Volume 21 — Louisiana Annual Reports

<p>A PPEAL from tlie Seventh District Court of the parish of Orleans, jíi Collens, J.</p>

<p>Where an appeal has been taken from a judgment on a tableaux and opposition thereto, all the parties figuring on the tableaux must be made parties, otherwise the appeal will be dismissed for want of proper parties.</p>

<p>One partner cannot sue the other for a specific sum until the affairs of the partnership have been liquidated. The liquidating partner of a commercial firm cannot be called in warranty by the administrator on a demand against the estate of a deceased partner.</p> <p>The holder of a promissory note, deposited before matuiity, to secure the payment of a preexisting debt, has a right to sue for and recover the whole amount.</p> <p>A, a member of the commercial firm of A & B, executed his two promissory notes, payable to his own order and by him indorsed in blank, secured by mortgage on his iudrvidual property. A placed the notes in the hands of the commercial firm of A & B, who deposited thorn in pledge with C, to secure the payment of a note of the firm. The-note ol the firm was taken up by them together with the mortgage notes held as collateral security; Held by the Court — That the mortgage given to secure the notes of A, was not extinguished by confusion, they not having been returned into his hands. Ihat the fact that they were returned into the hands of the firm of which A was a member did not place them in his individual hands, and the mortgage still exists.</p>

<p>An action will not lie to recover an account for goods sold where it is shown that & partnership exists between the partios. In such a case the suit will be dismissed with the rights of the party reserved to sue for a settlement of the partnership accounts.</p>

<p>In an attachment suit, no judgment can be rendered against the garnishee before judgment is obtained against the debtor.</p>

<p>The stipulation in the act of mortgage of five por cent, to cover attorney’s fees in case the holder is compelled to resort to legal proceedings to compel- payment of the obligation is not usurious. Damages will not be allowed for frivolous appeal unless prayed for in the answer to the appeal.</p>

<p>from the Sixth District Court of the Parish of Orleans, Gooley, J.</p>

<p>from Third District Court of New Orleans, Felloioes, J. A.</p>

<p>Contracts growing out of the uso of Confederate Treasury Notes as a medium of exchange cannot he judicially enforced. 19 An».269, 288, 359, Constitution of 1868, Art. 127.</p>

<p>Tlie tutrix, under an order 01 the court, filed a final account of her tutorship, which the under-tutor opposed. The district judge dismissed the account and orderpd the tutrix to file another within fi fteen days. Held that — the account first filed should have been amended and corrected and homologated as thus amended. The under-tutor is not responsible for the expenses of litigations with a tutrix in behalf of minors unless he act in bad faith. 19 An. 153. 4.</p> <p>Reporter. Tliis case was decided in May, 1868, by the Supreme Court organized under tlie constitution of 1864. A rehearing was granted, and the case was transferred to the present court. On reexamination the decree was changed so as to relieve the under-tutor from the payment of costs.</p>

<p>Contracts or transactions, tlie basis of which was Confederate Treasury notos, cannot bo judicially enforced by the courts of this State. 19 An. 161,164,1S6,196, 269, 288, 359, 432, 464; constitution of 1868, art. 127.</p>

<p>To entitle a party to an appeal it must appear that the amount in controversy exceeds five hundred dollars. Constitution of 1868, art. 74. Meyers v. Mitchel. 20 An. 5:13.</p> <p>The right to an office cannot be inquired into under a proceeding by mandamus. * Only tho right to the possession of the books, papers, room, keys, etc., can be made the subject of inquiry under this writ. 4 N. S. 623, 12 An. 719, Acts of 1808, p. 71,199 and 220.</p>

<p>ñ-om tlie Second District Court of New Orleans, Thomas, J.</p>

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

<p>A judgment rendered against a party who has neither been cited nor mado an appearance by answer, is an absolute nullity.</p> <p>Éroof of citation can only be shown by the Sheriff s return, and nothing can be presumed by the Court.</p> <p>The Sheriff's return on a citation cannot be amended or corrected after judgment, so as to cure nullities resulting from a defective citation.</p> <p>The power to receive citation for another must bo express and special; it cannot be conferred by a general mandate. C. C. 2965, 2966.</p> <p>When parties have elected a domicile as a place to receive citation, the Sheriff’s return must show that the service was made at the elected domicile in the manner prescribed by law.</p> <p>Citation served on a person not a party to the suit, whom it is neither alleged nor shown was the agent of the principal, is detective, and judgment rendered thereon is null and void.</p>

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

<p>from the Second District Court, parish of St. Bernard, Oazabat, J.</p>

<p>The only question to be inquired into on appeal from an order of seizure and sale, is whether there was sufficient evidence before the Judge a quo to authorize the fiat.</p> <p>An order of seizure and sale can not be set aside on appeal on account of subsequent irregularities in the execution thereof.</p>

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

<p>A writ of fieri facias is the basis of proceedings in garnishment.</p> <p>The service of interrogatories on the garnishee will not operate a seizure of the assets in hia hands unless the Sheriff holds at the time a writ of fieri facia* against the defendant.</p> <p>RepoRtek. — This case was decided in the month of June, 1868, by the Supreme Court, organized under the constitution of 1864, and an application for rehearing was made just before the adjournment of the court, which was examined and refused by the present Supreme Court in the month of January, 1869.</p>

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

<p>from the Second District Court, Thomas, J.</p>

<p>PPEÁL from the Sixth District Court of New Orléans, JDuplanüor, J.</p>

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

<p>for a Mandamus.</p>

<p>from the Second Judicial District Court, Parish of Jefferson, Dug tie, J.</p>

<p>The only question presented on an appeal by a third party from an order of seizure and sale is, had the Judge who granted the order sufficient evidence before him to authorize the issuing of the writ. A third party appealing from an order of seizure and sale, may avail himself of all that is in the record that affects his rights; but the validity of the mortgage on which the crder of seizure is based cannot be inquired into on such appeal.</p>

<p>The tacit mortgage allowed by law in favor of minors, on the property of -their tutor dates from the appointment, and the tacit mortgage allowed by law on the property of the husband in favor of the wife to aocure the restitution of her paraphernal property which has come into his hands dates from the time the property was received.</p> <p>In a case where the property of the husband is not sufficient to pay the mortgage due his ward, for which he is liable as' tutor, and the mortgage in favor of his wife for the restitution of her paraphernal property which ho has received, the rank and priority of mortgage nrisfc be determined by the date at which they respectively took effect.</p> <p>Obligations to pay money accompanied with a mortgage aro classed as movables.</p> <p>Where two parties holding claims of equal dignity against a third, enter into an agreement in writing to the effect that one is not to take any legal stops without giving the other notice, and in disregard of tho stipulations in the agreement one of the parties proceeds by seizure and sale he will not be allowed any preference over the other on account of the seizure thus made in violation of the agreement. In such a case the law will place the other party in the exact position he might hayo occupied had he received notice.</p> <p>Reporter.- — This case was decided in the month of March, 1868, by the Supreme Court organized under the Constitution of 1864; an application for a rehearing was made which was still pending at the adjournment of the court. The present court on an examination of the application refused tho rehearing in tho month of January, 1869.</p>

<p>Tlie rule that testaments are more easily avoided than contracts, on the ground of mental unsoundness, does not refer to the amount of intellect required iu a testator. So far as the latter is concerned, a will may be made by any mind which has tlio soundness and strength necessary to endure the conflict involved in the making of a bargain.</p> <p>Insanityds never presumed.</p> <p>If a testament present a series of wise and judicious dispositions, the 'onus is upon the heirs who attack it to prove unsoundness of mind at the date of its execution.</p> <p>If by facts occurring near tbe time of the date of the testament and preceding and following it, the heirs have proved an habitual state of insanity, then, and notwithstanding the wisdom of the will, the onus would be shifted on the legatee to prove the sanity of the testator during the intermediate time, that is, at the date of the testament.</p> <p>If, however, no habitual state of instanity is established, and the acts of folly are rare, and occur at periods distant from each other and from the date of the testament, the testament, if net destitute of good sense on its face, will be presumed to be the offspring of a healthy volition and a lucid memory.</p> <p>The opinions of medical men are received xipon questions of professional skill; but they should state the facts on which such opinions are based, and the opinions themselves are not conclusive but must be weighed as other evidence.</p>

<p>A judgment and certificate of discharge hy the Bankrupt Court will operate a perpotual bar to further proceedings in the State Courts against the bankrupt, on demands that existed before the decree. Bankrupt Act sec. 31, approved March 4, 1867.</p>

<p>-from the Second Judicial District of the State of Louisiana. Pardee, J.</p>

<p>for a Mandamus.</p>

<p>The exchange of prisoners between the sovereign and the insurgent, engaged on the one side by force of arms to subdue the rebellion, and on the other to establish their independence, does not of itself constitute the insurgent a belligerent power.</p> <p>The blockade of tho insurgent ports by the sovereign does not constitute the insurgent a belligerent within the sense and meaning of the term “belligerent" as used in international law, because the sovereign might accomplish the sajne result by interdicting commerce through those ports by municipal regulations.</p> <p>The fact that a revolted province or portion of a country may have acquired the status and position of a belligerent power does not ipso facto give it the position and status of a defacU government. A government defacto arises onlywherethe established government has been subverted by successful rebellion, and the new government exercises undisputed sway for the time being over the entire country.</p> <p>In the late conflict between tho United States and the so called Confederate States, before the the Confederate States could have claimed tho destruction of a defacto government, it was necessary for thorn to show undisputed control over the whole country claimed, with the ability to maintain that position.</p> <p>A recognition, by any other independent power, of the Confederate Slates as an independent power before they had demonstrated their ability to maintain their new government would have been a casus belli'between the United States and such power.</p> <p>ON MR. CHIEF JUSTICE LaUELISG’S OPINION — ON REHEARING.</p> <p>Prescription runs against all persons, except such as are included in some exception established by law. O. C. 3iS7, Thó existence of war is not among the exceptions established by law that will work an interruption or suspension of prescription.</p> <p>The inability to sue will not avail against the plea of prescription, except in the cases specially excepted by law. C. C. 2512, 3488.</p> <p>The maxim contra non valcntem agerenon curv'd prescriptio has no application in our system of jurisprudence. Where the Legislature has prescribed rules regulating prescription, and enumerated the causes that interruptor suspend prescription, the courts will admit no other exceptions than those made by the law.</p> <p>Reporter. — The first opinion iu this case was pronounced by Mr. Justice Taliaferro of the Supremo Court, organized under the Constitution of 1864, in which the maxim contra non valcntem, etc., was ap-l>lied. A rehearing was granted and the case was transferred to tho present Supreme Court, organized under tho Constitution of 1868. Chief Justice L«doling confined his review on tho rehearing to the plea of proscription, overruling the former decision on that point and thereby reversing the former decree. It may hero be noted as an index of the progress of j udicial opinion on the question of proscription, that wo of the judges of the present court, Messrs. Taliaferro and Howell, were members of tho Supremo Court immediately preceding this, both of whom were on the béncli at tho time tho first opinion in this case was pronounced, and both of whom now concur in tho new- doctrine established on tho suspension of proscription.</p>

from tbo Sevcntli District Court for the Parish of Orleans, Gollens, J. Aegument foe Plaintiffs in Injunction. Held: very properly, that “in order to bring a law within the constitutional prohibtion it must be a law for the decision of a civil cause, or for tha punishment of an offense. All retrospective laws are not within the prohibition, notwithstanding the general terms of the first part of the article.

<p>Whore an obligation or note is prescribed and the holder sbo^s nothing that will operate an in* terruption or suspension of prescription, the plea will prevail, 20 An. 131, 423, COS.</p>

<p>from the Seventh Judicial District, parish of Avoyelles. Miller, J.</p>

<p>from Seventh District Court, parish of Pointe Coupee. Posey, J., of the Fifth District Court, presiding.</p>

<p>from the Fifth Judicial District of Iberville. Posey, J.</p>

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

<p>In & suit "by tlie bolder of mortgage notes against the succession, and the heirs, who, it is alleged have taken possession without settling up the estate, the record must show that the original maker of the notes is dead, and that the heirs arc in possession of the property. In snch a case, where citation has issued to the heirs, and judgment by default has been confirmed against them and appeal taken therefrom, the case will be remanded to the lower court to be proceeded with according to law.</p>

<p>il IMPLICATION for a Mandamus.</p>

<p>A nuncupative will by public act must bear upon its face the evidence that all the formalities required by law for its validity have been observed by the notary in drawing the testament</p> <p>A nuncupative will by public aot is null, if it does not appear on its face that the witnesses were present at the time the Testator was dictating it to the notary, and also when the notary read the instrument as written down by him, to the testator.</p>

<p>from the Thirteenth Judicial District Court-, parish of Ten-sas, Hough, J.</p>

<p>from the Thirteenth. District Court, parish of Tensas, Hough, J.</p>

<p>Where the plea of prescription is filed in the Supreme Court, and the record shows that the ob* ligation on which the judgment of tho lower court is founded is prescribed, and the appellee does not ash that tho case be remanded to enable the holder to show an interruption, the plea will be maintained in the Supreme Court.</p>

<p>( A PPEAL from the Thirteenth District Court, parish of Concordia. Hough, J.</p>

<p>Under thejrules laid down in the Code of Practice the Supreme Court of Louisiana will not tafeo general superintending control over the inferior jurisdictions. S M. 42; 2 La. 8S; 19 La. 478 ; 8 An. 92. The writ’of prohibition, the power to grant which is specially allowed by the Code of Practice to áppellate courts of competent jurisdiction is not a writ oí right, and iu within the sound discretion of the tribunal to which the application is made.</p> <p>The writ of prohibition will not be granted by the Supreme Court of Louisiana against a tribunal of inferior jurisdiction unless it be in cases where its intervention is necessary for the maintenance of its appellate jurisdiction.</p>

<p>PPLICATION for a writ of prohibition.</p>

<p>from the. Thirteenth- Judicial District' Court, parish of Carroll, Farrar, J-.</p>

<p>from the Thirteenth Judicial District Court, parish of Carroll, Farrar,.J.,</p>

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

<p>from the Fifth District-Court,-parish of West Baton Rouge, Posey, J.</p>

<p>The State Engineer having modo a contract in conformity with the Act of 1857, p. 1G2, for improving and draining Bayou Bourbieux, which lies in the parishes of West Baton Rouge and Iberville, is a competent witness to testify as to the performance of the work in accordance with the contract.</p> <p>The fact that the engineer is required by the contract to make a roport to the Police Jury of the. completion of the work does not disqualify him from testifying to other facts not embraced in his reports</p>

<p>Whore the certificate of the cleric shows that the record contains all the testimony adduced, documents filed and proceedings had, the. appeal will not be dismissed because there is no bill of exceptions, statement of facts or assignment of errors. 20 An. 213; C. P. 601, 002. 7?he plea of prescription will be noticed when made for the first time in the Supreme Court,</p>

<p>1 ii. PEE AL from the-Seventh ..Judicial District Court, parish of Pointo Coupee, Cooley, J.</p>

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

<p>Section 4 oí' the act of the Legislature, approved September 4,1868, No. 51, making the clerks of District Courts ex officio clerks of the Parish Courts, is in conflict with Article 117 of the Constitution of 1868, which declares that “ No’person shail hold or exercise, at the'sarne .time, more than one office of trust or profit, except that of justice of ’$he peace or notary public.”</p> <p>Section 9 of the same act conflicts with article 86 of the Constitution, which declares that the Parish Judges of the several parishes shall receive a salary and fees to Be provided by law The above numbered sections of the act No, 51, approved September 4,1868, are unconstitutional and void. Constitution, arts. 86 and 117.</p>

<p>. A xL PPEAL from Fifth District Court, Parish of Orleans, Beaumont, J.</p>

<p>from the Fifth District Court, parish of West Baton Rouge. Posey, J.</p>

<p>Paragraph twelve of section seven of tlie charter of the City of Jefferson {Laws of 1867, No. 57), requires,that.all contracts for opening, widening, paving, and improving the streets, authorized by the Common Council shall bo adjudicated by the Controller, under regulations prescribed by the'Council, to the lowest 'bidder. An adjudication by direction of thd'Council, * by the Controller, of a contract-for paving one of the streets oi the city with the Nicolsoti pavement to.a .firm tíf company having the exclusive right to mate such pavement within the limits of the Staie of Louisiana is m conflict with this provision of the statute; and the ownors of property fronting on the street paved with this hind of pavement by a company having the exclusive right, cafinot bo compelled to pay the two-thirds of t^e cost of making the pavement. ‘ ‘ '</p> <p>* The principle of competition enunciated by the statute must bo observed by the CounciMn let- • ting out contracts f^r the-improvement of the streets, otherwise the owners of property fronting on the streets improved cannot ho compelled to pay the charges assessed against them for makÍDg th& improvement.</p>

<p>from the Seventh Judicial District Court, Parish of Pointe Coupee. Miller, J.</p>

<p>Where an appeal is granted on motion in open Court, the names oí the appellees must be inserted in the appeal bond, otherwise tho appeal will be dismissed for want of proper parties. • 14 An. 315, 383; 19 An. 197.</p>

<p>from the Thirteeuth District Court, parish of Concordia, Hough, J.</p>

<p>An appeal will be from a judgment dissolving an injunction taken out against an order of seizure and sale. The amount of tho appeal bond to entitle the plaintiff in injunction to a suspen-sive appeal is one-half oyer and above tho amount of the judgment dissolving the injunction.</p> <p>A Buspensive appeal from a judgment dissolving an injunction against an ordor of seizure and sale will suspend tho execution of the ordor until tho judgment is affirmed by tho Supreme Court.</p> <p>After a suspensive appeal has been granted and the'bond is signed and filed tho Judge of the court a qua has no jurisdiction of the cause further than to ascertain that the security ifr good and solvent.</p>

<p>from the Third District Court, of New Orleans, Theard, J. of Fourth District Court of New Orleans, presiding.</p>

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

<p>from the Thirteenth Judicial District Court, Parish of Ten-sas. Farrar, J. '</p>

<p>from tbe Fifth Judicial District Court, Parish of East Baton Rouge. Fosey, J.</p>

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

<p>from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.</p>

<p>j\ A PPEAL from the Sixth District Court, parish of St. Helena, Mlis, J.</p>

<p>All contracts and transactions between parties in aid of the Confederate struggle in the late conflict between the United States and the so-called Confederate States, are contrary to good morals and public policy, and cannot be judicially enforced. In all such cases the parties engaged will be left where their conduct has placed them.</p>

<p>from the Fifth Judicial District Court, parish of East Feli-ciana, Posey, J.</p>

<p>Plaintiff acquired title to a tract of land in the parish of East Feliciana, in 1849, and occupied it until 18G2, when he left it in consequence of the operations of the war. In 1866 defendant entered upon it. In 1867 plaintiff brought n petitory action for the land and to recover rents, etc. Defendant in possession set up title founded on a Spanish grant, and a probate salo made in 1831, of a tract of land of seven hundred and twenty acres, alleging that tho tract in controversy was included within that tract. The evidence shows that plaintiff proposed to buy defendants claim, and that defendant refused to sell, but notified plaintiff that suit would be brought for; the laud. Suit never was brought. Under this state of facts it was held by tho Ccbrt, that defendant, not having shown a better title than plaintiff, that tho • proposition to buy defendant’s claim never having been accepted, nor any suit brought as threatened, was not a reeogniiion of the claim, and that plaintiff must recover.</p>

<p>from the Fifth Judicial District Court, parish of East Feliciana, Posey, J.</p>

<p>from the Seventh District Court, parish of West Feliciana, Miller, J.</p>

<p>from tlie Fifth. District Court, parish of East Feliciana, JPosey, J.</p>

<p>XJl PPEAL from the Fifth Judicial District Court, parish of East Fe-liciana, JPosey, J.</p>

<p>The appeal from a judgment of tlio District Court involving the right of office, returnable before the Supreme Court in New Orleans, will he dismissed on motion, if the requirements of Section 13 of the Act of 1866, page 154, have not been observed, in not malting the appeal returnable in ten days after the judgment of the lower court.</p>

<p>from the Fifth Judicial District Court, parish of East Feliciana. . Posey, J.</p>

<p>A .ÍX PPEAL from tlie Seventh Judicial District Court, Parish of West Feliciana. Cooley, J.</p>

from the Fifth District Court for the parish of Orleans. JOeaumont, J. On motion of J. Hawkins and E. Filleul, of counsel for-relators, it- is-ordered that the defendant do show cause on Monday, the twenty-fifth January, 1869, why the appeal in this case should not he dismissed oh the ground that the appellant has furnished no bond of appeal according to law.

<p>The Judge of the District Court is competent to determine the sufficiency of the security ou an appeal "bond after the appeal has been taken and filed in the Supreme Court, and if he finds the bond not such as the law requires he may order execution to issue, notwithstanding the appeal. • • •</p> <p>Where the evidence shows that the security on the appeal bond, is not good and solvent as' required by law, the Supreme Court will not issue a writ of prohibition restraining the Judge a quo from ordering execution to issue pending the appeal,</p>

<p>' The interruption of prescription may be proved by parol testimony,</p>

<p>Where a party has purchased a tract of land and executed his promissory note for the price, and afterwards takes up the note by giving his draft for the payment thereof with full knowledge of the condition of his title, he cannot set up in defense to a suit against him as drawer of the draft that the title to the land is defective or imperfect. The attorney of record is not competent to make the necessary affidavit to obtain a trial by jury in a suit on a promissory note, where it is shown that the party resides in the parish and is within the limits of the parish at the time.</p>

<p>from the Seventh Judicial District Court, parish of West Feliciana. HeVea, J.</p>

<p>Questions of fraud and the credibility of witnesses are peculiarly within the province of the jury, and their verdict will not be disturbed unless it is manifestly erroneous. 9 R. 360.</p>

<p>from the Parish Court of the parish of West Feliciana, Filey, J.</p>

<p>A PPEAL from tlie Second District Court of New Orleans, Thomas, J. 1j.</p>

<p>from the Seventh District Court, parish of West Feliciana. Miller, J.</p>

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

<p>A PPEAL from the Parish Court of Tensas, Steele, J.</p>

<p>In a criminal case, not capital, ■whore a fine above three hundred dollars has not boon imposed, the appeal will bo dismissed for want of jurisdiction. Constitution, art. 14.</p>

<p>A general denial and plea to the merits admits the capacity of plaintiff.</p> <p>Where plaintiff claims in a representative capacity created hy law, such as curator or executor, the want of authority must he specially pleaded in limine litis, in order to put the party on the proof of his capacity.</p> <p>A verbal promise to pay a promissory note will interrupt prescription.</p>

<p>Where the plea of prescription is filed for the first time in the appellate court and the record discloses a state of iacts which, if true, would defeat the plea, the case will he remanded for the purpose of admitting pro&f of the interruption of prescription.</p>

<p>xx PPEAL from. Fifth. District Court, parish of East Baton Rouge, JPosey, J.</p>

<p>An action will not lie to enforce a contract, tho consideration of which is shown to be the price of the sale of slaves, nor will an action lie to compel the vendor to return the portion of the price paid before emancipation. Wainwright v. Bridges, 19 An. 234.</p>

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

<p>from, tlie Sixth District Court, parish of St. Helena. JEllis, J.</p>

<p>from the Fifth District Court, parish of East Feliciaua, Posey, J.</p>

<p>A verbal promise to pay a promissory note before prescription has accrued, not denied when interrogated on facts and articles, will defeat the plea of prescription.</p>

<p>A transfer, In writing, of real estate is null aB a sale if the act does not show that a pnce has been fixed and agreed, upon. The price is essential to the contract of sale. C. C. 1757*</p> <p>A fixed price is of the essence of the contract of dation en payment. 10 L. 151.</p>

<p>PPEAL from the Fifth District Court, parish of East Feliciana. Posey, J.</p>

<p>from the Seventh Judicial District Court, parish of West Feliciana. Miller, J.</p>

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

<p>from First Justice’s Court, parish of Orleans. Sadler, J.</p>

<p>lx. PPEAL from the Thirteenth District' Court, parish of Tensas. Sough, J.</p>

<p>from the Thirteenth District Court, parish of Concordia. Sough, J.</p>

<p>A resident of New Orleans wlio, shortly after the Federal forces took possession of the city, in 3 862, registered himsell as an enemy of the United States, and left the Federal lines of military occupation for the insurrectionary districts, eanuot he viewed in the light of a person banished .or forced away from his domicile against his' will and without his consent.</p> <p>"Where a party, whilst residing in New Orleans, executed a mortgage on his property here, and afterwards, by bis own voluntary act, loaves the State and remains away for nearly two yoars, having left no agent ii> charge of his property, or authorized to represent him, nor housekeeper in poKsos-don of .his former residence, with no known intention of returning to the State at any future time, he must be regarded’and treated by the mortgage creditor as an absentee, who, in.a suit against theproperly mortgaged may cause a curator ad hoc to be appointed to!reprcsent the absentee, with whom proceedings may be conducted contradictorily, and the property seized and sold to satisfy the mortgage rights.</p> <p>The doctrine in the case of *Samory v. 'Montgomery, 1$ An. p. 303, reaffirmed.</p>

<p>from the Fifth Judicial District Court, Parish of East Baton . Eouge, Posey, J.</p>

<p>Consent to the extension of the time for the maturity between the makor and holdor of a promissory note will hold the endorser conditionally liable, and notice of demand on the maker need not be given the ondorser until the expiration of the new date caused by the extension.</p>

<p>Wl*en moro than throe judicial days have elapsed after the time fixed by the District Judge for filing the transcript and no cause is shown for the delay, tho appeal will, be dismissed on motion of the appellee.</p>

<p>A contract or partnership between two parties, the one residing within the Federal lines of military occupation and the other within the linos of the insurrectionary forces, during the late war, for the purpose of carrying on a commercial business in the purchase and sale of cotton between the contending parties, was in conflict with the act of Congress of July 13, 1861, prohibiting all commercial intercourse between the contending parties. The rights and obligations growing out of such business relations being in contravention of a prohibit- , ory law cannot be judicially enforced.</p>

<p>from the Seventh District Court, parish of Orleans, Gollens, J.</p>

<p>Where a promissory note is made payable at a particular place, as a bank, in an action against the maker it is not nocossary to allege or prove that demand of payment was made at that place to enable'the holder to recover. 5 An. 61.</p> <p>The maker of the note may, however, when sued, set* up in defense that he had deposited the funds in the bank to meet the note at maturity, and show the damages he has sustained by the failure of the holder to demand payment at the place designated.</p>

<p>from the Second Judicial District Court, parish of Plaque-mines. Gazabat, J.</p>

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

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

<p>from tlie Sixth District Court of New Orleans. JDi iplantier, J.</p>

<p>■Whore a railroad company engaged in tho carrying trade as common carriors for hire receives and receipts for property to be transported to another point on the line of the road, the burden of excusing its non-delivery at tho point designated falls on the company.</p> <p>A judgment of the District Court not regular in form will be annulled on appeal, and suoh judgment as should have boon rendered by the judge a quo will be pronounced by the Supremo Court.</p>

<p>P. M. B. Lapice and others executed thoir promissory note for $50,000 in favor of Marie Josephine Lapice for borrowed money. Marie Josephine Lapice afterwards mado a marriage contract with Jules DcLougpre, in which among other stipulations this note for $50,000 was specially set apart to her as her dowery, an accurate description thereof being given ; they were subsequently married and the noto passed into the hands of the husband. Held — That the stipulation of $50,000 in the marriage contract was merely descriptivo of the note, and not an estimation, and the note or its value did not fall into the community under article 2334; of the C. 0., and the husband became chargeable with no particular sum on receiving it.</p> <p>The wife, properly authorized by hor husband or the judge, may aue for in her own name aud recover the amount oí a note settled upon her by the marriage contract as dowery. O. P. 107. The appearance of the husband to authorize the suit concludes him from any demand he might have against the makers of the note.</p> <p>The Judge of the District Court gave as reasons for judgmont, “after hearing the evidence and argument of counsel and considering the law aud the testimony adduced, and the reasons orally assigned, it is ordered, etc." Held to bo a sufficient compliance With article 80 of the Constitution.</p>

<p>from tlie Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.</p>

<p>from the Sixth District Court, of Now Orleans. JDwplantier, J.</p>

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

<p>failure to except to the jurisdiction will not render valid a judgment hy a court without jurisdiction ratione tnaterice.</p> <p>A party, in wbose'favor a judgment has been rendered by a court having no jurisdiction, need not be made a party to the appeal.</p> <p>Where a lot of cotton is sold by weight, delivery does not take place until the cotton is weighed. The sale is incomplete until actual 'delivery has taken place. The fact that tho vendor sub-aequently sold and delivered the cotton to another party is incompatible with delivery to tho first vendee.</p>

<p>from the Second District Court, parish of Plaquemines. Cazabat, J.</p>

<p>from the Second District Court, parish of Jefferson. Pcwdee, J.</p>

<p>The paraphernal propcity of the wife cannot b© seized for a debt due the community, growing out of improvements made upon her hereditary lands, until her indebtedness to the community is judicially established.</p>

<p>The tacit mortgage of the h eirs of their deceased mother on the property of their father, for tho restitution of the paraphernal property, or funds which ho has received, only attaches on the property of the father from and alter the date at which ho becomes the owner of tho property.</p> <p>The mortgage, resulting from a judgment against the husband and his brother in solido, rendered and recorded before the salo of the property from tho brother to the husband, will take precedence of tho tacit mortgage against tho property of the husband in favor of tho heirs for the restitution of tho paraphernal funds of their mother'deceased. Such preference of moitgage rights may bo enforced against tho proceeds where the property has been sold.</p> <p>A wiitten act of sale of real estate has no effect against third parties until itis reoordod in tho proper office, unless it is shown that the party affected by it had knowledge of its existence and contents.</p>

<p>Ia tlie dedication of lands for the public use, no particular form need be observed ; all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.</p> <p>■Where a dedication to public use of lands in squares, designated by metes and bounds is shown, and private individuals acquire the lands adjoining and surrounding it, with reference to the boundaries thereof, the lands so dedicated for the public use are out of commerce, and are not subject to individual or private ownership.</p>

<p>The right of expropriating a right of way over a neighbor’s property cannot be allowed, except in cases of extreme necessity,' and where a party can mate a road or passage over his own lots to the public streets, he must be required to do so. C. C. 695.</p>

<p>The fact that certain of the Clinton and Port Hudson Railroad bonds were kept in the same safe where the liquidator of the company kept its papers, books and assets did not operate a payment of the bonds nor an extinction of the mortgage.</p> <p>Where the Sheriff held an execution issued in fayor of the company directing the sale of the ■mortgaged property, nothing short of a payment into the Sheriff's hands would operate aa a payment or satisfy the mortgage.</p>

<p>The qualifications of jurors to serve on the grand and petit juries in the courts of the State are, that they inusfc he qualified electors of Louisiana. Acts of 1868, No. 110.</p> <p>Where one of the panel of the grand jury is disqualified, any indictment found by them is null and void, and the accused may raise the objection and show the fact after verdict.</p>

<p>when an heir Recomes the joint proprietor of, mortgageable hereditary property, the mortgage resulting from tlie recording of a judgment against him'attaches to his part or portion thereof, subject to the prior debts and’ mortgages ot the succession. The enforcement of such mortgage is dependent u^on the jinal settlement of- the succession.</p> <p>Wlieye succession property has been solcLat prohate sale, the mortgage creditors may pursue the funds arising from the sale by way of third opposition to the account of the administrator, and hav.e their mortgage rights ^ecogpi^ed, and, enforced against the proceeds of the sale of the mortgaged property, the same as.they could.against the property itself before the sale.</p>

<p>xjl PPEAL from the Third Justice’s Court, parish of Orleans. Monta-mat, J. P.</p>

<p>from the District Court, parish of Caddo, Leuisea, J.</p>

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

<p>No appeal lies from a judgment not signéd by the judge. ■ O. P. 546 ; 8 An. 62 ; 12 An. 750.</p>

<p>Where more than five years have elapsed after the maturity of a promissory note, before suit is brought, and nó interruption or ronunciátion is shown, the plea will prevail. C. C. 3505; 2 An. 131, 6G5.</p>

<p>from tlio Fifth District Court of the parish of Orleans. Léáumont, J.</p>

<p>A PPEAL from tlie Second District Court of New Orleans. Tliomas, -IJl J.</p>

<p>L party convicted by a jury, on tlie information of the District Attorney, of the crime of larOqpy, cannoturge in arrest of judgment thqt the charge of burglary is not properly set out ip t^ie information.</p>

<p>from the Second Judicial District Court, parish of Plaque-mines. Caxabat, J.</p>

<p>.4 JA. PPEAL from tlie Fifth District Court for the parish of Orleans. Léaumont, J.</p>

<p>from the Fifth Judicial District Court, parish of East Feli-ciana. Posey, J.</p>

<p>The Courts of Louisiana -will recognize and enforce the right of stoppage in transitu arising from a sale of goods in New York to an insolvent residing in New Orleans.</p> <p>The transítús of ¿he,.goods is not at an end while in the custody of the carrier, and before they have been delivered to the consignee.</p> <p>To entitle the vendor to have ihe goods stopped in transitu he must show that, at the time of the sale, ho was ignorant of the insolvency of the vendee. The discovery of the insolvency before the delivery is sufficient to entitle the vendor to the exercise of the right, although the goods rnay'iiavo been attached by a creditor of the vendee.</p>

<p>To avoid the examinations of issues improperly raised by the answer, the more regular practice is, to object to the introduction of testimony to sustain them. 20 An. 198. •</p> <p>Wheroashle of personal property has been completed by delivery (although fraudulent), the judgment creditor of the vendor cannot seize it in the hands of the purchaser until the sale is declared null by a revocatory action ; the case is different in a simulation.</p>

<p>A PPEAL from the Third District Court, parish of Lafourche. Gates, lx. J.</p>

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

<p>Where suit was brought before the TJnited States Provisional Court, but not decided before that tribtmal ce’ased to eiisfc, between p irtio's residing in this State, the plea of lis pendens will not prevail in a suit before the State Courts on the same obligation and between the same, parties-, on the ground that both’i>*rties being residents of the State the case" could not be transferred to the United States Circuit Court.</p>

<p>To dispense with citation of appeal the motion must be made in open court at the same term 'ÓÍ the ‘cburt at Which the judgment i's rendered.</p>

<p>Where a mandate has issued from the Supreme Court at the instance of one of the parties, to the clerk of the District Court, to amend his certificate so as to conform to the fact and show that all the evidence adduced on the trial is not contained in the record, and the clerk answers that he is not aware that other evidence than that embraced in the note of evidence and included in his certificate was offered, the appeal will not be dismissed. The appeal will not be dismissed for want of citation where the appellee appears and urges other grounds for dismissal before that of want of citation.</p> <p>Where a debt has been contracted against an estate ior supplies furnished, bills paid, etc., by the commission merchant, and a partition of the estate is afterward made among the forced heirs without providing for the debt, suit may be brought by the creditor against the heirs, jointly at the domicile of the succession. The allegation in the petition that some of the heirs named reside in other parishes than that where the suit is brought will not give rise to the exception of domicile.</p>

<p>Want of duo diligence in mailing demand of tlie maker of a promissory note at maturity ’will discharge the endorser.</p> <p>A promise hy the endorsor -to pay the note, made in ignorance of his discharge, will not bind</p>

<p>The formalities necessary to be observed to give validity to an olographic tostamenfc aro, that the will must be written, dated and signed by the testator himself.</p> <p>4 pq,rty may dispose of his property by last will, by instituting an heir, or by naming legatees.</p> <p>■Where the language of a testament loaves the meaning of the testator doubtful, acta done by him after its execution, may be taken into consideration as explanatory of, and in ascer-tainjpg his intentions. 0. 0. 1708.</p>

<p>_£3l PPEAL from the Fifth District Court, parish of East Baton Rouge. Posey, J.</p>

<p>A married woman may bind her separate estate for tho debts of her husband by complying with the provisions of the act of the Legislature of 1855, approved March 15, No. 200, entitled “An Act to enable married women to contract debts and bind their paraphernal or dotal property.”</p>

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

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

<p>from tbe Fifth District Court, parish of Iberyille. Posey, J.</p>

<p>from the Sixth District Court, parish of Orleans. Cooley, J</p>

<p>from the District Court, parish of St Helena. Bilis, J. Bol-</p>

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

<p>The burden of showing a renunciation of prescription of a promissory note after it has accrued -falls upon the holder.</p> <p>An indorsement of a payment on the note aftér-ifc is prescribed' is not sufficient to interrupt prescription.</p> <p>The parol testimony of the holder of a promissory note is not admissible to establish the in. terruption of prescription ; written proof- aloné is admissible to- establish the interruption. Acts of 1858, No. 208, sec. 4.</p>

<p>\Vhere more than one year lias elapsed from' tlie date of the judgment of the court a qua before the judgment of the Supreme Court is rendered dismissing the appeal, the appellant will not be entitled to a second appeal, the time having expired within which he could appeal.</p>

<p>from tlie Fourth District Court of New Orleans. Theard, J.</p>

<p>from Second District Court, parish of Jefferson. Cazahaf, J.</p>

<p>Xu homologating a tableau of distribution the judge can only order the executor to distribute the funds in his hands. He cannot order him to pay a particular fund to a crodifcor which he has previously ordered to be paid to another.</p> <p>The executor cannot be punished for contempt, in not paying a particular fund, when he hae paid that fund to another creditor under the order of the Court.</p>

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

<p>Where the certificate of the clerk of the District Court shows that the transcript is incomplete and not such as will enable'the-appellate court to examine the case on its merits* the appeal will be dismissed on motion.</p>

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

<p>An amended petition substituting a new party plaintiff on allegations of ownership, in direct conflict with the original petition, will not be allowed, nor will an amendment be allowed showing that the notes sued upon were transferred after suit was commenced and a recon-ventional demand was filed.</p>

<p>The Supremo Court will e£ officio notice the want of proper parties, and dismiss the appeal without motion. 19 An. 286.</p>

<p>Whore the consideration of a promissory note, secured by a mortgage on real estate, is shown to be Confederate treasury notes, the holder cannot enforce the mortgage rights against the property mortgaged, nor recover on the note.</p>

<p>The signing of a final judgment by the judge, is a judicial act, which can only bo performed iu temp time. Acts of 1866, M. 86,</p> <p>The signature of the judge placed to a final judgment, out of term time, will have no effect.</p>

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

<p>A xi_ PPE AL from tbe Fourth District Court of New Orleans. Thomas, J.</p>

A APPEAL from tlie Sixth District Court, parish of Orleans. Cooley, J. ARGUMENT NOR DEFENDANT AND APPELLANT. I. The relator is not entitled to a writ of quo warranto : A quo warranto is only issued for the decision of disputes between parties in relation to the offices in corporations as when a person usurps the character of a mayor of a city, or such like.

<p>Reporter. — See the case of Diamond v. Cain, No. 1986, reported above.</p>

<p>1 PPEAL Lorn the Eighth District Court, parish of St. Landry. ÍJL Bailey, J.</p>

<p>A deposited a lot of jewelry with B to be raffled, and affcorwards gave C, a creditor of his, an order on B for the jewelry or its proceeds. Held — That this order did not establish either a sale or elation cn payment of tho jewelry, and that 0 cannot be considered as the owner.</p>

<p>A judgment creditor cannot sell under execution tke'buildings, soed cane, and mules placed on a sugar plantation separately from the plantation. y</p> <p>Where it is manifest from tlie record that the plaintiffs in injunction would he entitled to a new writ if the one which had issued were dissolved, the case will he remanded to enable the plaintiffs to supply the evidence omitted. 11 An. 610 ; 12 An. 92, 178 ; 18 An. 111.</p>

<p>from the Second Judicial District Court, parish of Jefferson. Fugué, J.</p>

<p>from tlie Fourth District Court of Now Orleans. Théard, J.</p>

<p>Ses the case No. 1780, reported 'above.</p>

<p>from the Second Judicial District Court. Fugue, J.</p>

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

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

<p>The military orders issued to the banks of New Orleans during the late war directing them to make a statement of such deposits as belonged to officers of the army of the Confederate States, and directing them to pay over to the proper officer of the Quartermaster’s Depart* ment of the United States all moneys in their possession belonging to or showing upon their books to the credit of such persons, was an attempt on the part of the military authorities to sequester these funds.</p> <p>A Bank cannot bo relieved from paying a deposit to the proper owner on the ground that it * has paid over the amount of the deposit in Confederate treasury notes to the Quartermaster of the United States army, under military orders, unless it is shown that the deposit was made in the bank in Confederate money with the knowledge of the depositor.</p> <p>The sequestration and taking possession of Confederate treasury notes hy the military authorities of the United States, which che hanks of the city of New Orleans had given over as the deposits of officers engaged in the rebellion, did not amount to a sequestration by the United States of the credits of said parlies, against the banks.</p> <p>Confederate notes haying been issued in violation of law, and against good morals and public policy, could not form the basis of a seizure or sequestration so as to exonerate the banks from liability to their depositors.</p>

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

<p>from Seventh District Court, parish of Orleans. Oollens, J.</p>

<p>from the Fourth District Court of New Orleans. Thcard, J_</p>

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

<p>In a contest between, the heirs of their deceased mother and the surviving husband for a partition of the separate estate of the deceased, a declaration made in the act of sale of real property to the deceased mother that the purchase was made by the wife with funds derived from the income and revenue of her separate paraphernal estate is, as between the heirs of the wife and her husband, who signed the act, conclusive against him. 16 An. 270.</p> <p>"Where an unmarried woman enters into an agreement in writing before a notary public for the purchase of real property, and maltes a cash payment for a portion of the price, and executes her notes for the balance due at a future date, and she marries before the maturity of the notes, and the title is made in accordance with the agreement after the marriage takes place, the property thus acquired will, as between the husband and wife form a part of her separate paraphernal estate.</p> <p>The husband of his deceased wife is not a competent witness to testify in any suit, against the interest of her succession, to any fact which took place during her life time. Acts of 1867, page 143.</p>

<p>from the First District Court, parish of Orleans. Abell, J.</p>

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

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

<p>Parol evidence is inadmissible to prove any acknowledgment or promise of a party deceased to pay any debt or liability against bis succession. Acts of 1858, page 148.</p>

<p>The Controller of tho city of New Orleans may be compelled by a writ of mandamus to warrant on the City Treasurer for bills which he has approved. Mandamus is the proper remedy to compel a ministerial officer to perform purely ministerial acts. C. 3?. 831, 835, 811; 15 An. 334.</p> <p>The Treasurer of tho city of New Orleans cannot be compelled by a mandamus to pay a warrant not yet drawn, by the Controller.</p>

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

<p>In order to justify a court of justices in rejecting a demand as contrary to the authority of the thing adjudged, it is necessary that the thing demanded is the same as in the first suit, ia founded on the same cause of action, and the contest is between the same parties, acting in the same qualities. C. C. 22(34, 2265 ; Marcado, vol. 5, p. 156.</p> <p>To ascertain what is demanded in a particular suit resort must be had to the prayer of the petition. 16 La. 44; 1 Eob. 109.</p> <p>The plea of res judicata to a second suit will not be maintained, unless it is shown to be between the same parties and acting in the same qualities with that of the first, founded on the same cause of action and on the same demand ; if either of these requisites is wanting the plea will be overruled.</p> <p>Notice to one member of a partnership which indorses a bill or note is notice to all, and if one of the firm dies before maturity, notice to the survivor will bind the estate of the deceased partner. Parsons on Notes and Bills, vol. 1, p. 502. Where a commercial partnership has boen dissolved by the death of one of the partners, notice to the executor of the deceased partner will not bind the partnership on an indorsement of the firm name on a note made before tho dissolution ; in such a case notice should have been given to tho surviving partner, especially if ho he the liquidator or representative of the firm.</p> <p>The certificate of the notary that notice was given by a letter directed to the indorsor's barkeeper, he not being in, is defective in not stating that the service was made at the endorser’s residence or place of business. 1 An. 95 ; 2 An. < 50.</p> <p>The partner in commcndam, by failing to have a final settlement of its affairs, does not ipso facto become responsible for tho liabilities created by tho activo partner, after tho expiration of the term of the partnership.</p> <p>A partner in commcndam, having allowed his money to remain in the partnership after the expiration of the term, as shown by the recorded act, under the belief that ho was still a partner in commendam and only liable for tho amount invested, cannot be held liable as a general paitner, unless he has done something, or permitted something to be done, which the law declares will render him responsible as a general partner.</p>

<p>A common carrier is responsible to the shipper or consignee for the nondelivery of goods .which has occurred through his fault or negligenco.</p> <p>The omission of the consignee to instituto proceedings to recover goods which havo been stolon from the ship before delivery, will not relieve iho carrier from the damagos resulting from the failure to deliver.</p> <p>The estimate of damages for the loss of goods by the carrier is their net value at the port of destination.</p>

<p>If the successionbe accepted with benefit of inventory no part of it goes into the possession of the heirs as such until the estate shall have been administered, and until such administration the estate must remain under the authority of the Court of Probates where it was opened.</p> <p>Real property situated in Louisiana, owned by a French subject residing in France, can not be administered in the courts of France; such property thus situated forms a separate succession from that in France, and must be administered according to the laws of Louisiana.</p> <p>Heirs residing in France must be recognized as such by the courts of Louisiana before they can be put in possession of properly situated in this State, which they have inherited from their ancestor in France.</p>

<p>It is the amount In. dispute in the District Court that gives the Supreme Court jurisdiction of tho appeal.</p> <p>The privilege of the consignee, who has made advances on the goods or property in his possession through his agent is superior to that of the attaching creditor. O. C. 3214.</p>

<p>The declaration of tiio testator in his last añil and testament are presumed to have hcen made ■with deliberation and reflection, and are entitled to due consideration, but they can not be permitted to outweigh his express acknowledgment in an authentic act.</p>

<p>A mandamus is tbe proper remedy to compel tbe Treasurer of tbe city of Now Orleans to pay a warrant drawn upon bim by the Controller, and tbe writ will propcrly'be made peremptory when tbe Treasurer in bis answer discloses no sufficient reason for bis refusal to pay.</p> <p>Tbe writ of mandamus will not lie to compel tbe Treasurer of tbe city .of New Orleans to perform any act whore it becomes bis duty as tbe fiscal agent of tbe city to exercise a discretion.</p> <p>In a proceeding by mandamus to compel tbe Treasurer of tbe city of New Orleans to exchange certain bonds of tbe city for warrants drawn by the Controller,- tbe court will not, under tbe prayer for goneral relief, render judgment ordering tbe Treasurer to pay tbe warrants in money.</p>

<p>Tlie surviving partner of a commercial firm, in bis capacity of liquidating partner, Laying received Confederate treasury notes in payment ol tlie debts due the firm, became personally responsible to tlie heirs of the deceased iiiutner for the amount shown to be due them on a settlement of the partnership.</p>

<p>from tlie Thirteenth Judicial District Court, parish of Ten-sas. Farrar, J.</p>

<p>The holder of an obligation signed by tlio tutor cannot recover against the minor, unless lie shows authority in the tutor to make it.</p> <p>An obligation signed by the tutor for supplies to carry on the plantation of his ward will not bind the minor, unless it is shown that he is authorized to carry it on for and on acount of the minor, or that the advances made inured to his benefit.</p>

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

<p>from the Fourth District Court of'New Orleans. Thcard; J.</p>

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

<p>from the Second. Judicial District Court, parish of Jefferson. Pardee, J.</p>

<p>In a judicial sale of real estate, the petition, judgment, notice of judgment, seizure, and notice to appoint an appraiser, together with the Sheriff’s deed were shown in a suit to annul the sale. Held — That the title was sufficiently made out without showing the fi, fa. and the Sheriff’s return.</p> <p>Where community property has been sold and the proceeds applied to the payment of community debts for which it was mortgaged, the minors cannot claim restitution in integrum without showing injury from the sale, and paying or tendering the amount which has inured to their benefit.</p>

<p>To onable a party to recover damages for a broach of contract of sale, ho must show that a sale was actually made.</p> <p>A. lease for hire of a pair of horses and buggy, at a stipulated price per day, is not a sale.</p>

<p>from the Second Judicial District Court, parish of Jefferson. Dugué, J.</p>

<p>.ZX PPEAL from the Second Judicial District Court, parish of Jefferson. Dugné, J.</p>

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

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

<p>The good will of a stall or stand in tbe public market places of tbe city of New Orleans is something independent of tbe stand itself and belongs to the party who leases tbe stall or stand.</p> <p>If a lessee of a market stall or stand dies, tbe property in tbe good will of tbe stand falls into his succossion.</p>

<p>A tutor residing in a foreign, country or in another State of tbe Union can not receive letters of tutorship from the courts of Louisiana, nor ho recognized as testamentary executor without first giving bond and security under such conditions as are required by law from datiyo testamentary executors. Acts of 1842, sec. 5, page 302.</p>

<p>Prescription must be pleaded expressly and specially in order that the party against whom it is urged may have full notice to meet it. C. 0. 3426, 3127.</p>

<p>ii. PPEAL from tlio Sovcutli Judicial District Court, parish of West Feliciana. Cooley, J.</p>

<p>A .A. PPEAL from tbe Fifth District Court, parish of East Baton Rouge. Posey, J.</p>

<p>The right to have a mortgage canceled can not be tested before the courts unless all those having an interest be made parties.</p> <p>The sale of the property of a bankrupt by the assignee does not operate a release-of the mortgages and attach them to the proceeds.</p>

<p>Where a carrier of freight for hire stores the property or goods in a warehouse at the port of destination, the charges of the warehouse hooper for storage forms a privilege on the goods superior in' rank to that of the carrier for the freight.</p>

<p>Plaintiff had leased the bar on the steamboat T. D. nine for one year, from the agent of the owner; before the expiration of the lease the boat was purchased by the Captain (Worley), who forcibly ejected the lessee from the bar and put him off the boat. He brings suit against tho former owner, the former master, and the present owner and master, to recover tho damages he had sustained, alleging a conspiracy between these parties to gain possession of the bar. The last owner of the boat pleaded the exception of domicile, which was sustained by the court below, and the suit dismissed as to him. Held — that, tho warranty by the vendor only extended to eviction, and could not be extended by tho court so as to cover a case of assault and battery; that a conspiracy not being established by the evidence, and tho last vendor and present owner of the boat not being boforo the court in this suit, plaintiff’s demand for damages in this suit must fail.</p>

<p>from tbe District Court, parish of Jefferson. Gazabat, J.</p> <p>If. Blache, for plaintiff and appellant, lioselius & Bhilips, for defendants and appellees.</p>

<p>from tbe Sixth District Court of New Orleans. Cooley, J.</p>

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

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

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

<p>In a written contract of sale of a lot of one hundred bales of cotton between A and B the following stipulations appear:</p> <p>First — A declares that he sells to B 100 bales of his cotton crop then on his plantation.</p> <p>Second — The cotton was to be delivered at Bandleson’s Landing or at some other convenient point on the river. Suit is brought by B to enforce the performance of the contract, and a writ of sequestration issued, and a few bales of cotton on the plantation in the seed was sequestered by the sheriff; a fi.fct. was issued on a judgment in favor of the wife against A, and the same cotton was seized by the sheriff.</p> <p>Held — That as B had no privilege on the cotton, and the sale not being completed by delivery, the weighing and counting of the bales being essential to perfect the sale, the seizing creditor must hold the cotton as against the sequestration.</p>

<p>Tlie garnishment process can not be used as a substitute for a direct revocatory action, nor will the strict rules relative to the answers of garnishees be applied to answers to interrogatories whose only tendency is to assail titles to property.</p>

<p>Irregularities in the proceedings of the Probate Court ordering the execution of a will, and tha relative nullities of the titles to property cannot be inquired into collaterally. '</p>

<p>from the Fifth Judicial District Court, parish of East Feli-ciana. Posey, 3.</p>

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

<p>Wltere a party demands tbe rescission of a sale, lie must, as a condition precedent, return, or offer to return, the consideration which he has received.</p> <p>Courts of justice will not extend relief to a party against his own contract without exacting striot justice from him to his adversary.</p>

<p>from the Seventh District Court of the parish of Orleans. Collens, J.</p>

<p>Officers of the city of Now Orleans wlio received their appointments while the city and State were under the control of the military authorities were removable at pleasure. Mandell v. The Mayor and City of Now Orleans, 21 An. page D.</p>

<p>from the Sixth District Court, parish of Orleans. Duplan-tier, J.</p>

<p>a PPEAL from tbe Second District Court of New Orleans. Thomas, j.</p>

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

<p>TIio act of the Legislature of 1855, authorizing tho imposition of a license tax ol one thousand dollars on each insurer or insurance company not chartered by the State, and only im-v poses a license tax oi five hundred dollars on each insurance company chartered by tho laws of the State, is not in conflict with that provision of the constitution which requires that taxation shall be equal and uniform. 10 An. 402.</p> <p>An agent of a foreign corporation domiciliated and doing business in this State, cannot involco the inhibiting clauses of the Constitution of the United States against acts of the Legislature which it is alleged discriminate between citizens of this State and those of the other States of tho Union.</p>

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

<p>A party cannot mate an appearance lay rule to set asido a judgment by default on the ground that the proceeding against him was informal, and contrary to law; and at the same time urge the exception of want of citation.</p> <p>Alleged errors in the assessment roll must be proved, $nd it must be shown that the party complaining has in vain endeavored to have them corrected in the manner prescribed by law.</p>

<p>REPORTER. — This caso was before the Supreme Court in May, 1867, and remanded to give the executor an opportunity of producing evidence to establish the correctness of the account which ho had filed on behalf of the deceased tutor. On the second trial no other evidence was offered than that which was before the court on the first trial. The judgment of the District Court was the same as the first. The questions involved in the decision are set forth in the first opinion of the Supremo Court, reported in 19 Annual, page 277,</p>

<p>The bill of indictment for the orimo of embezzlement must designate the thing embezzled. Charging the accused -with the embezzlement of the sum of eleven dollars is insufficient to hold the prisoner.</p>

<p>A PPLICATION for a writ of prohibition.</p>

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

<p>ly PPEAL from tlie Second District Court, parish, of Jefferson. Par-dee, J.</p>

<p>from the Fifth District Court, parish of East Feliciana. Posey, J.</p>

<p>An appeal will not lie from an interlocutory judgment permitting a prayer for a jury to be filed and continuing the case, nor for sustaining a challenge to the array of jurors. If these orders have been improperly rendered they may be corrected on appeal from the final judgment. O. P. 5C6; 11 R. 4S6.</p>

<p>from the Twelfth Judicial District Court, parish of Ouach-ita. Crawford, J.</p>

<p>XJL PPEAL from tbe Parish Court of Ouachita. 2lay, Parish Judge.</p>

<p>from the District Court, parish of Morehouse. Crawford, J.</p>

<p>from the Twelfth Judicial District, parish of Morehouse. Crawford, J.</p>

<p>Wlicre there is no answer to an amended petition containing matters of substance, nor default taken, all subsequent proceedings are irregular and Will be set aside on appeal, and the cause remanded to be proceeded with according to law.</p>

<p>The appointment of an advocate to represent the absenteo in an attachment suit may be made before service of citation.</p>

<p>from the Twelfth Judicial District Court, parish of Franklin. Grmuford, J.</p>

<p>Au injunction can not issue to stay execution on grounds which, might hayo been pleaded in defense before judgment.</p> <p>Execution can not legally issue on a judgment rendered on default until after notice of judgment has been served on the defendant. C. P. 575, 624; 6 R. 20.</p>

<p>A * PPEAL from the Twelfth District Court of the parish of Franklin. Crawford, J.</p>

<p>from the District Court, parish of Morehouse. Orcnoford, J.-</p>

<p>frotíi tbe Twelfth District Court óf tbe parish of Morehouse^ Crawford, J.</p>

<p>A sale of a tract of land by one of three joint owners will bind the other two, or either of them, if it is shown that they or either of them were present at the sale and made no ol> jection thereto, but on the contrary advised and urged the sale.</p> <p>The sale of an undiyidod tract of land by ono of the three joint owners is null as to the interest of the party who wüb not present at the time and afterward refused to ratify the transaction.</p>

<p>from the District Court, parish of Union. WatMns, J.</p>

<p>Declarations or threats of the deceased towards the accused, in order to constitute a part of the res gestes, must be made at the time of the act done which they aro supposed to characterize, and so to harmonize with it as to constitute one transaction.</p> <p>Declarations by the deceased to a witness, towards the accused, made before the homicido and not communicated to the accused, do not form a part of the res gestes, and are thoreforo inadmissible on that ground.</p> <p>Declarations or threats made to third parties by the deceased towards the accused before the homicide, are not admissible without first showing that they were communicated to the accused bciore the hilling</p> <p>The order of the District Judge overruling a motion for a now trial in a criminal caso on the affidavit of newly discovered evidence, presents the question of diligence, and not an unmixed question of law, and cannot be reviewed on appeal. Constitution, art. 74; 11 A. 478,</p>

<p>Ix. PPEAL from the Eleventh District Court, parish of Claiborne. Watlcins, J.</p>

<p>from the Twelfth Judicial District Court, parish of More-house. Crawford, J.</p>

<p>from the Parish Court of the parish of Ouachita. Ray, Parish Judge.</p>

<p>* .A. PPEAL from the Parish Court of the parish of Ouachita. Bay, Parish Judge.</p>

<p>The appeal will be dismissed if the bond lias not boon filed within twelve months from the date of the orefer. Every act required by law to»perfect an appeal when taken, must be performed within the delay allowed by lav/ for taking the appeal. 17 An. 2S8 ; 20 An. Q3G.</p>

<p>Tho pies of lis pendens will not be maintained where it is shown that a suit by mandamus has been brought in the name of the State on the relation of a claimant for office, and is still pending, and another suit has been brought in the name of the Shite by the District Attorney joining the same claimant for office as in the mandamus suit under the acts of the Legislature of 1868, numbered filty-eight and one hundred and ñíty-six, providing a remedy against usurpation and intrusion into office. In the mandamus suit the State is merely a nominal party, and m the suit brought under these acts of the Legislature tho State is the actual real party in interest wherein the right to hold the office is the principal subjoct of inquiry. Want of identity of parties and not having the same objects in view operates as a bar to the plea.</p> <p>The thirteenth section of tho act of September 14,1868, repealing the chartor of the city of Jefferson, approved Maroh 8, 1867, did not abolish the offices of the corporation. This clause only repealed the old charter in so far as its provisions were not incorporated in the new chartor.</p> <p>The failure to hold an elect*on for municipal officers of the city of Jcfforson on tho first Monday of January, I860, as provided in seption three of tho amended charter, adopted September 14, 1808, did not vacate tho offices which wore filled by election under the charter of 1867.</p> <p>The appointment to an office by the Governor is void if there was no vacancy at the time $ie appointment was made.</p>

<p>The hold*» of promissory notes secured by mortgage on real estate, importing a confession of judgment may proceed in rem after the mortgagee has died, to foreclose the mortgage without provoking the appointment of an administrator to represent the succession.</p> <p>Where the act of mortgage imports a confession of judgment, and no partition of the estate has been made among the heirs, the mortgage creditor may seize and sell the hypothecated property, as if the original debtor were still alive.</p> <p>If the widow and heirs of the deceased husband whose property is specially mortgaged, be non residents, the mortgage creditor in a suit against the mortgaged property, may provoke the appointment of a curator ad hoc to represent them.</p>

<p>"Where the creditors of a succession are litigating their rights contradictorily with. each other and the value of the succession exceeds flve hundred dollars, an appeal will lie to the Supreme Court, although the claim of each creditor may not amount to that sum.</p> <p>The holder of a claim against a succession approved "by the administratrix is not likened to the holder of a note payable to bearer, and he is not dispensed from proof of ownership when denied by other creditors.</p> <p>The privilege of the vendor who has delivered personal property is inferior to that of a lessor. 3to privilege exists on movables f«r the payment of State and parish taxes.</p> <p>Where the fund produced by the sale of the movables of a succession has been exhausted by the special' privileges, the immovables or such portion as may be necessary must be sold to pay the general privileges, to which time the seitlement of the rank of the genoral privilege creditors must be postponed.</p>

<p>from tho Thirteenth Judicial District Court, parish of Madison. Hough, J.</p>

<p>The character which plaintiff gives to his action by his pleadings must govern in determining the prescription applicable to it.</p> <p>An' action for damages founded on a tort is prescribed by one year.</p>

<p>ITEAL from the Parish Court, parish of Morehouse. JBussey, Parish Judge.</p>

<p>A purchaser of property under an order of seizure, who claims the fruits of the sale, is precluded from questioning the validity of the decree ordering tho immovables by destination to be sold with the mortgaged property.</p> <p>A factor or merchant has no privilege on the mules, cattle and implements attached to tho plantation, or on the proceeds of tho sale thereof, for advances made or supplies furnished to make the crop, nor has the factor any privilege for money advanced to the planter who afterwards applied it to the payment of the laborers for working the crop. By giving the • fund this direction by the planter and applying it to the settlement of privilege accounts, the factor does not become subrogated to the privilege. The privilege of the factor does not rc8ultfrom subrogation, but springs directly from the law which gives it.</p> <p>The factor has a privilege on the crop lor advances made, and supplies furnished in aid of its production. Acts of 1867, pago 351.</p> <p>Whore the land, immovables by destination, and the growing crop have been sold in block, tho value of the crop may be ascertained by proof after the sale has been made, and the privilege of the factor attaches to the proocods.</p> <p>A factor having a privilege on a crop of cotton for supplies furnished, does not lose it by becoming the purchaser thereof at sheriff's sale. In such a case the privilege passes from the thing and attaches to tho proceeds.</p>

<p>from Eleventh District Court, parish of Jackson. Watldns, J.</p>

<p>The burden of proof is on the plaintiff to show an interruption where the note sued on is ' prescribed-on its tace, and ii-none, is shown the xilea, will be maintained.</p>

<p>The Supreme Court has appellate jurisdiction only, and cannot try questions of fact until they have been passed upon by the court below. Constitution, article 74.</p>

<p>Questions of fact not raised on trial in the District Court cannot be examined on appeal. Sue. cession of King, reported above; Constitution, article 74.</p>

<p>Whore a court has jurisdiction its decree will protect the purchaser at probate'sale from all informalities which may have preceded it, in’the absence of any charge dr proof, of fraud.</p> <p>The indorsement on the bade of an order of sale by'the administrator who makes tho sale is admissible in. evidence on the trial of a suit to annul the sale, Tho objection tlíát its genuineness is not proved goes to the effect.</p> <p>Tivo years possession of property purchased at probate sale will protect the purchaser against all irregularities and informalities which have been committed by the administrator alter tho date of the order of sale. Revised Statutes, page 22, § 4.</p>

<p>from the Tenth Judicial District Court, parish of DeSoto. Weems, J.</p>

<p>from tlio Tenth Judicial District Court, parish of Do Soto. Weems, J.</p>

<p>from the Tenth District Court, parish of DcSoto. Weems, J.</p>

<p>A third holder of commercial paper before maturity is not-comxielled to prove that he gave a valid consideration to enable him to recover of the maker, unless it is shown that there ia want or failure in the original consideration.</p>

<p>from the District Court, parish of DeSoto. Jones, J.</p>

<p>■When an appeal is taken from a judgment on a joint contract all who were required to be made parties in the court below must be made parties to the appeal, otherwise the appeal will be dismissed.</p>

<p>i PPEAL from the District Court, parish of DeSoto. - Weems, J. JX-</p>

<p>In a salo of land, slaves and movable prpperty, alter tlie date of the emancipation proclamation, where the evidence shows that a portion of the price has been paid, equal to the value of the land and movables, the law will impute tft’e payment to the land and movables, and the balance of tho price, being without consideration,’ cannot be enforced. -Wainwright v. Bridges, 19 A. 23-i; Posey v. Driggs 20 An. 199.</p>

<p>from the District Court, parish of Natchitoches. Orslorn, J.</p>

<p>from the Parish Court of Natchitoches. Hiestand, Parish Judge.</p>

<p>A. payment on a promissory note, before prescription has accrued, by a third party, who has assumed the note in a notarial act, will interrupt prescription, which only begins to run again from the date of such payment.</p>

<p>The denial, under oath, of a signature to a promissory note, can only be overcome by one of the three kinds of proof required by article 325 of the Code of Practice.</p>

<p>Alter a separation of property the wife is not bound for the debts of the husband which were oout acted before the separation, unless it is shown that the debt enured to her separato benefit or that of her separate property.</p> <p>A debt ior the support and education of the common offspring, contracted by the husband while he has the control and administration oí the dotal property of the wife, cannot be enforced against the wife after she has resumed the administration of her separate estate by authority of a judgment of separation of property.</p>

<p>Article 128 of tlie State constitution of 1868, in declaring that “ contracts for the sale of persons are null and void and shall not be enforced by the courts of this State,” does not impair the obligations of a contract. It merely prohibits the execution of contracts that have been declared void by the sovereign power.</p> <p>A third holder of negotiable paper, before maturity is not excepted from the prohibition.</p> <p>The prohibition against the enactment of laws impairing'the obligations of contracts has no application to the sovereign power.</p>

<p>from the Ninth Judicial District Court, parish of Natchi-toches. By an, J.</p>

<p>The Parish Court is without jurisdiction ratione materia in a suit for a moneyed demand for or against a succession where the amount in dispute is ahoye five hundred dollars. Swan D. Gale, (antepago478).</p>

<p>AL from the District'Court, parish of Natchitoches. Orsborn, J.</p>

<p>The stipulation in a written contract of sale of a lot of cotton, that “ delivery is accepted," will dispense the vendor from further delivery, and place the property at the rislc of the purchaser.</p>

<p>A party seeding to give to an inundation the character.of an,extraordinary accident must show that it was unusual, tinforeseén, and one to which the country was not ordinarily subjected.</p> <p>The privilege of the merchant for supplies furnished the planter is equal in rank with that of the lessor. 13 An. 4iO.</p>

<p>from District Court, parish of Natchitoches. Lewis, J.</p>

<p>Tho title of the act of the Legislature of 1868, No. 27, entitled an act ** to determine the mode ‘ of filling vacancies in all offices for which provision is not made in the constitution ” is sufficiently comprehensive to embrace the objects of tho statute.</p> <p>Section one of this act does not violate the constitution in requiring vacancies in municipal offices to be filled by appointment.</p> <p>The Common Council of the city of New Orleans have no power to fill vacancies in offices oí the corporation arising from death, resignation, or otherwise. In such cases it is made the duty of the Governor to appoint for the unexpired term. Acts of 1868, No. 27. § 1.</p>

<p>Tho act of the sovereign power in proclaiming tho abolition of slavery throughout tho United States annulled all contracts based on slavery, and article 128 of the State Constitution did not affect such contracts by prohibiting the courts from enforcing them. 'Wainwiight v. Rridges, 19 A. 234.</p> <p>A promise made after emancipation, to pay a promissory note given for a slave, cannot bo judicially enforced. Constitution art. 128.</p>

<p>A judgment rendered by a judge of one of the courts of the State deriving his title and office irom the State authorities while the State was in insurrection is legalized by article 149 of the State Constitution adopted in 1868.</p> <p>A judicial sale, made in coniormity with the laws oí the State, after the twenty-sixth of January, 1801, is legalized by article 149 of the Constitution adopted in 1868.</p>

<p>Cotrespassers are liable in solido, and citation of one will interrupt prescription as to all.</p> <p>In an action in damages for trespass, the defendant is not permitted to attack plaintiff’s title, or establish title in himself.</p>

<p>from the Tenth Judicial District Court, parish of Bossier. Levisce, J.</p>

<p>from the Parish Court of the Parish of Natchitoches. Lems, J.</p>

<p>from the District Court, parish of Bossier, Revisee, J.</p>

<p>Parol evidence is not admissible to establish an agency to sell land.</p> <p>A party cannot attack, in the courts, the claim of a pre-emptor, without showing a prior equity ble right to the land.</p> <p>A possessor in good faith on eviction, is entitled to recover the amounts expended by him in useful improvements made on the land.</p>

<p>from the District Court, parish of Winn. Orsborn, J.</p>

<p>The District Judge is without authority, either on his own motion or by the consent of parties, to transfer a suit from the parish of the domicile of the defendant to another parish of the State. All proceedings had in a cause after such transfer are null.</p>

<p>"Wlum the defendant, the mater of a promissory note, establishes a failure of consideration's between himself and liis payee, amounting to a fraud, the holder by indorsement is obliged • to show that either he or some preceding holder took it in good faith and for value.</p>

<p>The lessor has a privilege for the payment of the rent on- all the movables found on the leased premises without reference to whether such property belongs jointly to the partners in the plauting business, or to one of them only. 19 An. 112 ; 20 An. 26B.</p> <p>Evidence is inadmissible m a suit by the lessor ior rent, to show the terms and conditions of a partnership berreen the lessees.</p>

<p>from the District Court, parish of Natchitoches. .Lewis, J</p>

<p>from tlic District Court, parish of Bossier. Weems, J.</p>

<p>from t-lie Ninth. Judicial District Parish Court of the parish of Rapides. Wm. A. Seay, attorney-at-law, selected to try recused cases.</p>

<p>An injunction -will not lie to restrain the execution of a final judgment on the ground that the amount is erroneous.</p> <p>The property of the surety on the official bond of the sheriff can not be seized and sold undor a judgment against the principal and surety, until that of the principal has been discussed.</p>

<p>from Parish Court, parish of Rapides. Barlow, Parish Judge,</p>

<p>The act of the Legislature of 1869, No. 110, entitled “ an act to amend and re-enaet sections four and nine of an act entitled an act to organize the parish courts of this State,” otc., in authorizing clerks of district courts to perforin clerical duties oí the parish courts, and receive the fees therefor, does not create the office of clerk of the parish court, and is thorefore not in violation of article 117 of the constitution, which provides that no person shall hold or exercise, at the same time, more than one office.</p> <p>The ninth section of the act of 1869, No 110, in providing that the parish judges shall receive a salary and such lees as are allowed to clerks of district couits in all cases of appeals from justices of the peace, does not violate that part of article eighty-six of the constitution, which declares that parish judges shall receive a salary and fees, to be provided by law.</p>

<p>from the Ninth District Court, parish of Rapides. Edward G. Leclcie (attorney at law), selected to try recused eases.</p>

<p>An heir, of ago, by accepting the succession, purely and simply, becomes personally liable for the debts of the estate. C. C. 1000.</p> <p>A creditor who permits the heir to take unconditional control of the estate, without causing it to be administered, loses the right to pursue the property of the succession, as distinct from that of the heir.</p>

<p>A third holder of a promissory note, given for the price of a slave cannot recover thereon, although he acquired the note in good faith, for a valid consideration, before maturity. Constitution of 1868, article 128. Wainwright v. Bridges, 19 An. 234.</p>

<p>The specifying of some of the ways by which a party has been imposed upon and deceivod does not preclude the petitioner from giving eyideijQe of other acts of deception under the general allegation of fraud.</p>

<p>On Behearing.</p> <p>from the Ninth District Court, parish of Eapides. Lewis, J.</p>

<p>A commercial firm holding a note in favor of one of its members without indorsement, given for money loaned by the firm, can not set up that they are innocent third holders for value against the plea of failure of consideration.</p>

<p>The allegation of a married-woman in her petition’that eheia “joined.-and-authorized” by her husband, is not sufficient authority to enable her to prosecute the suit.</p> <p>A married woman can only appear in court with her husband appearing also, or by showing his authorization otherwise than in her own averments.</p>

<p>Two parties claim tlie same piece of property from tlie same source of title, the one deriving liis title by purchase at priY.ito sale, and the other by purchase at a judicial sale under a mortgage, the existence of which was known to the purchaser at private sale at the time, and the evidence shows that the description of the property at the forced sale is the fame as that in the private sale. Held — That the purchaser at the forced salo can not be defeated in. his title at a suit of the claimant at private sale,-on the ground oi want oi sufficient description of the property at the public sale.</p>

<p>A vendor of real estate in order to defeat the mortgagee of his vendee, on the ground of fraud in the salé of the.property, must show that the mortgagee was aware of the fraud at the time the contract of mortgage was made.</p>

<p>A reeeipt given for money paid is not conclusivo between the parties, and may be contradicted or explained by evidence, bufcj when the evidence offered is conti adictory, and that offered on one side entitled to as much weight as the other, the receipt will stand.</p>

<p>from the Tenth District Court, parish of Caddo. Taylor, J.</p>

<p>All informaíiüee that occur in connection with the probate proceedings' for the sale of land, are prescribed by the lapse of five years from the date of the sale. Revised Statutes, 1850, page 22, § 4.</p>

<p>.1 jL PPEAL from tlie Tenth'Judicial District Court, parish of Caddo. Weems, J.</p>

<p>Wlioro the verdict of the jury contradicts the admissions of the defendants in the answer, and the ends of justice require it, the cause will he remanded.</p>

<p>A third party who mates opposition to a monition sued out by the purchaser at judicial sale, must, in order to maintain his opposition, show an injury .resulting to himself from the sale.</p>

<p>Tiie instructions of the attorney of record, who placed the writ of jl. fa. in the hands of the sheriff, to retain it after the return day, will protect the sheriff from liability for failing to return the writ. 11</p>

<p>A sale of immovables lias no effect against third parties, until it is recorded in the proper office, in the parish where the property is situated. Acts of 1855, page 335 § 2.</p>

<p>Where the names of one of the parties to a contract has been signed by a person representing.himself to the other as their agent, and the parties whose names have been thus signed specially deny the authority in a< suit to enforce it, the burden of showing authority in the agent to sign the names of the principals, or a subsequent ratification by them iajls on the party who seeks to enforce the contract.</p>

<p>A copy of a deed of trust and the assignment thereof which is kept in a public office oí any State, not appertaining to a court, is admissible in evidence in the courts of this State, on 1 being properly attested by the keeper of such records, without showing the loss of the original. Act of Congress of March 27, 1804.</p> <p>By a statute of Mississippi, approved March 13, 1837, copies taken from the record of all instruments in,writing may be received in evidence, and when so received they have the same effect as though the original were produced.</p> <p>When a statute of another State has once been recognized as law in that State, by a decision of the courts of this State, the courts of Louisiana will thereafter take judicial cognizance of the statute, and, until it bo proved that the law has been changed, will presume it still exists.</p> <p>A depositary can not be permitted to introduce evidonco to impeach the title of the depositor.</p>

<p>from the Tenth Judicial District, parish of Cáddo. ’ Weems, J.</p>

<p>An' order of tlie judge authorizing the sheriff to discharge the prisoner on giving bond, in a fixed amount, is a sufficient authority to the sheriff to receive the bond and file it in court, and the sureties on the bond having obtained the prisoner’s release, on this construction, are debarred from setting up this defense in a suit for the forfeiture of the bond.</p> <p>The condition in a bond of release “that the prisoner shall not depart without leave of the court,” will bind the sureties, although the offense is not accurately described in the body of the bond.</p>

<p>from the District Court, parish of Caddo. Weems, J.</p>

<p>In order to avoid liability for the loss of cotton on storage, the-warehouse keeper must show that the loss occurred without his fault. He can not be relieved by showing that the loss occurred by an overpowering force. He must also show that he used all possible means to preserve-it.</p>

<p>from the Tenth Judicial District, parish of Caddo. Weems, J.</p>

<p>jtyPPEAL from the Parish Court of the parish of Natchitoches.</p>

<p>A PPEAL from the Third District Court, parish of St. Mary. Gates, J. A</p>

<p>from the Eighth Judicial District Court, parish of Vermilion. Bailey, J.</p>

<p>The Parish Court is without jurisdiction where the amount involved is above five hundred dollars.</p> <p>A judgment rendered by a court without jurisdiction rationc material is a nullity, and cannot be revised on appeal.</p>

<p>The law makes no distinction in regard to prescription, between negotiable and non-negotiable promissory notes and bills of exchange.</p> <p>A written order drawn by one person addressed to another directing him to pay to a third party a certain amount of money at a specified time is a bill of exchange and is prescribed by the lapse of five years from date of maturity.</p>

<p>from the Eighth District Court, parish of Calcasieu. Bailey, J.</p>

<p>from the Parish Court of the parish of St. Mary. Sandy, Parish Judge.</p>

<p>from the Parish Court of the parish of Iberia. JStie, Parish Judge.</p>

<p>A sold the contents of a coffeehouse to B and C, for which B and C gave each their notes for one-half of the price. B gave a mortgage to secure the whole debt on. his own property, and afterwards, ai’ the maturity of the notes, paid one of them, and made a payment oí one-half of the amount of the other. 0 subsequently transferred his one-hall interest in the coffeehouse to B, for a fixed price. A brings suit by executory process to recover the balance of the outstanding note ; B enjoins on the grounds of cxtiuciion of the debt and mortgage. Held — that the transfer from C to B, of his one-half interest in the coffeehouse was not a datien en paiement but a sale, and that the'property mortgaged not being the same as that sold from one co-debtor to the other, the debt was not extinguished by coniusion.</p>

<p>The appeal will bo dismissed where the failure to cite oue of the appellees is imputable to the appellant.</p>

<p>from the District Court, parish of St. Landry. Bailey, J.</p>

<p>from the Parish Court of Avoyelles. Lewis, J.</p>

<p>A conversation between one party to a contract and a third party, out of the presence of the other party, is inadmissible on a trial in a suit to enforce the contract.</p> <p>A loati of Confederate money or notes, as shown by the act of mortgage given to secure its pay-meht, cannot be enforced by the courts of this State. Constitution, article 127.</p> <p>A paHy accepting a mortgage to secure the payment of a debt, is bound by the terms and sense in which it is expressed.</p>

<p>A third, bolder of a negotiable paper before maturity, in good faith, for a valuable consideration, can recover thereon, unless it is shown affirmatively that the original consideration was il egal.</p> <p>A promissory note, given ior Confederate money as the consideration, cannot be enforced in part, predicated upon an assumed value of the illegal currency at the time, when compared with legal currency.</p>

<p>The transferees of portions of a mortgage debt are entitled to be paid pro rata, out of the proceeds of the sale of the property mortgaged, without regard to the time when the transfer was made.</p>

<p>from tho Eighth District Court, parish of St. Landry. Bailey., J.</p>

<p>from the Third District Court, parish of St. Mary. Gates, J.</p>

<p>Tbe ambiguity in tlie testimony of a witness will be so construed as to haromnize with the view taken of it by the Court a qua.</p>

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

<p>A judgment by default that has been improperly made final because of defective citation, will be sot aside on appeal, and the cause will be remanded.</p> <p>A ct-iU *n must express the number of days given the defendant to answer according to the distance from his residot.ee to the place where the Court is held, to be reckoned from the date of service. C. P. 179, § 5.</p>

<p>from the Eighth District Court, parish of Lafayette. Bailey, J.</p>

<p>Act No. 156 of 1868 in providing a mode of legally ascertaining whether persons holding office under the authority of the State of Louisiana, are incompetent to exercise the duties thereof, by reason of the disabilities imposed on cerfcaiu classes of persons by the Constitution of the United States, does not impose pains and penalties on any one, nor does thi3 act assume authority which appertains exclusively to the Federal tribunals.</p> <p>A suit brought under the intrusion act, No. 156 of 1868, against a party in office, is not to inflict punishment, nor to impose penalties or disabil.ties upon him, but simply to inquire into his right to hold and exercise the office.</p> <p>Section 3 of the act of Congress of twenty-fifth of June, 1868; entitled an act to admit the States of North Carolina, South Carolina, Louisiana and other States to the Union, provides that no person prohibited from holding office under the United States by section three of the proposed amendment, known as Article Fourteenth, shall be deemed eligible to any office in either of said States.</p> <p>The State Courts of Louisiana will enforce this law of Congress ; and whore it is ascertained by suit under the intrusion act, No. 156, of 1868, that a party is disqualified from holding an office under the provisions of this act, his disqualification will bo judicially declared.</p>

<p>from the District Court, parish of St. Landry. Baily, J.</p>

<p>A third holder of a promissory note, given for the price of a slave, cannot recover thereon, although he acquired it in good faith, ior a valid consideration, heiore maturity. Groves v. Clark re-affirmed, ante page, 567.</p>

<p>The allegations in a petition for injunction against an order of seizure and sale show, that the consideration oí the debt for which the mortgage was given was Confederate notes, and that petitioner is the surviving partner of her deceased husband, and, as such, is entitled to one thousand dollars out of his estate by preference. Held — that the petition disclosed an interest in preventing the payment of this illegal debt, and therefore disclosed a cause of action.</p> <p>A bill of exceptions to the rejection of evidence by the judge must state the grounds on which it was rejected.</p>

<p>Darby & Tremoulet, commission merchants, in the chy of Now Orleans, made advances to A. Grevemberg to a large amount, predicated on-a letter of creditwritten by Mrs. Vyidow Fuse* lier, bis mother, requesting said firm to mate advances to and accept the drafts of said Grevemberg to enable him to pay for a plantation. Grevemberg obtained the advances and afterwards shipped his sugar crops to said merchants, which far exceeded in value the amount of advances made to him,, the proceeds of which he was allowed to drayr out without reserving the amount of the advances. Grevemberg died, and his merchants failed to present and eniqrce their privileges against his es'ate. Held — that the failure on the part of said Darby & Tremoulet to enforce payment for their advances, while it was in their power, discharged the surety who was bound on the letter of credit. That under this state of facts, the party giving the letter of credit is discharged by their laches.</p>

<p>from the Eighth Judicial District Court, parish of St. Landry. Bailey, J.</p>

<p>In a suit to revive a judgment, it is incumbent on the party claiming to be owner, to establish the existence of the judgment and his ownership thereof. A copy certified irom the mortgage office, without showing the loss of the original, is not sufficient to establish the existence of the original judgment.</p>

<p>Contracts entered into during the late war between parties, the one residing within the military line of tbe United States and the other within the Confederate lines of military occupation, are absolutely null, and no action will lie to enforce them.</p>

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

<p>An intervenor cannot he heard hy exception, to the form of action by the plaintiffs.</p> <p>A decree of the court homglognting the proceedings of a family meeting which authorized the adjudication of the community property to the surviving parent on the estimate of the inventory, amounts to a sale of the property to the survivor, and not a judgment for money on which execution could issue.</p> <p>A creditor intervening in a suit, by the hoi’-s against their mother, to enforce payment of their interests in their father’s estate which she has purchased, by opposing the validity of the claims of the heirs is not instituting an inquiry into the correctness of the judgment approving the adjudication.</p> <p>The heirs of a deceased parent cannot recover from the survivor, who has purchased the community interest of the deceased, that portion of the price which is shown to be for slaves bcongingto the estate oi their deceased parent. Constitution, Art. 128; 19 An. 234.</p>

<p>Warrants for money drawn by the police jury on the parish are prescribed by the lapse of five years from the time they become due.</p>

<p>“Where judgment has been rendered in the lower court against the maker and indorser of a promissory note, and the maker appeals, he must make the indorser a party, otherwise the appeal will be dismissed for want of proper parties.</p>

<p>from the Eighth .District Court, parish of Lafayette. Bailey, J.</p>

<p>from the Eighth District Court, parish of St. Landry. Bailey, J.</p>

<p>A PPEAL from Thirteenth District Court, parish of Avoyelles. Ovl-lom, J.</p>

<p>A PPEAL from the District Court, parish of Avoyelles. Millar, J. Zjl</p>

<p>Citation served on a party whose native language is French, when the petition is only written in English, will interrupt prescription.</p> <p>The exception that the petition is only written in the English language, when the mother tongue of the defendant is French, must he pleaded in limine litis.</p> <p>The rule laid down in article 2269 of the Civil Code, that the husband cannot be a witness for or against his wife, etc , is without exception, and is applicable to all cases in which either of them are directly concerned, without reference to the time that such relation commenced.</p> <p>A sole heir, having accepted the succession of her mother purely and simply, has the right to take possession of the property, and her husband, by administering it with her permission, does not become personally responsible for the debts of the succession.</p>

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

<p>Proceedings against a party alleged to have usurped or intruded into an office, must he brought by the District Attorney, or District Attorney pro tem. of the parish in which the case arises, in the name oí the State. Acts of 1SGS, No. 156, page 260, t 2.</p>

<p>from the Third Judicial District Court, parish of St. Martin. Gates, J.</p>

<p>from tlie District Court, parish of Iberia. Train, J.</p>

<p>Where the evidence shows that a lot of sugar has been sold, and a portion of the price agreed upon has been paid in Confederate notes, no action will lie to enforce pajineut of the balance of the alleged price. Constitution, Art. 127.</p>

<p>from the Parish Court, parish of St. Martin. Fontelieu, Parish Judge.</p>

<p>In 1831, before emancipation, a number of slaves was sold at probate sale and purchased by tlio heirs. In 1867, after emancipation, the administrator filed bis account debiting each one of the heirs with the amount’of his purchase for slaves, which had not been paid into the succession, against which *bc oppo-ed the amount of their respective inheritances, crediting or charging them with the difference, as the case might be. The heirs opposed the homologation of the account. Held — that under the settled jurisprudence of the State, the obligations contracted by the heirs in 1861, bn account of their purchase of slaves, being null and void, could not be an element in either conlusion or compensation; nor couldthat portion of the proceeds, for the sale of slaves, forma part of the assets ot the estate, and that the administrator tnust account to the heirs for their portions without taking into account the sale of slaves as assets, and without charging the heirs with the amount of their purchase for slaves. . •</p>

<p>The Parish Court is without jurisdiction ratione materia in a suit where the amount involved is above live hundred dollars. Swan v. Gayle, ante page 478.</p> <p>The nullity of a judgment resulting from want of jurisdiction ratione materia may be urged at any time.</p>

<p>from tlic Third Judicial District Court, parish of St. Mary. Gates, J.</p>

<p>Tlie objection, that the petition does does not state the full name and residence of the plaintiff, must bo made in limine litis by dilatory exception.</p> <p>The objection, that the plaintiff was not properly authorized to prosecute the action, must be pleaded specially in the court below.</p> <p>The maker of a negotiable note has no interest in raising the question of the right of the payee to indorse it, as a p •■yment to the indorsee and holder will protect him,</p> <p>A judgment that has been rendered without, a judgment by default being first taken is illegal ind null.</p> <p>"Where a final judgment has been rendored on default, and appeal taken therefrom, the cause will not be remanded on the allegation without evidence that the consideration oí the note sued on was the pi ice ot a slave</p>

<p>from the Parish Court, parish of St. Martín. FonteUeu, Parish Judge.</p>

<p>On a motion to dismiss an appeal, tlie Supreme Court will not notice documents not forming a part of tlie record.</p> <p>Jiotes given for the price of slaves cannot be enforced. Constitution, art. 123.</p>

<p>"Where suit is brought by a judgment creditor against third parties to annul a sale, and a datien enpoiemeni of property made by the judgment debtor to them, and they have not been made parties to tbe original suit, they may controvert tbe demand, although it be liquidated by a judgment, iu the same manner ’that the original debtor might have done before judgment, audit' the account on which the judgment is founded is prescribed, the plea will prevail as to them notwithstanding the judgment:</p> <p>The purchase ol lands at the succession sale oí the estate of their mother by the heirs, and their subsequently pian.iug m partnership, does not constitute them partners in the lands.</p> <p>A partnership which has lor its object the acquisition of'real estate must he in writing. C. C. 2307. '</p> <p>The mortgage of the wife attaches to the interest of the husband in the lands held in common before partition, to secure her claim for her paraphernal property received by him, and a ‘ datien enpaiement to her in satisfaction of her claim is authorized. C. C. 2367, 2421.</p> <p>The iact that a party owes more than his property will sell for, does not prevent him from selling, anda sale made under such circumstances will not be‘avoided unless fraud is shown.</p>

<p>A clork of the District Court is not disqualified on account of his office from "becoming surety on an appeal bond iu an appeal from a judgment from the court of which be is clerk.</p> <p>If the clerk commit a cleric d error of imp irtance in issuing citation to the appellee its only eficct would be to íequire t me to be given for a correct citation. *</p> <p>The filing of a transcript of appeal on the first day of the meeting of the Court after the appeal is taken is sufficient. A party does not lose his right of appeal because of failure of the Supreme Court to hold the next regular term after it is taken.</p> <p>An intervenor must establish the correctness of his own claim before he can oppose prescription to the plaintiff's demand;</p>

<p>A party having purchased property at probate sale during the war, cannot set up in defense to the payment of his obligations that the sale was made on the basis of the value of Con’ federate notes at the time of sale, and obtain a reduction of-the price bid to that extent.</p>

<p>.¡A. A PPEAL from the District Court,' parish of St.' Landry. Bailey, J.</p>

<p>Aü account stated and closed by the written acknowledgment of the other party, is ofily ‘prescribed by ten years. 14 An. 654; *¿0 An. 11G.</p> <p>Interroga? oriés that have not been answered on or-bfcfore the trial, will be taken as confessed, where there is no order of court requiring tlie defendant to answer in open court.</p> <p>An administrator is bound to answer interrogatories propounded to him in a suit against the estate he represents.</p> <p>Personal service of interrogatories on the party interrogated is not required. C. P. 1ST.</p>

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

<p>Parol evidence is inadmissible to prove a service of citation or copy of petition.</p>

<p>Damages will "be allowed tlie appellee when prayed for, if the record shows no legal ground for taking the appeal.</p>

<p>from tire District Court, parish of St. Landry. Porier, J.</p>

<p>Tho statute of I8G5, exempting certain property from seizure under execution, is in derogation of common right, and the exemptions from seizure will not he extended to objects not expressly designated in the law.</p> <p>Tli 3 prescription of five years cannot be invoiced in a case wbero judgment has been rendered on the noto, and execution and garnishment process has issued and judgment against the garnishee has been rendered from which an appeal has been taken by the original judgment debtor. In such a case the note becomes merged in the judgment, and live years prescription does not apply.</p>

<p>In fixing tlie value of file services rendered by an attorney in a litigation in which he has been engaged, the.court will not be governed exclusively by the estimate oí the witnesses, but will look into the whole record and form an estimate founded on the usual charges made for such services as appear to have been rendered.</p>

<p>from tlie District Court, parish of St. Martin. Oates, J.</p>

<p>from tlio District Court parish of St. Mary. Gates, J.</p>

<p>Courts ■will not declaro an act of the Legislature void unless its unconettlutionallty is established beyond all reasonable doubt.</p> <p>The act of the Legislature of 1SG9, No. 110, entitled “An act to amend and re-enact sections four and nine of an act entitled an act to organize the parish courts of this State,” etc., is constitutional. The decision in the case of Hawley v. Barlow (ante page 5G3) rc-affirmed.</p>

<p>from. Sixth. District Court, parish of Orleans. Duplantier, J.</p>

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

<p>from the SecondD'istrict Gpurfc of New Orleans. Thomas, J.</p>

<p>H. C. Petty and the-heirs of Wilder lield property in common, on which a mortgage existed in favor of tbe Citizens’ Bank. Tbe heirs brought suit and obtained a partition in kind, which was executed before a notary public. Tbe heirs then, through their'tutrix, having obtained the consent of the bank, moved for a division of the encumbrance, and obtained the permission to sign the necessary stock note in favor of the bank. The tutrix afterwards refused to sign the note.' Held — That she was properly compelled by judgment, on rul'e, to sign the note, and that evidence was inadmissible^ on trial of tbe rule, to show the condition of a partnership which had existed between their ancestor, Wilder, and the defendant, Petty, of which Petty was liquidator.</p>

<p>A .¿L PPEAL from the Seventh District Court for the parish of Orleans. Gollens, J.</p>

<p>The executrix and tutrix, haying interests in common with tlie major and minor heirs, are incompetent to represent the minors in a judicial partition.</p> <p>Proceedings in partition, where the tutrix has represented the minors without the advice of a family meeting, are null, and the purchaser of property at a sale made under such circumstances cannot be compelled to pay the price bid.</p>

<p>from the'Fourth District Court of New Orleans — Titeará, J.</p>

<p>The action for a separation of patrimony is prescribed against in three months from the date of acceptance of the succession by the heir. C. C. 1409. If a creditor fails to bring’ suit for, or demand a separation of patrimony from the heir for more than three-months after.acceptance of the succession, his debt becomes a personal one against the heir, and will rani: inferior to a mortgage debt which the heir has created on the property. ' :</p>

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

<p>A purchaser of real estate cannot postpone the payment of the price until üie decision of a suit for eviction, when the nature of the title on which llio suit for eviction is founded is set out and described in the act of sals.</p>

<p>from Second District Court, parish of Orleans. Thomas, J.</p>

<p>The testimony of a witness taken by commission will not be allowed to go to tko jury, if it contains nothing but hearsay evidence.</p> <p>A witness on the stand will not be permitted to give opinions in answer to hypothetical ques-</p>

<p>Whoro a lease lias boen given for one year, with a privilege of renewal for five years, and a third party binds himself as surety for the lease, and the lease is renewed at the expiration of *the year, the surety is not bound on tho extended lease, unless it is shown that he consented to the extension.</p>

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

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

<p>* PPLICATION’ for a Writ of Prohibition.</p>

<p>Evidence is not admissible to establish facts set up in an exception filed after issue has been joined by the filing of an answer.</p> <p>The maker of a'promissory note cannot set up in defense to its payment that the bolder is not the true owner, unless be show that the assignment or tranfJr is fictitious and fraudulent, and made to deprive him of substantial defense against the true owner.</p>

<p>Under the act of the General Assembly, No. 16, approved February 5, 1869, the District Courts of the parish of Orleans, except the First and Second District Courts, are required to be kept open on all legal days, except from Christmas to .the second of January, from the first Monday oí November until the fourth day of July; and for the purpose of considering writs of arrest, habeas corpus, mandamus, etc., they are required to remain open on a11 legal days during the whdle year; and any judgment rendered on mandamus or other conservatory proceeding out of term time may be appealed irom on motion in open court the same as though it had been rendered in regular term.</p> <p>A third party wishing to appeal frdm a judgment making a mandamus peremptory out of term time, may do so by motion in open court the same as the. defendant could, and without Petition anc\ citation.</p>

<p>for a Writ of Prohibition.</p>

<p>An appeal will lie from an interlocutory order dissolving an injunction on the ground that the surety on the injunction boud is not go id and solvent, and a writ of mandamus will issue to compel the Judge to send up the record.</p>

<p>The minor has a legal mortgage on the property of the tutor cr tutrix to secure the faithful administration of his estate. C. 0. 3298.</p> <p>Where the mother of minor heirs contracts a second marriage without the consent of a family meeting, she loses the tutorship, hut if she first obtains ihe consent and approval of a family meeting she retains the tutorship, and her second husband becomes the co-tutor to the minors by a former marriage. In such a case the property'oi the co-tutor is not under legal mortgage for the faithful administration of the tutorship. /</p>

<p>The judgment referred to in article 575 of the Code of Practice, means a judgment that can be executed under a writ of fieri facias.</p> <p>A judgment making a writ of mandamus peremptory, directing a public officer to payan am mat of money in his hands, is not such a judgment as may be executed under a writ of JL fa. Prom such a judgment, the judge a quo should grant a suspensive appeal, and fix the amount of the bond, without reference to the amount of the judgment making the writ peremptory.</p>

<p>from tlie Fifth District Court for the parish, of Orleans. Beaumont, .J.</p>

<p>from the Fifth District Court for the parish of Orleans. Beaumont, J.</p>

<p>from the Fifth District Court for the parish of' Orleans. hemmoni, J.</p>

<p>Where a third party pays a judgment to the attorney of the judgment creditor under a writ of fieri facias, and takes an order of court where the judgment was rendered, on the motion of the attorney, subrogating him to all the rights of the judgment creditor in the judgment, he becomes legally subrogated thereto, and conventional subrogation takes place by the act of the attorney.</p>

<p>The assets of a partnership of which the deceased was a member cannot be made liable for the privileged claim of one thousand dollars allowed by the statute of 1852 to the widow and heirs of the deceased partner, until the debts of the partnership are paid and a división of the assets are made between the partners. The decision in the succession of Cyrus W. Stauffer (ante page 520), reaffirmed.</p>

<p>A verbal promise to pay a promissory note after prescription lias accrued, -will not work an interruption Of prescription. To establish the interruption, the evidence must show that tho promise was made before prescription was acquired.</p> <p>After a note is prescribed, only written evidence is admissible to prove a renunciation. Acts of 1858, No. 208.</p>

<p>from the Fifth District Court for the parish of Orleans. Leaumont, J.</p>

<p>from the Fifth District Court for the parish of Orleans. Leaumont, J.</p>

<p>il. PPEAL from tbe Seventh District Court for the parish of Orleans. Gollcns. J.</p>

<p>The title of iho act of the General Assembly approved eleventh of July, 1808, entitled "An Act relative to the finances of the State,” is sufficiently explicit to embrace the objects oí the statute. The title of a law is not to be strictly construed; Neither is the above quoted act retroactive in it* effect.</p> <p>Tbe certificates of indebtedness or notes authorized by the act of the General Assembly, approved ninih of February, 1S66, are bills of credit andaré issued in violation of section 10, of article 1. of the Constitution of the United States.</p> <p>These certificates of indebtedness or bills of credit having been issued on violation of the prohibitions in tho constitution of the United States, are not receivable for taxes or other public dues to the State.</p> <p>The act of the General Assembly approved ninth of February, 1866, entitled “ An Act to authorize tho issue of certificates of indebtedness, and of bonds for the funding of the same,” is in conflict with article 1, section 10, of the Constitution of the United States, and is therefore void.</p>

<p>Under llie act of March 29, 1865, the Fourth District Court of New Orleans was without jurisdiction to issue an injunction against the execution of a judgment of a justice of the peace, the Third District Court of New Orleans having exclusive jurisdiction over such cases by this act.</p> <p>The institution of a suit in a court that has no jurisdiction is null, and the subsequent investiture of jurisdiction will not cure the nullity.</p>

<p>from the Fifth District Court for tbe parish of Orleans. Leaumont, J.</p>

<p>In a controversy for office under the intrusion act, a third, party, not holding or claiming the office in dispute, cannot appeal from the judgment ol the court a qua.</p>

<p>The appeal bond must be made payable to the clerk of the court from -which the appeal is taken. The appeal will be dismissed if the bond is not so taken.</p>

<p>"Where a contract of sale of land, slaves and personal property was made for part cash and part credit, for which promissory notes were executed by the purchaser, “due at different periods of time before emancipation, and a portion of the notes for the credit price have been paid, the purchaser of the property for which the notes were executed, is only bound to pay that portion of the outstanding notes after emancipation which is found to be due on the land and personal property, in the proportion of the value of the land, slaves and personal property in the original contract of sale.</p> <p>The holder of a mixed obligation, the consideration of which is part land and part slaves, can not recover that portion for which slaves formed the consideration. Constitution, art. 128.</p>

<p>from tlio parish of Avoyelles — Edwards, J.</p>