action, will not be liable to damages on discontinuing or losing his case. Nor can any action for slander of title be maintained, where defendant has good reason to believe that he is the real owner of the property.</p> <p>The principal object of a suit for slander of title is to compel the defendant either to waive all right, or to institute suit and thereby enable the plaintiff to establish his title.</p> <p>In an action for slander of title, defendants, who had reconvened by asserting title under a contract with plaintiff, and prayed that he might be condemned to execute a conveyance to them or to give security, as well as for damages, on the second day of the trial, but before plaintiff had concluded his evidence, moved to discontinue : Held, that they were entitled to discontinue the whole plea in reconvention, including the claim of title.</p>

This action was brought to recover damages for the nonperformance by the defendants of a promise contained in an instrument in writing signed by them alone, which was in the following words and figures : “New York, May 13, 1861. We agree to deliver P. 8. Justice one thousand Enfield pattern rifles (with bayonets, no other extras) in New York, at $18 each, cash, upon such delivery, said rifles to be shipped from.

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

<p>Where property has been seized under ayi fa., the sheriff may proceed to sell though the return day has passed, or the writ itself has been returned into court; and payment to the sheriff, under such circumstances, for the purpose of liberating the property seized, will discharge the debt.</p>

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

The action should have been brought before the court where the surrender was made. Syndics of Menard v. Peirce, 3 Mart. N. S. 375. It is only by an opposition to the tableau of distribution that the validity and relative ranks of claims against an insolvent estate, can be finally settled. Davis v. Heard, 1 Mart. 207. Grainer v. Devlin, 1 La. 172. Pandelly v. His Creditors, 9 lb. 393, 396.

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

<p>The privilege of the lessor on the moveables found in the house, yields only to that of the funeral expenses of the debtor and his family, and to that only when there is no other source from which it can be paid. The charges for selling the moveables, which, under art. 3223'of the Civil Code, are to be paid before the rent, are those only which are necessary or incidental to the sale of the moveables.</p>

<p>Appeal by the plaintiff from a judgment of the Court of Probates of New Orleans, Bermudez, J.</p>

<p>Heirs of full age may make an extra-judicial partition of the property coming to them. So the legatees may compound, or give a valid discharge.</p> <p>A testator, owing no debts, directed his property to be turned into cash, and bequeathed the residuum, after the payment of certain legacies, to a trustee for the propagation of the Christian religion. The heirs and legatees, being all of age, and the trustee, for the purpose of saving expense and to avoid a sale of the property at an unfavorable period, agreed to a division in kind, and the executors prayed that an account and partition, made in conformity to such agreement, should be homologa-ted, and the decree taken as a final settlement and partition of the estate, to which no opposition was made. Held, that the heirs had a right to enter into such a com- - promise ; that the trustee, being responsible only to the heirs for the manner of executing the will of the testator, was authorized, by their consent, to agree to the arrangement; and that the compromise, not being one reprobated or prohibited by law, should be carried into effect.</p>

This was an action to recover compensation in damages, for injuries sustained by the plaintiff, by the negligence of the driver of a car belonging to the defendant, on the 3d of August, 1859. The evidence established the following facts : The plaintiff, who, at the time the injuries were sustained by him, was about eight years of age, and resided with Ms father in Delaney street, near the corner of Christie street, in tMs city.

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

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

<p>To recover in an action of slander, malice in defendant must be proved.</p> <p>The verdict of a jury will be set aside when contrary to the evidence.</p>

<p>Action against defendants as sureties on a prison bounds bond, signed by them but not by the principal: Held, that the bond was incomplete until signed by all the parties intended to be bound, and that until so signed either might repudiate it; that being a contract of suretyship, it could not exist without the correlative obligation of the principal; and that were the defendants to pay the amount of the bond, they would not be subrogated to the rights of the plaintiffs against, their debtor, as they were not bound with or for him. Suit dismissed.</p>

<p>This action was brought to recover a penalty of $25 per day, from November 10, 1860, to the day of trial, for a violation, by the defendant, of the provisions of section 2 of the act “ to prevent encroachments and obstructions in the harbor of New York, and to authorize their removal,” &c. passed April 27, 1860, being chapter 522 of the session laws of 1860, (_p. 1063.) The section is as follows : “ It shall not be lawful for any person to build, erect or maintain any pier, bulkhead, or other structure, or to fill in with earth or other material, in the waters of the harbor of New York, beyond the exterior line defined and recommended by the commissioners for the preservation of the harbor of New York, and established in and by chapter 763 of the session laws of 1857; and in case of the building or erection of any such pier, bulkhead or other structure, or of maintaining of any such pier, bulkhead or other structure, whether now existing or hereafter erected, the Board of Commissioners of Pilots shall notify the person or persons building, erecting or maintaining the same, within a time to be prescribed and specified in their notice ; and in case of failure to comply with such notice, the said Board of Commissioners of Pilots shall have the power to cause so much of such pier, bulkhead or structure, as is beyond the exterior line so defined and established, to be forthwith removed, and the person or persons who built or maintained the same shall be liable to pay all expenses of such removal, to he recoverable by and in the name of the Board of Commissioners of Pilots, and shall also pay a fine of twenty-five dollars a day for each and every day which such obstruction shall remain after such notice, and until such pier, bulkhead or other encroachment shall have been removed, as herein provided. This section shall not apply to piers or bulkheads built before the establishment of said exterior line.”</p> <p>The complaint alleged that the defendant in the year 1860, built and maintained a certain structure, being the section of a pier, in the waters of the harbor, at a point south of pier No. 1 North river, wholly outside of the exterior line established in the aforesaid act of April 27, 1860. That the plaintiff, on the 10th day of November, 1860, notified the defendant, pursuant to the act, to remove the said structure within five days from the date of the notice ; that the defendant wholly failed and neglected to comply with ■ the notice ; judgment demanded for the penalty, &c.</p> <p>The answer set up several separate defenses, alleging that the structure complained of was built under authority of the mayor, aldermen and commonalty of the city of New York, denying that it was an obstruction, denying the constitutionality of the law,' &c. &c. ; and in respect to the allegations of the complaint touching the notice, denied any knowledge or information sufficient to form a belief respecting the same, or any of them. The answer .contained no other allegation or statement of defense touching the notice.</p> <p>The cause was tried before Justice Robertson and a jury, November 20, 1863. The leading facts established at the trial were as follows : The structure in question, being a “ crib” or section of a pier, was sunk in the harbor at a point 150 feet south of pier .No. 1, and 160 or 170 feet west of the battery line and of the pier line, as established by law. It was a block forty feet square, extending seventeen or eighteen feet above the bed of the river when first sunk, a portion of it having been since removed, leaving it about eight feet above the bed of the river. It was wholly outside of the pier line. The Board of Commissioners of Pilots, at a meeting held December 7, 1858, (present a full board,) passed a. resolution adjudging the proposed construction of a pier at the place in question to be contrary to the act establishing pier and bulkhead lines for the port of New York. The board held regular meetings every week. ■ They watched the subject of the proposed pier with vigilance. It was a constant subject of discussion. As soon as the crib was .sunk the board acted promptly to remove it; “there was not a moment lost.” At a regular meeting, at which there was a quorum present, the board determined to notify the defendant to remove it. The matter was'discussed, and after discussion the unanimous action of the board was to notify the defendant to have the obstruction removed. No entry was made on the minutes, but three of the five, commissioners testified to the fact. The' president was directed by the board to fix the time within which the structure was to be removed. This was according to the general rule and practice of the board. The question of time was always left to the discretion of the president. He fixed what he considered a reasonable time. In pursuance of this authority, the president of the board did give notice in writing, which prescribed and specified five days as the time within which the structure should be removed. That notice was as follows :</p> <p>“ Office of Commissioners of Pilots, 69 South Street, )</p> <p>New York, November 10th, 18.60. )</p> <p>T.o Cornelius Vanderbilt :</p> <p>You are hereby notified to remove the block, crib or structure now in course of erection in the waters of the harbor of New York, at the foot of Battery Place, and south of pier No. 1 North river, within five days from the date hereof, and to commence such removal forthwith, the said crib or structure being wholly beyond the exterior line defined and recommended by the commissioners for the preservation of the harbor of New York, and established in and by chapter 763 of the session laws of 1857. R. Sturgis, President.”</p> <p>It was served personally on the defendant on the 10th November, 1860, and shortly afterwards on the contractor who was building the pier. The defendant made no objection to the time specified in the notice. He paid no' attention to the notice, but proceeded in the erection of the pier. The Board of Commissioners of Pilots, on the 4th December, 1860, directed the president to advertise for proposals for the removal of the structure, and after receiving and rejecting as informal and unsatisfactory various bids, finally, September 7,1861, accepted proposals of Morris & Cummins, and entered into a contract with them for its removal, to be done and performed pusuant to section 2 of chapter 522 of the laws of 1860. In the meantime an action had been commenced by the people of the state of New York against the defendant, to perpetually enjoin thfurther building of the pier, which was pending at the time of the making of the above contract, and in which an injunction had been granted. The contractors, Morris & Cummins, commenced the removal of the pier about October 12, 1861, and the defendant procured an injunction in the suit of The People v. Vanderbilt, restraining the commissioners of pilots and the contractors from proceeding under their contract, which injunction was not dissolved until the final decision by the Court of Appeals of the case of The People v. Vanderbilt, April 11, 1863. The present action for the penalty was commenced May 15, 1863.</p> <p>At the close of the plaintiff’s case, the defendant moved for a dismissal of the complaint upon four specified grounds, three of which related solely to a supposed want of validity in the notice of the defendants to remove the obstruction ; the fourth ground was, that the notice was not the act of the board.</p> <p>The plaintiff’s counsel opposed, the motion, and insisted that the case should go to the jury upon the question of fact whether the notice was the act of the board. The court refused to submit any question of fact to the jury, and granted the motion to dismiss the complaint, ordering the exceptions to be heard in the first instance at the general term, and judgment in tlie meantime suspended. The plaintiffs duly excepted, and appealed.</p> <p>I. The structure in question being wholly outside of the pier line established by law, and being built and maintained by the defendant, without any authority of law, was a public nuisance in the navigable waters of the harbor. It was condemned as such in the case of The People of the State of New York v. Cornelius Vanderbilt, by the court of last resort. (People v. Vanderbilt, 38 Barb. 282. See opinions of Allen and Ingraham, JJ. pp. 286, 291. S. C. in Court of Appeals, 25 How. Pr. 140.)</p> <p>II. The act of April 27, 1860, being a remedial statute designed for the protection and preservation of the harbor of New York for the public benefit, is to be construed with reference to the mischiefs and abuses it was intended to prevent. Although the act denounces a penalty, and is in this respect a penal statute, yet the provision in respect to notice to the" offender is for his benefit. The whole object of the act is satisfied by actual notice, prescribing a reasonable time. (Taylor v. U. S. 3 How. 197, per Story, J. p. 210. Sickles v. Sharp, 13 John. 497.)</p> <p>■ III. The notice to the defendant was sufficient, and the action of the plaintiffs fully complied with the requirements of the law.</p> <p>1. The defendant was actually notified by a formal notice in writing, issued from the office of the commissioners of pilots, and signed by the president in his official character and with his official designation. It pointed out with precision the illegality of the act of the defendant, called his attention to the fact that he was building a structure in a prohibited place, and required him to remove it.</p> <p>2. The time within which the removal was to be made was actually “ prescribed and specified in the notice. The requirement of the law in this respect was fulfilled by the terms of the notice, and the defendant was allowed the locus penitentice which the provision as to time was intended to secure to him. He raised no objection as to the reasonableness of the time prescribed, but resisted the board on other grounds.</p> <p>3. The notice itself being by its terms a compliance with the law, and fully apprising the defendant of all that he was entitled to be iriformed of, the sole question which can be raised is whether the giving of the notice was the act of the plaintiff, or, in other words, whether the notice was “ their notice,” within the meaning of the act.</p> <p>4. The words of the section drawn in question by this inquiry are as follows : “ In case of the building or erection of any such pier, &c. the Board of Commissioners of Pilots shall notify the person or persons building, or erecting, or maintaining the same within a time to be prescribed and specified in their notice, and in case of failure to comply, &c.”</p> <p>The proof shows conclusively that the giving of the notice was the act of the board. They formally decided as a board that any structure in that part of the harbor would be illegal; they exercised constant watchfulness as a board to prevent its erection; and when the erection was commenced they determined, as a board, to notify the defendant to remove it.</p> <p>5. The notice was thus “ their notice,” and as it did “ prescribe and specify ” a time within which the removal should be made, it is wholly immaterial whether the time was fixed by vote of the board or arrived at in any other way. The law is silent as to the method of arriving at the time ; it simply requires a time to be prescribed and specified in the notice.</p> <p>6. The act does not require any formal determination of the board as a prerequisite to the notice, or “ to set the statute in operation.” The fact of the violation is the basis of the notice, and, if that existed, any action of the board, however informal, to effect the removal of the encroachment, was sufficient.</p> <p>7. Nor does the act require any entry to be made or minutes to be kept of the action of the board in order to make their notice effectual. There is no law requiring the board to keep any record of this part of their proceedings in order to give validity to a notice to remove an illegal obstruction. The provisions of the pilotage law of June 28, 1853, (Laws of 1853, p. 921,) do not apply. They relate solely to the government and discipline of pilots. The commissioners act in reference to harbor obstructions under the later acts relating to that new branch of their duties, and the provisions of these acts are all that apply here. (See Striker v. Kelly, 2 Denio, 323.)</p> <p>8. But there was, in fact, an adjudication by the board, in their resolution of December 7, 1858, against any structure in this part of the harbor, and there was formal' action of the board, in its corporate capacity, at the meeting at which it was resolved to give the notice. Such action was properly proved by parol, in the absence of any entry on the minutes. (Trustees of St. Mary’s Church v. Cagger, 6 Barb. 576. Magill v. Kauffman, 4 Serg. & Rawle, 307.)</p> <p>9. The time specified in the notice was “ prescribed” by the board. The act of the president in fixing it, pursuant to the authority and direction of the board, was the act of the board. There was nothing to prevent them from exercising this power through their executive officer, and they did so exercise it by a valid delegation to him.</p> <p>10. The action of the board, subsequent to the giving of the notice, in proceeding to effect the removal, and in going on with it until stopped by the defendant’s injunction, was a ratification of the acts of the president, and if any thing were needed in respect thereto, operated to give effect to the notice as the act of the plaintiffs.</p> <p>IY. There being no statutory requirement as to the manner in which the board were to proceed, the question whether or not the giving of the notice was their act, was one of fact for the jury, and the judge, at the trial, erred in refusing to submit it to the jury, as requested by plaintiffs’ counsel.</p> <p>Y. The case is not analogous to those in which private fights are adjudged, or sought to be affected by the action of public authorities, in reference to alleged nuisances, where the question of nuisance depends on extraneous facts, the structure in question was a public nuisance per se, which any one had a right to abate, and in respect to which the provisions of the act in question were police regulations to effect their summary removal, and the duties imposed on the Board of Commissioners of Pilots were ministerial and' not judicial. (See Hart v. Mayor, &c. of Albany, 9 Wend. 571; Rogers v. Barker, 31 Barb. 447 ; Coates v. The Mayor., &c. 7 Cowen, 585.)</p> <p>I. The penalty is not imposed by the statute for erecting or maintaining the prohibited structure, but for omitting to remove it after a notice from the Board of Commissioners of Pilots, and within such time as the board shall have prescribed and specified in “ their notice.”</p> <p>II. The said penalty does not commence to run until after the expiration of the time prescribed and specified in the notice of the board. The prescribing, of the time, and a notice thereof, given by the board, are therefore conditions precedent to the accruing of the penalty.</p> <p>III. These acts must be done by the board in its collective capacity, when legally convened and acting as a board, and cannpt be done by the individuals composing the board when not acting as a board. (2 R. S. 555, § 27. Walker v. Dunspaugh, 20 N. Y. Rep. 170. People v. Supervisors of Chenango, 1 Kern. 571. Horton v. Garrison, 23 Barb. 176. Downing v. Rugar, 21 Wend. 178.)</p> <p>IV. The necessary action of the board should be shown, and can only be shown, by the minutes of its proceedings.</p> <p>' V. The power to prescribe the time to be specified in the notice is vested by the act exclusively in the board of commissioners. It is judicial in its charactor; it involves the exercise of discretion, and cannot be delegated by the board to its president. Rogers v. Barker, 31 Barb. 447.)</p> <p>VI. The board of commissioners failed in this case to do the acts necessary to subject the defendant to the penalty claimed.</p> <p>Assuming for the moment that the informal' direction of the members of the board to the president to give the notice was a valid exercise by the board of its power to notify, the omission of the board to determine and prescribe the time to be allowed for the removal was fatal, and could not be supplied by the president, either under any express or implied delegation of power.</p> <p>VII. The insertion by the president in the notice of removal of the words, “ within five days from the date hereof,” was unauthorized. He had no power under the statute to fix that or any other time ; the board could not give him that power ; they were bound to fix the time themselves. For these reasons, the notice was not the notice of the “ board,” but simply the act of the president.</p> <p>VIII. If the president had executed the direction of the board, he would simply have given a notice to the defendant to remove the crib. That notice, if given in the name of the board, would have been the notice of the board, but it would not have subjected the defendant to the penalty, for want of a determination and specification of the time allowed for the removal. The president had no power to substitute his discretion or judgment in fixing.his time for that of the board, and thus supply the deficiency in their action. No usage of the board, even if clearly proven, could give validity to such a proceeding.</p> <p>IX. The notice, obedience to which is enforced under the penalty in question, must be the notice of “ the Board of Commissioners of Pilots.” It must be given by them as a board, and it should show on its face that it is so given. The notice proved is not and does not purport to be a notice from the “board.” It is dated, “Office of Commissioners of Pilots.” It is signed “ R. Sturgis, President.” It is not even signed “ by order of the board," nor is there the slightest word to indicate that it is given by authority or with the sanction of the board. The “ board ” is not even mentioned in it,- nor is the act of 1860 referred to. It is, to all appearances, the act of the president alone, and the defendant was not legally subject to the penalty for disregarding it.</p> <p>X. The only proof of any action of the board in the matter consists of evidence of informal directions of some members not named, and alleged acquiescence of others, not entered on the minutes nor put in the form of resolutions, nor having received even the formality of a vote. The official action of a board of public officers seriously affecting private rights cannot be proved in this loose and unreliable manner. There was, therefore, no competent proof in the case of the requisite action of the board.</p> <p>XI. There was no adjudication by the board prior to the notice given by the president, and after the crib was sunk, which set the statute in operation.</p> <p>XII. An action for the penalty in question can only be maintained after a removal -by the board of commissioners of the structure complained of. (See §2 of act of 1860.)</p> <p>XIII. The complaint was properly dismissed.</p>

<p>A married woman, not separated in property, cannot accept the office of testamentary executrix, without the consent of her husband, C. C. 1657; nor can she, after acceptance, appear in court in the execution of the trust, without the authority and assistance of the latter. The cases provided for by arts. 125 of the Civil Code, "and 106 of the Code of Practice, are the only exceptions to the general rule prescribed by art. 123 of the Civil Code, that a wife cannot appear in court without the authorization of her husband.</p>

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

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

<p>"Where property sold under execution at twelve months’ credit, and conveyed to the purchaser, is resold on account of the failure of the latter to pay the price, the first purchaser, or his heirs alone, can avail themselves of any irregularities in the second sale. The original owner, having been divested of his title, by the first adjudication, cannot take advantage of any illegality in the second sale.</p> <p>A scrawl, enclosing the letters L. S. affixed to a fi. fa., will be good as a seal, where, from being used in other writs issued from the same court, it is to be presumed that the court had no engraved seal.</p> <p>A sheriff’s deed, under the-act of 10th April, 1805, headed with the title of the suit under which the property was sold, and referring to the ji. fa. which recites the judgment and mentions the court by which it was rendered, contains a sufficient refer- / ence to the judgment under which the writ was issued.</p> <p>After the lapse of twenty years, the legal presumption is in favor of the acts of sheriffs. proceedings for the forced alienation of property under the former-laws of this State, will not be scrutinized with the same rigor as those under the present Bystem, the formalities required by which are well defined in the Code of Practice.</p> <p>Under the act of 10th of March, 1834, all informalities connected with any public sale by a parish judge, sheriff, auctioneer, or other public officer, are prescribed by the ‘ [apse of five years.</p>

One Yates having obtained a judgment against Hannah Clark, caused a fi. fa. to be levied on a lot of ground in the faubourg Tremé, on the Bayou road, between Rampart and St. Claude streets, which, not bringing two-thirds of its appraised value, was sold, on the 30th April, 1840, to Robert Murphy, the plaintiff, for $1125, at twelve months credit. A conveyance was executed to him, by the sheriff, on the 5th of May.

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

<p>Appeal from the Court of Probates of New Orleans, Bermu-dez, J.</p>

<p>This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and also, from an order denying a motion for a new trial, made upon the justice’s minutes, in an action brought to recover an alleged balance due for professional services, claimed to have been rendered by the plaintiff, an attorney and counsellor at law.</p> <p>Tallman, the appellant, was executor of his father’s will. The latter died in 1849, leaving certain real estate situate in the city of Hew York, and which, by his will, was to be divided among the appellant’s sisters, and their issue, and his wife, the mother of the appellant. In 1859, there being large assessments on a portion of this real estate, it became necessary to sell and convert into it money; which, by the terms of the will, Tallman, as executor and trustee, was empowered to do. The heirs at law of the testator, interested in this property and its proceeds, were Tallman’s three married sisters, their infant children, and the infant child of a deceased sister. Tail-man, personally, had no interest whatever in it. The fact of there being infant heirs, rendering it necessary that legal proceedings should be taken to effect the desired sale, Tallman, at the request of his sisters, applied to Bowman, who had been an attorney at law in this city for nearly thirty years, and who had previously conducted some legal business for him, to take the necessary steps to effect this object. He brought him a copy of the will, which Bowman examined, and stated fully to the latter the facts of the case. Bowman informed him that “ one of two courses would be taken. Either to institute a partition suit, or to apply for a sale under the statute y that the proceeding under the statute promised to be the cheapest and shortest.” Tail-man, knowing nothing about law, being a merchant, and not wishing to incur unnecessary expense, left it to Bowman, “to take any means he knew best that would bring about the desired result in the easiest and best way.” This was June or July, 1850. The amount of the assessment was over $1600. Bowman continued his examination of the facts from this time, prepared some papers to. obtain a sale under the statute, and on February 2, 1860, procured ex parte an order, without calling the attention of the judge who granted it to its contents, appointing Tallman special guardian of the infant heirs, and directing a sale under the statute. A Mr. Wintjen agreed to purchase the property for $14,000, paying ten per cent cash, but his counsel advised against the title, on the ground that the statute, under which the proceedings were had, did not authorize the sale of the infants’ estate, and he refused to complete, and Tall-man refunded the advance. One Wilson, who had no notice of the objection by Wintjen, then agreed to purchase the property, and paid $2000 to Tallman, through Bowman, as an advance; $300 of which Bowman retained by way of personal remuneration. At the instance of Messrs. Barrett ¡& Brinsmade, his counsel, Wilson refused to complete his purchase on the same grounds that Wintjen did, and then Bowman moved to compel him. Justice Sutherland denied the motion, and Bowman advised an appeal by Tallman to the general term of'the Supreme Court, which was taken and argued, and the order appealed from affirmed. Pending the appeal, Wilson sued Tallman to recover his $2000 advance paid. Bowman, acting for Tallman, advised a defense, and interposed an answer. The case was kept at issue during several months, and finally was settled by Tallman’s paying back the $2000, and interest. Finding that the statutory proceedings taken were ineffectual to accomplish a sale, Bowman, finally, in February, 1861, brought a partition suit. By way of guarding against any one “ turning up that might think he had an interest,” to use his own language, he included in it Tallman, and several others not interested in the suit or its result, as defendants. Judgment was obtained in September, 1861, but, like its predecessor, proving erroneous in form, was finally amended by the court February 16, 1863, three years and six months from the time When Tallman first applied to Bowman, and a proper sale and investment of the proceeds by Tallman, as executor and trustee under the will, directed. By that judgment, 01023.32 was awarded to Bowman and his office, as costs. The property was sold for 019,000, and the expenses, including these costs, amounted to 03936.29. No personal promise or agreement was ever made between the parties that Bowman should be paid for his professional services by Tallman, irrespective of the estate. On May 16, 1863, Bowman sent Tallman a bill for 01396.28, for alleged services and disbursements, over and above taxable costs and allowances, which the latter refused to pay, and the present suit was then brought. The first count of the complaint is for an alleged balance of 0956.06 for costs, counsel fees and disbursements in the nugatory statutory proceedings, on account of which Bowman had received in all 01423.12. The second count is for 0150, for services in the Wilson suit; and the third count is for 0533 42, services in the partition suit, over and above taxable costs and allowances ; and the complaint closes with a general count for services from July, 1859, to May, 1863, claiming therefor 0150,- and claiming a balance of 01341.18 on the whole. The answer sets up the defense of ignorance and negligence in the institution of the proceeding under the statute as to infants’ estates denies the personal liability of Tallman, and counter claims 0450 advanced by the latter to Bowman in the matter. On the trial of the cause before Justice Monell and a jury, when both sides had rested, Tallman’s counsel moved for a nonsuit, which was denied ; the court ruling that the defense of ignorance and negligence was not sustained ; and that the only question for the jury was, “ whether Tallman intended to make himself personally liable, and whether Bowman, so understood him.”</p> <p>The jury rendered a verdict in favor of Bowman for the balance claimed and interest, 01411.06, upon which judgment was subsequently entered. A motion for a new trial on the minutes was made and denied, and Tallman appealed.</p>

<p>Simulated or fraudulent sales cannot be inquired into, by commencing by seizure and treating them as nullities.</p> <p>Plaintiff, claiming certain lots of ground, obtained an injunction to prevent the syndic from selling them as the property of the insolvent, and prayed for its perpetuation, and for a judgment upon his title. The syndic having answered, plaintiff filed a supplemental petition alleging that the sale, under which the insolvent set up title to the property, was simulated. On an exception that the supplemental petition tended to change the issue : Held, that the action was originally petitory, and the supplemental petition correctly admitted.</p>

<p>To entitle one, not a party to the cause, to an appeal from the judgment, under art. 671 of the Code of Practice, he must have a pecuniary interest, and be aggrieved. Where the interest is not apparent on the record, the case will be remanded to ascertain it.</p> <p>The act of 16 March, 1842, explanatory of art'. 924 of the Code of Practice, was intended to have a future, not* a retrospective operation.</p> <p>Notice of an application for the appointment of dative testamentary executor must be given, in all cases, in the same manner as on an application for the appointment of an administrator. The publication of such notice has not been dispensed with by the act of 16th March, 1842.</p>

<p>Application for a mandamus to the Judge of the First Judicial District.</p> <p>George A. Waggaman presented a petition representing that an action had been instituted against him in the District Court of the First Judicial District, by his wife, to withdraw from him the administration of her paraphernal property. That, at her instance, an order of sequestration had been issued, and executed on a plantation, and certain slaves, in the parish of Jefferson. That she subsequently obtained, ex parte, an order to put herself in possession of the property, on executing a bond, with surety, in the sum of ten thousand dollars. That this order was executed. That, not satisfied therewith, she asserted a right to expel the petitioner from the matrimonial domicil, in which both had resided for several years preceding. - That this dwelling, which is on the sequestered estate, was built during the marriage, and belonged to the community of acquets. That on the 24th of May she applied, ex parte, to the judge of the District Court, and obtained from him an order commanding the sheriff of the parish of Jefferson to expel the petitioner from the matrimonial domicil, and to put her in exclusive possession thereof, which order is now in the hands of the sheriff. That the judge has refused to grant a suspensive appeal from that order. Finally, that his right to reside in the matrimonial domicil is worth to him more than $300, and that the injury resulting from the execution of the order will be irreparable. In consideration whereof he prayed that the judge a quo might be ordered to show cause why a peremptory mandamus should not be issued, commanding him to allow the appeal.</p> <p>Buchanan, J., showed cause. That the plaintiff, having sued for the administration of her paraphernal property, and procured an order for its sequestration, on the 27th April, 1842, when more than ten days had elapsed since the execution of the sequestration without any application on the part of the defendant to bond the property, applied for leave to bond it herself, under the provisions of the act of 5th March, 1842, which she did.* That the effect of this bond was, to entitle the party to the possession of the property. That the defendant moved to set aside the sequestration, and, on the 19th of May, prayed for a suspensive appeal from the order of court putting the plaintiff in possession of the sequestered property, and from the interlocutory judgment overruling his motion to set aside the sequestration. That a devolu-tive appeal was allowed, and that, on the 21 st of May, the defendant, by executing a bond 'in a sum sufficient to cover the costs, acquiesced therein. That the order of the 24th of May, expelling the defendant from the sequestered, premises, was -but a supplement and incident to that allowing the plaintiff to bond the property, from which last a devolutive appeal has been granted and accepted.</p>

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

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

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

<p>As a general rule, where goods are acknowledged to have been received in good order, and are delivered in bad, the carrier will be responsible ; but he may show that the damage arose from causes which existed before the bailment, or from the defects of the thing itself.</p>

<p>Appeal from the District Court of the First District, Buchan- ' an, J.</p>

The action was brought against the defendants as indorsers of a check made by Ball, Black & Co. on the Broadway Bank.for $453.70, dated Eeb.. 23,1863, anddndorsed by the defendants, and purporting to have been previously indorsed by the payees Kirhmonn & Holmes. The case shows a check drawn by Ball, Black & Co. on .the. Broadway Bank, to the order of Kirhmonn & Holmes, and delivered by Ball, Black & Co. to one Miaglia.

The power granted by law to the tutor to give a special mortgage, is for the advantage of the tutor, and restrictive of the rights previously granted to the minor, and should be strictly construed. The intention of the legislature was to restrict the minor’s recourse in relation to the property on which he was to exercise his rights, but not in relation to the extent or amount of his rights.

Actioh to recover damages for an alleged libel published in the New York Evening Express, a newspaper owned by the defendants. On the first trial, the judge before whom the trial was had, dismissed the complaint. On appeal, the court at general term, granted a new. trial.

<p>So long as a tutrix continues to act, her domicil is that Jf the minor.</p> <p>"Where the legal tutor of a minor changes his domicil after the tutorship has devolved upon him, the new domicil of the tutor will become that of the minor, for all purposes connected with the administration of the estate, and for the appointment of a successor in case of the tutor’s death. Aliter, in France, where the tutor is dative.</p> <p>The office of under-tutor is always dative; and no law compels any one to accept such an appointment.</p> <p>The resignation of an under-tutor must be addressed to the Court of Probates of the parish in which the minor has his domicil; and it is the duty of the judge of that court to accept the resignation when tendered, and to appoint his successor.</p> <p>The answer to a rule to show cause taken against the judge of an inferior court, must be in writing, and filed with the clerk of the Supreme Court. No answer in person, or oral discussion will be listened to, except from the parties interested, or their counsel.</p>

On the 23d and 28th April, 1861, the Weedsport Bank sent to the Park Bank two drafts on the Mercantile Bank, N. Y.; one for $2000, the other for $3000, for the purpose of paying two notes of Cook, Evarts & Co. for those amounts, falling due at the Park Bank. The drafts were accordingly collected by the Park Bank, but the notes were either paid by the makers or protested and returned.

This action was brought to recover upon a contract for the, sale of a quantity of pork. The complaint alleged that in May, 1862, one Leaycraft agreed to sell and deliver to the defendants, and that the defendants agreed to purchase and receive, one thousand barrels of mess pork.

<p>Appeal from the District Court of the First District, Buchanan, J. Howe having recovered $500 damages, in an action of slander against Frazer, the latter appealed, and the judgment was affirmed. (14 La. 375.) On the 28th of February, 1840, a fi. fa. was issued against Frazer, and on the 9th of April the sheriff returned that no property had been found, after demand, &c. On the 13th of April a ca. sa. was taken out against him, and on the 18th June the sheriff returned that he could not be found. A rule was then taken by the plaintiff on Walker, the security on the appeal bond, to show cause why he should not be condemned to pay the amount of the judgment with costs, which was made absolute on the 4th June. A fi.fa. issued against the security, Walker, was returned on the 19th August, no property found. On the 21st of November the plaintiff took a rule on Norbert Yaudry, the security on'the bail bond, to show cause why he should not be condemned to pay the judgment and costs, the fi.fa. having been returned unsatisfied, and the ca. sa. not found, which rule was made absolute on the 21st of December. A fi.fa. against Vaudry was . returned on the 2d of March, 1841, no property found. An alias fi.fa. was issued against Walker on the 3d of September following, and on the 18th of November returned, satisfied by him. On the 14th of January, 1842, Walker took a rule on Yaudry to show cause why he should not be subrogated to the rights of the plaintiff against the latter, on the ground of his having paid the debt, and w’hy a f. fa. should not be issued against him, which was made absolute on the 3d of March. From the judgment making this rule absolute, Yaudry has appealed.</p> <p>Yaudry was discharged from liability on the bail bond by the act of 28th March, 1840, abolishing imprisonment for debt. 17 La. 476, 509. By paying the debt, the surety on the appeal bond was not legally subrogated to the rights of the creditor against the bail. The former cannot be said to have bound himself on the faith of the bail; he trusted to the debtor only.</p>

<p>1. In the absence of any agreement between owners of adjoining lots, for a party wall or easement, or uninterrupted, user as such by one, of a wall built on the lot of the other, the fact that the former, in building upon his lot, had. inserted his beams in such wall, if done Without permission of the other, will not entitle him to an injunction to restrain the latter from taking down such wall.</p> <p>2. A mere license from the party in whose walls such beams were inserted to the other to hang window-shutters upon stich wall, is not a ratification of the act of inserting beams in it. The mere request for such a license, and an agreement that the party applying will brick up the opening whenever requested, is a recognition, rather than an exclusion, of the rights of the owner of the wall.</p>

<p>Appeal from the Court of Probates of the Parish of New Or-, leans, Bermudez, J. Maria Josepha Robert, a natural daughter of Genevieve Robert, a free woman of color, was born in New Orleans the 30th of July, 1816, and, with her mother’s consent, went to France in 1822, where she remained until her death, in June 1837. She died unmarried, without descendants. In 1828, a legacy exceeding $6000 accrued to her from the will of one Dupuis, for the payment of which certain notes were given by the heirs of the latter. M. J. Robert left an olographic will in the following words :</p> <p>“ Je donne et legue a Monsieur Gustave Allier queje dois épou-ser, tout ce dont la loi, me permet de disposer. Betz, le vingt Mai, mil huit cent trente sept. Mama Josepha Robeet.”</p> <p>Proceedings were had, at the request of the universal legatee, before a French tribunal, and on the 18th of July, 1837, the testament, and its envelope were ordered to be deposited in the office of a notary public, appointed by the president of the tribunal. An inventory of the estate was made. The will was not proved in France, by the laws of which country the hand-writing and signature of an olographic will are only required to be proved when its genuineness is attacked. A copy of the will from the office of the notary with whom it was deposited, was afterwards presented to the Judge of the Court of Probates, by Louis Pilié, the agent of Jean Charles Gustave Allier, the universal legatee. The court ordered it to be recorded, and executed, and appointed Louis Pilié dative testamentary executor. On an appeal from the Commercial Court in the case of Robert v. Allier's Agent, 17 La. 4, it having been decided that the proceedings had in France did not amount to the proof required by art. 1682 of the Civil Code, and that the will could not be carried into effect without being proved before the Court of Probates of New Orleans, the testimony of three witnesses was taken, under a commission, in France, by whom the genuineness of the will was established. The testimony of the notary with whom it was deposited, taken under the commission, also proved, that, by the laws of France, the original will could not be taken from his office. On the return of this commission, the order for the registry and execution of the will and the appointment of Pilié as dative testamentary executor, was ratified and confirmed, and the notes given for the legacy of Dupuis ordered to be delivered to the executor, to be administerd by hi.m as the property of Maria Josepha Robert. The executor subsequently presented a petition to the Court of Probates, alleging that he had administered on the estate, which owed no debts except the costs of settlement, and that, under the will, the whole of the property, after deducting the costs, belongs to Allier, and praying that a tableau, made in conformity, might be homologated, and for his discharge. Genevieve Robert, reserving her right to appeal from the order for the execution and registry of the will, opposed the homo-logation of the tableau, alleging that, even if the will should be declared to be valid, she would still be entitled to one half of the succession ; and she prayed for its amendment accordingly. The judge of the lower court having ordered the opponent to be placed on the tableau as entitled to one.half of the succession, the executor appealed.</p> <p>By agreement of counsel the whole case is submitted to the court, as if an appeal had been taken from the judgment ordering the execution of the will and the delivery of the notes to the executor.</p> <p>It is admitted that the commission which was executed in France, establishes, by the clear and precise testimony of three witnesses, the genuineness of the testament. The notary in whose office it was deposited by order of court, testifies that the law would not permit him to part with the original. Such is also the law of Louisiana.</p> <p>The appellee contends that the execution of an olographic testament can only be ordered in this State, when the original is produced, and proved by witnesses known to the judge, and appearing before him in person. Civ. Code, art. 1648.</p> <p>If this were true, the olographic testament, the most favored by our law because the least exposed to fraud, would be most easily defeated. Arts. 1648 and 1649 are not negative laws. They provide for the more common case, where the testament itself, and competent witnesses can be produced before the court, and prescribe the mode of proceeding in that case. They do not say, that the will shall be proved in no other manner. In the same manner all other laws enacted by our legislature concerning the evidence required in support of a claim, contemplate the presence of the witnesses and express themselves accordingly. But it cannot be denied that it is’ an universal principle of our civil jurispru-’ dence, that whatever can be proved by oral testimony, can be proved also by commission. The general principle once established, it was not necessary to allude to it, whenever the subject of proof was touched.</p> <p>Whatever proof satisfies a foreign tribunal, is conclusive, in this State, of the genuineness of the will. Should less weight be given to the testimony obtained under the supervision of our own courts, and amounting to the degree required by our law ? The Code lays down general rules, and does not, nor could it trace out the endless complications of human affairs. _ The liberal provisions of arts. 1581, 1681, 1682, are quite incompatible with the narrow policy advocated by the appellee. According to her views, if it be imagined thatthe jurisprudence of other countries resembles our own on this subject, a testament which might affect property in ten different countries, would be inoperative in nine out of the ten, if the law of the country where it was first produced, should require it tobe deposited in a public office.</p> <p>The appellee maintains, that the testatrix was still a minor between twenty and twenty-one years of age ; that the capacity of disposing mortis causa of moveable property, is deterriuned by the law of the testator’s domicil; that the testatrix was domiciled in France ; that by the laws of that country a minor over sixteen years can dispose only of one-half of her property (Code Nap. 904); and that, therefore, admitting the validity of the will and the sufficiency of the proof of its execution, one-ha]f of the estate would still go to the appellee, who is the natural mother of the testatrix.</p> <p>The domicil of the testatrix was not in France, but in Louisiana. In respect to moveable property, the law of the domicil of the testator determines his capacity or incapacity. Story, 391. 4 Burge, 579. But Maria Josepha, the minor testatrix, although she resided in France, had her domicil in Louisiana, where she was born, and where her natural mother and tutrix, had always been and was then residing. A minor can have no other domicil but that of his father, mother, or tutor. Our law, Civ. Code, art. 48, is express on the subject; nor does it differ from the laws of other countries. Story, 44. 1 Burge, 38, says, “ the domicil of choice being that which the person himself establishes, it can only be acquired by him who is sui juris. It cannot, therefore, be acquired by a lunatic or a minor.” Burge quotes Voet. lib. 5, tit. 1, No. 100. Pothier, Introduction aux Coutumes, 3.</p> <p>The grounds relied on for inferring a change of domicil are, that the testatrix was sent very young to France to receive her education, and remained there fifteen years, and that the mother and natural tutrix consented to her projected marriage with Allier. On the last circumstance most stress is laid. It was a consent to an act which would have produced a change of domicil. .The change of domicil would not have been effected, except by the marriage. As there can be no such thing as a constructive marriage, so there can be no constructive change of 'domicil by a marriage which, though contemplated, does not take effect. The wife looses her original, and acquires the husband’s domicil, because she is en puissance de mari. The mother, by consenting to the marriage, cannot be considered as having affected the domicil of her daughter, for if the marriage took place, the mother lost all control over her daughter’s domicil, and if it did not, then the consent, which was clearly a conditional one, must be looked upon as withdrawn on account of the failure of the condition.</p> <p>Finally, it is said, that although the testatrix’s domicil should be considered to have been in Louisiana, still her inttffition and the construction of the will is to be governed by the law of the country where she resided defacto.</p> <p>The will is in these words: “ Je dome el legue a Monsieur Gustave Allier, que je dois épouser, tout ce dont la loi me permet de disposer.” If we were right in saying that the capacity of the testatrix is governed by the law of her domicil, (as to moveables,) and this is granted, and that her domicil still was in Louisiana, then this pretension of the appellee is entirely unsupported. The words of the testament leave it doubtful to what law the testatrix referred. Every one is presumed to know the law affecting his acts, and the testatrix, in the absence of proof to the contrary, must be presumed to have referred to the law of Louisiana, and to have known that she was governed by that law, though she might not have known how far that law restrained her capacity of disposing. But the appellee calls upon the court to presume, that the testatrix did not know by what system of laws her case was governed. “ The law of the place of the domicil in many cases affords the rule of construction, when the testator has used expressions, which are either ambiguous, or of different significations in different countries.” 4 Burge, 590. 2Td. 853. The testatrix intended to bequeath all her property, without exception, to Allier, her lover and intended husband. She had no property in France beyond her wearing apparel and some furniture, as is shown by the inventory made in France.</p>

<p>This is an appeal by the defendant Martens, from a judgment entered upon the verdict of a jury, under the direction of one of the justices of this court, in favor of the plaintiff.</p>

<p>A bequest of a sura of money “ to the orphans of the First Municipality of New Orleans,” may he claimed and recovered by the City Council of that Municipality, who are authorized to regulate its distribution among the objects of the testator’s bounty. C. C. 1536.</p> <p>In regard to the creditors of a succession, the administration of the assets and the payment of the debts of the deceased must be governed exclusively by the law of the country where the administrator or executor acts, and from which he derives his authority to collect the assets. No provision of the will could subject them to the necessity of seeking payment elsewhere. Otherwise, as to legatees, who have no claims against the succession but such as the testator pleased to give them, who might make his bounty conditional. They must take their legacies, if at all, cum onere.</p>

<p>This action was commenced May 10, 1862, on a check for $12,000, drawn by the defendant to the order of the plaintiff. The defense was, substantially, that it was understood that the check was not to be paid until certain funds were deposited in the defendant's hands by one Plin White to meet it, the check having been drawn'for his accommodation. The action was tried before a jury, and a verdict rendered for the plaintiff; but afterwards a new trial was granted on the ground of newly discovered evidence. The second trial took place April 22, 1864, and a verdict was again rendered for the plaintiff, on which judgment was entered July 9th, 1864, and the defendant appealed therefrom.</p>

Patrick, Thomas, and Peter, brothers of James Cunningham, deceased, and Mpy Duffy, his sister, were recognized by the Probate Court as the sole heirs of the deceased, and an order was made to put them in possession of their respective shares of the estate.

<p>Appeal from a judgment entered upon the verdict of a jury. The action is on a policy of insurance covering a jeweler’s stock, fixtures and tools, at Tompkinsville, Staten Island. The risk was from May 1, 1862, to May 1, 1863, and the fire occurred Tuesday night, March 24, 1863.' Shortly before the fire, the plaintiff hired another store at Stapleton, with the intention of removing there, and had packed up his stock of goods for that purpose, on the 23d of March, hut was delayed by the mechanics. A day on two before the fire he informed Mr. Diederick, the agent who had effected his insurance, of his intention, and asked him if it would he necessary to notify the company, or to have his policy transferred. Mr. Diederick said he would take the policy to the company, which he did on the 23d of March, telling them the plaintiff “ wanted to remove his stock to Stapleton,” and “ gave them a description of the building,” leaving the policy with them. The plaintiff called for it the day after the fire, hut could not get it, and it was kept by them until the second day, when the secretary, Mr. Bates, brought it to the island, with an indorsement of transfer, made by the defendants’ secretary, as follows : “ Transferred to cover similar property contained in the brick building, part dwelling and store, (hazardous,) situate on the west side of Bay street, near Gore street, Stapleton, S. I.” and on the same day, March 23, a note of the transfer was made on the defendants’ books. .</p> <p>On the trial the court submitted the questions of fact 'to the jury, but withdrew from their consideration the defense that the policy had been transferred to another building, and the counsel for the defendants excepted. The jury rendered a verdict for the plaintiff, upon which judgment was entered, and the defendants appealed. No motion for a new trial was made at special term, nor did the court direct that the exceptions be heard in the first instance at general term.</p> <p>I. The insurance broker, Diedrick, was duly authorized by the plaintiff to procure the transfer of March 23d. The testimony of Diederick establishes that authority. Nor is the testimony of the plaintiff, when carefully considered, in conflict with Diederick’s on this point. The least favorable ruling to which the defendants were entitled was, therefore, that the question of authority in Diederick to effect the transfer should be submitted to the jury; the refusal of the court below to submit that question to the jury was erroneous.</p> <p>II. The assent of the company to the requested transfer is sufficiently evidenced by the indorsement made on the policy, nor was any question made at the trial upon the sufficiency of the evidence on that point. At all events, the indorsement made by the secretary in the usual course of business, and at the company’s usual place of business, and entered in the company’s books in the absence of the president, was prima facie sufficient evidence of the company’s assent to the transfer, even though the secretary’s act had not been shown to have been subsequently approved of by the president. (Angell on Fire and Life Ins. § 217. Conover v. Mutual Ins. Co., 1 Comst. 290. Bodle v. Chenango Mut. Ins. Co., 2 id. 53.)</p> <p>III. The refusal of the court to permit the defense of the transfer to go to the jury, on the ground that there had not been a delivery of the transfer sufficient to bind the plaintiff, was erroneous, (a.) No delivery whatever of the transfer is required by law to consummate the contract of transfer. The mere making, out either of a policy of insurance or a transfer of it, and the entry of it in the underwriter’s "books, after the terms are agreed on by all the parties, makes a complete contract between all parties, although the policy or transfer is not delivered. And the underwriter holds the policy as the bailee, of the assured. (Kohne v. The Ins. Co. of North America, 1 Wash. C. C. R. 93. Perkins v. Washington Ins. Co., 4 Cowen, 646. McCullock v. Eagle Ins. Co., 1 Pick. 278. Loring v. Proctor, 26 Maine Rep. 18. 1 Duer on Ins. p. 66. Lightbody v. North American Ins. Co., 23 Wend. 18. Angell on Ins. § 33. Hamilton v. Lycoming Ins. Co., 5 Barr, 339. Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6.) (b.) In the present case, there was some evidence of a delivery of the transfer, as it was put away for the plaintiff.</p> <p>IV. The contract of transfer of March 23d having thus been made by the plaintiff’s authority, and assented to in a binding form by the defendants, was one which absolutely removed the protection of the policy from the plaintiff’s goods, while in the store at Tompkinsville, forever after. And the circumstance that the goods had not been removed from that store at the time of the fire, ought not to invalidate the contract of transfer of the policy. The ruling of the court to the contrary of this proposition was erroneous.</p> <p>I. The judge properly withdrew from the jury the defense that the policy was transferred to another building.</p> <p>(1.) The insurance was on personal property at Tompkins-ville, and did not expire jintil May 1, 1863. No application was made to the company to have the risk discontinued before removal, but the application was solely for their consent to the removal of the goods to Stapleton, and the continuance of the insurance on them there after such removal. The company, therefore, had no right to make any other indorsement of transfer.</p> <p>(2.) There was no consideration for the agreement to transfer the risk to Stapleton, until the insured property was removed. The company had agreed to insure the goods at Tompkinsville until the 1st of May, and the only consideration for the alteration of that contract was the transfer of the property. Until then the original agreement was in full force.</p> <p>(3.) The indorsement on the policy had never been delivered to the plaintiff, or accepted or approved by him, and therefore it had no binding effect. It was clearly his intention not to have the policy transferred until his goods were removed, and if the company indorsed a'different transfer, it was not binding upon him until accepted or ratified by him.</p> <p>(4.) There is no evidence that the book-keeper who transferred the policy was authorized to do so.</p> <p>II. If the court was right in withdrawing that question from the jury, it properly refused to submit to them the question whether the plaintiff conferred sufficient authority upon Diederick to effect a transfer of the policy.</p>

<p>Appeal from the Court of Probates of New Orleans, Bermu-dez, J.</p>

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

Appeal by the defendant, from a judgment entered on the verdict of a jury. The facts appear in the opinion of the court. I. The .complaint in this action presents a case which, prior to the Code, would have been termed an escape on mesne process. For such an escape the Revised Statutes prescribed a remedy, which is still in force. (2 R. S. 437, § 62.) 1.

<p>Application for a mandamus to the Judge of the Court of Probates of New Orleans, Bermudez, J.</p>

for a re-hearing, urged that the court had misconstrued the decision in Lafon v. Lafon's Executors. The original judgment, from which an appeal was sought in that case, had been rendered against the executors personally, and the court correctly held that they could not be sureties on the appeal bond. Had the judgment been against the estate, they would have been sufficient.

<p>No action will lie against a partnership, for money lent to one of the partners in his own name, to be put by him into the partnership as his share of the capital, and to be repaid to the lender out of his portion of the profits of the business. The right of action exists only against the borrower, and-not against the partnership, with which the lender never contracted.</p> <p>No action can be maintained by a partner against the firm, to withdraw his portion of the capital, before the expiration of tbe term for which the partnership was to exist.</p> <p>Partnership ’funds must be applied to the payment of the partnership debts, in preference to debts due by a partner individually.</p>

<p>Seaworthiness is an implied warranty in every contract of insurance. It is a condition precedent, without which the liability of the insurers cannot exist, although the unseaworthiness may result from some vice or defect unknown to the insured.</p> <p>Where a vessel is lost in consequence of some of the perils insured against, the presumption is in favor of her seaworthiness; and it is incumbent on the underwriters to show that this warranty has not been complied with. But where a loss occurs, which cannot be ascribed to stress of weather, or accident, the presumption will be that the vessel was not seaworthy; and the burden of proof must be on the in-' sured.</p> <p>A policy of insurance protects against extraordinary accidents and perils; but cannot be considered as securing indemnity for natural decay and ordinary wear and tear.</p> <p>The party insured will be responsible for any loss, occasioned by want of proper care on the part of his agents.</p> <p>Although, generally, the warranty of seaworthiness refers to the commencement of the risk, the fact of being seaworthy then, does not satisfy the warranty. The vessel mast be kept in a seaworthy condition, or restored to it in the successive stages of the voyage, so far as it depends on the insured or his agents.</p>

<p>This is an appeal by the defendants, from a judgment of the court, at special term. The action was by the plaintiffs, as judgment creditors of the defendant, Bridge, to set aside, as fraudulent, the transfer of certain goods and choses in action to the defendant, Burdick, and vacate a judgment recovered in the Supreme Court, by Burdick against Bridge, and the appointment of Finn, as receiver of the property, &c. of Bridge, in supplemental proceedings based upon the return of an execution unsatisfied, issued upon that judgment.</p> <p>The action was brought to trial upon the pleadings and evidence at a special term of this court, held on the 18th day. of October, 1863, before a justice of this court, who found the following facts :</p> <p>1st. That on the 29 th day of October, 1862, the plaintiffs recovered a judgment in the Court of Common Pleas of the city and county of New York, against the defendant Charles Bridge, for $1980.28 ; that said judgment was obtained upon promissory notes made in December, 1860, and January and February, 1861, that fell due in the months of August, September and October, 1861; and that an execution against the property of the said Charles Bridge was duly issued to the sheriff of the city and county of New York; and that said execution was, on the 30 th December, 1862, returned wholly unsatisfied.</p> <p>2d. That on the 24th day of April, 1861, the said Charles Bridge was in possession of a store of goods,'No. 359 Broadway ; that on that day he made a sale for $24,072 of his entire stock of goods to the defendant Burdick; that at such sale Burdick paid $1000 in cash, and gave his notes, payable at times ranging from two to twenty months, for $23,072. That at this time said Bridge was insolvent, and known by Burdick to be so ; and that such sale was made for the purpose of hindering, delaying and defrauding creditors of said Bridge, within the knowledge of the purchaser.</p> <p>3d. That at divers times between the said 24th day of April and 17th of June, 1861, the said Bridge sold to Burdick a large amount of his bills receivable and book accounts, for the sum of $32,650. And that on said sale the said Burdick gave his promissory notes, payable at various periods, running from two to twenty months ; and that such sale was made with intent to hinder, delay and defraud the creditors of said Bridge, within the knowledge of the said Burdick.</p> <p>4th. That on thé 17th day of June, 1861, the said Bridge confessed a judgment to said Burdick for $10,624.68, and costs $6.94, in the Supreme Court, first district, upon a statement as set forth in the complaint; and that on the 24th day of said June, 1861, a certain other judgment, by offer,-was entered in said Supreme Court in favor of said Burdick, against said Bridge, for $6813.60 ; that the summons in the suit was served on the 24th day of June, and on that day the said Bridge attended at the office of the plaintiff’s attorney, and offered to permit a judgment to be entered for the entire amount mentioned in the complaint; that thereupon judgment was entered, and executions were issued to the sheriff of the city and county of New York, against said Bridge, on both of said judgments, and were returned on the 29th of June, wholly unsatisfied ; that at the time when executions were issued and returned, the said Bridge had real estate in the city of New York liable to execution, and on which the judgments were a lien within the knowledge of said Burdick ; that thereupon certain other proceedings supplementary to the executions on said judgments were instituted, the said Bridge was examined, and the defendant Archibald T. Finn, on the 27th of July, 1861, appointed receiver of all the property of said Bridge, and entered upon the discharge of his duties ; that said judgments, by confession, were entered with intent to hinder, delay and defraud creditors of the said Bridge, and to place his property beyond the reach of their executions; and that the appointment of Finn as receiver was collusive, and made with intent of placing the entire estate of said Bridge beyond the reach of his creditors.</p> <p>As conclusions of law the justice found :</p> <p>1st. That the several sales of said goods, and bills receivable and book accounts, by said - Bridge, to said Burdick, were void as against the plaintiff, and that the same be set aside.</p> <p>2d. That the judgment by confession, on the 17th June, 1861, in the Supreme Court, was fraudulent and void, and that the same he'vacated.</p> <p>3d. That all parties being of opinion that the defendant Einn was a suitable person to be "appointed receiver in this action, he should so be appointed receiver, and directed to possess himself of all property which went into the hands of said-Burdick, or the proceeds thereof, and out of the proceeds of any property that might come to, or then was in his hands, he first pay the judgment to the plaintiffs, together with interest thereon, and costs and allowances, fixed at $100 ; arid that the plaintiffs were entitled to a judgment against the defend- • ants Bridge and Burdick for their costs, in case the funds in the hands of the receiver were insufficient to pay the same.</p> <p>Judgment being entered accordingly, the defendants appealed.</p>

<p>Where one who sells a certain quantity of land, afterwards fixes the boundaries himself, the purchaser will take all the land between the boundaries. C. C. 850.</p> <p>A tenant cannot dispute the title of his lessor, nor change his possession by setting up other titles. The possession of the lessee is that of the lessor.</p>

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

<p>A purchaser who shows a judgment, execution, and sale under which he holds, has a title sufficient to acquire by the prescription of ten and twenty years; and no infor-malities in the sale can affect his title, where he has possessed under it the time required by law to acquire the property by prescription, before such informalities were set up.</p> <p>The date of the election or resignation of a Senator of the United States, of the appointment of a member of the President’s Cabinet, or of a Foreign Minister, are matters of historical notoriety, which the court will notice though not proved in the record.</p> <p>One who left the State to discharge the duties of a Senator of the United States, and who, on resigning, was made a member of the President’s Cabinet, and subsequently .a Foreign Minister, will not be considered as having lost his domicil in this State, where no act has been done evincing any intention to acquire a new domicil (C. C, 46) } and prescription will run against him as if actually within the State.</p>

• This was an action by the endorsee of a note given for the price of a slave, made by the defendant, and payable to the order of one Noe, by whom it was endorsed.

This was an opposition to a tableau of distribution .filed by Jean Baptiste Lambert, as syndic of his own creditors. The opposition alleges that the tableau allows $1195 15, to Marie Angelique Lambert, wife of the insolvent, in part payment of heir dotal rights ; that the wife brought no property in marriage, and has no claim to any dower; and that the husband has colluded with her for the purpose of defrauding his creditors.

<p>Where, subsequently to the execution of the official bond of a sheriff, a new office is created, by which his duties and emoluments are altered or diminished, his sureties will be discharged from any liability, either to the state or to third persons, for his future conduct. The contract cannot be changed without their consent; and no act was required to b.e done, on their part, to exempt them from future responsibility.</p>

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

<p>1. The question whether a sale-of property was made with the intent to hinder, delay or defraud creditors, is a question of fact for the jury, and not a question of law.</p> <p>/ 2. Whether there was an actual and continued change of possession of 'the property sold, is a question of fact for the jury; and if there is no such change of possession, the presumption of law is that the sale was fraudulent and void.</p> <p>3. The words “ actual and continued,” in the statute of frauds, are applied to the change of possession. They mean an open, public change of possession which is to continue and be manifested continually by outward and visible signs, such as render it evident that the possession of the judgment debtor has ceased. He must cease from his apparent as well as real ownership:</p> <p>4. It is erroneous for the judge to charge that the circumstances proved show a change of possession, and a continued change of possession; or that the payment of money to the-alleged purchaser, on account of the proceeds of sales of the goods, is sufficient evidence that the property was in the possession of such purchaser,- and remained in his possession.</p>

<p>Defendant purchased certain shares of stock in the Union Bank of Louisiana, binding himself to pay plaintiffs a balance due thereon by his vendor. In the contract of sale the latter bound himself to transfer the stock to defendant on the books of the Bank. On an application to the Board of Directors, under the 29th section of the act of 2d April, 1832, incorporating the Bank, to allow a transfer of the stock, the proposition was approved by a majority of the Board, as required by law. The Bank having subsequently sued for the amount due on thd stock assumed by defendant, the latter pleaded that he could not be made liable till the stock was transferred to him. Held, that the stipulation that the vendor should transfer the stock on the books of the Bank, meant only that he should cause the defendant to be recognized as a stockholder on its books ; and that the contract was complete as to all parties interested, on the execution of the act of sale made under the authority of the Directors.</p>

<p>The vendee may, generally, establish the sale, by proof of the acts and admissions of his vendor. Where fraud is suspected, the admissions of the alleged vendor, must bo received with caution, but cannot be absolutely rejected.</p>

<p>1. A condition, in a grant of land by the corporation of the city of New York, that the grant shall be void in case it shall at any time afterwards appear that the grantee was not seised of an estate in fee simple absolute to the eastward of the lands so granted, is a condition subsequent, and does not defeat the estate, unless proceedings are taken by the corporation for that puipose.</p> <p>2. Such a grant is subject to the condition contained in a grant of the same lands, from the state to the corporation of the city, that in every grant by the latter, the owner of the adjacent upland shall llave a preference.</p> <p>3. There is a marked distinction in the object of statutes which avoid a particular provision in an instrument, and -that of those which avoid a whole instrument on account of the illegality of the purpose of a part. In the former case, such provision is made void as a matter of policy as to it alone; in the latter, the whole instrument is looked upon as an engine of fraud or other violation of the statute, in which the valid and invalid parts arc inseparable.</p> <p>4. The statute making void grants of land held adversely, at the time, by another, does not make the whole instrument void. Only tliat part which violates the law becomes inoperative.</p> <p>i 6. The statute which makes the acceptance of a grant of lands held adversely a misdemeanor, does not invalidate a grant of other lands, in the same conveyance.</p> <p>6. The amendment of section 111 of the Code of Procedure, passed in 1862, allowing the grantee of lands held adversely to bring an action in the name of his grantor, against the party in possession, repeals, by implication, the statute making the taking of a grant of land held adversely, a misdemeanor; it seems.</p>

<p>Where, on an application under the act of 3d April, 1833, for the appointment of commissioners to assess the damage or advantage resulting to the owners of ground, required for the opening or improving of streets or public places in the city of New Orleans, or adjacent to such improvements, it is alleged in the petition that the proposed improvements tend to the benefit and improvement of the whole corporation, the commissioners will be relieved from the duty of inquiring whether they are of a local or general character, and the Municipality, by which they were ordered to be made, will be bound to the owners for whatever amount they would have been liable under the act, had the commissioners expressly declared such improvements to be beneficial to the whole corporation.</p>

<p>The defendants have appealed from a judgment of the Commercial Court of New Orleans, Watts, J., in favor of the plaintiff, for the amount of the appraisement of a lot of ground, abandoned to the defendants, under the provisions of the act of 3 April, 1832, relative to the opening and improvement of the streets and public places in the city of New Orleans.</p>

The judgment of the District Court is erroneous. The principal is considered to be always in the custody of his bail, who may surrender him when they please. 8 Pick. 138. 5 Espinasse, 172. 17 Mass. 169. 2 Comyn, 46, note f. No. 13, No. 18, p. 50. 7 Johns. 144. 2 Mart. 57. The principal may be arrested by the agent of the bail. 1 Moore’s Index, 120. 2 Wheeler, 108, No. 2. 1 Johns. Cases, 413. 7 Johns. 144. Code Pract., arts. 233, 234.

This was an action brought upon an award made between the parties by. Benjamin A. Mumford. The complaint sets out the award, and claims the amount awarded with interest. The answer claims that the award is void in law. The action was tried on December 8,1863, before Justice Monell and a jury. At the close of the evidence the presiding justice directed the jury to find a verdict in favor of the plaintiffs for the amount claimed to be due on the award with interest.

This was an action to recover from the defendants, owners of the ship Harkaway, damages for the non-delivery of a case of merchandize shipped by the plaintiffs. The petition did not allege that the defendants had been put in default. The violation of the contract of affreightment, was a passive one, and the plaintiffs cannot recover, without proving that the defendants were put in mora. Civ. Code, arts. 1925, 1926.

<p>1. A complaint alleged that the defendant obtained from the plaintiff her indorsement upon a treasury draft, by certain false and fraudulent statements, to wit: that he would not take the proceeds of the draft to Qalifornia, but that after paying certain claims, he would immediately return the remainder of the pro? ceeds to the plaintiff, and would advise her how to invest the same, &c. jHeld that such statements being merely promises for future conduct, and not representations of existing facts, were not of such a character as to make the defend- ' ant responsible, in an action for fraud in procuring the plaintiff’s indorsement upon the draft.</p> <p>2. To be actionable, representations mpst be of some fact alleged to exist at the time, and be made for the purpose of inducing the other party to do or part with something.</p> <p>8, In an action of that nature, the plaintiff is confined to proof of the facts alleged in the complaint.</p> <p>4. Whatever objections to a complaint a defendant, by answering, waives, he does nqt waive the objection that it does not state facts sufficient to constitute a cause of action.</p> <p>6. Where a drift, together with the proceeds thereof, comes lawfully into the possession of another, this bars a recovery, for either, in an action for fraud in obtaining the draft, or tort for the conversion of the proceeds.</p> <p>6. Where the plaintiff having an election to charge one of two parties with a debt, in the alternative, charges one of them by eommmencing an action and recovering a judgment against him, the other is discharged. Having made his election, the plaintiff must abide by it.</p>

<p>The provisions of the Civil Code which establish mortgages in favor of minors and married women, at least so far as they are tacit and exist without being recorded, are confined to persons who marry in this State, or receive their appointments as tutors from our courts, or who, after marrying or receiving such appointments abroad, come to reside here ; and in the latter case, such tacit mortgages exist only for sums received since their removal to this State.</p>

<p>1. A court of equity has power to give relief, where there has been a mistake or omission in a written agreement, and may, in a proper case, conform an agreement to the expressed intent of both parties.</p> <p>2. In -such cases, parol evidence of the agreement, or intent of the parties, is admissible to prove that by mistake something material has been omitted in the written contract; or that it contains more than was intended; or that it varies from their common intent, by expressing something different in substance from what was intended by both.</p> <p>3. Although the power of a court of equity to give relief in such cases, is unquestionable, it is to be exercised with great caution; and unless' the mistake is clearly made out, by proof entirely satisfactory, the court will withhold relief upon the principle that the written paper ought to be treated as a full and correct expression of the intent of the parties, until the contrary is established beyond reasonable controversy.</p> <p>4. A mistake of the law, by the attorney of one of the parties to an agreement only, or a misapprehension of the agreement, by the party whose attorney he was, is not sufficient to justify the reformation of the contract.</p> <p>6. A contract for the sale and purchase of land was made on the 1st day of July, 1863. By its terms the deed was to be delivered, and possession given, on the 1st day of November, 1863; and the premises were to be conveyed free of all incumbrances “ except the party of the second part to pay proportion of the taxes for the year 1863, from November 1, 1863.” Held that in view of the fact that the taxes to be paid were those imposed for the year 1863, without reference to the time of confirmation, the plain construction of this clause was that the purchaser was to pay in the proportion of one sixth of the amount; being the proportion which the period of time from November 1, 1863, to the end of that year would bear to the whole of that year. And that unless the evidence was clear, distinct and preponderating, that the written agreement did not express the meaning or intention of the parties, such instrument must prevail.</p> <p>6. Seld, also, that the equity was wholly with the purchaser; for it would be unconscionable to compel him, without the clearest proof of his agreement, to pay the taxes from January to July, for six months prior to his contract; and from July to November, while the vendor had the use and occupancy of the premises in question.</p>

<p>The execution of an attachment bond, is no waiver of the party’s right to show that the facts on which the attachment was obtained are unfounded, or that the property attached does not belong to the defendant.</p> <p>The sureties on a bond given for the release of property attached, the condition of which is that they shall satisfy whatever judgment may be rendered in the suit, though not parties to the action, may plead the nullity of the judgment, when called upon to satisfy it. Their undertaking was, to satisfy any judgment legally obtained. When a judgment is absolutely null, any one having the least interest in opposing its effect, may have such nullity pronounced.</p>

<p>Where a name has been used by a partnership for the purpose of a fictitious credit, with the consent of the partner in commendam, the latter cannot avail himself of the provisions of art. 2821 of the Civil Code, to withdraw the amount advanced by him, or to free himself from responsibility, either towards his partner or third persons.</p> <p>The father and natural tutor having advanced the capital for a minor child, not yet emancipated, constituted her, by notarial act, a partner in commendam. 'Held, that the authorization to enter into the partnership, having been given by notarial act, was equivalent to an emancipation ; that the father clearly intended to give her the necessary authorization to enter into the partnership ; and that whatever words may be used, effect will be given to the intention of the father, if expressed in an act clothed with the necessary solemnities.</p> <p>An emancipated minor may engage in trade, and he will be bound by his commercial engagements as a person of full age. C. C. 379, 1867, 2222. He may form a general partnership, as well as one in commendam.</p> <p>The ratification by a husband of a contract of partnership entered into by his wife, an unemancipated minor, before marriage, will be binding on the latter, he being by law the administrator of her dower- C. C. 2327, 2329, 2330. 2334.</p> <p>The dissolution of a partnership is not an act of administration, and, therefore, requires a special power. It does not come within the general powers of an agent. C. C. 2966.</p>

<p>Appeal from a judgment entered upon the verdict of a jury. The complaint was upon a promissory note,, made by the defendants’ testator, Darius Holbrook, for $8000, dated at Boston, January 21,1856, and payable to the order of the plaintiff, twelve months after date, with interest.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>I. By the terms of the agreement, the equitable title to the land therein mentioned was vested in the purchaser Holbrook, subject to be defeated only, in case of non-payment of the note, and the exercise by the plaintiff of the power of sale contained in the agreement. The nominal title was in the plaintiff, but the real interest and ownership were in the purchaser. (2 R. S. p. 111, § 66. Thompson v. Gould, 20 Pick. 134. Seton v. Slade, 7 Vesey, 264-274. Story’s Eq. Jur. §§ 738, 790.) The parties did not prescribe forfeiture on default of payment of the note, but agreed expressly for a sale of the land and the application of the proceeds.</p> <p>II. The effect of the whole agreement, taking the note as. part thereof, was to vest in the plaintiff an equitable mortgage upon the lands, which could be foreclosed only by decree in equity or by an execution of the power of sale contained in the agreement. The rights of the parties and their remedies were precisely the same as if the plaintiff had in fact conveyed to the purchaser and taken back a bond and mortgage for the consideration. (Story’s Equity, 440, § 1217. 4 Kent’s Com. § 58, pp. 151, 144, 3d ed. and cases cited.) The case is to be treated then as an action against executors on a bond secured by mortgage. (Neate v. Duke of Marlborough, 3 Mylne & Craig, 407-415. Bac. Abr. Heir & Ancestor, H. 1. 2 Tidd’s Prac. 9th ed. pp. 936-938.)</p> <p>III. The testator being domiciled in the state of New York, the law of this state affords the rule for the administration of his personal assets. (Suarez v. Mayor, &c. of New York, 2 Sandf. Ch. 173. Story’s Confl. of Laws, §§ 485-7. Lyman v. Parsons, 20 N. Y. Rep. 103.)</p> <p>IV. By the laws of this state, whenever any real estate, subject.to a mortgage by any ancestor or testator, shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator of the ancestor or testator, unless there be an express direction in the will of such testator that such mortgage be otherwise paid. (1 R. S. marg. p. 749, § 4.)</p> <p>(a.) The effect of this provision is to throw the payment of the mortgage in the first instance on the land as the primary fund or security, so that the holder of the mortgage must exhaust his remedy upon the land before resorting to the personal estate.</p> <p>(b.) The land becomes the principal, and the personal estate the surety</p> <p>V. This being the rule of administration, according to the law of the domicil of the testator, under or through whom the devisees must claim, it will be applied to onerate the devisee, and exonerate the personalty wheresoever the lands may be situate.</p> <p>VI. By invoking the aid of the forum of the domicil, the. plaintiff submits to and mtist be ruled by the rules there prevailing and regulating the administration of the personalty. (Story's Confl. of Laws, § 18, et seq. Huberus, in Story, § 29.)</p> <p>(a.) He certainly can have no greater rights on a.mortgage upon lands situate out of the state, than on a mortgage upon lands situate within the state.</p> <p>(6.) The mortgagee claims to charge the personal estate in the first instance ; that estate is administered according to the law of the domicil; and by the law of the domicil the personal estate is not chargeable in the first instance.</p> <p>(c.) The question involved pertains to-remedv, and all remedies are governed by the lex fori. (Story’s Confl. of Laws, § 634, a.)</p> <p>VII. If.it be said there is no proof of the domicil of the testator, the answer is, that in the absence of proof the presumption is, that the domicil is in the place of the forum where judicial action is invoked. (Best on Presumptions, Law Lib. vol. 31, N. S. p. 144.)</p> <p>VIII. In the absence of any proof as to the law of Massachusetts, where the contract was made, and where the land is situate, the presumption is that the law conforms to the rule existing here. (Leavenworth v. Brockway, 2 Hill, 201. Robinson v. Dauchy, 3 Barb. 20.)</p> <p>I. There being an express provision of the Revised Statutes, (2 R. S. 88, § 32,) which would prevent the issue of an execution in this cause, without leave of the surrogate, no question as to the fund out of which the judgment shall be paid can arise here. That will arise upon an application to the surrogate. The only question that admits of debate in this forum, is whether the note was a valid obligation of the testator, and whether the matters stated in the answer discharged the obligation.</p> <p>II. The section in question was intended to introduce a rule in the marshalling of assets in the proper forum, but not as a bar to an action at law. It does not, by its terms, purport to affect the rights of creditors, but only to readjust equities as between heir" and administrator. Johnson v. Corbett, (11 Paige, 265,) was originally a proceeding in the surrogate’s court) involving the marshalling of assets. It will be time to apply the rule when we apply to the surrogate for leave to issue execution. If the action had been against a person still in life, it might as well have been pleaded that his family biblfe was all he possessed, and that thus, by law, his entire estate was exempt from execution.</p> <p>III. Although the Code has given admissibility to equitable defenses in what were formerly actions at law, yet the answer does tiot set up even an equitable defense. At most, if at all, it only asserts, by way of bar to an action on a promissory note, that a state of facts may exist which requires the testator’s assets so to be marshalled as to exonerate his personal estate in Whole or in part from the payment of this demand. This is no reason why the court should not pronounce judgment as to the validity of the obligation.- A court of equity would not have stayed the prosecution of an action at law on that ground alone.</p> <p>If the above points are not decisive of the appeal, then we contend:</p> <p>IV. As a rule for the marshalling of assets, the section would be inapplicable, even in the forum, viz. the surrogate’s court, where it might be proper to discuss it.</p> <p>1. The case is not within the terms of the section. There is no 11 mortgage given” by the ancestor. There was a power to sell, expressly reserved by the vendor, but that is no more than impliedly existed in Johnson v. Corbett.</p> <p>2. The section relied upon is not a rule for the executor in the distribution of the personalty, but is a rule governing the tenure of real estate.</p> <p>3. The lands are outside of the operation of the statute. They are in Massachusetts, where they.would descend or be taken by devise, pursuant to the law of that state, which is presumed to be the same as the common law. (Holmes v. Broughton, 10 Wend. 75. Starr v. Peck, 1 Hill, 270. Abell v. Douglass, 4 Denio, 305. Throop v. Hatch, 3 Abb. Pr. 23.)</p> <p>4. Therefore, neither the heir nor the land would be chargeable with the debt, unless the executor, upon-an accounting here, could show that the common law created the charge. The plaintiff could claim the benefit of our statutory rule of distribution, without being barred by a rule which has no subject within this state to operate upon.</p> <p>V. Notwithstanding the section relied upon by the defendants, the personal estate of the testator is the primary fund for the payment of the note, even in the surrogate’s court, either at common law or under our statute. (Livingston v. Newkirk, 3 John. Ch. 312. Champion v. Brown, 6 id. 398.) These cases were decided before the Revised Statutes; but Johnson v. Corbett, (11 Paige, 265,) is an authority to the same effect, since the Revised Statutes went into operation.</p> <p>VI. As explanatory of the position above taken, and of Johnson v. Corbett, it is submitted that in the marshalling of assets, before the time of the Revised Statutes, there were two cases in which the rule prevailed that the personal estate must exonerate the realty from an obligation of the ancestor. The first was where the ancestor had borrowed money on mortgage. (5 Edmonds’ R. S. p. 338, Bevisers’ note to this section. Duke of Cumberland v. Codrington, 3 John. Ch. 229.) The reason was, that as the personal estate had got the benefit, temporarily, and the ancestor intended and was bound to repay the money, the fund which had got the benefit must bear the burden. The second case in which the rule prevailed was, where the ancestor had contracted to buy real estate, and had died before the contract was consummated by a conveyance. In this case the reason for the rule must have been that the ancestor intended to aggrandise his real estate permanently, at the permanent expense of his personalty, an intention perfectly plain in the case at bar. The section in question was intended only to reverse the rule in its application to the former case. (Revisers’ note, ubi supra.) Its intended effect is, therefore, fully given to it by limiting its application to the first class of cases, as in Johnson v. Corbett. And, to that extent, the rule was altered, as the revisers’ note shows, not because it was a bad one, nor because the reason for it was not a good one, but solely in deference to the presumed understanding of persons making wills.</p> <p>VII. The fact that the plaintiff held stock as collateral security constitutes no defense, either at law or in equity.</p>

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

<p>A stipulation that a certain sum shall be paid to a third person, towards the extin-guishment of a debt due to him from one of the parties to the contract, is not a stipulation pour aulrui. It is for the exclusive benefit of the stipulating party.</p> <p>A fixed price is one of the legal requisites of a contract of sale ; and though it be agreed that the price shall be fixed by a third person, if it become impossible, or be not done, the contract will remain imperfect.</p>

<p>Appeal by the defendant, from a judgment and from an order denying a motion for a new trial on a case and exceptions. The cause was tried before Justice White and a jury. • The action was for brokerage and commissions on the sale of the steamers “Augusta,” “Alabama” and “Florida” to the United States, in August, 1861. The agreement between the parties upon which the action is brought was under seal, and dated on the 9 th day of May, 1861, as follows :</p> <p>“ Whereas, I desire to sell the steamers Augusta, Alabama, Florida and Star of the South. Now, in consideration thereof, .and of one dollar to me in hand paid by Thomas B. Stillman, of the city of New York, I do hereby constitute him, the said Stillman, my true and lawful agent or attorney, to dispose of said steamers, or either of them, at such prices and on such terms as may be hereafter agreed upon; and I do hereby agree to pay to said Stillman, his heirs or assigns, ten per cent of the total amount that said steamers or either of them may be sold for. Witness my hand and seal, this ninth day of May, 1861.</p> <p>Samuel L. Mitchell.” [l. s.]</p> <p>The complaint alleges the employment of the plaintiff as a broker of the defendant to procure a purchaser of said vessels, or effect a sale thereof, and the execution and delivery of the agreement, and that the plaintiff entered upon the performance of his duties, as such broker, and exerted his best abilities to 'effect a sale of the vessels,' and expended his time, labor and money in such effort, and went to Washington city and offered the vessels for sale to the United States government, and recommended their purchase by the government, and entered into negotiations for the sale thereof. That afterwards, and in August, 1861, the three vessels were sold to the government for $276,500, in consequence of the efforts and labor of the plaintiff!, and that the defendant has not paid the commissions, or any part thereof.</p> <p>The answer denies the allegations of the complaint, except as expressly admitted. For a further answer, it is alleged that the plaintiff, on or about the 9 th of May, 1861, applied to the defendant for his signature to an application for office, and at the same time suggested that he had friends at Washington, and if he had a paper showing his authority, he might be able to sell the steamers, and that the-defendant signed the agreement after persuasion by the plaintiff. That the plaintiff, never to the defendant’s knowledge, expended any money for the purpose of effecting a sale of the steamers, nor did he procure any customer for the ships, or either of them, or introduce, or set on foot any negotiations for the sale of the same. That the steamers were owned by the New York and Savannah Steam Navigation Company, which fact was well known to the plaintiff, and the steamers were sold by the company, without the intervention of the plaintiff, who had abandoned all right to sell them, and the defendant had revoked the authority, and the steamers were sold through another agent, who had been paid by the defendant. For a further answer, it is alleged that no price or terms were ever agreed upon between the parties for the sale of the vessels. On' the com trary, the plaintiff, before the 10th of August, 1861, reported to the defendant that the government would not purchase side-wheel steamers, whereupon the defendant in behalf of the company employed another agent who sold the vessels.</p> <p>Before the trial it was stipulated that the pleadings might be amended by either party in any particular, setting up any further claim or defense which might be advisable. Upon the trial considerable evidence was given not relevant to the par-, ticular claim and defense set up in the pleadings, and in view of a possible amendment under the stipulation. At the close of the evidence, the judge asked the counsel if they had amended under the stipulation, as it would be necessary to know in order to shape his charge. The counsel replied that they had not, and did.nbt intend to. The judge charged that the testimony as to matters outside of the issues, as the same were left, must be disregarded by the jury, and that the action was solely upon the written contract between the parties. It appeared upon the trial, that the steamers were the property of the New York and Savannah Steam Navigation Company, of which the defendant was president. The affairs of the company were managed by a board of five trustees, of whom the defendant was one; his son, owning twenty-five shares transferred to him by the- defendant, to make him a director, was another. Mr. Stratton, the secretary, owning a single share, was a third. The other two trustees were out of the city at the time of these transactions, one being in Savannah. The agreement counted on was proved and read in evidence, and the plaintiff gave evidence to prove the services alleged, and rested. Evidence was given in behalf of the defendant in some respects contradictory of that on the part of the plaintiff. There was evidence that the defendant had paid to the agent of the government by whom the steamers were purchased, (Mr. Morgan,) a commission of two and a halfvper cent, and this, with the assent of the plaintiff, was de-: ducted - from the amount claimed, and the jury, under .the. charge of the court, rendered a verdict for $20,837. Several exceptions were taken in the progress of the trial, and to the charge, and upon a case and exceptions a- motion was, made for a new trial, and denied.</p> <p>Judgment having been perfected, the defendant appealed.</p> <p>I. To entitle a broker to recover commissions on a sale of property, two things are necessary to be established, viz : His authority to act as the agent or broker of the defendant, and also that Ms agency was the procuring cause of the sale. (7 Car. & Payne, 584. 8 id. 1. 5 Bosw. 83. 34 Barb. 90. (a.) In the case cited in 34 Barb. Judge Allen dismissed the complaint, and the court, in affirming the judgment, hold: “ Where a negotiation, conducted by a broker, is broken- off before any binding agreement is entered into between the. parties, and thereupon a new agreement is entered into for a part of the property only, and varying essentially in its terms from the first, without any agency or intervention of the broker, the latter will not be entitled to a commission.” The present case fits exactly this pattern. (6.) There is no evidence that Still-man ever offered these steamers for sale to the government, (c.) If he did, it was at a time when the government would not buy; and refused to entertain any proposition, and to the wrong department. The appropriation for the purchase of steamers was not made until the 17th of July, 1861. (12 Stat. at Large, 267.) (d.) The plaintiff was not in Washington after June; the government then refused even to negotiate with him, and his report of that fact not only authorized the defendant to act for himself, or get another broker, without incurring the penalty of this enormous ten per cent, (e.) The charge of the court on this point was contrary to the law as settled by the authorities above cited.</p> <p>II. The complaint avers that the government purchased these vessels from the defendant and that the defendant delivered them to the government; the proof is uncontradi'cted that the purchase was from the New York and Savannah Steamship Company. The seventh request to charge was : “ The sale of the vessels by the New York and Savannah Steamship Company was not a sale by the defendant, and does not entitle the plaintiff to recover the commissions.” This was refused. Either the plaintiff was dealing with the defendant as the known agent of the company when he entered into the contract, and his services were for the company, in which case the defendant is not personally liable, or a sale by the company is not a sale by the defendant.</p> <p>III. The court erred in refusing to charge ■ “ That if the plaintiff knew, when this power was executed, that the defendant did not own the ships and could not convey them to a purchaser, that the power was revocable, and that the plaintiff can recover only the value of the services rendered by him before the defendant notified him to cancel it.” (a.) A principal may at any time revoke the authority of the agent, when such authority has not been executed in part, and no injury is worked thereby. (Story on Contracts, § 192. Story’s Agency, 462-5.) (b.) Revocation may be made by «public or formal declaration, by an informal instrument, by a word of mouth, or implied from circumstances. The revocation takes effect, as to the agent, when he receives notice thereof. (Story on Contracts, § 193. Story’s Agency, 4. Morgan v. Stelle, 5 Binn. 305.) (c.) An agent may renounce his authority at any time, and to cease to act is a renunciation.</p> <p>IV. The court erred in refusing the third request: “ That under the agreement a sale negotiated by the plaintiff, on terms and at prices to be agreed upon between the plaintiff and the defendant, is a condition precedent to the plaintiff’s right of action.”</p> <p>Y. The court erred in charging, that the plaintiff was entitled to recover all or nothing, as at folio 442, or in the written instructions at folio 450, that the jury may “ find any amount less than the ten per cent named in the contract, which they may consider right under the testimony and charge.”</p> <p>YI. The judge should have charged as requested that, “ Any contract which conflicts with the morals of the time, and contravenes any established interest of society, is void as being against public policy. If the jury believe that the agreement on which this action is brought was made in reference to the influence of the plaintiff or his friends with the republican members of the administration, or with any persons connected with the administration, whose duty it was to act in the purchase of Steamers, and the per centage, as commissions, were fixed in reference to that influence, that the contract is void, and no action can be sustained on it.” There was some evidence on this subject, and the charge of the court taking the matter from the consideration of the jury, was erroneous. (Story on Contracts, §§ 541 to 548. 13 John 112. Comst. 129. 5 Denio, 534. 4 Comst. 449.10 Barb. 489. Story on Cont. 569, 576, 7.)</p> <p>There was evidence that this contract was made with a view through the plaintiff’s political influence, to sell these steamers for an exorbitant price.</p> <p>VII. The court should have granted the motion to dismiss the complaint, on the.ground that the action of. the government, in refusing to trade with brokers or third parties in the purchase of vessels, annulled or revoked this power of attorney or contract, and that, therefore, no action can be maintained upon it.</p> <p>I. The action was properly brought against the defendant. He alone was liable upon the contract.</p> <p>(1.) The New York and Savannah Navigation Company were not parties to the covenant. The defendant covenanted in his own name, and bound himself personally.</p> <p>(2.) It is no defense that the other parties were interested, •and that the services to be rendered by the plaintiff were in their behalf and for their benefit. The defendant had the .right to as he did undertake for them, and to do what they might have been reasonably expected to do.</p> <p>(3.) The,defendant had a personal interest as well as agency in the sale of the vessels. • He was in truth the sole actor for the company in the transaction, and did sell and transfer the vessels. Standing in the relation he did, it was not unreasonable that he should enter into this covenant with the plaintiff. But his relation to the company or other owner of the.vessels is not material. The action only concerns his relation to the plaintiff under his contract. (Evans v. Wells & Spring, 22 Wend. 32,5. Williams v. Christie, 10 How. 12. Gill v. Brown, 12 John. 385. Sheffield v. Watson, 3 Caines, 69. Main v. Eagle, 1 E. D. Smith, 619. Russell on Factors and Brokers, 155. Simonds v. Heard, 23 Pick. 125. Tippets v. Walker, 4 Mass. R. 595. See also 5 id. 300; 6 id. 56; 11 id. 54; 10 Cush. 324; 5 id. 210.)</p> <p>II. The complaint made a cause of action against the defendant. The contrary is not claimed. It avers the agreement, the action of the plaintiff under it, and the sale of the vessel as the result of his labor and expenses. The averments in the complaint being true, the commissions agreed to be paid were earned.</p> <p>III. The only issues of fact made by the pleadings were, 1st. Upon the allegations of the complaint, (a.) That services were rendered and moneys expended by the plaintiff in and about the procuring a purchaser of the vessels. (6.) That the vessels were sold in consequence of the efforts and services of the plaintiff, (c.) That the vessels were sold for $276,500. 2d. Upon the allegations of the answer, (in addition to the allegations that the vessels belonged to the New York and Savannah Navigation Company.) (a.) That before the sale the plaintiff had abandoned all right to sell the vessels, and the defendant had revoked the authority given to him. (6.) That no price or terms for the sale of the vessels were ever agreed upon between the parties to the action, (c.) That the plaintiff reported that he could not1 sell the vessels, and the defendant thereupon employed another agent who sold them.</p> <p>IV. Much evidence was given upon the trial touching other services of the plaintiff for-the defendant or the company represented by the defendant, and other causes of action, and in view of a contemplated amendment of the complaint, a.t the close of the trial the plaintiff declined to amend, and the evidence not pertinent to the claim for the sale of the vessels was withdrawn from the consideration of the jury, and'might with propriety have been omitted in making up the case. No material questions of fact arose upon the allegations of new matter in the answer.</p> <p>1. The allegation of the abandonment of the right to sell by the plaintiff was not supported by any evidence, and so far as the question could be material, was involved in the affirmative claim of the plaintiff that he had by his services entitléd himself to the commission claimed.</p> <p>2. Any revocation by the defendant of the authority of the plaintiff to sell, could not deprive the latter of the commissions already earned, or those to which he might become entitled by a subsequent sale of the vessels of which the plaintiff, by efforts made before the revocation, was the primary cause, whatever* might be the effects as to any subsequent services of the plaintiff. Whatever was done by the plaintiff towards effecting a sale of the vessels, was done before the pretended revocation, and the defendant could not, by any act of his, deprive him of the proper compensation for such services.</p> <p>3. The right of the plaintiff to recover for his services, did not depend upon an agreement between the plaintiff and defendant as to the price and terms of sale of the vessels. All that the clause of the agreement referred to imports is, that the terms and conditions of sale were to be fixed by agreement with the purchaser at the time of the sale. The plaintiff was not to delay action or to labor without compensation until such terms should be fixed. Gircumstances might affect the terms and prices, and hence they were not prescribed in the instrument creating the agency. When the sale was accomplished, the price and terms were .agreed upon. (Morgan v. Mason, 4 E. D. Smith, 636. Chilton v. Butler, l id. 150. Murray v. Currie, 7 C. & P. 584.)</p> <p>4. The employment of another agent to sell the vessels, did not affect the right of the plaintiff to hig commissions, if he earned them. ■ But the individual to whom the commisssion was paid, was in no sense the broker or agent of the ship owner. He acted in behalf of the government, and his commission was for services rendered the government, and not the ship owner. The fact that the defendant paid the ’commission did not change the relation of the parties.</p> <p>Y. The motion for a new trial on the merits was properly denied. The evidence on the part of the plaintiff fully author-. ized the verdict, and ft was for the jury to say whether the evidence was worthy of belief. Upon a conflict of evidence, the jury are the sole judges of the fact, and their verdict is final, unless the evidence so strongly preponderates against their verdict as to be evidence of corruption or passion. Here, upon all the evidence, the plaintiff was entitled to the verdict. The defendant was desirous of effecting a sale of the vessels. He so says in the covenant signed by himself. The reasons are obvious. The rebellion was upon us, and the steamers were withdrawn from their route, and the business of the company was broken up. ,</p> <p>The government were about the only purchasers of that kind of property, and had the reputation of paying good prices. The reasons for employing the plaintiff were good and proper reasons. The plaintiff went to Washington on this business, May 25th, and recommended the vessels, and being an engineer, such recommendations were of value. He remained about a week. The plaintiff went with Commodore Foote, Mr. Garvin and Mr. Delano to examine the vessels; and again urged their purchase. This examination was in consequence of the action of the plaintiff.. He saw Mr. Morgan about 15th June, and called his attention to these vessels. He afterwards, and about 27th June, went to Washington again, -with the defendant’s knowledge and assent, an’d on this business solely, and called the attention of the secretary of the navy again to .these vessels. The plaintiff told the defendant that the negotiations would be conducted in New York, and he would probably be called upon for his terms. The plaintiff and defendant •conferred as to the price. The vessels were sold to the government for $277,828. Upon this evidence, uncontradicted and unimpeached, no one can claim that a verdict of the jury, that the plaintiff was the primary cause of the sale ; that he found the purchaser, introduced the matter, brought the parties together, and opened the way to the negotiations that resulted in a sale, could be disturbed. Whatever of contradiction or impeachment there was, with all the evidence, was fairly submitted to the jury.</p> <p>The defendant does not disprove or contradict material parts of the testimony of the plaintiff. He gave a different color to the transaction, and differs in unimportant circumstances. The verdict cannot be disturbed, against evidence. The mass of evidence, in which there was more or less conflict, was rendered immaterial by the omission to amend the complaint, and must be considered as out of the case. It should be added that as to all these matters, the weight of the evidence was with the 'plaintiff.</p> <p>VI. The material questions arise upon the exceptions. The most important exception is to the rule prescribed for determining the liability of the defendant.</p> <p>The charge was in substance that if the plaintiff directed or drew the attention of the navy department, or of Mr. Morgan, to the steamers, as being for sale, and by his action led to negotiations which resulted in the sale, he was entitled to his commission. This charge was right.</p> <p>1. The contract between the parties was a brokerage contract. It is so in terms. It was so treated by the parties, and so regarded especially by the defendant.</p> <p>2. The services bargained for were to bring about a sale to the government. A particular purchaser was in the mind of the parties. This is apparent from all the evidence, and the influence and exertion of the' plaintiff was the thing bargained for.</p> <p>3. It was treated as a brokerage contract by all parties upon the trial, and especially by the defendant in his request to charge. The charge was substantially in the very words of the leading cases upon the subject, and in accordance with the established rules. (Chilton v. Butler, 1 E. D. Smith, 150. Morgan v. Mason, 4 id. 636. Murray v. Currie, 7 C. & P. 584. Wilkinson v. Martin, 8 id. 1. Jewett v. Emson, Ante, p. 165, opinion of Robertson, Chief Justice. Glentworth v. Luther, 21 Barb. 145. 18. id. 160.)</p> <p>The charge was substantially in accordance with the request. The facts suggested in the charge would make the plaintiff “ the primary cause of the sale.” It is to be inferred that the judge did charge in the words requested, as there was no refusal so to charge and no exception to any refusal so to charge. (Burnett v. Bouch, 9 Car. & P. 620.)</p> <p>VII. The only other exception to the charge \vas to the instruction to the jury, that if they should find that the plaintiff had earned his commission, they might find a verdict for any amount less than agreed to be paid. This was assented to by the plaintiff. As this was more favorable to the defendant than he could ask, it is no cause of complaint or ground for a reversal of the judgment at his instance. He may, if he pleases, . now increase the verdict to any amount that he says is right.</p> <p>■ VIII. The exceptions to the refusal to charge are not well taken.</p> <p>1. They are not sufficiently specific. They cannot be grouped together. The counsel should have called the attention of the judge to each request, and excepted to a refusal to charge iaccordance with each request. The judge had a right to know which request it was claimed he had not noticed and disposed of (Jones v. Osgood, 2 Seld. 233. Caldwell v. Murphy, 1 Kern. 416.)</p> <p>2. The requests were improper, except as charged by the judge, (a.) The charge was substantially as asked in the first request, (6.) There Was no evidence given of a claim made for services after the pretended revocation of the power. The letter of revocation was dated August 13th, 1861, and repeated August 19. All the vessels had been purchased by the government, and the transfers made before this. The services had been rendered, and the commissions earned, (c.) The defendant did agree to the form and terms of sale, and the plaintiff has not objected. • There was then an agreement between the parties, if this was necessary * but all that this clause in the agreement imported, was that the plaintiff was not agent to sell, with the power to fix the price, (d.) There was no allegation in the answer or evidence upon the trial upon which to found the 4th request. It is not improper to bargain for skill or influence to accomplish any lawful purpose. Corruption is not implied, (e.) The charge was as requested in the 5th proposition. (/.) The 6tli request cannot be sustained. All that a broker ordinarily does is to bring parties together, and whether the parties personally negotiate, for otte reason or another, is not material. The broker does not forfeit his commission by reason of the Caprice or peculiarities of the purchaser-choosing to conclude the purchase in a way of his own devising. (g.) It is enough, in answer to the 7th request, to say that the defendant was anxious to sell the vessels and was willing to pay for the services of the plaintiff in effecting the sale. As between the defendant and the steamship company, the particular interests and liabilities of each do not concern the plaintiff. (Z¿.) If the fact of ownership is not material, a knowledge of the fact cannot affect the plaintiff, (i.) The government has great power and exercises it all, but it cannot direct the rights of partiés under contract for services, or release parties from their legal obligations. •(/.) The notice of revocation was after the sale. It could do no mischief then.</p> <p>IX. The several exceptions in the progress of the trial to the exclusion ot admission of evidence were not well taken.</p>

<p>Appeal from the Parish Court of New Orleans, Bermudez, J.,. presiding.</p> <p>cited, Delor v. Montegufs Syndics, 4 Mart. 468. Goforths. His Creditors, lb. 519. Janin v. His Creditors, 10 La. 554.</p>

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

<p>The liability of a surety in an official bond, attaches from the moment the principal is in default.</p> <p>The sureties in a sheriff’s bond, are not entitled to notice of the default of their principal.</p> <p>In an action against the sureties of a public officer to recover an amount due to the plaintiffs from the latter, judgment should be rendered for the sum actually due, and not for the whole penalty of the bond to be satisfied by the payment of the amount so due.</p> <p>Where several courts have concurrent jurisdiction of actions against the sureties of a public officer, no one of them can condemn the sureties to bring into court the amount for which'they may be ultimately responsible, and discharge them from further liability. The creditors cannot be compelled to come into that tribunal for redress. The judgment should be only, for the amount due to the plaintiff.</p>

<p>Where the sureties of a public officer bind themselves, severally, for a specific sum, they can, in no event, be made liable for a larger amount; but any one injured by the misfeasance of their principal, will have an action against each and all, until the whole amount for which they may be respectively bound shall be exhausted, or the claim satisfied.</p>

The syndic must apply by petition to the court, to be authorized to sell the property surrendered by the insolvent. Act of 1817, sec. 30. 2 Moreau’s Dig. p. 432. The appraisers ought to have been appointed by the syndic and the insolvent. The latter has a residuary interest in the property to be sold, the same as a defendant in execution. The application to the court, by motion, for authority to sell, was sufficient.

<p>This is an appeal from a judgment entered upon a verdict, and from an order, made pro forma by his honor Judge Mc-Cunn, denying a motion for a new trial. The action was brought upon a policy of insurance issued by the defendants, an insurance company of the city of New York, to the plaintiff, and dated October 22d, 1858, for the sum of $25,000. The plaintiff being a cotton spinner, of Hyde, near Manchester, England, in October, 1858. purchased, through his agent in the city of New York, 319 bales of cotton, which were shipped in that month on board the steamship Indian Empire, of the Galway line of steamers, to he transported to Galway, Ireland, and an insurance was effected on the 319 bales of cotton, on his behalf, by the policy above mentioned, to the extent of $25,000. The steamship Indian Empire with a general cargo, including this cotton, left New York on the 23d October,- 1858, bound to Galway via Halifax. She had aboard at starting 829 tons of coal, of which she had taken on board at New York 809 tons ; the remaining twenty tons having been left over from a previous voyage. On her passage to Halifax she encountered head winds and heavy weather ; was jive days in making the distance, 565 miles, from port to port, and consumed 280 tons of coal, reaching Halifax with 549 or 550 tons, on 28th October,. 1858. She remained at Halifax until 30th October, when she started for Galway, having taken in at Halifax ninety-five tons, making the total amount of coals on board for the voyage from Halifax to Galway, 2170 miles, 645 tons. Up to the 3d of November the weather was moderate, but after that date the steamer encountered head winds and heavy weather, continuing until the 11th November, by which day the steamer had consumed 537 tons of coal, and was in longitude 15 deg. 36 min. west, about 240 miles from Galway. On the 11th November, only 70 tons of coal remained, and these were intended to be reserved, but were in part washed away and pumped overboard November 13th, “ having the effect of choking the pumps.”* Efforts were made to save the remaining coals by lifting the ship over, but the position of the coal was not changed from the bunkers in which they had been originally -placed. The head winds and heavy weather ‘continuing after 13th November, and the supply of coal being exhausted or lost, the cotton and other cargo on board was used as fuel on and after November 14th, to work the engines and propel the steamer into port. She finally reached Broad-haven, which was not her port of destination, on 26th November, where, after receiving a supply of coals, she pursued her voyage to Galway, arriving there December 4th. Besides the cotton and other cargo on board, the spars, bulkheads, hawsers, and other fittings of the steamship were used as fuel, and the engines continued to work in good order until her arrival as before stated. It appeared that when the engines were stopped for want of fuel, and the pumps consequently ceased working, the water .gained upon the ship, which was rolling heavily, in the sea. After the arrival of the steamer at Gal-way, the master and officers made a protest, and a general average statement was subsequently made up in London. Out of the 319 bales of cotton insured by the defendants, 214 are stated to have been used as fuel; the remaining 105 bales arriving in safety. The whole amount of cotton insured, was brought into contribution in the general average statement, as constituting a general average statement, as constituting' a general average loss, and for such loss the plaintiff brings ffiis action under the policy. The appellants claimed that it' appeared clearly in the case, that 100 tons additional of coal, taken at Halifax, would have carried the steamer to Galway, and thereby averted a sacrifice of twenty or thirty thousand dollars’ worth of property, used to raise steam'for the engines. The steamer was capable of carrying 1050 to 1100 tons of coal, On leaving New York she had on hoard 829 tons. On leaving Halifax she had 645 tons. Captain Marshall, who built and ran the steamer for a'year, stated he should have 1000 tons, perhaps 1050 tons, on leaving New York for this voyage, and at the least seven or eight hundred tons on leaving Halifax, and that he would not consider it prudent to leave with less than that. The appellant claimed also that it appeared in the case, that the steamer .having ample capacity, omitted to take in a sufficient supply at Halifax, and the judge before whom the case was tried, took away from the jury the consideration of this question of fact, and although requested by the defendants to charge that the vessel was imseaworthy, On leaving Halifax, by reason of the insufficient supply of coal, directed the jury to find for the plaintiff, if the vessel had coals enough on leaving New York, notwithstanding “ the omission of the master to take in- a large supply of coal at Halifax, or to make any repairs of the sails, which, upon the evidence, it can be said she omitted to make.” The jury found that the ship was seaworthy when she left New. York, and that by reason of unusually tempestuous weather and the extraordinary violence of the winds and waves, the ship was badly strained and leaked heavily, and it became necessary, by reason of such tempestuous weather, to use the cotton for fuel, in order to keep the ship afloat and enable her to enter port. The jury were instructed that “if the use of the cotton was not to keep the ship afloat and enable her to enter port, but was only necessary to shorten the voyage, such a use would be unauthorized, and would not be a ground for charging the defendants.”</p> <p>The action was tried before Bosworth, J. and a jury, in June 1863. The plaintiff recovered a verdict for the value of the 214 bales consumed for fuel, and the further sum which he was compelled to pay by way of general average on the 105 bales . saved, amounting in the whole to $29,417.50, upon which judgment was entered.</p>

The syndic should have been made responsible for the value of the real estate sold by him, it having been made without an order of court.

In this case, Hoffman, for the appellee, moved the court for an order on the appellant, and his sureties in the appeal bond, to show cause why other security should not be furnished, or, in default thereof, why execution should not be issued from the court below. The rule must be discharged. The court is without jurisdiction.

<p>Whoever may be aggrieved by the official misconduct of a sheriff, has a direct action against each and every one of the sureties on his official bond, and is entitled to recover such an amount as will indemnify him, and no more ; nor can such sureties be compelled to pay into court, the amounts for which they may be ultimately made liable.</p>

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

<p>Appeal from the Court of Probates of New Orleans, Bermu-dez, J. •</p>

<p>This was an action against the defendant Kerr as administrator of John Strahan, deceased, and his sureties on his bond to the people of the state given on the issuing of letters of administration to him, in 1858. It was conditioned “faithfully to execute the trust reposed in such administrator, and obey all orders of the surrogate of the county of New York touching the administration of” the decedent’s estate. In January, 1862, such administrator applied to the surrogate finally to settle his account as such, and after the issuing and service of a citation on the parties interested, filed his account, in April following. In J une following, (9th,) exceptions were filed to such account on behalf of the widow and next of kin of the decedent. Some time between that time and the 13 th of the same month, but when, does not appear by the case, the defendant Kerr was removed as administrator, on the application of his present co-defendants, (Perry and Thompson,) his sureties on his bond. At the last date the plaintiff was appointed administrator in his place, and three days afterwards (16 th June) applied to such surrogate, by petition, to compel the defendant Kerr to “render an account of his proceedings as administrator, and show cause why the assets in his hands as ” such “should not be paid over ” to the petitioner. In the beginning of July following, the attorneys for the plaintiff and the defendant Kerr stipulated in writing to bring on the settlement of the matters involved in such petition on the 15th of ■that month, and the same' attorneys, with the attorney for a special guardian of one of the next of kin of the decedent, agreed to allow the amount previously filed by such administrator in April to stand as his account, and the exceptions</p> <p>filed thereto as exceptions of the next of kin and widow. A motion, founded on such account and exception, for such decree as the sxirrogate might think proper to grant, noticed for the 18th of December following, (1862,) was made on the 15fch of that month, without the presence of the defendant Kerr, or any one on his behalf. Such account as previously filed was then settled and adjusted by such surrogate, showing a balance in the hands of such defendant of upwards of $1800. The surrogate, by a decree containing such settlement as then made, ordered the defendant Kerr, after retaining a certain sum ($165.57) for his commissions, to pay him a certain sum ($54.50) for the costs and expenses of such proceeding, to the proctors for the special guardian before mentioned (Messrs. Matthews & Swan) .a certain sum, ($200,) and a certain other sum to the proctor for the wife and daughter of the decedent, ($100,) for their respective costs, and the residue, being a little abov.e $1300, to the plaintiff. The proof of the service of such notice of motion consisted only of the recital thereof in the decree so made by the surrogate. Such decree was docketed in the New York county clerk’s office, and an execu-. tion issued thereon to the sheriff of the same county was returned unsatisfied. The surrogate of that county, in January, 1863, ordered the administrator’s bond to be assigned to “the said John P. Groshy and others, for the purpose of being prosecuted,” and in April. following he, jointly with Messrs. Matthews & Swan and Groshy, executed a formal assignment of such bond, under seal, to the plaintiff.</p> <p>I. The court erred in denying the defendant’s motion to dismiss the complaint.</p> <p>II. The court erred in overruling the question put to the witness Matthews :• “Have you ever been paid the two hundred dollars?” “Are you not the parties in interest ?” If Matthews & Swan were the parties in interest, there was no consideration for the assignment' by them, and it was void. The cases in which an assignee is permitted to sue in his own name are those in which the assignment was for a valuable consideration. (People v. Norton, 5 Seld. 176. Cummings v. Morris, 25 N. Y. Rep. 627.) The consideration of a sealed instrument may he impeached. This the defendant offered to do, and the evidence was rejected.</p> <p>III. There was no legal assignment of the bond, and this the defendant set up in his answer. The. administrator had no power to receive an assignment from Matthews & Swan and John P. Crosby.</p> <p>1. The powers of an administrator are défined by law in sections 3 and 4, 2 R. S. 298, 4th ed. He has no power to bring suits for third persons who are entitled to money by a •final decree. He can only sue for debts due his intestate. No authority is given him to bring suits on bonds given to the people, nor to take assignments thereof in order to sue for the benefit of third persons.</p> <p>2. The surrogate assigned the bond by an order to John P. Crosby and others. “The others” did not join in the assign-? ment to the plaintiff.</p> <p>3. Matthews & Swan and John P. Crosby, being alive, are not entitled either at common law or by any statute to the aid of an administrator, in the collection of their debts due by decree. If they in fact assign their interest, the assignee may sue. If they retain their interest, and assign the bond, that another may sue for their benefit, the assignment is without consideration and void.</p> <p>IV. No action can be brought by Annett on' this bond. The surrogate had no power to decree that the money be paid or the bond assigned to the new administrator. The statute gives him no power to decree payment of money to an admin» istrator, or to any person exeept one, to whom it is due, as creditor or next of kin. (2 R. S. 281, .§§ 79, 98. Id. 300, §§ 18, 19.) The learned justice at the trial was right in this, his first impression ’, and the 21st section, that changed his views to the effect that the money collected on the bond was assets in the new administrator’s hands, has no application to this case. That section was passed in 1830, and is applica» ble to the case of revocation before final accounting and for neglect to file an inventory, and no other. The revocation involved in this case is, under the law of 1837, made upon application of the sureties of the former administrator. The 21st section of the law of 1830 is not made applicable'in such cases. It has no application after accounting. The remedy prescribed is by the law of 1837, sections 63 and 64; this was followed by the plaintiffs, as shown by the evidence. The next of kin are entitled to the money, and the bond must be assigned to them. (2 R. S. 300, §§ 18, 19.)</p> <p>Y. Neither does the case come within the 68th and 69th sections. Kerr’s final account having been filed on the 2d of April, 1862, two months and upwards before Annett’s appointment, the money so found at that time to be in Kerr’s hands belonged to the next of kin, and the. surrogate had no power but to direct it to be paid, and the bond assigned to them. (2 R. S. 300, 4th ed. §§ 18, 19. Id. 281, § 75.)</p> <p>VI. But the decree obtained by Annett is void on its face. It was obtained by false suggestions. In order to obtain a citation against Kerr, Annett states in his petition under oath, on the 13th June, 1864, that Kerr had not rendered an account. He then consents that Kerr’s account, filed on the 2d April, 1862, be taken as the basis of the decree in question, and that account is adopted. It is void because there is- no proof that the citation was served upon Kerr thirty days before the hearing a pre-requisite to jurisdiction. (2 R. S. 277, p. 92, §§ 58, 68. People v. Barges, 12 Wend. 492.) If the consent of counsel is to take the place of this service, prescribed by law, then proceedings may be conducted in such haste as to escape the notice of sureties and others who are affected by the result.</p> <p>VII. But if the decree were valid, the defendant, not being a party, and having no notice of the accounting, is not concluded by it. The statute has enumerated- in what cases the accounting shall be conclusive. (2 R. S. 4th ed. § 75, p. 279.) This enumeration does not include omissions of the administrator to claim for a loss occurring without his fault, which by statute is to be allowed in his accounts. (President of the Bank of Poughkeepsie v. Hasbrouck, 2 Seld. 216.) The cases cited, below establish the proposition that the surety may in a' collateral action avail himself of any defense that his principal omitted in the original proceeding, unless in those cases where the proceeding is made conclusive by statute. And in that case the decree may be impeached for fraud or collusion. (2 Seld. 216. Douglass v. Howland, 24 Wend. 35, 52. Jackson v. Griswold, 4 Hill, 532. 2 McCord Ch. 185. Scott v. Dorsey, 1 Harr. & John. 227, 21. Beatty v. Moore, 7 Cranch, 281. Spidden v. The State, 3 Hare & John. 251. Haslett v. Glenn, 7 id. 23. Girt v. Cockney, Id. 134. Owens v. Collinson, 3 Gill & John. 25, 39. Simkins v. Cobb, 2 Bailey, 60. Pratt v. Nathan, 5 Mason, 95, 103. Hunt v. Hapgood, 4 Mass. R. 117.)</p> <p>VIII. Executors and administrators are not liable for losses by theft. (2 R. S. §§ 56, 278. Williams on Executors, p. 1507, and cases there cited. Furman v. Coe, 1 Caines’ Cases, 96.)</p> <p>IX. Aside from the above authorities, it is inequitable that an administrator, by omitting in his accounts to claim an allowance authorized by law, should enable jiis family to recover from his sureties money for which he himself was not liable.</p> <p>I. There ¡was no error in the court’s overruling the objection that there was a defect of parties plaintiff.</p> <p>1. The defect, if any, was apparent upon the face of the complaint, and by not demurring, the defendants have waived it. (Code, §§ 144, 147, 148. Zabriskie v. Smith, 1 Kern. 480.) (1.) The demurrer is the only remedy. (Getty v. Hudson River R. R. Co., 8 How. Pr. 177. Higgins v. Rockwell, 2 Duer, 650.) (2.) A party cannot both demur and answer. The answer supercedes the demurrer. (Struver v. The Ocean Insurance Co., 16 How. Pr. 442.)</p> <p>2. The bond was properly sued in the name of the plaintiff. (1.) The plaintiff is the real party in interest, (a.) The plaintiff might have sued without the assignment by the surrogate. (The People v. Guild, 4 Denio, 551. Baggott v. Boulger, 2 Duer, 160.) (2.) The assignee of a chose in action is the proper party to bring suit. If the assignment is good between the parties thereto, or the defendant is protected from any other claimant, the court will not look further into it. Cummings v. Morris, 3 Bosw. 560. S. C. 25 N. Y. Rep. 625. Myers v. Machado, 6 Abb. 198.) (a.) The consideration is unimportant. (Burtnett v. Gwynne, 2 Abb. 79. Sheldon v. Wood, 2 Bosw. 267. Byxbie v. Wood, 24 N. Y. Rep. 609. (6.) Where the assignment is absolute on its face, parol evidence-cannot be given to show the assignor retains an interest in the subject matter, and should be a party to the suit. (Durgin v. Ireland, 4 Kern. 322.) (3.) The plaintiff might have sued in his individual name, and his title of administrator may be rejected as surplusage, both as respects his original and his acquired interest. (Merritt v. Seaman, 6 Barb. 330. 6 N. Y. Rep. 168. Eagle v. Fox, 28 Barb. 473.)</p> <p>II. The' defendants, as sureties upon the bond of the former administrator, were liable, under the statute, to account to the plaintiff as administrator de bonis non; and the recovery is assets in his hands, of the estate he represents. (See act of 1837, §§ 29, 32, 33 ; Gottsberger, adm’r, v. Taylor, 19 N. Y. Rep. 150.)</p> <p>1. Sureties may apply to the surrogate for relief, (§ 29,) and the surrogate may revoke letters of administration, (§ 32,) and he must then grant new administration of the goods, chattels and credits not administered, (§ 33,) &o. (See 2 R. S. p. 77, §§ 48, 51, 52.)</p> <p>2. Where letters are revoked, the surrogate must issue new letters upon the goods unadministered, in the same manner as original letters in case of intestacy, and the new administrator must give neto bonds as in cases of intestacy, and has like powers. (See 2 id. p. 78, § 55, [45.])</p> <p>3. When letters of administration are issued, the administrator must give bonds in amount not less than twice the value of the personal estate of which the deceased died possessed. (Id. p. 77, § 43, [42.])</p> <p>4. Whenever directed by the surrrogate, the bond of a former administrator may be prosecuted, and the amount recovered is assets. (Id. p. 85, § 22, [21.])</p> <p>5. When the authority of an administrator is revoked, he may be cited to account before. the surrogate, at the instance of his successor. (Id. p. 95, § 72, [68.])</p> <p>6. The administrator, when removed, may himself cite his successor to attend an accounting and settlement, and “ such settlements and accounts shall have the like effect in all respects as in the case of a settlement at the instance of a creditor." (Id. p. 95, § 73, [69.])</p> <p>7. Whenever an account is rendered by an administrator on final accounting, the surrogate must make a decree for payment and distribution of the assets among the creditors, except where the accounting is had under the foregoing provisions, of the statute, (§§ 68 and 69,) (72 and 73) relating to administrators de bonis non. (Id. p. 95, § 75, [71.])</p> <p>III. The “third defense" in the answer was bad on its face, for want of statement of facts ; besides, no proof was offered to sustain it.</p> <p>IV. The “fourth and fifth defenses” were no defense to this action.</p> <p>V. The exceptions to the ruling of the court were not well taken. (The People v. Rowland, 5 Barb. 449.)</p>

<p>Appeal from the Court of Probates of New Orleans, Bermu-dez, J.</p>

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

<p>i, This appeal having been dismissed in consequence of an omission of the clerk to transcribe the final judgment rendered below, a copy of that judgment was brought up, by consent, and the case submitted.</p> <p>cited 4 La. 542. 6 lb. 537. 12 lb. 176. 4 Mason, 296. 7 Peters, 69.</p> <p>cited 3 Kent’s Com. 374. Harris v. Ohio Ins. Co. 5 Hammond’s Ohio Rep. 466.</p>

<p>Plaintiffs having issued execution against defendants, took a rule on the latter to show cause why they should not be ordered to produce their books, that plaintiffs might inspect them. The rule was made absolute, and the sheriff ordered to seize the books. On an application by defendants for a writ of prohibition: Held, that if they had sustained or apprehended irreparable injury, their remedy was by appeal.</p>

There was a judgment in this case against the sureties of Hozey, for the whole amount for which they were respectively liable on his official bond, to be discharged on payment into court of $690, the amount claimed by the petitioner, with costs of suit. Layton, Ferriére, and Bach, three of the securities, have appealed.

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

<p>Appeal from the Commercial Court of New Orleans, Watts, 3.</p>

The complaint in this action sets forth a contract between the plaintiffs and defendants, dated July 19, 1862, whereby the latter sold the former two hundred and fifty barrels of alcohol, in prime… Held: that the fact, that under the British statute this could not be done, did not excuse him, it not being shown that it could not be effected by act of parliament.

<p>Judgment against an Insurance Company, and execution returned unsatisfied. Under the 13th sect, of the act of 30 March, 1839, plaintiffs interrogated the appellants, who admitted that they were stockholders in the Company. It was proved that the latter were responsible for a balance due on their shares of stock, which was liable to be called in by the Directors. Held, that plaintiffs might exercise against the appellants, all the rights which the defendants could have exercised against them ; and that, the amount of plaintiffs’ claim being less than that which appellants were liable to be called on to pay on their stock, the former was entitled to an execution against them. *</p>

<p>One who signs an agreement to take stock in an incorporated company, thereby promises to pay the full amount of every share thus subscribed for; and an action will lie to recover it, either for the purpose of carrying on the business of the company, or of paying its debts. And where the stockholders refuse or neglect to elect Directors to manage its affairs, -or elect those who will not call in the stock to pay its debts, any creditor will have an action to compel such stockholders to pay, each of whom will be responsible for the amount subscribed by him, if so much be necessary to pay the debts. The stockholders will not be allowed to throw the loss upon the creditors, either by refusing to pay for their stock, or by forfeiting it, or by dissolving-the corporation by non-user or otherwise. •</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, 1.</p>

<p>1. In equity, a reluctant purchaser will not he compelled to take a doubtful title. If the doubt of the sufficiency of the title be reasonable and practical, the court, in its discretion, will excuse performance by the purchaser.</p> <p>2. At law, however, the rule is different. There the party repudiating the contract, and seeking to recover back a deposit, must satisfy the court that the title is absolutely bad, and before he can succeed; the court must so decide. A merely doubtful title will not be sufficient.</p> <p>3. The power of the Supreme Court to authorize a sale of the real property of infants, by a special proceeding, is Wholly a creation of the statute, and is not inherent in it as a court. Hence the statute must be strictly followed, and its. terms fully complied with.</p> <p>4. A petition for the sale of real estate of infants was entitled “ The petition of, &c. infants, by their next friend.” Held that this Was the application of the infants, by their next friend, as required by the statute; and that the Supreme Court having determined that it was sufficient in substance, a mere departure from some prescribed form or rule of court would not affect the jurisdiction of the court, over the application.</p> <p>5. Such an application may be made by an uncle of the infants, being their only male relative, as their next friend; and the fact that he is a creditor of the infants does not "constitute an adverse interest which will disqualify him.</p> <p>6. A special guardian appointed to sell the real estate of infants, when authorized by the court, nlay properly unite with other tenants in common of the property, in making a conveyance.</p>

<p>1. A complaint, in an action against an insurance company, is not demurrable for omitting to allege that the. defendants have express authority, by their charter, to make contracts of insurance.</p> <p>2. A corporation, as - an artificial person, is presumed to be capable of making every contract a natural person could make. When a statute contains- an exception, that corporations shall have only certain enumerated powers and those given by their charters, the defendants must bring themselves within the exception.</p>

<p>Aabon Cohen, domiciled at New Haven, in the state of Connecticut, where he had resided for six years, died, at that place, in July, 1862, leaving assets there, and a last will and testament, which was admitted to probate by the probate court within and for the district of New Haven, and the executors named in the will having failed to accept and discharge the trust, a grant of administration, with the will annexed, was made to David J. Peck, Esq. city judge of New Haven, at the request of the next of kin, and upon his giving a bond, with approved sureties, in the sum of $200,000. At the time of his death, Mr. Cohen had on deposit, in the Chemical Bank, in the city of New York, the sum of $32,321.24, duly entered in his bank book, which came into the possession of the said administrator, upon the death of said Cohen. That sum is the balance struck by the bank itself. The administrator presented, duly authenticated, the record of the probate of the will, in Connecticut, and of the grant of administration to him, and requested payment, which the bank refused. He presented also, in writing, the request of all the next of kin, except the one in Savannah, iú which all the legatees residing at the North united, that payment should be made to him, and offered to give the bank a bond of indemnity, but the bank still declined. Subsequently, at the city of New Haven, he sold and assigned to the plaintiff, for cash to the full amount, the account, debt and demand against the bank for the money so deposited, and there delivered to him an assignment of the same, under seal, together with the bank book of the deceased, and also there drew his check upon the bank for the amount, in favor of the plaintiff. The plaintiff presented the record of probate, the grant of administration, and the' assignment, all duly authenticated, together with said check, to the bank, but payment was refused. He then presented his own check, payment of which was also refused. The bank book in his possession was also presented to the bank.</p> <p>The testator left no debts in this state. He resided in New Haven, but was accustomed to board, during a few months in winter, at a hotel in the city of New York. Before his return to New Haven, in the spring of 1862, he stated he would never come back to New York, or live in a hotel; that he would buy a house in New Haven and be in his own house. He accordingly bought a house and lot in New Haven, which was occupied by his servants; and he gave instructions for furnishing it and fitting it up for a summer and winter residence. He often declared his intention of remaining in New Haven.</p> <p>This action was commenced to recover of the bank the amount of the deposit, on the same day the demand and refusal were made. On the trial, before Justice Bosworth and a jury, in June, 1863, the counsel for the defendant moved to dismiss the complaint on the grounds that the assignee of a foreign administrator cannot commence a suit here, any more than the administrator. himself; that no consideration had been shown for the transfer. That as a foreign administrator cannot sue in our courts, neither could his assignee. And that the transfer was a mere evasion of our laws. Also on the ground that there was no jurisdiction shown in regard to the probate, in any respect. Motion denied. Exception taken. The counsel for the defendant claimed that the question of domicil should go to the jury. This was refused. The court thereupon ordered a verdict for the plaintiff for f33,496.48, to which order arid direction the defendant duly excepted. The jury rendered a verdict accordingly.</p> <p>The court thereupon ordered that the questions of law arising in the case, on the exceptions taken, be heard in the first instance at the general term, and that the judgment be, in the meantime, suspended.</p>

<p>Motion by the plaintiff that the defendants be required to make their answers more definite and certain, and strike, out parts as irrelevant, redundant, or inconsistent with other parts.</p>

<p>1. Land was conveyed by the defendant to the plaintiff, by an absolute convey•ance, but upon an undertaking to sell the same for the defendant’s benefit, and to pay the proceeds over to him. The plaintiff having sold the farm and received the proceeds; it was held that he could not evade responsibility therefor to the defendant because he had never manifested any- “ trust in the land in writing subscribed by” him.</p> <p>2. A liability to pay over the proceeds of such sale may arise, in .such a case, if warranted by the evidence, not from any relation of trustee and cestui que trust, but from the promise, supported by a sufficient consideration not affecting the land, but binding only on the person of the grantee.</p>

<p>This is a motion, after argument of a case made upon an appeal from a judgment rendered by a referee agáinst the defendant, for leave to introduce as part of the case on the appeal exemplified or other copies of the proceedings on which the warrant of attachment mentioned in the pleadings in the above entitled action issued, &c.</p>

<p>1. Where the agent of the defendants, in purchasing goods for them, in their names, of the plaintiff, in order to induce him to sell to them, made the same representations of their responsibility and business as had been made by the defendants to him, in reference to his purchases for them; Held that this fact warranted the inference that the agent was authorized by the defendants to make such statements to the plaintiff or any one else from whom he purchased for them, in order to enable him to make such purchases.</p> <p>2. The contract being made on the 9th of November-, and the plaintiff having-sent, four days afterwards, the measurer’s return of the merchandise agreed to be sold, apd a bill for the merchandise to a large amount ($11,000) to the defendants, and on the next day (15th) demanded payment, and the defendants having promised to pay the bill the next week, but between that day and two days after (the 17th) failed in business; Seld that this was sufficient prima facie evidence of the falsity of a representation of solvency made at the time of the purchase.</p> <p>3. Seld, alpo, that if any alteration in the defendants’ affairs, for the worse, had taken place before the delivery of the (measurer’s return, they were hound in honesty to have notified the plaintiff of it; and that, not having done so, they were to be looked upon as ratifying their former representations; also that their attempt to postpone the payment for a week, and failing within two days, was conclusive of intent to defraud, in the absence of any explanation.</p>

This- action was brought to set aside - a sale of a stock of goods, made by the judgment debtor Peck, to the defendant House, and an assignment made for the benefit of creditors to the defendant Mack, which assignment was without preferences. Peck & Co. in September, 1861, became insolvent. On the 25tli September, they sold their entire stock of goods to George V. House for $1000 in cash, and his nine notes' for $1022 each, payable in from six to fourteen months.

<p>1. An execution issued by the plaintiff upon an original judgment at special term in his favor, after an oral announcement by the judges of the same court, at a general term, of an affirmance of such judgment on an appeal, and the entry by the clerk of such affirmance in the minutes of such general term, is a mere irregularity and only to be taken advantage of on motion.</p> <p>2. The right to move to set aside such execution on the original judgment for irregularity may be waived by delay in moving. And the lapse of five months is such delay, when no excuse is given therefor.</p>

<p>1. An agreement between two firms, one doing business at Cuba and the other at New York, by which the former were to buy merchandise at the former place and ship it to the latter at New York and to pay for the same, so far as they could, by bills drawn by the Cuba firm on the Now York house to be by them accepted, constitutes the members of both firms partners as to any transactions under such agreement.</p> <p>2. Any merchandise shipped under such agreement from Cuba, as well as the proceeds of any so shipped which might be in the hands of the New York house, were the joint property of such partnership, and the members of the Cuba firm had a right to have the same first applied in satisfaction of any joint indebtedness thereof, including any. bills drawn by them to pay for such merchandise, before the same could be employed to satisfy any debts due by the New York house alone, or of any individual member of either firm.</p> <p>3. An assignment by the New York house, under such circumstances, of merchandise shipped under such agreement, and the proceeds of any so shipped, to an assignee for the benefit of the creditors generally of such firm, is fraudulent and void, as against the members of the Cuba firm, and may he set aside in</p> <p>. an action brought by them to wind up the affairs of such partnership and apply its property to pay its debts, in which they are entitled to an order of injunction and receiver.</p>

<p>Motion for leave to amend answer.</p>

<p>A provision, in an assignment of property in trust for the benefit of creditors, directing the assignees, after converting the assigned property into money, out of the proceeds “ to protect, save harmless and imdemnify the party of the second part of and from the payment of any sum by reason of his having executed a covenant of suretyship,” for the payment by the assignors of certain sums, due at various periods within four years, although a trust to pay certain sums not yet due, does not render the assignment void.</p>

<p>1. Denial by an indorser, in his answer, that he ever received notice of presentment, demand, non-payment and protest of the note sued on, is material; as without proof of such notice to the indorser, the indorsee cannot recover against him. Hence an answer containing such a denial cannot be struck out as false and sham.</p> <p>2. Although a notary may have sent a notice to an indorser, properly addressed, by the proper channel of communication, it does not follow that he can testify . that the indorser actually received the notice.</p> <p>3. By statute, the certificate of a notary is only made presumptive evidence of some of the facts therein stated, as to presentment and other matters affecting negotiable instruments. The presumption ceases, as to the receipt of notice by the defendant When he positively denies in his answer that he ever received one.</p>

<p>1. The covenant of seisin is only a guaranty against a title existing in a third person, which might defeat the estate granted; not against a possible judgment of a court, which may invalidate a proceeding through which the grantor obtained his title.</p> <p>2. Such a covenant is broken, if at all, at the time made. It cannot be broken afterwards. 'Whatever may subsequently occur, to defeat the title, whether the act of the party, or the judgment of a court, the covenant cannot be affected.</p> <p>3. If the covenant is complied with, when made, it must always remain so. If the possession of the grantee is afterwards disturbed, he must resort, for redress, to some other remedy.</p> <p>4. A lot of land was conveyed, the title to which was derived under a deed from the sheriff, executed in pursuance of a judgment of foreclosure and a sale thereunder to the grantor in such a conveyance. After such conveyance, upon the application of the holder of a prior mortgage, the sale under the judgment was set aside, and the judgment opened. Subsequently, a prior mortgage was . foreclosed, the grantee in such conveyance being a, party defendant in the action, and the premises were again sold, by which such grantee lost the property.</p> <p>Eéld that the effect of the order setting aside the salé and opening the judgment was to restore the lien and operation of the two prior mortgages; but that it did not operate as a disseisin of the purchaser’s title; at least so as to relate back, and work a breach of the covenant of seizin in his deed to the purchaser from him. »</p>

<p>Motion for an order, or addition to the judgment in this case.</p>

<p>In an action to foreclose a mortgage, the defendants claimed, in their answer, that the mortgage was given to secure subsequent advances or liabilities, and that on the transactions arising therefrom the plaintiff owed the defendants a sum of money, for which the defendants had brought an action, in another court.' A reply to such answer merely denied any counter-claim. The defendants moved for a reference to take an account, before the trial. The plaintiff opposed the' motion by an affidavit setting up an account stated.</p> <p>Held that as the case was one in which the fact of the settlement could be tried by a referee, under section 254 of the Code, it was proper it should be so tried.</p>

<p>1. Two qualifíations ai'e indispensable to a right of pursuit in equity of property or its proceeds when wrongfully converted, into a new form ; first, a violation of a trust, express or implied, or an abuse of authority, and secondly, such a separation of the identical property, or its proceeds, from all other property of the same kind, as to render it readily distinguishable.</p> <p>2. No privity is created between a party who has paid money to another person as belonging to the latter, and a third person to whom the latter has voluntarily paid it, (either as an individual or as an officer of a court,) without impressing on such last payment any specific character or condition; and any separate liability of the parties paying and receiving to each other remains the ■ same as before.</p> <p>3. Although the sum in question should be paid to, and received by, the defendant as a receiver of a court, he is not bound to investigate the liability to pay it of the party paying it. Having received it, unqualifiedly, in such official capacity, he cannot (according to the order of that court, as an ofiicer of which he received it,) part with it; otherwise'he would be responsible to the parties entitled to it. If paid to him under a mistake, the tourt. can alone order it to be refunded, when it may be used to reimburse the plaintiff.</p> <p>4. The power of a court to compel a return of money paid to one of its officers in his official capacity, under a mistake, is entirely different from any liability of such officer to repay it to the party so paying it, produced by a mere modification of any order, under which it may have been paid to the party who paid it to such officer.</p>

<p>Appeals from orders denying motions to vacate orders of arrest in each of the above actions.</p>

<p>1. Although, on a mere motion to set off judgments, courts can protect their officers, by refusing to set them off, so as to defeat an attorney’s lien for his costs, yet'the statute-respecting set-offs overrides the lien of an attorney in an action.</p> <p>2. An attorney who does not talse an assignment of costs to accrue in an action before their recovery, cannot avail himself of the statutes of set-off, which'are confined to cases of contract reduced to judgment, and do not reach costs, or damages on a contract or for a tort, not yet reduced to judgment.</p> <p>3. Judgments cannot be set off against each other, where one of them has been appealed from, and the appeal is still pending and undetermined.</p>

<p>In a creditpr’s actiqn, brought to set aside an assignment by one defendant to another of the property of a special partnership, where no answers have been put in, or pleadings between the defendants, no proofs have been ■taken on the main subject of litigation between the plaintiff and defendants, and- there is nothing to show whether judgment was obtained by the plaintiffs against the defendants, or any of them, by default; or any issues formed between them, of law or fact, or any disposition made of such issues; the court has no -jurisdiction or power to give judgment in favor of one defendant against two others, merely upon the confirmation of a referee’s report, (hiding a certain sum due by the latter to the former.</p>

<p>Motion to reduce the amount of bail, in an action for seduction.</p>

<p>1. The “account” alleged in a pleading, the refusal to deliver a copy of which by the party alleging it, to the adverse party, precludes him from giving evidence of it under the Code of Procedure (§ 158,) is some written instrument existing before the commencement of the action, evidence of the existence and contents of which is to be material to the party alleging it. In other words, an account claimed to have been rendered and acquiesced in; that is, an account stated.</p> <p>2. It is not necessary, in an action for the completion of a piece of work by numerous successive acts of service, all of which contributed to such completion, to set out in the plaintiff’s bill of particulars each service so contributing, and its character.</p> <p>3. Whenever the successive efforts of a party are directed to accomplishing, to which they al( contribute, and there is no customary mode of measuring the compensation for every act or series of acts tending to bring about the final result, it is not necessary to furnish a bill of particulars of the services, although it may be necessary to describe the nature and character of the services, and the result at which they were aimed.</p> <p>4. If a complaint is not sufficiently definite and certain in these respects, the remedy is by motion to make it so.</p>

This is an appeal from an order denying a motion to set aside an order for the examination of the defendant, in proceedings supplementary to execution, and to dissolve the temporary injunction.

Three applications are made on behalf of the plaintiff in this action; first, for an order that an attachment issue herein against the defendant Morrison, for contempt of court, in refusing and omitting to produce and deposit with Philo T. Buggies, Esq. the referee herein, the check book and bank pass book of H. A. Wetmore with the Shoe and Leather Bank, * * and in refusing and neglecting to produce and deposit with said referee the individual books of account of the…

<p>1, An attachment may he issued against the property of a defendant who left the United States for a distant country to take charge of three trading vessels in which he was interested, which actually performed several voyages from and to different distant foreign ports, and who was absent on that business for about two and a half years ; as a non-resident of New York within the statute relative to attaelments against non-resident' debtors; notwithstanding he had continued to keep up his house in the city of New York as before.</p> <p>2. The nature of the business in which the absent party intends to be engaged may be looked at, to determine as to the uncertainty or probable duration of his absence.</p>

<p>Where a defendant in an action pending in a court was arrested in the street, near the place where such court was held, but before it had commenced its session, whither he had gone to attend either its trial or its removal to another court, upon the justification of sureties, while he was preparing to go home, because he thought nothing would be done; Meld that he was entitled to go to ascertain if . any thing would be done in the action, and to return unmolested. And that merely stopping to announce to the counsel of the opposite party that no steps would be taken, was not such a deviation on his journey as authorized his arrest.</p>

<p>1. An allowance to the wife, in an action for a divorce a vinculo, pending the suit, is always.relatively smaller than a permanent provision after decree. As a general rule, temporary alimony ought to be limited to the wife's actual wants.</p> <p>2. Where the real estate of the husband is quite sufficient for the security of the support of the wife during the litigation, and for the payment of such alimony as will probably be awarded by the final decree, he will not be restrained by injunction from selling or disposing of, during the pendency of the suit, a pair of horses and two carriages with which the wife had been furnished by her husband for her own separate use, while they lived together.</p> <p>3. Although power is conferred upon the court, by statute, to require the husband to pay any sums necessary to enable the wife to carry on the suit, during ■ its pendency, there is no law which authorizes a judicial tribunal to compel a husband to furnish his wife, before final decree, with a house, furniture, horses or any other specific article, except money, in such sums as may be necessary to enable her to carry on the litigation, and for her suitable and comfortable subsistence.</p>