Volume 20 — Louisiana Reports

* * * The rule in reference to this case, and the quantum of proof which it devolved on Anfoux to produce, in order to obtain the remedy he seeks, is thus Lid down by the Supreme Court: “Although a regard to the purity of justice compels the admission of allegations and proof that the form of a legal contract has been used to cover a corrupt, or flagitious transaction, yet such an allegation puts the party who makes it in a position so questionable, that the Judge is not…

* PPEAL from the Third District Court of New Orleans, Hiestand, J. Ljl Opposition is made to the discharge of the insolvent on tiie ground that he is a fraudulent debtor. Tiie only acts specified in the petition which the law declares fraudulent are the following: 1. That Longis failed to account in his schedule for certain assets of the firm, of S. D. Gratiaa & Co. 2. That he took away important documents and books of the firm of S. 1).

<p>Where the certificate of the clerk of the District Court does not show that the transcript contains a complete record of the case as it was tried in the lower Court, and there is no assignment of errors, bill of exceptions, or statement of facts, the appeal will be dismissed.</p>

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

<p>Payment in good faith to the possessor of a bill or note endorsed in blank, will discharge the drawer. O. O. 2L4!.</p> <p>Where the holder of promissory notes endorsed in blank brings suit in her own name as owner, the burden of proof is on defendant to show that she is not the owner.</p> <p>Where the appellee has failed to file an answer in the appellate court, asking an amendment of the judgment appealed fiom, it will not be noticed on suggestion in the brief.</p>

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

<p>This case involves only questions of fact.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Where the District Judge, assigned as a reason for judgment in favor of the plaintiff, “when the Court, considering the law and evidence,” it is ordered, etc., it is as much a reason for judgment in favor of defendant as plaintiff, and does not meet the requirements of the Constitution of 1864, Art. 7(5, Tit. 5.</p> <p>The endorsement in blank of the firm-name on a promissory note, made payable to their order, will authorize the drawer to pay the note to any bona fide hold or.</p> <p>One partner of a firm cannot maintain a separate action to recover a debt due to the partnership, but the moment the endorsement of the firm-name is put on negotiable paper, the partnership is divested of all title to it, which is vested at once in the endorsee and holder.</p>

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

PPEAL from the Fourth. District Court of New Orleans, Théard, J. ■» * * The facts present a clear case of agency by Elliott, and the relation of depositary as to DeGoicouria & Oo. The responsibility of a depositary is not due alone to the individual depositing, but it is also due the third person, where the thing deposited does not belong to the depositor. See Art. 2926, C. 0., and 6 La.

<p>Notice of protest of a bill of exchange or promissory note may be served on the drawer or endorser, by leaving it either at his residence or place of business, with a cleric or servant staying there, or it is sufficient if left on a desk, cr put under the door.</p> <p>Where payment of a promissory note nas been extorted by military authority from the endorser, who endorsed the note merely as the agent of the owner for tbe purpose of collection, and the owner, on being informed of the fact, returns the amount to tho agent, the drawer cannot set this up as a payment ot the note, and plead his discharge from further liability.</p>

<p>All parties interested in maintaining the judgment of the lower Court must be made parties to tho appeal, otherwise the appeal will be dismissed. 18 A. 281.</p>

PPEAL from the Third District Court of New Orleans, Felbwes, J. This is a suit by Christophe Camutz, syndic of the creditors of Mrs. Henriette Brand; syndic of the creditors of the succession of J. A. Braud, and syndic of the creditors of the succession of Amandeo Landry, and especially authorized to represent the firm of J. A. Braud & Landry. The appeal should be dismissed, because the plaintiff is not cited to answer the appeal.

<p>Where a party gains possession of property in dispute, by the unlawful use of force, such possession will not avail him.</p> <p>A party claiming the right to control propel ty by virtue of possession, must show that he acquired possession in a lawful manner, or by delivery trom the party having the rightful custody of it.</p> <p>A contract, the consideration of which was Confederate treasury notes, cannot be judicially enforced in the Courts of this State.</p> <p>An exception will be sustained, and the suit dismissed, where the evidence shows that the considera" tion of the contract sued upon was Confederate treasury notes.</p>

<p>Confederate treasury notes having been issued in violation of law, cannot be considered as forming a part ot the estate of a deceased party, nor can the surviving partner in community be held accountable tor these notes, although it is shown that she has used them.</p> <p>The widow of a deceased husband may renounce the community at anytime before the Court having unlimited jurisdiction over the subject-matter, has pronounced a final judgment against her as a partner in community. O C. 2383.</p>

PPEAL from the Fourth District Court of New Orleans, Théard, J. * * * 1. “ All the property which is not declared to be brought in marriage by the -wife, or to be given to her in consideration of the marriage, etc., is paraphernal.” C. C. 2360. And the wife has the right “personally, without the assistance of her husband to administer it.” C. C. 2361. Flower vs. Conner, 8N. S.556. Robin et ais. vs. Oastille, 7 L. 296. 2.

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

PPEAL from the Third District Court of New Orleans, Fellowes, J. * * “A bill of exchange is presumed to be drawn on funds, with the understanding b It seems to have been held that the mere fact of acceptance is sufficient proof of a right to draw, or a right to expect that the bill would be honored, although the drawer may have no funds. Parson’s Notes and Bills, vol. 1, p. 544. And he is then entitled to notice of dishonor. Id., note same page.

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

<p>■ The jurisdiction of the Supreme Qourt in criminal cases is not confined to the examination of questions arising before, or after verdict; nor is the right of appeal limited to either party.</p> <p>A party tried and convicted on a defective indictment, has not been put in jeopardy; for the judgment must be arrested on motion, and the accused may be proceeded against on anew iudictment.</p> <p>The indictment charged the defendant with larceny of “goods and lawful money of the United States, (commonly called greenbacks) of the value of twenty-four dollars and twenty-five cents:’’ UtM — -That the indictment is defective, and judgment must be arrested. No such effects or notes as “ greenbacks” are known in law.</p>

<p>An endorser of a promissory note is not bound to go to the mortgage office to examine into the consideración of the note, although marked ne carUtur 14 A 177.</p> <p>It is not necessary to allege that the note was protested and notice given, in order to admit the protest in evidence. The act of protest and certificate of notice are proper evidence under the allegation to prove demand</p> <p>Where the evidence shows that there is no foundation for the appeal, damages will be awarded asfor frivolous appeal.</p>

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

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

<p>Where a peremptory exception has been ordered by the Court to stand as an answer, with leave to amend, the defendant by filing an amended answer, will be considered as treating the peremptory exception as an answer to the merits.</p> <p>Where the supplemental and amended answer changes the substance of the original answer.it will be stricken out on motion of plaintiff. O. P. 420.</p> <p>Where the answer of defendant puts the capacity of plaintiff specially at issue, the plaintiff is bound to prove it to maintain his action.</p> <p>A natural tutor, though not required to be confirmed or appointed by the Judge, must, like all other tutors, take an oath before he can act as such. C. O. 328.</p> <p>Where it appeal’s that the counsel for plaintiff mistook the law, the Court will, in the exercise of a sound legal discretion, render judgment of nonsuit.</p>

<p>A defendant (Jatmofcber forced to answer until be is informed with reasonable certainty of thct notice of the demand brodght against him.</p>

<p>In an action for vindictive damages for an unfounded and malicious suit, both malice and want of probable cause must be alleged and proved to entitle the part.} to recover.</p> <p>Whore it is shown that an attachment has wrongfully and illegally issued, the party whose property has been attached, is entitled to recover the actual damages proved</p> <p>The measure of damages to be recovered on an attachment bond, is the actual expense and loss resulting from the levying of the attachment, including the fees of couusel, rendered in relation to the attachment.</p>

<p>APPEAL from the Sixth Distriet Court of New Orleans, Buplantier, J.</p>

* * * On the 24th March, 1858, John Ermon loaned plaintiffs twenty-five hundred dollars, and took two notes of twelve hundred and fifty each, and on same day took act of pledge to secure the payment of the same.

<p>PPEAL from the District Court, Parish of St. Charles, Beauvais, 3.</p>

PPEAL from the Sixth District Court of New Orleans, Howell, J. Boporler. — The following opinion was rendered by the Judge of the District Court: The proof shows that defendant rented a house to plaintiff at $20 per month, from 15th December, 1858, and received half a month’s rent ($10) in advance; no particular day was fixed for moving- into the house, and the lease was complete for one month, and not for a half month only, the agent of plaintiff informing defendant that it…

<p>Where a commercial firm Is sued on a note drawn by the company after the dissolution of the firm, citation served on the agent of one of the nartners, is not sufficient to bring the firm into court, although it be made at the former place of business of the firm.</p> <p>An agent cannot, stand in judgment, or deiend suits in court, without express and special authority from his principal. C. 0,20(36.</p> <p>A judgment founded on a defective citation, is null and void.</p> <p>Where a judgment of the lower Court has been declared null on appeal, on the ground of defective citation, the case wid be remanded at the costs of the appellee. .</p>

<p>The presumption of law is, that the holder of a promissory note has acquired it in good faith, and the burden of proof is on the party disputing the ownership, to show that the holder did not acquire it in good faith.</p> <p>Notice of dishonor of a promissory note, served in due time on a partnership, is sufficient to fix tjie responsibility both on the partnership and the individual members thereof.</p>

<p>There is no authority given by law to a notary public, before whom an act of sale is to be passed, to receive moneys or cheeks from one party to deliver to another. Such acts form no part of his duties as notary.</p> <p>The surety on a notary’s bond for the faithful performance of his duty as such, is only bound for such acts as the law authorizes or requires him to do in his official capacity.</p>

<p>Tbe legal mortgage accorded to a married woman on the real property of her husband, to. secure the recovery of her paraphernal means, attaches, and has force and effect on property acquired by the husband after her mpans have come into his hands, from the date of the purohase-by the husband.</p> <p>The vendor’s privilege is superior in rank to the mortgage of the wife on the property of her husband, but to make it available against the wife’s mortage, it must be recorded in the offioe of 'the Recorder of Mortgages, in the manner and within the time required by law., O. O. S240 3241.-</p> <p>The mortgage resulting from the recording of an act of salo of real estate, to the husband, is inferior in rank to the legal mortgageof the wife on the property of her husband, accordéd by law for the restitution of her paraphernal estate.</p>

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

<p>A testamentary executor derives liis authority from the judgment ordering the registry and execution of the will, and appointing and confirming the executor.</p> <p>Letters testamentary are merely the evidence establishing the fact, that the executor has been duly qualified.</p> <p>Where the will names the executor, and the judgment of the Court confirms the party named in the will as testamentary executor, the judgment must have effect until reversed on appeal, or in an action of nullity.</p> <p>A testamentary executor, after he was duly qualified, and had charge of the estate, by refusing to take the oath of allegiance required by the Government of the United States, and going beyond the jurisdiction of the proper authorities, became fundus oficio, and lost all right to administer the property of the succession any further, and all claims to commissions, except on sums recov* ered by him prior to the abandonment of his trust. Succession of Poindexter, 19 A. p. 22.</p>

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

<p>Where a party sets up by way of exception tbe plea of res judicata. the former judgment on which the' plea is founded, must be for the same cause of action and between tne same parties.</p>

<p>“Whereit party appears in Court byway of opposition to the homologation of an administrator’s account, he thereby waives citation, and the Court is authorized to render judg neat against him in the capacity in which he appears as opponent.</p> <p>Where no opposition has been made to a particular item of an administrator’s account in the lower Court, it will not be noticed if made on appeal.</p>

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

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

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

<p>APPEAL from Second District Court of New Orleans, Théard, Act. J.</p>

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

* * * We shall proceed to show 'that’the steamer was lost by perils insured against: 1. What were the perils insured against?

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

<p>By the charter granted to the Oarondelet Canal and Navigation Company, by the Legislature in 1858, the power to lease is unlimited and unrestricted, without distinction as to whether it be for a part or the whole of the property.</p> <p>Per Curiam.: Where the lawmakes no distinction or discrimination, courts can make none; and to do. so would be a purely arbitrary exercise of power.</p> <p>Where the record discloses the faot that a judgment by default has been confirmed, without introducing the evidence on whioh it is founded, although it is on file in the case, the Judgment will be declared null and void on appeal, and the case will be remanded to be proceeded in according to law.</p>

<p>A XJL EPEAL from the Third District Court of New Orleans, Eandlin, J.</p>

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

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

<p>Where a contract» of sale of a lot of ootton is made by weight, the cotton is at the risk of the seller •until it is weighed: but the vendor is competent to waive the risk, and fix it on himself from the date of the purchase. (P. H. Goodwyn v. J. Prichard, 10 An. 249.) ' »</p> <p>In a contract of sale of a lot of cotton appears the following clause — ** The cotton to remain on the plantation at the risk of the purchasers until called for by them j” Held — That this olause shows that it was the intention of the contracting parties that the risks, which, under artiole 2433 of the Civil Code, would have attaohed to the seller until the cotton was weighed, should be borne by the purchasers from the moment of the sale.</p>

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

<p>APPEAL from the Sixth Dish-ict Court of New Orleans, Buplantier, J.</p> <p>Reporte)'. — A rehearing was granted in this case. Mr. Justice Howell, the organ of the Court, overruled the first opinion, and decided that, in this case, the account sued on is taken out of the limitations of the statute of 1852, on the ground and for the reason that it having been shown that the account had been rendered by one of the parties to, and acknowledged orally by the otlu r, which constituted a closed account, and created! a personal debt between the parties, which is only prescribed by ten yeprs,.,</p>

<p>The testimony of one witness is insufficient to establish a claim of more than five hundred dollars; but where the commercial books of the opposite party, having been introduced in evidence, corro* borate his testimony, he may establish the correctness of his claim, though above five hundred dollars.</p>

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

<p>The city of New Orleans, by taking charge and control of the wharfs and landings in front of the city and charging and collecting wharfage, assumed the obligation of providing and keeping in repair good and safe wharfs for the landing of goods, and it is responsible in damages for the loss of freight while being discharged from the ship, occasioned by the defectiveness or bad condition of the wharf.</p>

<p>APPEAL from the District Court, Parish of East Feliciana, Posey, J.</p>

<p>Where an agent or mandatary has acted within the scope of his legitimate authority, he cannot be held personally responsible for a contract made by him with a third person in that capacity.</p> <p>Defendants were the lessees of the Louisiana Penitentiary, from 1857 to 1862, under the law of 1858. After the expiration of their lease they continued for a time to administer the affairs of the institution as agents. In the fall of 1862, they contracted with plaintiffs, in that capacity, for a lot of lumber, which was used in removing the machinery and property thereof from Baton Rouge to Clinton, Louisiana, for supposed safety. The bill for the price of the lumber is made out against them as agents. Plaintiffs now seek to hold them personally liable on the contract: Held — That, under this state of facts, they cannot be held personally liable; that plaintiffs, having admitted their agency and dealt with them in that capacity, cannot recover from them individually.</p>

<p>APPEAL from the District Court, Parish of East Baton Rouge, Posey, J.</p>

<p>The maxim contra non válentem agere non currit prccscriptio, is an axiom, or first principle of natural law, and notwithstanding the terms of limitations in prescriptions contained in the old, as well as the new, civil code, they have always been construed so as to harmonize with this maxim of universal justice.</p> <p>Where a bill of exchange or promissory note has been suffered to,prescribe, and the evidence shows that the holder could have brought suit before prescription obtained, he cannot invoke the maxim Contra no7i válentem agere non cuwit prceso'iptio, to relieve it from the effect of prescription. This maxim has no application to the prescription of bills and notes, where suit might have been brought before prescription obtained.</p>

<p>Wo appeal lies from a confession of judgment. C. P. 567.</p> <p>Where the answer of defendant admits a certain amount to he due, and judgment is rendered thereon, an appeal from such judgment will be dismissed on motion.</p>

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

<p>APPEAL from the District Court, Parish of Lafourche, Gates, J.</p>

<p>The form of citation and the manner in which parties may be brought into court are entirely within the legislative control.</p> <p>The act of the Legislature, prescribing the form of proceedings for enforcing the collection of taxes due the city of New Orleans, by advertisements in the official newspaper, in lieu of a petition and citation is constitutional.</p> <p>The act of the Legislature of 1859, relative to the collection of taxes in the city of New Orleans, is not repealed by the act of 1865, creating courts in the parish of Orleans.</p>

<p>The Supreme Court of Louisiana takes judicial notice of orders issued by competent military authority.</p> <p>Where a promissory note negotiable in form, has been endorsed in blank, the law presumes that such endorsement was made on the day of its date.</p> <p>The endorsement of a promissory note in blank is prima facie evidence of a full consideration.</p> <p>Where the defendant alleges that the endorsement was made after maturity, the burden of proof is on him to show the fact.</p> <p>The legal presumptions in favor of a party relieve him from the necessity of adducing any evidence, until they are rebutted by proof.</p> <p>The policy of the law is favorable to the holder of negotiable commercial paper, and requires very cogent evidence to convict him of bad faith.</p>

<p>APPEAL from the District Court, Parish of Lafourche, Gates, J. '</p>

<p>In criminal trials the judgment of the Court must follow and conform to the verdict of the jury.</p> <p>Where the verdict of the jury is “guilty as accessory,” and the judgment of the Court on the verdict condemns the party to suffer the penalties ot the crime of accessory "before the fact, the judgment of the Court will be annulled, the verdict of the jury set aside, and the case remanded tobo proceeded with according to law.</p> <p>An accessory before the fact is equally guilty with the principal, and on conviction must suffer the same penalties. The punishment of an accessory after the fact is only fine and imprisonment.</p>

<p>A respite is based on the supposed solvency of the debtor.</p> <p>Where a party offers himself as a judicial surety, he must have sufficient property to satisfy the obligation thereby incurred: the fact that he has asked a respite from his creditors will not disqualify him.</p> <p>The fact thata party is not able to satisfy promptly, with ready money, all his liabilities, is no evidence of his insolvency.</p>

<p>A .¿APPEAL from tlie District Court, Parish of East Baton Rouge, Posey, 3.</p>

<p>own name and to his own credit, he thereby becomes personally responsible to the estate for the amount.</p> <p>ÍTho administrator received Confederate treasury hotes in payment of debts due the estate: Helds— That such notes, having no legal existence or Value, could not be recognized as receivable in extinguishment of debts or obligations due the succession, and the administBator became personally responsible to the estate for the amount thus received.</p>

<p>APPEAL from the District Court, Parish of West Baton Rouge, Pose?/,. J.</p>

<p>The appointment of an administrator is not necessary where there are no debts against the succession, Where a party claims the administration of an estate, on the ground that he is a creditor, it is incumbent on him bo show by evidence that the debts which he claims are jusb and valid.</p> <p>Thomas R, Sutton died leaving a widow with one minor child, issue of the marriage, and one minor child issue of a former marriage. Zenas Preston, the maternal grandfather of the minor of the first marriage, applied for the administration of the estate, alleging that he was a creditor of said minor. The surviving widow opposed his appointment on the ground: 1st, that he was not a creditor. 2d, that there were no debts against the estate. 3d, that she was qualified as the natural tutrix to her minor child, and as such, had the right to administer the estate: Held— ■ That there being no evidence in the record showing that Zenas Preston was a creditor of the estate, he could not bo appointed administrator, and the widow Sutton, having qualified as natural tutrix to hex minor child, and Zenas Preston having failed to qualify as natural tutor to his grandson, the widow lias shown the best right to the administration.</p>

<p>APPEAL from the District Court, Parish of Lafourche, Gates, J.</p>

<p>Where judgment has been rendered in the District Court, before emancipation, for the enforcement of . payment for a slave, the Supreme Court will not now affirm, neither will they.reverse said '• judgment, but; will simply dismiss the appeal.</p> <p>The doctrine in the case of Waitvoright v. Brblges, (19 A. 234,) reaffirmed.</p>

<p>Where the consideration of a promissory note is shown to be the price of a slave, payment cannot be judicially enforced.</p> <p>The doctrine in the case of Wainioriglit v. Bridges, (19 An. 23á,) reaffirmed,</p>

<p>Where the defendant, sued as endorser on a promissory note, propounds interrogatories to plaintiff, a non-resident, on facts and articles, the law requires that they must be answered under a commission, and if the plaintiff make answers responsive to the questions asked, without a commission, they will be excluded on trial.</p> <p>Where a commission has issued according to law to take the answers of plaintiff, a non-resident, to interrogatories, and it is not shown that sufficient time has not elapsed for the return of the commission, the fact that it is not returned is not good ground for a continuance of the cause.</p>

<p>Mortgages are slricli juris, and cannot be extended by implication to cover obligations other than those mentioned in the act.</p> <p>Philip B. and Maria L. Key executed two acts of mortgage on real property in favor of Edward Durrive <fc Co., of the city of New Orleans, for the sum of thirty-two thousand dollars, in the aggregate, and authorizing said mortgagors to draw on the mortgagees from time to time, as they may require the same, with the understanding that the total amount of their indebtedness shall never exceed at any one time the sum of thirty-two thousand dollars, to be evidenced by the account current of such advances, to be kept by said firm. After the morgage was executed, the mortgagors executed a large number of notes, to their own order, by them endorsed, which were delivered to Edward Durrive & Co. and by them endorsed and negotiated, and the net proceeds credited to Philip B, and Maria L. Key in the account current. These notes, which subsequently fell into the hands of third parties, plaintiffs in this cause now seek to make the property mortgaged subject to these notes. The last account current shows that the amount of the mortgage, $32,000, has been overdrawn independent of the notes: ¿reíd — That, under this state of facts, Edward Durrive &Co. had no mortgage executed in their favor specially to secure the promissory notes thus executed by the mortgagors and could transfer none to the subsequent holders of the notes; that the holders of the notes have no mortgage on the property thus mortgaged to secure advances to the mortgagors, because it does not so specify that these notes are secured in the act of mortgage.</p>

<p>APPEAL from the District Court, Parish of Ascension, Beauvais, J.</p>

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

<p>A waiver of protest, by the endorser, written on the back of a promissory note, operates a waiver of demand on the maker.</p> <p>The waiver of protest and notice of dishonor by the endorser of a promissory note is not such an agree* ment as requires a United States internal revenue stamp placed thereon to admit it in evidence.. •</p>

<p>A lx PPBAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>Rail-road companies are responsible in damages for tho destruction or injury done to horses, mules, or other stock, by runriing over them on tho track, and tho burden of proof is on the company to show that the accident was unavoidable.</p> <p>The amount of damages is the value of the stock destroyed.</p>

<p>APPEAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>Where the certificate of the clerk of the District Court shows that the record of appeal is not such as the law requires, and the appellant has not filed an assignment of errors within ten days after tlhQ filing of the record, the appeal will be dimissed.,</p>

<p>Where the testator bequeathed to his wife ten thousand dollars, and subjoined to the bequest a desire that she should use the same for the benefit of her brothers and sisters, (designated by name,) according to her best judgment and discretion : Hdú, — That this was an absolute bequest in favor of the wife, and that she had the absolute disposal of the money bequeathed.</p> <p>The desire of the testator is simply addressed to the conscience of the devisee.</p>

PPEAL from the District Court, Parish of Carroll, Fai'rar, J. * * * But the most remarkable feature of the case is the point upon which the Judge, a quo, decides. He decides that the defendant should be relieved from his onerous contract of sale, because he has alleged and proved himself to be a criminal.

<p>APPEAL from the Fourtb District Court of New Orleans, Théard, J.</p>

<p>A party lias a right to move for a new trial within three judicial days from the rendering of the judgment, notwithstanding the judgment may have been previously signed; provided, the Court has not adjourned before the expiration of the three days.</p> <p>A judgment is inchoate during the dolay allowed to move for a new tana); and the signing thereof pre vious to the expiration of that delay will not make the judgment final.</p> <p>A judgment granting a new trial is an interlocutory order trom which no appeal lies.</p>

<p>The character of an action is determined by the prayer of the petition for judgment.</p> <p>The action en declaration de simulation is one of revendication, and has for its object to have the contract declared judicially a simulation and nullity.</p> <p>An action to recover the price >f property old, where the vendor alleges that the sale was a simulation, is one sounding in damages, and is prescribed against by the lapse of one year. O. O. 3501.</p> <p>No prescription lies against the United States.</p>

<p>The city of New Orleans in her corporate capacity must be regarded and treated as an individual person, and when she enters into a contract with a third party through her officers by authority of an ordinance of the common council, the city is not at liberty to annul the contract so made by an ordinance repealing the one authorizing the contract: having made the law she is bound by it.</p> <p>City ordinance No.708, contracting with E.Bermudez, an attorney-at-law, who was at the time assistant city attorney, to collect all bills for taxes assessed on property as unknown, and all unsatisfied judgments in favor of the city for taxes, does not violate the city charter, nor does it conflict with any of the rights of the assistant city attorney.</p> <p>The duties involved in this contract do not embrace any of the duties, or include any of the emoluments of the office of assistant city attorney.</p> <p>The right of the city to employ an attorney-at-law conversant with city affairs, to facilitate the collection of debts due her, is unquestionable,when in so doing she does notinfringe on any of the rights of her officers.</p>

<p>An intervenor cannot contest the right of plaintiff to bring the suit, or stand in judgment; he must take the suit as he finds it.</p> <p>An exception to the right of action must be made in the lower court. It will not be noticed if made for the first time in the appellate court, in the briefs of counsel.</p> <p>"Where money has come into the hands of the administrator belonging to the wife and heir of the deceased father, and he applies it to the payment of debts due by the succession, no tacit mortgage exits on the property of the succession in favor of the wife or the heir: money coming into the succession in this way constitutes a debt against the same, and must be reimbursed to the parties owning it, in due course of administration, as a debt due by the estate, and not a debt due by the deceased.</p>

<p>A final judgment rendered in chambers in a monition suit is null. Section 32, Acts of 1855, No. 344, does nob apply to such a case.</p>

<p>The commencement of proceedings for the forfeiture of the charter of an incorporated company by one party, in one of the District Courts of New Orleans, does not divest the other District Courts of jurisdiction in similar proceedings by other parties.</p> <p>A writ of prohibition will not lie to prohibit the Judge of an inferior court from proceeding further in the cause where it is shown that he is vested with jurisdiction over the case.</p>

<p>APPEAL from the District Court, Parish of Assumption, Beauvais, J.</p>

<p>APPEAL from the District Court, Parish of Assumption, Beauvais, J.</p>

<p>APPEAL from the District Court, Parish of St. Helena, Ellis, J.</p> <p>Reporter.- — The counsel for plaintiff cite 4 Washington, 464;' 12 Wheat. 559; 1 Paine C. C. Reports, 166; 2 Wallace, Brooks vs. Martin.</p> <p>They also quote portions of the testimony of the plaintiff, Cooper, which we prefer to give in full, as necessary to a proper understanding of the decision.</p> <p>The ($1,000,) the consideration and amount of the note sued on, was borrowed from me by Ashford Addison. No one borrowed it but Mr. A. Addison, and I told him I would hold him responsible in gold. I took dinner with Mr. Addison on the day the money was loaned, and after dinner Mr. Addison stated to me that he wanted to borrow one thousand dollars in gold, for a specific purpose; that he could get it at almost any time, but he wanted it immediately, and did not have it; and, placing his hand upon my knee, asked me if I could let him have it. I told him yes, I could, provided, he would return it back in the same or in gold; he said he would do so. He and I then went in a buggy to Mr. Thayer’s, and Mr. Addison stated to Mr. Thayer that I would let him have the $1,000 in gold, and proposed to Mr. Thayer to go after it, which he did, and, at my sideboard, I loaned or counted Mr. Thayer one thousand and one dollars in gold. Mr. Addison told me he wanted the gold for himself, Mr. Thompson and Mr. Thayer; and Mr. Thayer gave me the note sued on, and signed his own name, that of Mr. Thompson, and left Mr. Addison’s name out, or signed the note sued on, and annexed to the petition herein. I asked him why Mr. Addison’s name did not appear, and he said it was understood that Mr. Addison’s name was not to be used, but that he was a partner of the concern. Mr. Thompson and Thayer came to my house first,, and Mr. Addison came next, and, in the conversation that ensued between us all, it was understood that Mr. Addison was a partner in the concern, Mr. Addison biing present. At the time the money was loaned Mr. Addison stated to me, in his house, that if he could get one thousand dollars in gold, we could make the party believe we were the moneyed men; and he said it was for Mr. Hodge, and the “we” referred to, meant, I guess, Thompson, Adams & Thayer and himself, or the concern.</p> <p>Cross-examined: I had other dealings with the firm, getting out goods and supplies for them, etc., but no dealings after the gold was loaned, I don’t think. I mean by supplies bagging and rope, whiskey, perhaps, medicines, percussion-caps, etc. We got out some boots, shoes, etc., but no guns. I did not go into the Yankee lines to get them; they were delivered to me on the cast side of the Amite river. I guess, of course, they came from New Orleans, Baton Rouge, or where such things come-from now. The firm was engaged in buying supplies from me, and. bringing them up here to sell again. I suppose they were acting for the Confederate authorities. It was so understood. I was acting for them. I" was getting the supplies for them and paid for the goods myself, and then sold them to the firm, as well as to any other parties wishing to purchase.I always understood the firm of Thompson, Adams & Thayer was acting for the Confederate authorities. Mr. William Sharp and I were partners in getting out the supplies and goods referred to. Mr. Sharp did not go into the Yankee lines to get goods and supplies, neither did I. Mr. Sharp lived in four miles of Baton Rouge, and the lines were between his residence and that place. We bought supplies away below Baton Rouge on the river, and brought them up. Sometimes, we bought at my place, but purchased all of them on the east side the Amite river. I knew the goods were blockade goods, and bought from blockade runners. We used to be paid for the goods in cotton to be delivered to us at my house, or any other point on the Amite river designated. The transactions referred to were continuous and extended through a period of several months. Mr. Thayer did not say, when he came after the gold, what use it was for; he said Mr. Addison would pay it back any time. The firm delivered mo thirty-six or forty-six bales of cotton; can’t say exactly how much or how many bales; nor when, whether before or after the date of the note sued on. Mr. Addison told me the gold was for General Hodge, who was, I think, at the time, commanding the military district of country. I mean this Confederate military district. Mr. Addison said he wanted the gold for General Hodge, who wanted it for his family; that with it he could use General Hodge, and make a big • thing of it. He said General Hodge’s family wore in Kentucky. I was, by this time, tired out trading with the firm of Thompson, Adams & Thayer. Don’t know what he, Addison, meant by a “ big thing of it.” I understood Addison was acting as Confederate quarter-master at the time of the transactions referred to, and the loan of the gold. I was engaged in getting out military supplies, some of which I delivered to Thompson, Adams <& Thayer-, but most of them to James Clark, who was their clerk. The goods and supplies were brought out by different parties. I never sent an order to Baton Rouge for supplies. I sometimes told parties bringing out supplies what kind of things I' wanted.</p> <p>In-chief, resumed: The Federal lines were not on the east side of the Amite river. Mr. Sharp was not interested in the gold loaned to Addison, and had nothing to do with it. It was my individual and private transaction.</p> <p>The goods and supplies referred to were found and bought by me on the east side of the Amite river. I made no orders for goods and supplies to be brought out, but, sometimes, when I would meet one of those men, I would tell them to bring out such things as I wanted; but I seldom ever heard from them afterwards, as about one trip was all they could ever make. I did not sell those goods particularly to this firm, 1 but to all who wanted them. Sold a good deal to said firm, as it was my largest customer. I made demand of Mr, Addison for payment of the note sued on, but he never paid it.</p> <p>' Edward Cooper, recalled, says: Imean, when I use the expression, out of the lines, that whenever I could get goods that came from New Orleans, Baton Rouge, or across the Lake, and they were delivered on the east side of the Amite River, I would buy them. That is what i mean by getting them out of the linos.</p> <p>Cross-examined: The cotton obtained from the firm, thirty-six or forty-six bales,-referred to, was put at thirty-five cents per pound. I bought goods and supplies for the firm specially, but I sold to other parties. The firm was my largest customer. - I sold goods to Mr. Williams and Mr. Davis, but the firm purchased most, I think. I purchased some goods at my place, some twenty miles futher down, but all in Livingston parish, east of the river. My place is forty-five miles below here.</p> <p>The counsel for defendant cite 1 An. 178; Boatner v. Yarborough, 12 An; 249, 5L. R. 122, 4 Rob. 140.</p>

<p>The act of the Legislature of 1839, providing that no attorney or counsellor at law shall give evidence of any thing that has been confided to him by his client, without the consent of such client, cannot be construed to exempt or shield the property of the client in the hands of the attorney from the pursuit of his creditors.</p> <p>The garnishee may be excused from answering any particular interrogatory, if he declare, on oath, that ho cannot answer the same without disclosing matters confided to him by his client, or advice given his client concerning the business about which he is retained.</p> <p>"Where an attorney-at-law has in his possession for collection, as shown by his answers to interrogatories, promissory notes owned in part by the judgment debtor of tho plaintiff, the interest which the defendant has may be seized in the hands of the garnishee, and sold for the benefit of the judgment creditors: after notice to the garnishee he caD do no act to the prejudice of the seizing creditor.</p>

<p>Where a party leases a house in the city of New Orleans for a fixed period of time, and executes his notes for the rent, and continues to occupy the premises after the lease has expired, without giving notice to the lessor, he will be considered as continuing the lease from month to month, and becomes responsible for the rents at the rates mentioned in the lease.</p> <p>Where a lessee places the house containing his furniture in charge and possession of his servant, he will be considered as the occupant and possessor of the buildings and premises through his servant, and he is responsible to the lessor for the rent during the time that his servant is in possession.</p>

<p>A sheriff’s return, in the following words, “And after making diligent search and inquiry, and demand of said defendant for other property to satisfy said writ, and the plaintiff named in the said writ failing to point out other property to satisfy the same, and said wit having expired by limitation of law, is hereby returned credited as above,” is insufficient tobase a judgment upon, against the defendant’s security in an appeal bond.</p> <p>The sheriff’s return should have declared, that he found no property to seize, notwithstanding the demand on the parties.</p>

<p>Proceedings on an order of seizure and sale, which are litigated by the defendant, suspend prescription.</p>

<p>APPEAL from the District Court, Parish of West Feliciana, Cooley, J.</p>

<p>APPEAL from the District Court, Parish of Points Coupee, Cooley, J. •</p>

<p>A party on a negotiable promissory note originally given to defendant cannot be held liable on a garnishment, when it is not shown that the note is in the possession of the defendant; in such a case payment of the judgment in garnishment would not protect him against liability on the note in third hands.</p>

<p>A JA. PPEAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>APPEAL from the District Court, Parish of West Feliciana, Cooley, J.</p>

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

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

<p>The Acfc of 1852, creating a Board of Levee Commissioners for the parishes of Carroll, Madison and Catahoula, allowed no compensation to parties who did work on the levee without the authority or sanction of the Board.</p> <p>Whore the claim is invalid evidence is not admissible to establish its correctness.</p>

<p>A nuncupative will, by publio aot, must be diotated by the testator, and written down by the notary, as diotated in the presence and hearing of the witnesses; it must show on its face that all the formalities prescribed by law have been strictly complied with, otherwise it will be declared null and void.</p> <p>A .nuncupative will, by public aot, being null in tbat form for want of the formalities prescribed by law, may be admitted to probate as a nuncupative will under private signature.</p>

<p>APPEAL from the District Court, Parish of Lafourche, Roman, J.</p>

<p>APPEAL from District Court, Parish of West Baton Rouge, Posey, J.</p>

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

<p>APPEAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>The rule enunciated in article 2256 of the Civil Code, that parol evidence is inadmissible to contradict or vary the contents of a notarial act of mortgage, only applies to acts intrinsically valid, and nob to such as are attacked to be declared null on account of fraud.</p> <p>An intervention by the wife in a pre-existing suit between the creditors and the estate of her husband to annul her renunciation in an act of mortgage executed by her husband, is a direct action, and parol evidence is admissible to prove the nullity on account of fraud, on the general principle that fraud vitiates all contracts.</p> <p>Where «.notarial act is sought to be declared null on the ground of fraud, the notary who passed the act need not be made a party to the suit.</p>

<p>APPEAL from the District Court, Parish of West Feliciana, Cooley, J.</p>

<p>Where the transcript of the record is duly certified to by tfie Clerk of the District Court it is sufficient to enable the Supreme Court to decide the case on its merits, and the appeal will not be dismissed.</p> <p>In order to bind the endorser of a promissory note, the holder must give him notice of protest.</p>

<p>An action in damages resulting from a quasi-offenge is prescribed by the lapse of one year. O. O. 3501.</p>

<p>The order of Major General Banks appointing commissioners to liquidate the affairs of the Bank of Louisiana, did not, ipso facto, destroy the charter of the hank, nor did the violation of any of the ■ corporate powers by the bank operate a forfeiture of its charter.</p> <p>rThe charter of an incorporated institution can only be forfeited by the authority of, and under such proceedings as are prescribed by law.</p>

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

<p>A, having sold tract of land to B. retained a mortgage thereon for the unpaid portion of the price, - with the pact de non alienando in the act of sale. B, subsequently sold the same tract of land to G, without an assumption in the act of sale of the existing mortgage. A lost his mortgage by allowing ten years to elapse without reinscription; Held — That 0, the third purchaser, held the property free irom the mortgage of A, after the lapse of ten years from its inscription, notwith- ' ' standing the pact de non alienando contained in the act of sale from A to B, and that the third pur* , chaser could successfully enjoin the order of seizure and sale taken out by A.</p>

<p>Interest'will not be allowed in the judgment unless prayedfor in the petition»</p>

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

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

<p>APPEAL from the District Court, Parish of St. Tammany, Ellis, J.</p>

<p>APPEAL from the Fifth District Oourt of New Orleans, Leamnont, J.</p>

<p>Inscription in the office of the Recorder of Mortgages ceases to be evidence of a mortgage after the ’ lapse of ten years, and it is not Bubjeot to the rules of prescription.</p>

<p>Where fcherecord discloses the fact that the appeal was taken for delay, damages will be allowed as for frivolous appeal.</p>

<p>APPEAL from the District Court, Parish of St. Tammany, Ellis, J.</p> <p>* * * We think that we have clearly made out our case, and established the fact that the river Bogue Palia is navigable as alleged in plaintiffs petition, and by reference to the transcript it will appear that after plaintiff closed his testimony, the defendants were of the same opinion; for it was then that they filed the plea of prescription, thus tacitly admitting that our right originally existed, and resting their defence on the strange grounds that by-an uninterrupted violation of the law for several years they have acquired a right to persevere in their wrong-doing.</p> <p>We know that this court is usually loth to reverse the decision of a jury, trusting much to the correctness of their opinion, from the fact that they are able to judge of the credibility of the testimony, from personal knowledge and observation of the witnesses, but we hope there will be no such feeling on the part of the Court in this case, where the verdict of the jury is so contrary to the law and evidence, and that the Court will bear in mind the fact, that the jury knew, (and it certainly was constantly kept before them by the defendant’s counsel during the. trial,) that in deciding against the defendants in this case, they would be condemning themselves to pay costs of suit, and of erecting a proper bridge, as the Police Jury would levy a tax for this purpose, to which each inhabitant of the parish would be subject. The plaintiff does not wish to obstruct the public travel across the river, at the point in contest; he only asks that it be so arranged as to not interfere with his rights as a citizen to navigate the river. This can be easily done by constructing a drawbridge or floating bridge, such as is usually thrown over navigable streams. Although there is hut one plaintiff in this action, the rights of many persons living on the banks of the river between the town of Covington and the residence of plaintiff are interested in the decision of this case. To establish the navigation of the stream is a matter of great importance to all living above the point where the bridge has usually existed, as it will most certainly increase the value of all property situated above said point,</p>

<p>Where the certificate of notice of protest p£ a nromissory note does not show that the endorser was notified, and there is no obher evidonce fixing his liability, be will be discharged.</p>

<p>Where the evidence shows that justice has been done by the Judge a gao, the judgmentwill not be disturbed on appeal.</p>

<p>Where the appellant allows three judicial days to elapse after the return-day, before filing the transcript in the Supreme Court, the appeal will be dismissed on motion of the appellee, ' ' '</p>

<p>The husband, being the head and master of the community, can alone be bound forthe debts of tna partnerbiiip.</p> <p>tTo recover against a raarrried woman it must be alleged and proved that the debt was contracted for, and enured to, her separate and individual benefit.</p>

<p>A mandate is gratuitous, unless a oontrary stipulation has been made; and no compensation is allowed unless it appear from the terms of the mandate that a charge was to be made Where the principal, having his agent in his employ atafixed rate, imposes upon him additional duties, and e ilarges his powers, without stipu atmg that he is to receive additional compensation, the agent or mandatary cannot recover any extra wages for the additional services.</p>

<p>A sale of property by an auctioneer,, under an order of court, which, prior to the day of sale* hab become inoperative, is a nullity, and the purchaser is not bound to comply with his bid.</p>

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

<p>A promissory note endorsed in blank, held by the widow of her deceased husband, is presumed to be held as community properly, and is subject to all the equities existing between the original parties. . ■ ' . "</p> <p>Where the evidence shows that the consideration of a promissory note was the price of an African slave, payment thereof cannot be judicially enforced.</p> <p>The doctrine in the case of Wainxoright v. Bridges, (19 An. 234) reaffirmed.</p>

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

<p>Wherp the evidence leaves the right of plaintiff in doubt, the Court, in the exercise of a sound discretion, should render a judgment of nonsuit.</p> <p>The law does not require the Judge a quo to randera judgment of nonsuit on motion of plaintiff.</p>

<p>Where suit is brought on a written contract to enforce the delivery of cotton alleged to have been bought and paid for, parol evidence is admissible to show that the payment alleged to have been ma ie was in Confederate treasury notes.</p>

<p>Where It is manifest that the District Court is without jurisdiction, a writ of prohibition may issue from the Supreme Court restraining the Judge from acting in the cause.</p> <p>Where the allegation in the petition show aprima facie case of jurisdiction, the Supreme Court will nob issue a writ of prohibition on application of the defendant that the court is without jurisdiction.</p>

<p>Appeal from tlie District Court, Parish of St. Helena, Ellis, J.</p>

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

<p>APPEAL from the District Court, Parish of St. Tammany, Ellis, J.</p>

<p>The evidence shows that George O. Waddill resided in the parish of Madison, for a number of years, with bis family, on his plantation; that he left there with his family and most of lu*. hands in 1863, and moved to the parish of Jackson; that in 1865 he removed to N«»w Orleans, where he bought a ro'idence. m which he and. his family have since resided. Suit was brought again t him in the city of New Orleans m the year lc66. to which ho excepted, on the ground that oii domicil was in the parish of Carroll, a place where it does not appear . hat he has ever resided; That in the el« ction of his domicil in the paris.i of Uarroll, he must be considered as having abandoned his original domicil, in the parish of Madison, and the fheriifs return on the citation, showing that I'emoe was made at his residence in the city of New Orleans, is prima facia evidence, which throws the burden of proof on him to rebut.</p>

<p>Tile action of a creditor of the husband, to annul a judgment of separation of property between the husband and wife, and set aside the sale made by the sheriff on a writ of Jieii facias of the husband’s property to the wife in payment of her judgment, is prescribed by the lapse of one year from the date of the judgment, and sale of the property under it.</p>

<p>The receipt, of an attorney-at-law showing that he had received the amount of his client’s debt in Confederate treasury notes, and credited the amount to the debtor of his client, is not binding on the client. An attorney is not authorized to receive anything but money iu payment of the debt of his client. 19 A 172.</p> <p>Where s< veral parties, having interest in an estate, enter into a transaction, the object of which is to • end litigation and settle all matters in dispute none of the parties are bound in warranty to the others, on account of the interest in real property therein conveyed. In such oases the transfer of whatever rights any of the partios may have made to the others, is in the nature of a quit- , claim, and no warranty results therefrom.</p> <p>A transaction has, between the partios to it, the force and authority of the thing adjudged. C.C. 3045.</p>

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

<p>WRIT OF PROHIBITION.</p>

<p>A statement of facts made by the Judge a quo, must be filed m the record before the appeal Is granted, otherwise the appeal will be dismissed.</p>

<p>APPEAL from the District Court, Parish of St. Charles, Beauvais, J.</p>

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

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

Reporter. — The evidence in this case shows that the steamboat Olive Branch took on board at St. Louis, a lot of apples consigned to T. C. Mahan, at New Orleans, and gave a clear bill of lading; that on the way to New Orleans the apples were landed, and after several days delay reshipped on another boat; that on their arrival at New Orleans they were very much damaged, and nearly valueless — caused by the delay in transposition.

<p>¡Vhere a shipper contracts.with an insurance company, to insure the safe transportation of a cargo, or portion thereof against marine loss, with the words in the body of the policy‘'only against qeneraX average, and absolute total toss.*’ the underwriters are oaly bound in case of absolute destruction or total loss of the goods insured.</p> <p>Vhere the vessel has bem stranded, and the oargo has been wrecked and sold for salvage, the shippers cannot recover the insurance from the underwriters, under the clause in the policy, "absolute and total loss."</p>

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

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

<p>The rule ia well settled, that a tutor can do no aot affecting the rights or property of his ward, uni authorized by law, and in the manner pointed out. \</p> <p>The law does not authorize the tutor to bind his pupil as surety, and all obligations of that charac* ter made by the tutor are null and void.</p> <p>The contract of suretyship, made by the surviving widow in the name of the succession of her late husband, which she administers in her capacity of natural tutrix to her minor child, is null and void.</p>

<p>APPEAL from the District Court, Parish of East Feliciana, Poseg, J.</p>

<p>A party in possession of a promissory note for collection cannot* without- express authority from the principal, extend the time of payment,</p> <p>The fact that a party was the agent of another ata particular date, is no evidence that he was his agent at a prioi* date*'</p>

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

There is nothing in this case to sustain tbe plea of prescription, on which defendant alone relies under the recent rulings of this honorable court. There have been no laches, no neglect, no unnecessary delay on the part of plaintiffs'.

<p>A judgment rendered against a married woman, without her being authorized to appear in Court, is null.</p> <p>An answer filed by a married woman, unauthorized to appear in court, has no legal effect.</p>

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

<p>A executed his promissory note, payable to himself, endorsed in blank, which he transfers to B for a valuable consideration before maturity. B transfers the note to C after maturity with a knowledge of the consideration. 0 brings suit against A on the note, who resists the payment on the ground that the consideration was illegal: Held — 'That inasmuch as A. could not urge the defence of illegality of the considertion against B, he could not against O, and he is therefore bound on the note.</p>

<p>Where a judgment has been voluntarily executed, though not coming strictly and technically within the rule of the thing adjudged, can neither be attacked nor questioned by a party who has voluntarily acquiesced in its execution.</p> <p>A judgment acquiesced in must, as to the parties to it, have the force and effect of the thing adjudged.</p> <p>A judgment of the District Court, dismissing a party from the office or trust of liquidating partner, and ordering him to turn over all the assets in his hands to the executor of the estate, having been executed by the liquidator complying, cannot afterwards be questioned by him, nor can it be questioned by any other party who sought by appeal to have the judgment dismissing him reversed.</p>

<p>Defendant received a lot of cotton on deposit from plaintiff, for safe keeping, while the war was going on; and while the cotton was in his possession, bodies of armed men were in the neighborhood burning cotton: defendant removed the cotton from his gin to a more secure place, which was found and burned by the so-called Confederate authorities. Defendant reoeived no compensation for keeping the cotton: Said — That the cotton was not at the risk of the depositary at the time it,was burned, and it having been burned without his fault and in opposition to his efforts to prevent it, he is not liable to the owner for the value thereof.</p>

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

<p>Appeal from the District Court, Parish of East Eeliciana, Posey, J.</p>

<p>AU banking institutions ill Louisiana, organized under the Free Banking Law of 1855, are exempt from, paying interest on their notes in circulation.</p>

<p>A party employed as foreman in a job printing office has no privilege on tho job material to secure his wages.</p> <p>lío privilege exists in favor of the holder of a promissory note.</p>

<p>A contract of agency whereby the agent was placed in possession of Confederate treasury notes and ; bonds of the Confederacy (so-called) to invest in the purchase of cotton for the benefit of the principal is illegal, and cannot be enforced.</p>

<p>The putting in default of a depositary is a preiequisite to enable the depositor to recover where the thing deposited has been lost or destroyed.</p> <p>Where an agent or mandatary, or person having property on deposit at a lime when he is not menaced by any overpowering force, allows the property to be taken from his possession without the consent or authority of the owner, he becomes responsible therefor, and the putting him in default is unnecessary.</p>

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

<p>A 1i. PPEAL from the District Court, Parish of Tensas, Farrar, J.</p>

<p>The New Orleans, Jackson and Great Northern Railroad took on the cars at Osyka, Miss., 57 bales of cotton, for which they gave a bill of lading of the following tenor: Received in good order and well conditioned to be transported to New Orleans, but it does not insure against risk by fire. The cotton took fire on the train and was entirely consumed. The New Orleans Mutual Insurance , Co pay the owners for the cotton $160 per bale, and sue the railroad company as common carrier, and base their right to recover on the ground that the fire and destruction of the cotton occurred through the fault and negligence of the railroad company and their employes: Meld — 'That inasmuch as the railroad company specially excepted the risk of fire, and it not being shown by the insurance company that the fire occurred through the fault or negligence of the company, the insurance company cannot recover.</p> <p>The common .carrier is bound for ordinary negligence, notwithstanding the special agreement excluding risk for fire.</p>

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

<p>Evidence received without objection, and admissions made in the record, must have their weight, although unauthorized by the pleadings.</p> <p>Aparty in possession of household furniture belonging to another, may relieve himself from paying their estimated value by delivering the articles to the owner.</p>

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

<p>Private properly oan only be expropriated when it is necessary for the public use. The Question whether the property sougtib to be expropriated is necessary for the puolic use or convenience, must he Judicially determined.</p>

<p>Where a personal judgment has been rendered in one of the District Courts of New Orleans, with a recognition of the mortgage executed to secure the debt, and the debtor dies, and his succession is opened in the probate court, the District Court is not thereby divested of jurisdiction over the case: execution may issue on the judgment, and the mortgaged property be seized and sold to</p> <p>A writ of prohibition will not issue from the Supreme Court restraining the Judg? of the District Court from executing a judgment which he has rendered, unless it is shown that he is incompe* tent rcUione materice to proceed in the case.</p>

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

<p>Where the sheriff sells real estate for the taxes due on it under an order of seizure, he must comply strictly with all the formalities required by law, otherwise ,the sale will be a nullity.</p> <p>The judge or justice of the peace, who issues the order of seizure and sale of real estate for taxes due, has the right to appoint a curator ad hoc to represent the absent owner, on whom notioe of • seizure, etc., can be served, which will be binding on the owner.</p> <p>Where the sheriff has sold a lot of ground for taxes, and the record oj. the proceedings show that he has complied with every requirement of the law, the purchaser Is bound to comply frith his bid.</p>

<p>The action in damages for offences or quasi-offences is prescribed by the lapse of one year O. O. 3501.</p>

<p>WRIT OF HABEAS CORPUS.</p>

<p>APPEAL from the District Court, Parish of East Feliciana, Posey, J.</p>

<p>Where a party made a Jease of a house in New Orleans for the period of five years with his written consent that the lessee might renew the lease at its expiration for the same length of time, on the same terms and conditions, and the sub-lessee with the consent of the lessor, notifies him, the lessor, that he desires to renew the lease, according to the agreement, the lessor cannot avoid a renewal of the lease, on the ground that his consent so to do, was obtained through error orfraud. -</p> <p>Where one of two innocent parties must suffer loss or inconvenience, it should fall on the party who , induced it.</p>

<p>■Where no appeal bond has been given in favor of the parties called in warranty, the appeal will be dismissed. , ■</p>

<p>APPEAL from the Fourth. District Oourt of New Orleans, TIt&ard, J.</p>

<p>A railroad, passing through a parish, is liable to an assessment of a parish tax on the property of the road located within the parish, unless exempted by a special law The burden of showing such an exemption is on the railroad company.</p> <p>Where an injunction is dissolved, no damages can be allowed to the party enjoining.</p>

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

<p>In a suit to enforce a right of servitude, parol evidence is admissible to prove possession of the property claiming it.</p>

<p>Where the amount fixed by the Judge for the appeal bond, is less than that required by law for a suspensive appeal, it will be good as a devolutive appeal, the bond in the latter case being only to secure the payment of oosts.</p> <p>A purchaser of property, at probate sale, may be compelled by rule to comply with the terms of his , bid; he can, however, set up in defence of the rule, any defect of title in his vendor, or show any' outstanding title in a third party.</p>

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

<p>'* £x PPEAL from the District Court, Parish of St Helena, Ellis, J.</p>

<p>Where á survey, by the parish surveyor, has been made, and ft boundary line established thereby, and 1 one party is suffered to occupy up to the line for more than ten years, the action by the other , party to have the line corrected is prescribed. C. O. 849. ‘ ‘ •</p>

<p>An appeal will not lie from an interlocutory order permitting a party to bond property under seques* tration.</p>

<p>Whore the consideration, of a promissory note is sho .vh to be the price of the sale of a person (slave) • payment thereof cannot be judicially, enforced. WaimorigJit v. Bridges, 19 An. 234.</p>

<p>A promissory note is prescribed in five years from its maturity. O. O. 3505.</p> <p>To avoid the effect of the plea of prescription of a promissory note, the holder must show that the law has been suspended.</p>

<p>The burden of proof is on the party who seeks to avoid the payment of a promissory note, on the ground that the consideration has failed.</p>

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

<p>A Ijl PPEAL from the Fourth District Court of New Orleans, Thíard, J,</p> <p>This suit was instituted upon certain promissory notes given by defendants to plaintiffs for the purchase of a' plantation and slaves, in the parish of Pointe Coupée.</p> <p>All the notes sued on, except the one for $1,087 50, were endorsed by Martin Gordon, Jr., but were not protested for non-payment at maturity, and the only matter now in controversy is, whether Mr. Gordon is liable for their payment, either as endorser or surety.</p> <p>The District Court decided that he was not liable in either capacity, and rendered judgment in his favor, from which judgment plaintiffs have taken this appeal.</p> <p>The ruling of the District Court, we respectfully urge, is erroneous, and Mr. Gordon is liable, whether he be viewed as surety or endorser.</p> <p>We contend first, that Mr. Gordon is liable as surety on the notes.</p> <p>Mr. Trist, one of the defendants who was called on the stand by the plaintiff as a witness, says: “ The endorsements of Martin Gordon on these six notes were placed (on them) before they were delivered to Mr. Collins, and before the act of sale was passed from Collins to Trist.”1 See Rec. p. 73.</p> <p>Mr. Gordon was not a party to the notes at all. Mr. Collins requested his name to be upon them as well as the names of the purchasers, before he'would accept them in payment of the property. The name of Mr. Gordon was placed on them in this city several days before the sale was made, the act of sale having been passed in Pointe Coupée, and when the notes were delivered to the payees, the name of Mr. Gordon was on them.</p> <p>These are the facts as disclosed by the testimony, and under the well-settled jurisprudence of this State, we think, show very clearly that the contract entered into by Gordon, was as surety and not that of endorser.</p> <p>Had the notes been made payable to Mr. Gordon, or had the name of. the payee been left blank, his obligation would have been that of endorser only.</p> <p>rlhe decisions of the courts of this State are entirely uniform upon this subject, and are also in accordance with commercial law. .</p> <p>In the case of Gooley v. Lawrence, 4 M. 639, after the notes were executed, but before maturity, the holder requested security for their payment, and the defendant endorsed them at the request of the debtor; held that he was liable as surety without protest.</p> <p>In 3 N. S. 659, the plaintiff, on selling his property to the maker of the note, required the defendant should give his signature, which was done. The Court held that he signed to secure the payment of the note, and was bound as surety.</p> <p>In 10 La. 376, the Court say: “We consider it now well settled, that •when a person, not a party to a bill or note, puts his name upon it, he is presumed to have done so as surety.”</p> <p>In 14 La. 389, the Court say: “By putting their names to a bill not made to their order, they must have known that they were making themselves not endorsers but guarantors; that their endorsement must be considered as a direct and positive undertaking on their part to pay the bill, and not as a conditional one; that an absolute guarantee could have been written over their name.” The same rule is recognized in this case as in 10 La. quoted above.</p> <p>In 4 R. 162, the same rule is again laid down. The endorsement of the defendants being proved to have been made before that of the payees, they were held to be bound as sureties.</p> <p>The same principle was reaffirmed by Chief Justice Eustis, in 1 A. 248, and again in same volume, page 274, in the case of Penny v. Parham, which was a case almost exactly parallel to the one before1 the court, and to which the particular attention of the Court is respectfully asked.</p> <p>The same principle is again reaffirmed in 2 A. 592, 3 A. 590, in 4 A. 273, and in 9 A. 533.</p> <p>The case of Brand v. LeBlanc, 10 A. 97, appears to conflict with these decisions, but the case is not fully star.. .1 in the decree. An examination of the record in that case, No. 3820, will show that the judgment is strictly in conformity with the previous decisions upon the subject.</p> <p>The defendant signed the proces-verbal of the sale as surety for the purchaser, but when the notes were given by the purchaser they were drawn to the order of and endorsed by the surety, M. A. LeBlanc, and in that form they were delivered to the administrator, which indicated clearly the manner in which Mr. LeBlanc intended to bind himself, to-wit: as endorser only.</p> <p>In 12 A. 517, the name of the payee was left blank, which the Court held was sufficient to enable any person whose name was on the back to fill' up the blank in such a manner as to make him an endorser.</p> <p>These decisions are all uniform, and we think are decisive of the question now presented. Any other construction of the contract would lead, a,s was remarked by Chief Justice Eustis, in 1 A. 274, to a palpable absurdity. It is evident, from the testimony, that Mr. Collins required Mr.' Gordon’s name on the notes to secure, in some form, the payment of the notes to himself, (Mr. Collins;) that Mr. Gordon was to be bound in some manner for the payment of the debt to him, in case the purchasers failed to do so.</p> <p>Whereas, if Mr. Gordon be viewed as endorser only, instead of his being bound to plaintiffs for the debt, they, the plaintiffs, being payees, and necessarily first endorsers, would be bound to refund to him the money in case he should have to take up the notes.</p> <p>The following authorities from other States also sustain the position alone contended for by us. Many others could be quoted, but we append only those which can be found in our law library; 36 Maine (1 Heath) 147-265; 9 Cushing Mass. 104; 9 Texas, 615; 20 Missouri, (5 Bennet) 571; 2 Cal. 605; 18 Missouri, (3 Bennet) 74-140; 6 Indiana, 478. * * *</p>

<p>The correct rule to govern in the settlement of a partnership account is to ascertain what each partner has contributed, and make them equal in this respect, and divide the balance of the proceeds,</p>

<p>Whore fche petit jury returns a special verdict, they inusfc find all the circumstances which consti tute the offence, otherwise the judgment of the Court rendered thereon will be erroneous.</p>

<p>APPEAL from District Court, Parish of East Baton Rouge, Posey, J.</p>

<p>APPEAL from the First District Court of New Orleans, Howe, J.</p>

<p>Where the appellant fails to appear in the appellate court, the judgment of the lower court will be affirmed.</p>

<p>Where a third party purchases a promissory note with full knowledge of the consideration, he caif not protect himself under the law-merchant against the plea by the maker of failure of consideration.</p> <p>Where the consideration of a promissory note is shown to be the price of a slave, payment thereof cannot he judicially enforced. The doctrine in the case of Wainwright v. Bridges (19 A. page 234) reaffirmed.</p>

<p>AH the parlies having an interest in maintaining the judgment of the lower court must be made parties to the appoal, otherwise the appeal will be dismissed.</p>

<p>APPEAL from the District Court, Parish of Ascension, Beauvais, JV ,</p>

<p>Where the holder of a promissory note allows more than five years to elapse after the maturity thereof, the plea of prescription will he maintained.</p>

Reporter. — The original opinion and decree of the Supreme Court in this case — which was in favor of the defendants, is not published.

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

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

* * * The only question presented for the consideration of the Court in this case is: Is the defence set up, that Confederate currency was… Held: “that in order to recover, it was essential ’or him not only to allege and prove that he retained and tendered the dentical notes received by him, but he has failed to make the necessary >roof, which it appears he might have done, as the payment was made o or in presence of his broker.” “ What a party receives and uses as money,…

<p>Proof of notice of dishonor is indispensable to hold the endorser on a bill of exchange or promisso*. tj note.</p>

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

<p>A party, having a mortgage importing a oonfession of judgment, may proceed via executiva, although the mortgagor may have died subsequently, and his succession have been accepted with benefit of inventory.</p> <p>The act of 1865 exempting property from seizure and sale, does not apply to property mortgaged ; before the passage of the act. ,</p> <p>Where a mortgage was executed on land and slaves, while the relation of slavery was recognized by law, the subsequent abolition of slavery and the destruction of property in slaves did not annul the mortgage; it is still in force on the land.</p>

<p>PPEAL from the District Court, Parish of Jefferson, Cazabat, J.</p>

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

<p>PPEAL from the District Court, Parish of Jefferson, Gazabat, J.</p>

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

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

The plaintiff and appellant avers that she is the owner of sixty-six shares of the capital stock of the Levee Steam Cotton Press Company, and as such entitled to $2,376, dividends declared on the same during the years 1848, 1849, 1852 and 1853. » The defendant admits that the plaintiff was the owner of the stock, and that the dividends were declared as stated; but set up the, special defence that the dividends were paid to, and the stock sold by Pierre Deverges as the agent…

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

<p>A made a contract with B to make a cotton press, and paid him the price agreed upon in advance; B made the press and pointed it out to A in hi«* foundery as his property; A afterwards sent for the press, and was informed that B h-ifl sold and delivered it to a third party; A then brought suit for ; the price be'had paid, which B re-ihied, on the ground that it was a suit bo rescind the contract, and he had not been put in deiault according to Art. 1905 of the O. 0: Held — 'That B, by his own act, having put it out of liis power to deliver the press, could not avail himself of the plea of default; Held — further, that B was bound to return the price which he had received, with . interest, to A.</p>

<p>The mere recital of a primarily existing mortgage is insufficient to supply the want of reinscription ■ of such mortgage.</p> <p>One of the essential requisites of an act of reinscription of a mortgage is, that the reciting act must contain a clear and definite description of the property mortgaged.</p> <p>The reinscription of a mortgage must be made before the expiration of ten years, reckoning from its date as between the parties, and from the time of inscription as to third persons. O. 0.3333.</p> <p>Tbe reinscription of a mortgage dispenses with the examination beyond the period of ten years preceding.</p> <p>The renewal of the registry of a mortgage, after the lapse of ten years from the date of first inscrip* tion, will not affect an ordinary third possessor or subsequent mortgagee, but its omission cannot avail a subsequent purchaser who has assumed the mortgages in the act of sale.</p>

<p>The appellate jurisdiction of the Supreme Court, in criminal cases, is limited to questions of law alone, and must be presented by bill of exceptions or assignment of errors.</p>

<p>The right of inquiry into the sufficiency of the security, on an appeal bond after the bond is given, is within the province of the court from, which the appeal is taken.</p>

* * * It is immaterial, so far as the liability of J. H. Eimer & Co. is concerned, whether Joseph Lang was their agent at Natchez or their partner; in either case they are liable to plaintiff. That he was one or the other is made as certain by the evidence as it ever can be in such cases, where there is not an instrument in writing, in which the functions and character of the party, as agent or partner, is clearly expressed.

<p>An appeal only lies from a final judgment, siguedby the Judge, and such interlocutory judgments as may work an irreparable injury.</p>

<p>The city of New Orleans, having decided that it was to the public interest to become the oxoner of the soil necessary to construct a levee and establish a publio road, adopted the mode of expropriu* tion prescribed by law, by empaneling a jury of freeholders. The jury made their report of the quantity of ground necessary for the contemplated levee and roads, and estimated the value thereof: Meld — That the city, having eleoted this mode of proceeding, she is bound by the rules and regulations prescribed in such cases.</p> <p>A jury of freeholders have no authority to fix their own compensation for their services; they are governed by the rules regulating all other juries, in regard to their compensation,</p>

<p>Where the evidence stows that suit has been-brouglifc, and judgment rendered on the same instrument between other parties,, the plea oí res judicata will not be maintained.</p>

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

<p>APPEAL from the District Court, Parish of Carroll, Farrar, J.</p> <p>The main issue in this case is the plea of prescription. The note sued on was due September 22d, 1859; the defendant was cited March 29, 1866, which makes about six and a half years, and without some evidence to show an interruption of prescription, it seems strange that judgment should have been rendered against the defendant. C. C. 3505.</p> <p>It is contended, however, that there was an interruption growing out of the recent disturbances of the country, and this Court is gravely asked to take notice, without evidence, that there was a suspension of civil process. We think this is a king too much. The plea of prescription was filed in the lower court, both by way of exception and answer, and if there are any causes for an interruption, it was the plaintiffs’ duty to have shown them.</p> <p>“ Presumptions not established by law, are left to the judgment and discretion of the Judge, who ought to admit none but weighty, precise and consistent presumptions,” etc. C. C. 2267, and authorities cited.</p> <p>Were the causes which create the rule contra non valentem universal in their application, as in case of war with a foreign nation, it is barely possible that the court might take notice of it; but a mere civil feud, or rebellion, where the courts were open one time and closed at another, it is asking a court of appellate jurisdiction to descend from its high position, assume the functions of a court of the first instance, and enter into an investigation and calculation of petty details and dates, and that, too, from the uncertain light of public history, proverbially unreliable. But again, even if the court, in general matters, could presume-the cause, creating the rule non constant, that it applies to the parties to this litigation. There were many localities where the courts were not closed, and the court is as much at liberty to presume that the plaintiff could have prosecuted his demand during the six and a half years, as that he was precluded. Neither presumption can be allowed, as they lack the attributes required by Art. 2267, are neither weighty, precise nor consistent, and should have been supported by testimonial proof.</p> <p>The question, then, arises, what disposition can be made of this case? To affirm the judgment would be clearly contrary to law; to remand the case would be paying a tribute to negligent practice; and it results that the sole alternative is to reverse the judgment and render judgment for defendant. Pleas of prescription are regarded with favor by all courts, have been denominated by the highest tribunal in the land as statutes of repose, and enacted in the best interests of society. 1 Pet. B. 360; 5 ib. 407.</p> <p>A familiar rule of evidence is, that the best evidence in a case must be adduced. Presumption in this ease being secondary, cannot be resorted to.</p>

<p>Where the mail service between two points is suspended or broken up. a notice of protest deposited in the post-office by the notary at one place, addressed to an endorser who resides at another, the service is not good.</p> <p>Where the mail service cannot be used as a means of conveying notice, the holder of commercial paper is not excused if he fails to use all other practicable means of bringing home notice to the • party whom he wishes to charge. 19 A. d3.</p>

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

<p>APPEAL from the First District Court of New Orleans, Howe, J.</p>

<p>In a criminal case, where no bill of exceptions, nor assignment of errors, is found 111 the record, and no error of law appears in the proceedings, the judgment of the District Court will be affirmed.</p>

<p>Steamships engaged in carrying passengers from onoport to another are responsible for the loss or damage done to baggage while on board, whioh has been placed in the custody of the officer of the vessel, whose duty it is to receive and take care of baggage.</p>

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

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

<p>The intention of a parly, charged with the commission of a crime, is an essential averment in a bill of indictment,</p> <p>A bill of indictment cannot be amended by inserting a word essential to make it valid, suchas feloniously.</p> <p>Where the statute has adopted a common law offence, by fixing a penalty to it, without otherwise defining the crime, all the common law requirements must be followed in the indictment. 9 A. 2L1.</p>

<p>The erasure of a word on the face of a promissory note, and the substitution of another word therefor, may be explained by evidence; and the notary, who drew the act of mortgage to secure tha payment of the note, is a competent witness for the purpose.</p> <p>Where a promissory note is prescribed on its face, and the plea of prescription is filed for the first time in the Supreme Oourt, the case will be remanded to the lower court to enable the holder to introduce evidence, showing an interruption of prescription.</p>

<p>The oity of New Orleans liable for the damages done'to property by mobs in riotous assemblies. Aot of the Legislature, approved 9th of March, 1855.</p> <p>Where a party brings shit against the city for damages done to his property by a’mob of rioters, it is inoumbent on him to render his claim certain by legal evidence.</p>

<p>APPEAL from the Eifth District Court of New Orleans, Leaumont, J,</p>

<p>-4 -OL PPEAL. from the Fourth District Court of New Orleans, Theard, J.</p>

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

<p>The burden of proof is on the holder of a bill of exchange to show demand, in order to bind the endorser.1</p> <p>Where the holder fails to show due dilicence, in making demand of payment of a bill of exchange, the endorser will be discharged.</p>

<p>APPEAL from the Sixth District Court of New Orleans, l)iipkmti'er,'S.</p>

<p>The promise of an endorser to pay the note, if the holder would not protest it, amounts to notice, and maybe proved by parol evidence. ,</p> <p>Although the amount of the note is above five hundred dollars, the evidence of one witness is sufficient to prove the promise to pay it. '</p>

<p>APPEAL from the District Court, Parish of Plaquemines, Oazabat, J.</p>

<p>APPEAL from the District Court, Parish of Plaquemines, Oazabal, J.</p>

<p>A party by writing bis name across the face of a draft makes tbe acceptance complete, and parol evidence is not admissible to prove that at the time he wrote his name he refused to write the word “ acoepted '* above his signature.</p> <p>Where a party accepts a draft drawn to extinguish two other outstanding drafts he cannot set up the failure of consideration for whioh the first drafts were given as a defence to the payment of his acceptance.</p>

<p>APPEAL from the District Court, Parish of East Feliciana, Posey, J.</p>

<p>APPEAL from the District Court, Parish of Pointe Coupée, Cooley, J,</p>

<p>The erasure and cancellation of a mortgage on the reoord, by the recorder, will not bind the mortgagee where it has been done without his knowledge or consent, and he may enforce his mortgage rights against the property mortgaged even after it has passed into third hands in good faith.</p>

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

<p>APPEAL fromthe Third District Court of New Orleans, FeUowes, J.</p>

<p>■Where the holder of a promissory note has suffered it to prescribe, and the evidence shows no impediment to the institution of suit at the time prescription obtained, he cannot invoke the maxim contra non valentón arjere non currü prcescripiio to relieve him from its effect. See the case of Rabel v. Pourciau, ante, page 131.</p>

<p>Courts have tli.e power, in their discretion, to determino whether a paper filed in a suit styied a peremptorw excoption’shaii he considered as an answer to the merits.</p> <p>.^V^ere the, answer of th© defendant puts the capacity of plaintiff specially at issue, by denying that ^ in tho capacity in which he sues he has any interest in the suit, the plaintiff is bound to prove it lTí¡0 máiutkiirhis action.’ See tho case of Stilley v. Stilley, ante page 53.</p>

<p>The act of the Legislature, approved February 17.18G6, confirming the Board of Levee Commissioners provisionally appointed by the Governor, did not confer on them the authority to sue for fcho State, nor to make the State a party in any judicial proceeding.</p>

<p>The admiralty jurisdiction depends on the nature of the contract, and is limited to claims and services purely maritime, and touching rights and duties appertaining to commerce and naviga-</p> <p>A contract to furnish a steamboat with timber and other materials for the repair of the boat, is not a maritime contract.</p>

Reporler. — The first opinion and decree of the Supreme Court in this, case, reported in error in the 16th Annual, page 450, is overruled by this decision. See 16 A. p. 450.

<p>PPEAL.from the First District Court pf New Orleans, Howe, J.</p>

<p>A recorder or notary public, who passes an aoj.of „sale between,partios, is a-compelen fc\wijnessjo’ties>tify as to what was said by the parties at the time or afterwards.</p> <p>Testimony taken by commission, rejected by the lower court, attached to a bill of exceptions, taken1 by the party offering it, and forming a part of f he record of appeal, wilL be noticed by the-JSm; premo Court, 1he same as though it had been admitted by the Ju&g» aguo. '</p>

<p>A J_1 PPEAL from the District Court, Parish of St. Charles, Beauvais, J.</p>

<p>A il. PPEAL from the Third District Court of New Orleans, Felbwes, J.</p>

<p>Tiie pity of New Orleans may be restrained by an injunction, from proceeding by order of seizure and sale, to enforoe the payment of an illegal tax. See the case of Home Mutual Insurance Co. v. City of New Orleans. No. 889, (ante page 447.)</p>

<p>A PPEAL from the Second District Court of New Orleans, Whitaker, J</p> <p>Reporter. — This case was decided by the Supreme Court in 1866, and reported in error, in 18 Ari. page 707, while pending on a rehearing. For the reasons given in the case of the Home Mutual, Insurance Company v. the City of New Orleans, No. 889, (ante page 447,) the first opinion was overruled on rehearing.</p>

<p>APPEAL from the Fourth District Court of New Orleans, Tl/éard, J.</p>

1 XI RPEÁL frpm tbe Sixth District Court of New Orleans, Felbwes, J. ' . Reporler.~This case was decided in 1867, and should have been reported among the cases for November, in the 19th Annual, but was omitted in that volume, the record not having come into the hands of the reporter 'until after that volume was printed.

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

<p>PPEAL from the Eourth District Court of New Orleans, Théard, J.</p>

<p>In a suit to annul a sale,on tlie ground of fraud and simulation, or defend a seizure of property under . a writ of fieri-facias which has been enjoined, evidence of the' conversations and admissions of tho parties implicated in the fraud or simulation, is admissible when offered by the attacking creditor.</p> <p>An act of sale under private signature has no date, except that at which it is offered in evidence.</p>

<p>Tile act of the Legislature of 2853, page 195, and tbe subsequent acts of 2855 and 2865, making the Second District Court of New Orleans, exclusively a probate court, and requiring all successions lo be opened therein, does not divert the other District. Courts of New Orleans of jurisdiction in succession cases pending therein at the date of the passage of the law.</p> <p>In such cases the jurisdiction of the court, u hen the case is pending, is complete and exclusive until the final termination oithe cause.</p>

<p>L from tbe Fourth District Court of New Orleans, Théard, J.</p>

<p>To preserve the privilege of an architect or builder against third persons for work done, materials and machinery sold, etc., for the erection of a sugar-house, sugar-mill, and saw-milt, he must have the contract or act duly recorded in the office of the recorder of mortgages within six days of the date, if the act has been passed in the place where the office of mortgages is kept, adding one day for every two leagues from the place where the act was passed to the office. O. 0.3240.</p>

<p>The inscription of ft mortgage ceases to be evidence against all parties bound by it after the lapse of ten years from the date Of inscription.</p> <p>The payment by the maker of a part of a series of notes, forming the Same indebtedness after presori,priori has obtained, will not work an interruption of prescription as to the others.</p> <p>To interrupt prescription on a piomissory note, some acknowledgment of the debt evidenced by it is required.</p>

We contend: That the act incorporating the company provides that every subscriber to the shares of the capital-stock shall become a stockholder,! and that at all elections by stockholders, and at all their meetings each share shall be entitled to one vo.e; and that in this statute the State and City are not excepted.

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

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

<p>An appeal will not lie from a judgment of tlie District Court until it has been signed by the Judge.</p>

The plaintiff sues the defendant for one-half of the cost of paving with square blocks, and for new curbstones, relaying banquettes, etc., in front of her property on the west side of Tivoli Circle, between Triton Walk and St. Charles streets, done under a contract with the city of New Orleans, bearing date the 19th of September, 1860.

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

<p>An inscription, in the office of fclie Recorder of Mortgages, ceases to be evidence of the mortgage after the lapse of ten years.</p> <p>The Recorder of Mortgages is bound to cancel and erase a mortgage, on the application of a creditor or party interested, that has been registered in his office ten years previous to the application. R S., page 81.</p>

<p>The action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by the lapse of four years to date from his majority, and the tacit mortgage given by law against the property of the tutor, is extinguished by the same length* of time.</p> <p>The plea of prescription is special, and will not be supplied or enlarged upon by the Court.</p>

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

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

<p>APPEAL from the District Court, Parish of Iberville, Posey, J.</p>

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

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

<p>The functions of a District Court, in relation to a mandate issued from the Supreme Court to have a judgment executed, are merely ministerial.</p> <p>Where the Supreme Court has rendered a final judgment on an appeal, and the mandate is sent back to the tower court for execution, no judgment can be pronounced thereon by the District court, from which an appeal will lie.</p> <p>Where an injunction, sued out against the execution of an order of seizure and sale, has been dis* solved by the District Court, and the judgment of the District Court dissolving the injunction has been affirmed on appeal, a second injunction, against the mandate of the Supreme Court, will not lie for any cause which might have been pleaded in the first injunction.</p>

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

<p>APPEAL from the Sixth Judicial District Court, Ellis, J.</p>

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

<p>In an ordinary suit for debt, where the amount in dispute does not exceed five hundred dollars, tho appeal will be dismissed Jor want of jurisdiction. Oonstitution of J.863, Article 74.</p> <p>A State Constitution may be retroactive, and may divest vested rights.</p> <p>A State is without power to pass any law impairing the obligations of a contract.</p> <p>A case appealed to the Supreme Court under the Constitution of 1864, and transferred by act of the Legislature to the Supieme Court created by the Constitution of 1868, stands before the courbin the same position with a case brought up on appeal since the adoption of the Constitution.</p>

Reporter. — This case was decided in the month of June, 1868, by tho Supreme Court, organized under tlie Constitution of 1864, and a rehearing was granted by that tribunal just bei'oro the adjournment of the Court. It was then by act or the Legislature, transferred with all other cases then pending to tho Supreme Court under the Constitution of 1868.

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

<p>Where the lessee abandons the premises leased, he becomes from that moment responsible for the whole amount of the rent due on the lease, and the lessor may relet the premises. In such a case, the amount of rent received will go to the credit of the first lessee.</p> <p>The lessor is not bound to enforce his privilege against the lessee before pursuing the sureties.</p> <p>The failure of the lessor, to relet tne premises after they have been abandoned by the lessee, will not discharge the sureties.</p>

<p>Notice of protest served on the attorney in fact will not bind the endorser, unless the power oí attorney expressly authorizes him to accept notice.</p> <p>The functions of an attorney in fact come to an end by the death of the principal.</p> <p>The holder of a promissory note, is required to show the use of reasonable diligence to find out thp residence of the endorser, when it is unknown to him.</p> <p>Where an endorsor oí a promissory note has died, notice of the dishonor must be given to his legal representatives.</p>

<p>Where a rule has been continued indefinitely by the District Judge, and afterwards fixed for trinbon motion of the party in whose favor it is taken, the party against whom the rule has been taken, must be notified of such fixing for trial.</p>

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

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

<p>Where a judgment by default has been confirmed without sufficient evidence, if admissible, to authorize the judgment, the case will be remanded.</p>

<p>To make tbe exception of want of amioable demand available as to costs, the defendant must show areadiness to comply.</p> <p>Where no reason is shown for the appeal, damages will be awarded as for frivolous appeal.</p>

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

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

<p>An injunction will not bo maintained, on grounds which, might have been pleaded before judgment.</p>

<p>JLi RPEAL from the Sixth District Court of New Orleans, Duplantíer, J.</p>

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

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

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

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

<p>A hired his teams to B, to transport a lot of goods from Franklin to" Newtown, in' this State, at a fixed prioe, which was paid, and the teams to be immediately returned to Franklin, On arriving at Newtown. B directed that the teams should go to Alexandria, on RedRiver. On this trip from Newtown to Alexandria, theteamsand wagons were lost, and never returned to'the owner: Mell — 'That B, having violated the contract of hire, in not returning the wagons, and teams to the owner on their arrival at Newtown, he became responsible for their, value.</p>

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

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

<p>A party who engages the services of a broker, knowing him to be such at the time, to enableiiim to purchase exchange or other securities, and loss occurs on. account of the worthlessness of tho securities at the time of purchase, cannot hold the broker responsible for the loss in the trans* action, unless an express stipulation was made to that effeot. -0. O. 2982.</p> <p>The assumption of the debt of another must be strictly proved.</p> <p>A broker is not answerable, except in oase of fraud, for the insolvency of those to whom ho procures a sale or a loan. O. 0.2988. x ' ’</p>

This suit is brought for, the recovery of $422 78. $316 22 is in the form of a promissory note,1 dated January 1st, 1861, and due one day after date, and $116 46, in open account dated' January 1st, 1861. Record, pp. 5 and 6. The suit was filed September 5th, 1866. Record, page 1. The defendant pleads the prescription of three and five years. Both the note and account are prescribed on their face. Civil Gode, Article 3505.

<p>The act of the Legislature of 1838. No.20, transferring all oases on appeal in the Supreme Court under • the Constitution of 1864 to the Supreme Court under the Constitution of 1863. does not, ipso faclo>' vest the Supreme Court of 1868 with jurisdiction over the case.</p> <p>Where the amount involved does not exceed five hundred dollars, tho appeal will be dismissed for want of jurisdiction. Art. 74, Oon. of 1808. ,</p>

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

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

<p>Where an amount of money has been loaned for a fixed time, and the interest, which forms the consideration for the loan, is added to the amount and placed in the body of the note, the holder is only entitled to recover the face of tho note, with five per cent, interest after maturity.</p> <p>Payments made on a promissory note must first be imputed to the interest due at the time, and afterwards to the extinction of the principal.</p> <p>A party taking collaterals in pledge for a loan has the option to return the articles pledged on payment of the loan and interest, or pay their value to the owner.</p>

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

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

<p>The presence, in a final judgment on a writ of quo warranto, of an interlocutory order of'injunction will not defeat the defendant’s right to appeal from this judgment, because the injunction has not been tried on its merits.</p> <p>In a controversy for office, where it appears that the salary of the office per annum, is more than the sum required to give the Supreme Court jurisdiction, a suspensive appeal will lie.</p> <p>The salary of an office per annum, may be shown by affidavit in the Supreme Court, al ter a motion is made to dismiss the appeal.</p> <p>The affidavit may be made also before the District Court, before the order of appeal is granted.</p> <p>The averment in the affi lavit that the interest of the defendant in the suit exceeds one thousand</p> <p>• dollars, is sufficient to give the Supreme Court jurisdiction, without mentioning the length of time he is entitled to hold the offioe.</p> <p>The first clause in section 12. ot the acts of the Legislature of 1863, No. 156, approved October 15th, “ That appeals to the Supreme Court may be taken from any of the actions provided for in the foregoing sections, the same as in other cases,” properly construed, means that when the appeal is taken within the legal delays it is suspensive, and afterwards only devolutive.</p> <p>The right to a suspensive appeal is the rule, and it stays proceedings in the cause, except in cases specially excepted. O. P. 565, 575 and 58Ú. The State, cx rel. Ingram, v. Judge of the Six 7i Judicial ' Dislri t. (Ante page 529.)</p> <p>Whore a party is entitled to a suspensive appeal from a final judgment, and yet has been condemned to pay no specific amount, the Distriob Judge must fix the amount of the appeal bond.</p>

<p>A party may demand a recognition as heir; an account of the administration; and the property in tho hands of the curator, in the same suit.</p> <p>The homologation of an account and tableau of distribution, filed by the curator, of the proceeds of the sale of an estate, will not estop the heir, who was a non-resident at the time, fiom proceeding against the curator for the remainder of the proceeds of the sale of the succession property in his hands. '</p> <p>The curator will be responsible to tho heir for the payment of a fraudulent and fictitious claim, jvith tho funds of the succession, notwithstanding the samo has been homologated by tho Judge.</p>

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

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

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

<p>A legislative body is competent to enaot any legislation, not prohibited by the Constitution of the State or the United States.</p> <p>The act of the Legislature, approved April 4.1865, No. 55, entitled an act to provide for increasing the levenne of the State, and raise means to pay the interest on the State debt, does not violate the Constitution in levying a license tax on certain trades, professions and callings</p> <p>Under the Constitutions of 1864 and 1868, the Legislature has the power to levy a license tax on all persons pursuing any occupation, trade or calling, subject to the condition that it is uniform on all persons embraced in the levy.</p> <p>This grant of power to the Legislature is independent of the power to levy an income tax on the amount of business done.</p>