Volume 22 — Louisiana Annual Reports

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

<p>Tlie owners of a sea going vessel are responsible in solido, as common carriers, for money or gold taken on board as freight to be transported and delivered at the port of destination.</p> <p>Where the evidence shows that the captain of the vessel received money on board of the ship as freight, and afterwards applied it to the payment of the expenses of the vessel on the trip, the owners of the vessel are liable in solido, for the amount thus received by the captain.</p>

<p>The decree of separation from bed and board does not dissolve the bonds of matrimony, and the surviving widow thus situated, if in necessitous circumstances, may recover the amount of one thousand dollars, allowed by the a'ct of 1852, from the estate of her deceased husband. C'. C. 133.</p> <p>If a reconciliation tabes place after the decree of separation, the judgment is a nullity. O. C. 149.</p>

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

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

<p>A judgment of tho probate court, declaring a seizure of succession property null, on tlie ground that nothing tangible had been seized, is conclusive against the seizing creditor, and the probate court is competent to pass on the merits of an opposition to a tableau filed by the seizing creditor, notwithstanding an appeal is pending from the judgment declaring the seizure null.</p>

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

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

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

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

<p>The principal is not bound by the receipt of his agent, when it is shown that the agent has been deceived by false representations of the debtor. In such a case the principal may recover from the debtor the balance duo, after deducting the amount paid to the agent m fall settlement c-f the demand.</p>

<p>In a petitory action tlie party assailed may inquire into the regularity of the proceedings under an order of seizure and sale by which the attacking party acquired title to the property, and if the formalities required by law have not been observed in making the sale under the order, the title of the sheriff is a nullity.</p> <p>A sale of property under an order of seizure, after the mortgage debtor has died, without making the heirs or legal representatives parties, is a nullity,</p> <p>A party having acquired title and possession of real property at probate salé, regularly made, will hold it against a sheriff’s'title made under an order of seizure, in which the formalities required by law have not been observed.</p>

<p>for Writ of Prohibition. — Parish of Plaquemines.</p>

<p>The amount due at the time of the institution of the suit constitutes the matter in dispute, and' if the interest which is due at the time suit is brought, when added to the principal, is not above five hundred dollars, the Supreme Court is without jurisdiction.</p>

<p>.In proceedings for the expropriation of private property f:r public uso, all tho formalities prescribed by law must be strictly observed.</p>

<p>In a verdict of guilty of murder, the jury added a recommendation of the prisoner to the mercy of the court. Held — That this addition was not’a qualification of the verdict.</p>

<p>A due bill, containing an unconditional promise to pay money, falls under the denomination o promissory notes, and is prescribed by ñve years.</p>

<p>APPEAL from Fourth District Court, parish of Orleans. Théavd, J.</p>

<p>APPEAL from District Court, parish of St. Charles. Beauvais,</p>

<p>On questions of fact, the verdict of the jury is entitled to weight, and will not he disturbed on-appeal, unless it is manifestly erroneous.</p>

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

<p>APPEAL froA the Eleventh J udicial District, Parish of Claiborne. Scott, Parish Judge.</p>

<p>A party wishing to stay the execution oí a judgment directing the seizure 'and sale oí mortgaged property by a suspensivo appeal, must give bond within the time aUowed in an amount one-half over and above the amount of the order, the same as in an ordinary judgment for a fixed amount.</p> <p>If the District Judge has committed an .error in fixing the amount of the bond for a suspensive appeal from an order of seizure and sale, the appellee is entitled to proceed with the execution of the judgment, and a writ of prohibition will not issue restraining him from executing the order pending the appeal.</p>

<p>APPLICATION for Writ: of Prohibition. — Parish of Orleans.</p>

<p>In a criminal prosecution for the crime of murder the witnesses for the accused may, under the plea of insanity, he permitted to give to the jury the acts, declarations, conversations and exclamations they saw, had with, and heard the accused make at any time shortly before, at the time of, or after the hilling. The objections to such testimony goes to its effect.</p> <p>Previous or subsequent insanity will not discharge the accused. It must be shown to exist at the time the deed was done.</p>

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

<p>As a general rule, tlie garnishee may be permitted by the District Judge to amend his answers to interrogatories, after an order pro confessis has been made, and before judgment against the defendant. But the case would be different if the answers are manifestly evasive, and calculated to jeopardize the rights of the attaching creditor, or defeat the jurisdiction of the court over the defendant. '</p>

<p>The answer of a juror on liis voir dire to questions propounded by the accused, that from what he has read in the public prints he has formed an unfavorable opinion of the character of the accused, but that he has iormed no opinion as to his guilt or innocence of the crime charged, does not disqualify him from sitting on the jury.</p> <p>Section sixteen of the acts of 1855 limits the District Judge, when presiding over criminal trials, to giving to the jury a knowledge! of the law of ilnrcase; bnt in doing this the judge may make such observations as tend only to aid the jury in their inquiries, abstaining irom all comments on the testimony calculated to influence their minds in deciding upon the iacts.</p>

<p>A proposition to extent!, tlie time of payment of a promissory note, unaccepted by tile maker, will not discharge the indorsor.</p>

<p>The syndic of ceded property, having regularly advertised and offered it for sale, and the purchaser, having failed to comply with his bid by paying tho amount, may expose tho samo for sale a second time on the same day, without giving further notice by advertisement.. C. P. 689.</p> <p>Property offered at syndic salo a second time, on the same day, on account of the first purchaser failing to comply with the terms, is not so exposed at the risk of tho purchaser at first offering, and the syndic can not recover of the purchaser at first offering the difference in amount which tho property brings at second offering below that of the first. In such a. case a third party purchasing the property at second offering can only be required to pay' the amount bid, without reference to the amount bid at the first offering.</p> <p>Reporter. — The first opinion in this caso hoing overruled cm rehearing, is not published.</p>

<p>APPEAL for a Writ of Mandamus. — Parish of Jefferson.</p>

<p>Partnership assets pledged to a creditor of the partnership can not be seized by garnishment process for an individual debt oí ono of the partners.</p>

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

<p>A written document on which a suit is based must govern, where there is a variance between it and its description, but the court will not award more than is claimed in the petition.</p> <p>In a case where the note draws eight per cent, interest, and the petition only claims six, the Supreme Court will not compute the interest at eight por cent., so as to give it' jurisdiction of the appeal.</p>

<p>No action lies to Recover rent for the lease of a house to be used as a brothel.</p>

<p>The insertion of the name of a judge in a citation whose title to office is in dispute, will not invalidate the petition or citation.</p> <p>In a contest for office under the act of the General Assembly of 1868, No. 156, either party has a right to a trial by jury, and if a special term is ordered, the judge may, when required by either party, order a special jury to try the cause.</p>

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

<p>A party claiming property must recover on the strength of his own title, rather than on the-weakness of his adversary’s.</p>

<p>The act of the Legislature approved February 17th, 18G6, confirming the appointment of a Board of Levee Commissioners which had been previously made by the Governor, and authorizing the appointment of others, when their terms of office expired, repealed all former laws authorizing the parochial authorities to construct levees at the cost and expense of the front and riparian proprietors of the lands leveed.</p> <p>.After the passage of the act of seventeenth of February, 18GG, the parish can not force tho front proprietor to pay the cost of the levee which she has ordered to be constructed along his front line.</p> <p>The repeal of a repealing clause docs not revive the act repealed.</p>

<p>Where the heirs have been legally put in possession of the estate, by a judgment of the court, the property can not afterwards be placed under the control of an executor or administrator to be administered as succession property.</p> <p>In a case where the property of a succession has been legally transferred to and placed in the possession of the heirs, a writ of prohibition will lie from the appellate court against the probate judge, pending the appeal from an order appointing a dative testamentary executor.</p>

<p>Tbe fact that'the holder of a promissory note fails to bring suit promptly will not discharge the indorser, provided notice of non-payment is given at maturity.</p> <p>Demand of payment of a promissory note must bo made at the place of payment. Demand at any other place will not bind the indorser.</p>

<p>APPEAL from Fifth District Court of New Orleans, Beaumont,,3,</p>

<p>APPEAL from Eifth District Court, parish of East Baton Rouge,</p>

<p>APPEAL from the Seventh District Court, parish of Pointe Coupée.</p>

<p>APPEAL from Thirteenth District, Parish of Tensas. Sough, J.</p>

<p>An acknowledgment or waiver by tbe parish treasurer, of a warrant or claim against the parish, will not operate an interruption of prescription, unless it is shown that ho was duly authorized to make such waiver.</p> <p>An ordinance of the police jury, authorizing the president to waive prescription of debts against the parish, will not protect the holder of a warrant against the plea of prescription, although it has been duly acknowledged by the treasurer. Under such an ordinance, the president alone is competent to make the waiver.</p>

<p>In the absence of proof to the contrary, the Supreme Court will presume that the judge a quo required proof of the signature of letters before receiving them in evidence.</p> <p>The testimony of one witness, corroborated by letters of the debtor, is sufficient to establish a claim above five hundred dollars.</p>

<p>If a contract of building bas been dissolved by tbe death of the undertaker, and the proprietor accepts tbe work done and materials furnished, he must account to the heirs for their value in the proportion they bear to the price agreed upon for the construction of the entiro building.</p>

<p>Tlie pica of general denial, and tlie further special plea that the goods purchased, for which the note sued on was given, were rotten and worthless, admits the capacity of the plaintiffs to stand in judgment.</p>

<p>APPEAL from the Seventh Judicial District, Parish of Pointe Coupée.</p>

<p>Tlie statute of tlie State of Louisiana of 1805, adopting the common law of England as the basis of its criminal jurisprudence, is not affected by any enactments of that kingdom subsequent to that date.</p> <p>The statute of 21 George III., chap. 68, enacted prior to the year 1805, by which the taking oí certain things attached to the realty is declared to be a felony, does not affect the definition of the word “larceny,” as used in the twenty-eighth section of the act of March 14, 1855.</p> <p>The term larceny, as used in this statute, means the felonious taking and carrying away of the personal goods of another, without his consent, and with’ intent to convert them to the use of the taker.</p>

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

<p>APPEAL from Fifth Judicial District, parish of East Feliciana. Posey,</p>

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

<p>APPEAL from Eighth District Court, parish of Livingston, Ellis,- J.</p>

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

<p>The certificate of the clerk, that the record contains all the evidence adduced and filed in the matter, is defective, and the appeal will he dismissed on motion.</p>

<p>Where the evidence shows that the acceptors of a draft were the factors of the drawer, and at the maturity of the acceptance the balance was in his favor, the holder must make demand and give notice, to enable him to recover of the drawer.</p> <p>To enable the holder of an accepted draft to recover from the drawer, on a subsequent promise to pay, he must show that the promise was made with a full knowledge of his discharge. 20 An. 43.</p>

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

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

<p>.A contract made under tlio authority of the police jury, to construct a private road across a tract of land in the parish, belonging to an absentee, stipulating that the land should pay the cost of construction, can not be enforced against the parish for the difference between the price which the land brought and the cost of mating the road.</p>

<p>APPEAL from tho Seventh District Court, parish of Pointo Coupee.</p>

<p>A district judge of the parish of Orleans will he compelled by mandamus to grant a suspensive appeal from a final judgment rendered on default, if the appeal is applied ior within ten days from the service of notice of judgment, provided the case is in other respects appealable.</p>

<p>APPEAL from Parish Court, Parish of Lafourche. Nicolas, Parish</p>

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

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

<p>The giving of a check for money is a manual gift, and is subject to no other formality than that of delivery.</p> <p>A. donation inter vivos of a promissory note must bo passed before a notary public and two witnesses, under penalty of tmllifcy C C 1523,</p>

<p>A PPEAL from Seventh District Court, parish of Orleans. Bellowes, J.</p>

<p>APPEAL from the District Court, parish of St. James. Beauvais, J.</p>

<p>APPEAL from Sixtli District Court, parish of Orleans. Cooley, J.</p>

<p>APPEAL from the Fourth Judicial District, parish of Ascension.</p>

<p>APPEAL from.the District Court, parish of St. John the Baptist.</p>

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

<p>APPEAL from Fifth District Court, parish of West Baton Eouge.</p>

<p>APPEAL from the Parish Court, Parish of Iberville. Moore, Parish Judge.</p>

<p>■Where the interest due at the institution of the suit, when added to the principal demand» exceeds five hundred* dollars, the Supreme Court has jurisdiction of the appeal.</p> <p>The maxim contra non valentem agere non currit prescriptio, .being a rule of equity, can not be invoked to overturn express provisions of statutory enactments.</p> <p>Article 21 of the Civil Code only permits the courts to decide according to equity in cases whore there is no express law.</p> <p>Prescription exists only by the authority of positive enactments, and there is no place in the whole doctrine of limitations for the application of the rules of equity.</p>

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

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

<p>A proces verbal of the sale of real estate by the order of the probato court has no effect against third parties, or seizing creditors, until it is recorded or registered in the parish -where the property is situated. Nor will an injunction lie to defeat the sale of property seized by a third party, unless the act of sale of the seized debtor has been registered in the parish before the date of the seizure.</p>

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

<p>A PPLICATION for Writ of Prohibition. Théard, J.</p>

<p>An appeal from a judgment dismissing a dative testamentary executor from office will not suspend execution, and a mandamus will not lie to compel a suspensive appeal from sucli judgment.</p>

<p>APPEAL from District Court, Parish of Pointe Conpée. Miller, J.</p>

<p>A judgment against a garnishee, predicated on answers to interrogatories,«will not be disturbed on a* peal, where no evidence was offered by the defendant on trial of the garnishment in the court below,</p>

<p>Tlie city of New Orleans lias a direct pecuniary interest in the funds in the custody and under the control of her Treasurer; and a mandamus may issue from the Supremo Court to compel the district judge to grant a suspensive appeal from a judgment against the Treasurer in all cases where the amount involved is sufficient to give the appellate court jurisdiction.</p>

<p>A mandamus will issue irom the Supreme Court to compel the district judge to grant a suspensive appeal irom a judgment against the treasurer of the city of New Orleans where the record shows that the city is the real party in interest. A writ of prohibition will also issue staying all proceedings in the lower court ponding the decision on the application of the city for a suspensive appeal.</p>

<p>APPEAL from Sixth Judicial District Court, parish of St. Tammany.</p>

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

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

<p>An acknowledgment written on tlie back of a promissory note by tlie drawers, wlio are also indorsors, will not relieve tlie liolder irom tlie effect of the plea of prescription made by tlie other indorsers.</p>

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

<p>APPEAL from Parish Court, of Assumption. Pintado, Parish Judge.</p>

<p>APPEAL from Sixth District Court, parish of Tangipahoa. JSUis, J.</p>

<p>The statute requiring all appeal bonds to be made in favor of the clerk of the court from which the appeal is taken is satisfied, if the bond is made in favor of the judge, the clerk and the appellee.</p> <p>Where a case has been erroneously transferred from the district to tho parish court, andan appeal' is taken Irom the judgment rendered by the parish .judge, who was. without jurisdiction, the case will be remanded to the district court to be proceeded with according to law.</p>

<p>The appeal bond must be made payable to tlie clerk of the court from which the appeal is taken, otherwise the appeal wilL be dismissed for want of a legal bond. Acts of 1869, page 11.</p>

<p>APPEAL from District Court, parish of Madison. Hough, J.</p>

<p>APPEAL from District Court, parish of Pointe Coupee. Miller, J.</p>

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

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

<p>APPEAL from the Parish Court, of Iberville. Moore, Parish Judge.</p>

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

<p>APPEAL from Fifth Judicial District Court, parish of East Baton</p>

<p>APPEAL from Sixth Judicial District, parish of Livingston. Mils, J.</p>

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

<p>APPEAL from TMrd District Court of Now Orleans. Fellowes, J. -</p>

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

<p>APPEAL from Fifth District Court, parish of East Baton Rougo.</p>

<p>APPEAL from Seventh District Court, parish of Pointe Coupee.</p>

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

<p>A sheriff who received from bis predecessor an amount of money, made on execution, for which he gave his receipt as sheriff, for the amount in dolia rs without any qualification, can not setup against the demand of the judgment creditor that the sum received was Confederate motes.</p>

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

<p>The Southern Express Company, hy taking a package of gold to transport from liew Orleans to* Mobile with full knowledge of its character and contents, became liable for the amount which the package contained, that was lost or miscarried by the company, even though the receipt, given by the company at the time, showed that it was an ordinary package, valued at fifty dollars. The company on being made acquainted with the contents of the package by the agent for the owner, should have given a receipt for the full amount, and not attempted to limittheir liability to fifty dollars.</p> <p>The receipt, given by an express company for the shipment of a package, which contains the-clause, that, in case of loss, the company will not be responsible for anything above the-amount stated in the receipt to be its value, is not absolutely conclusive against the shipper, and he may show by evidence, in case of loss, that the package contained gold coin, and recover the amount notwithstanding the receipt.</p>

<p>In criminal trials, all objections to the information or indictment of a strictly formal character must be urged before the jurors are sworn. Revised Statutes of 1855, section 91, page 177.</p>

<p>A party having set forth his demand by intervention, and his rights having been passed upon, is estopped from prosecuting a direct action on the samo demand against the same party. In such a case the plea of res judicata will prevail.</p>

<p>A creditor of a part owner of a vessel, a non-resident, may proceed against the vessel by attachment when she enters the port, and he can not be held hable for the expenses incurred, or damages caused by the detention pending the decision of the attachment suit.</p> <p>In case the interest of one of the owners of the vessel is sold at the suit of the attaching creditor, no privilege exists on the proceeds for expenses incurred or supplies lurnishod during the detention or previously.</p> <p>The privilege on a vessel in favor of the furnisher of supplies, or the crow, is not affected by ' the sale of the interests of the different shareholders.</p>

<p>APPEAL from Third Judicial District, parish of Terrebonne. J.</p>

<p>A surety on an official bond of a constable, wishing to avail himself of the plea of discussion, must point out the property of his principal and furnish the moans to carry on tho discussion.</p> <p>Where judgment has been rendered against a constable for damages, a general denial by the sureties on his bond, only puts at issue the existence of such judgment.</p> <p>A surety on the official bond of a constable of the city of New Ox'leans, given while the city was under military rule is not discharged from liability because the bond was not accepted by the Recorder and Board of Aldermen, as required by law. Tho military authority having made the appointment, and permitted the party to act, must be presumed to have approved the bond.</p>

<p>The execution of a judgment can not be restrained, by injunction, by a third party, who holds the property seized by a simulated title.</p>

<p>APPEAL from Second District Court of New Oilcans. Duvi/jncaud,</p>

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

<p>APPEAL from Second District Court of New Orleans. Duplaniier, J':</p>

<p>A PPLICATION for Writ of Mandamus.</p>

<p>APPEAL from Sixth Judicial District, parish of Tangipahoa. Ellis, J.</p>

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

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

<p>The sheriff can not; be made liable ior having released property, provisionally seized, without sufficient security, where it is shown by a judicial decree that the property released was not liable to the provisional seizure.</p>

<p>A purchaser of r?.al estate assumed the payment of certain mortgage notes as a part of the price. He afterwards obtained from the holder, by an instrument i j writing, an extension of the time of their payment. Held — That the extension of time of payment of tbe notes by a contract in writing was not a novation of the notes and mortgage.</p> <p>The averments in an exception which has been taken as an answer to the merits, are judicial admissions, which binds the party making them, and judgment maybe rendered on such admissions, on motion, without a regular trial on the merits.</p>

<p>A contract between a planter and a factor or commission merchant, whereby the latter binds-himself to furnish the necessary supplies for the working of the plantation, not to exceed a specified amount, and to receive and sell the products of the place for the benefit of the-planter, is a contract of agency on the part of the merchant, which terminates at the death of the agent. By the death of the agent, in such a case, the planter is absolved from all. obligations to continue the contract, and the heirs of the agentare not bound on the contract. Such an agreement is personal, and not heritable.</p> <p>Where the agent of a planter has died, and the surviving wife forms a commercial partnership, with third parties, who assume the contract of agency which was terminated by the death of the agent, it was held by the court that the rights of the heirs to the estate of their* deceased father became fixed at his death, and that the surviving -wife, in her capacity of tutrix, could not bind their estate for liabilities of the new firm growing out of the contract of agency which terminated at the death of their father.</p>

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

<p>A purchaser of land, slaves and movables may avoid that portion of the contract for which slaves formed the consideration, by showing the relative value of the land, slaves and movables at the time of the sale.</p> <p>In determining the relative value of the land, slaves and movables at the date of the sale, the estimate placed upon them by the assessors, for the year previous to and the year following the sale, should be taken as a basis, rather than the estimate of witnesses made ten years thereafter.</p>

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

<p>Where no bills of oxception nor assignment of errors are attached to the record, and the appellant has filed no brief in the case, damages will be given the appellee for frivolous appeal.</p>

<p>APPEAL from the Sixth Judicial District Court, parish of St. Helena.</p>

<p>If a party takes a devolutive appeal from a final judgment and gives bond, and altewards abandons it, lie can not be permitted to take a second appeal oj giving a new bond.</p>

<p>An appeal will lie from an interlocutory judgment of tlie probate court, rendered on a rule against the executor to show cause why the sale of certain property should not be stopped, and a writ of mandamus will, on application, issue to the judge to send up the record.</p>

<p>"Where the evidence shows that the owner of a promissory note placed it in the hands of commercial agents for the purposes of negotiation, and the agents afterwards bring suit as owners, the maker of the note can plead all the equities in the suit that may exist against the original holder and owner, although it may be shown that the note came into their possession, as agents, beiore maturity.</p>

<p>The s’gning of an appeal bond by the husband in a suit: where the wife is plaintiff, and Ms joining her in an assignment of errors filed in the Supreme Court, is not a sufficient complianoe with article 123 of the Civil Code. The authorization of the wife must be given either by the husband or the judge before the trial of the cause in the court a qua.</p> <p>An appeal taken from a judgment where the wife is plaintiff will be dismissed on motion, if it appears that she was not legally authorized to prosecute the suit in the court below.</p>

<p>A mortgage loses its rank if it is not reinscribed within ten years.</p> <p>The fact that the records of the mortgage office are shown to have been removed from the place where thoy were usually kept, and the office closed for’two or three years, will not relieve a party from the effect of failure to reinscribe within the time required by law. In a case of this kind, recourse on the part of the party suffering, would lie against the officer for removing the records, and thereby putting it out oí his power to have the reinscription made.</p>

<p>APPEAL from the Parish Court of Iberville. Moore, Parish.Judge..</p>

<p>To constitute a valid seizuro of a plantation cultivated as such, and occupied as a residence, the sheriff must, whether under attachment or fieri facias, take the# property into his possession and custody, and in case of attachment, the return must show that this rule has "been complied with. The statement by the officer that he has attached according to law, is not sufficient.</p> <p>The sale of a plantation by the sheriff under a judgment rendered on attachment without giving notice to the occupant or owner, is a nullity; but if the attaching creditor can show on tiial of the injunction taken out by the partv in possession under a recorded title, that the sale is simu'atad, the casemight be different</p>

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

<p>APPEAL from Seventh Judicial District, parish of West Feliciana.</p>

<p>A parly who, having taken charge of another's furniture and dwelling house in New Orleans, under an agreement with the owner, in th.3 year 1862, shortly after tho city was captured by the military forces of the United States, must be viewed as a depositary, and t s such is responsible for the return of the goods when demanded by the owner. In a case like this, the depositary can not urge the disloyalty oí tho owner in bar of his right to recover. Nor does the Jaw require that a edizen 01 the United Stat“s, who made a deposit of his goods- and effects with, another, shall, before bringing suit, exhibit evidence of his loyalty.</p> <p>The question of loyalty is one tha1 an agent or depositary can not plead against his principal.</p> <p>A the lessor of a house and premises, made an agreement vente a reviere with B, the lessee, for his household goods and effects. A afterwards co looted the rent due from the lessee, and gave a receipt therefor. Held — That A, the lessor, by giving the receipt and receiving the rent acknowledged the simulated character of the sale, and when demand of restitution of the goods and furniture was made by the owner, the lessor was precluded by such acknowledgment from urging the venia a reviere in bar of the right to recover.</p> <p>A suit for the recovery of goods on deopsit, or thoir value, is in time if brought within one year from demand for restitution.</p>

<p>The change of executory proceedings to that of ordinary proceedings, by answer to tbo injunction taken out by the defendant against the order of seizure and sale, will operate a discharge ot the sureties on the injunction bond, and the sureties, having no further interest in the litigation, need not be made iiarties to the appeal from the judgment dissolving the injunction.</p> <p>The rule is now settled that where the consideration of the note is part land and movables and pari slaves, tne holder can only recover that portion which is ascertained to be due on the land and movables alter crediting the payments which have been made prior to emancipation, in the proportion that each bears to the entire contract. Saudidge v. Sanderson, 21 An. 757.</p>

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

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

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

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

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

<p>Where the indorser of a promissory note has died at or about the time of the maturity of the note, but the fact is unknown to the holder or the notary, notice sent through the postoffico to the indorser, at her usual place of residence, will bind the heirs, if it be shown that they were in the habit of receiving letters there, and that they actually received irom the post-office the notice of protest addressed to their mother tuck notice is equally as binding as though it had been directed to the heirs by name.</p>

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

<p>Section three of tlie revenue act of 1869, authorizing the levying and collecting a fixed amount as a license, makes no provision for a pro rata license, and a person commencing business in the latter part of the year must pay the full amount of the license authorized to be assessed.</p> <p>The requiring of every party owing a license to the State to pay the full amount, without reference to the time that ho commences business, is not a violation of the princixile of uniformity established by the constitution.</p> <p>A firm engaged in the manufactory of agricultural implements in this State is liable to pay a. license tax, the same as any other manufacturing firm, under the revenue laws of 1869, section 2.</p>

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

<p>A surety on an attachment bond is no party to the suit, and need net bo made a party tj tli& appeal taken by tlio defendant from tbe judgment in the attachment suit.</p> <p>Where the evidence in the record leaves the questions in dispute in clo.Vbt and uncertainty, the-Supreme Court will remand the cause for a new trial.</p>

<p>Where it is shown on the trial that a sequestration legally issued, the party obtaining it is not liable in damages, on account of the surety, whom the judge has approved, being subsequently ascertained not to bo worth the amount of the bond.</p>

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

<p>Plaintiff, a judgment creditor of Uio husband, caused his property to bo seized under execution. The wife caused execution to issue on her judgment, and the same property was seized, a sale was made under these seizures, plaintiff toolc a rule on the sheriff, to pay .ver the proceeds of the sale in satisfaction of his judgment. The wife intervened in this rule and claimed the proceeds, on the ground of a superior mortgage t j that of th1 soiz ng creditor. Held — That sho should be permitted to do so; that the court wa3 without the capacity t > ■decide on the proper disposition to be made of theproc-eds unless all the parties interested were before it; that to all jw the wife to intervene and establish her right to the proceeds of the sale in this proceeding would avoid a circuity of action and put an end to the litigation.</p>

<p>The right to proceorl by rule is confined to incidental matters which may arise in the progress' oí a suit, except in summary cases, whore tbi3 form oí proceeding is sanctioned by law. The want of citatiou is fatal io all subsequent xiroceed.ngs m the cause.</p>

<p>An appeal will not be dismissed, because the certificaba of the clo'k to the record is informal. Acts of 1866, No. 82, § 16, p. 15*.</p> <p>Where the original note sued on has not been offered in evidence, and the defendant s eks a new trial, the case will be remanded.</p>

<p>Tlie lion and privilege given by Jaw on tho lands in favor of the State and parish ior the taxes, expires by two years from date of assessment.</p> <p>Section sixty-three of the revenue law of 1869, which authorizes the tax collectors to seize and sell the property of defaulting taxpayer, and prohibits the courts from issuing any process interfering with tax collectors in the discharge cf their duties, does not apply to taxes that were assessed and became due before tho passage of the law. Acts of 189, p. 1C69, sec. 63.</p>

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

<p>A third party who has acquired the interest of a portion of the heirs in a succession, cannot plead such interest in compensalion in a suit brought by the administrator to recover a. note due the estate.</p>

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

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

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

<p>APPEAL from the District Court, parish of Lafourche. Train, J-</p>

<p>The omission to name a creditor in tho citation cf appeal from a judgment homologaticg a tutor’s account will not vitiate the appeal.</p> <p>If a judgment homologating the tutor’s account, shows an indebtedness in favor of the minors with moitgage for §11,000 00, a third party has a right to appeal therefrom, if ho has a judgmont against the tutor with m irtgage lor over Ove huudred dollars. The parish court i3 competent to grant an order o«. appeal from a judgmont homo ogating a tutor’s account, although a similiv judgment may have been tendered by the clerk of the district court, under the act cf 1855, before tho organization of the parish court. In such a case both judgments must bo embodied in the record of appeal, and the parish jrdgo is the only competent authority to grant the «. rdcr.</p> <p>An acknowledgment by the husband in the form of a receipt, that he received from the wife tho amount of paraphernal funds therein expressed, is conclusive between tbo husband and wife or their heirs, and is prima facie proof as to al other parties. Such evidence will autnorize a judgment in favor of the heirs in a suit against their iather m his capacity of tutor.</p> <p>The mortgage of the minor on the property of his tutor to secure the faithful administration oí his estate, and to cover the indebtedness contracted by the tutor to the minor on account of the community and separate property of the minor, which he has acquired by purchase, attaches from and after the date of the .ippointment and qualification of the tutor.</p> <p>A third party in an opposition to tho homologation of a tutor’s account can not be heard to contest the validity of an adjudication which occurred prior to the existence of his debt.</p> <p>A tutor owes five per cent, per annum on the funds from the date of receipt, and when the accounts are liquidated, livo x^er cent, on tho aggregate amount from tho day ihc. accounts are closed*</p> <p>If the tutor charge himself with the revenues cf the minor, he is entitled to credit for the expenses of the minor to the extent of the revenues.</p> <p>A third party, a mortgage creditor, can only have the judgment of the court below corrected on appeal, in so far as it appears upon the face of the record to grant a mortgage prejudicial to his mortgage, ifo amendment or change of the judgment can be made between appellees.</p>

<p>Ttoiero tlie appellant fails to prosecute liis appeal, and tlie record discloses no grounds for tlie appeal, damages an ill be awarded tlie appellee for frivolous appeal.</p>

<p>Where the evidence shows that a purchaser of rsal estate lias at the time, and before the purchase, lull knowledge of a suit brought by the United. States for a large portion oí the land purchased, he can not set up in defense to the payment of the pnce' that he is in t auger of eviction by such suit, and obtain immunity from the enforcement of ilxo contract, * ntü fcne suit is decided. The knowledge of tlie existence - f such a suit before the ■■ purchase forms an exception to the rule laid down in article 2535 of the Civil Code.</p> <p>•An intervenor, who has purchased the land from the vendee and claims to detend the’title of his ve dor, can not uige the ex;stence of such a suit against the demand of the original vendor iortne payment of the price.</p> <p>'Ih.3 prescription of five years does not apply to an obligation to pay money contained and ex ressei in the act of sale. In such a case the prescription of ten years is applicable. C. C. 35 S; 3 An. 46; 13 An. 294.</p> <p>-Obligations given for the purchase of land and slaves can only be enforced against the land in proportion to the value oí each at the date of the purchase: and where judgment has been reuuered in the court below for the whole am) unc, the cause will be remanded for the purpose of ascertaining, by evidence, the value of each at the lime.</p>

<p>Where an intervenor causes certificates of stock to be sequestered from the plaintiff in the action, the latter becomes practically a defendant in sequestration, and, as such, lias aright to bond the property.</p> <p>This right to bond exists whether the writhe directed against “property,” as mentioned in C. P. 271, or against “obligations and titles,” as mentioned in C. P. 272. In either case, the ownership being in dispute, the conservatory effect of the writ is to compel the -possessor, if he wishes to retain possession, to give seeurify in favor of the claimant, who •demands possession.</p>

<p>APPEAL from the Sixth District Court of New Orleans. Fmerson, Judge of the Third District Court, presiding.</p>

<p>WIigvg separate appeals are taken by tbo principal and surety on tlie bond from a jndcmenfc in solido dissolving an iujunction, the principal in injunction, if solvent, is a good and legal surety on tho appeal bond given by the surety in the injunction. As a general rule the only question to be considered in determining the sufficiency of the bond is the solvency of the surety.</p> <p>A suspensive appeal taken by the principal in injunction will not suspend execution of the judgment against the surety on the injunction bond.</p>

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

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

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

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

<p>A and B entered into a written contract of partnership to carry on tlie planting business in the parish of Morehouse. A, one of the partners, made a contract in his own name with Smiih & Carr, commission merchants in the city of New Orleans, to furnish supplies, etc;, for the plantation in the parish of Morehouse. Smith & Carr took the individual note of' Ar m tho name of Smith, in settlement ofc tho account. A and B settled their partnership at th i close of tlic year, and divided the cotton made on the place. B shipped her part of the cotcon to her own merchant. Smith, as holder of tho note given by A, brought suit, and sequestered the cotton of B, in tho hands of her merchant in New Orleans, alleging that he had a privilege on the cotton for tho supplies iurnished, which were used to make it B intervened in this suit, and claimed tho cotton as her individual property, and denied that it was subject to the privilege of Smith for supplies furnished. Held — That A, having contracted for tho supplies in his own name and given his individual note in settlement of tho account, no privilege existed on tho crop made in partnorshix). That the dent being against an individual, property belonging to a partnership could not be mado liable therefor. That the crop having been divided between the partners, that which belonged to audhadbeen taken liossession of and shipped by one partner; was not liable for the debts of the other partner; evon though it were shown that the supplies furnished by the creditor for which the debt was contracted was used in making the crop.</p> <p>It would seem that where a plantation has been worked in partnership, no privilege exists iu favor of the commission merchant, who has made advances and furnished supplier to one of the iiartners, on the portion oí the crop which belongs to the other partners. To hold tl e interest of the other partners in the crop liable for the supplies, they must have been furnished to the partnership, and not to an individual, although he be a partner.</p>

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

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

<p>The mortgage allowed bylaw, prior to the adoption of the constitution of 1868, on the property of tutors to secure the minor against an improper disposition of his estate during minority, can only be preserved by the registry of the bond cf the tutor in the mortgage office, or by the registry of an abstract of the inventory, certified to by the cleric of the court of tho parish where the succession is opened. This record must have been made prior to the first of January, 1870. Article 123 constitution of 1838; act of eighth of March, 1869, sections 10 and 11.</p> <p>The institution of suit on the tacit mortgage prior to the first of January, 1870, does not dispense with the inscription required by the act of 1869. The legal mortgage can only be preserved on the property cf the tutor by registry in the mortgage office in the manner and in accordance with the forms prescribed by the act of March 8, 1809, sec. 10 and 11.</p>

<p>Iu interpreting agreements, an elementary rule is to construe the clauses together, giving to each tbe-senso which resul.s from the whole instrument.</p> <p>Parties are put in mora by demanding that they do that which, in a legal sense, they ought to do and can do.</p> <p>A distinction exists in this regard between a modus and a suspensive potestative condition. The former is obligatory and payable, and if the party bound is passively violatinghis ob igation, ho must be put in default before an action will lie. The latter is one whoso accomplishment depends on personal choice; the party on whom it is imposed is free to accomplish it or not; and to put him in default would be a vaiu thing, since it would be to demand that ho should do what he is under no obligation to do.</p> <p>An agreement was made between plaintiffs, owners of mineral lands, and the- assignor oi defendants, of a twofold character, including a license to mine, and a lease for ten years in</p> <p>• case of successful discovery. The defendants lost all rights thereund ir by the lapse of time, no workable quantity of petroleum having been discovered within a period limited by the contract. The plaintiffs tkon agreed to refrain from declaring a forfeiture of this contract for ten years from its date, provided the defendants would carry on the search for petroleum constantly and without cessation. Held — That the latter agreement was conditional; that its conditional was suspensive and potestative, and that when the defendants failed to carry on their search for petroleum, the plaintiffs were entitled to declare the forfeiture of the contract by suit, and claim possession of their lands, without a formal putting in default.</p>

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

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

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

<p>If the plaintiff's demand is less than five hundred dollars, but the reconventional demand of the de endant is above that amount, the Supreme Court will only notice the appeal in so far as it affects the reconventional demand</p> <p>A lessee, receiving iho premises, in good order, is authorized to make the necessary repairs to keep them ia that condition, and deduct the cost from the rent, and his omission so to do will not authorize a claim for damages, co long as the rent due is sufficient to defray the expenses of making the repairs.</p> <p>A suit to eject a tenant and recover possession of the leased premises, is a summary proceeding, and a jury trial is not a'lowcd in such a case, unless by express provisions.</p>

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

<p>In this case, the appelbe took a rule on the app.llart, to test tho solvency of the surety on the bond. The appellant, as is alleged, fearing that he cculd net sustain the solvency of tho surety, abandoned the appeal. Held — That the abandonment of the appeal for this reason did not release the surety on the bond.</p> <p>As a general rule, no proceedings can be had against the surety on an appeal bond, if the fieri facias has been returned into court before the return day. But where the return of the sheriff on the writ shows that demand vac made and tho judgment debtor had gone into bankruptcy, thereby putting it out oí the power of the judgment creditor to pursue him auy far.her under execution. Held — That the liability of the surety became fixed from that moment; that no further proceeding under execution being possible against the judgment debtor, tho creditor was at liberty to proceed by rule against the surety on tho appeal bond</p>

<p>■One creditor can not gain a preference over another by applying for a writ of mandamus to compel an officer to pay a sum of money out of funds to be thereafter received by him.</p> <p>If the record shows, as in this case, that the treasurer of the Metropolitan Police was willing to do what was demanded of him, tho writ of mandamus was unnecessary and should not have been granted. The province of courts of justice is to decide on real issues, and not to be used as instruments to work injustice.</p>

<p>The abolition of slavery by tlie sovereign x>owor put an end to all contracts depending for tlicir* existence on that condition, and as the contract for the hire of slaves could not have been made without* the existence of a state of slavery, the destruction of that relation by tho sovereign power destroyed the contract, and tlie obligation given as tho evidence of such-contract, is null and void</p> <p>Slavery, as it formerly existed in the United States, only gave to tho owner the right to the labor of the slave during his life, and the destruction of slavery carried with it the destruction of that right. Itmakes no difference whether the contract is made for the sale of the slave or whether it is ior the hire. In the one case it is for the services of the slave for an indefinite period, and in the other it is for a fixed period of time. The contract is equally null m both cases.</p>

<p>Colton or other produce cultivated and made by the survivor, after the dissolution of tho community, does not fall into and form a part of the succession; nor are the fees of clerks or other officers of the court, for duties performed in opening and administering the estate, chargeable to the proceeds of such cutton or other produce. ,</p> <p>If a writ of sequestration has issued by a creditor of the estate agamst the cotton produced by the survivor, the same will be set aside on the ground that the cotton was the individual property of the survivor, and not a part of the estate.</p> <p>Reporter. — In remanding this cause for tbe purpose of tbe settlement of the succession, tbe Supreme Court instructed the judge a quo that no claim founded on tbe existence of slavery, whether for tbe price or tbe biro of slaves, was to be entertained in making up tbe judgment between the contending parties. This decision is supported by a long current of authority, as well as a constitutional enactment, in so far as the enforcement of contracts, tbe consideration of which was tbe price of. slaves. But the question of tbe inability to recover wages for the hire of slaves, while that condition existed in the country, lias not, until recently, been announced by tbe court. See the case of Rodriquez v. Bienvcuu, ante page 300. This decision, reaffirming the doctrine announced in that case, it would seem, settles tbe question against tbe right to recover tbe hire of slaves.</p>

<p>In this case tbe district judge gave, as reasons for dissolving the injunction “ that none of the-Witnesses presented by the plaintiff were entitled to credit and belief.” Five witnesses testified that the ownership of the property seized was not iu the judgment debtor, but was in the plaintiff iu injunction. No countervaiiiog ovidonce was offered, nor was any effort made to impeach or discredit the witnesses offered by tho plaintiff. Held, by the Supreme Court, that the judge of the district court erred in substituting Ms own biliet of the credibility of the witnesses offered fir that of other and counter testimony.</p>

<p>A sale of succession property, for tlie purpose of effecting a partition among tlie lieirs, is not an act of administration, allliougli it be made by order of the court, through the administrator, and the sureties of the administrator are not liable to the heirs for loss which they have sustained on account of his failure to take good security for the credit portion of the price.</p> <p>A surety signs the bond of an administrator with reference to the law regulating his duties as such, and securing his recourse against the latter, in case of failure to administer the estate in conformity with such requirements. But if the heirs provoke a sale of the property, for the purpose of effecting a partition, and change the time for the payment of tlie credit price from that fixed by law for the sale of property by the administrator, they thereby make the conditions of the surety more onerous, and he is discharged, even if the proceeding be one in which he could be held liable under any circumstances.</p>

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

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

<p>APPEAL from the Fourth District Court for the parish of Orleans. Théarcl, J.</p>

<p>A mandamus can not i^suc to a pub’ic officer or a public body to compel tlie performance cf any act where they have a discretionary power. Nor will the writ issue to compel the treasurer of a corporation to pay a demand when there is no money in the treasury.</p> <p>A writ of mandamus can not issue against the same body to compel tlie performance of two-separate and distinct acts, the one not depending upon or grpwing cut of the other. In such a case separate and independent writs must issue.</p> <p>The Board of Metropolitan Police can not be compelled, by mandamus, issued at the request of a creditor, to receive an amount of funds alleged to be in the hands of the State Treasurer to their credit, because they, (the board), have the discretionary power to receive or refuse to receive the funds.</p>

<p>'The act of Congress authorizing the controller of the currency to appoint a receiver to take charge of any bank or association that has failed to redeem its circulating notes, and is in def mlt, with full power to collect all debts due such bank or association, authorizes such receiver, when appointed, to sue for and stmd in judgment in the courts of tho country in all cases involving the collection of debts due such bank or association.</p> <p>Parol testimony is not admissible to explain, contradict or vary a written contract of sale, nor can witnesses be heard to show what the understanding of the finance committee, the Common Council of the city of New Orleans, or the communiiy in general, was, aeout the meaning of an ordinance authorizing tho sale of city property.</p> <p>Iua sale of property by ike city of How Orleans, authorized by ordinance of the Common Council, the city fixed the terms in so far as to requiro the purchaser to pay one-fifth of tno amount bid m cash, at the time of sale, the balance to be pai l in insta.lments to suit the purchaser, with mortgage retained on the property sold, until final paymont, giving, however, the purchaser the right of paying the whole amount in cash, and, in that event, tho city was to take in payment her matured obligations at par. The purchaser declined to avail himself of this privilege of paying the entire indebte ness at the time of sale, but gave his note for the amount in dollars. Held — That not having paid the amount in city notes at the time of sale, he could not now claim to discharge the note in any thing but lawful currency; that the right to pay in city notes was forfeited by his failure to avail himself of tho conditions proscribed.</p>

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

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

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

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

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

<p>A motion to dismiss an appeal comes too late, if not made within three days after the record is file3. 19 An. 27*5; 2 An. 138.</p> <p>The assignment by the husband of a judgment in his favor, to the wife in payment of her paraphernal claims against him, is a proper and legal transaction. And the fact that the amount of the judgment is far in excess of the amount of the wife’s claim is not sufficient, if the evidence shows that the real \ alue of the judgment is not above that of the claim of ihe wife, to raise ihe presumption of fraud in the transaction. All transactions allowed by law, calculated to protect the interests of married women, are legarded in a favorable light by ihe courts oí this átate.</p>

<p>from the Fourth District Court for the parish of Orleans. Théarcl, J.</p>

<p>APPEAL from the Sixth Judicial District, parish of St. Helena. Pi. JEllis, J.</p>

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

<p>An opposition to a tableau of an executor comes too late, if it is not iilecl, nor offered to be filed, until after tbe case bas been tried and submitted, and taken under advisement by the judge. In such a case the opposition should not be filed.</p> <p>A bequest in a will toa religious corporation ialls, if the legatee is not capacitated to take, at the-death of the testator.</p> <p>In this case the legatee was a religious body, known as the Baptist Church of Clinton, not incorporated at the death of the testator. Held — That the legatee not being incorporated at the death of the testa or was not capacitated to receive the legacy, and the subsequent incorporation of the church, designated in ihe will as the legatee, would not enable it to take, because the dispositions of the will must takc.effcct in x>ra¡senii.</p>

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

<p>The bonding of property under seizure, in order to regain the possession thereof, is no bar to subsequent proceedings to set aside the writ of attachment, and release the surety on the bond.</p> <p>The surety on a bond of release of proporty attached may, before making any payment, bring suit against the debtor to indemnify him for the liability incurred in signing the bond. But to enable him to sustain such an action he must bring himself within the requirements of the law conferring the right to demand indemn.ty, viz: 1. "When there exists a lawsuit against him for payment. 2. When the debtor has become bankrupt. 3. "When the debtor was bound to discharge him within a given time. 4. "When the debt has become due by the-expiration of the time for which it was contracted, etc. C. C. 3020.</p>

<p>APPEAL from the District Court, parish of Tensas.</p>

<p>A resolution of llio Board of Underwriters of the city of Kcw Orleans, authorizing a reward to be paid by tho insurance companies for the apprehension, with sufficient evidence to convict any person guilty of the crime of arson, can not be explained or interpreted by parol testimony, nor is the testimony of tho iiresidenfc of the Board of Underwrites admissible i'or that purpose.</p> <p>The several fire insurance companies of the city, by resolution of the Board of Underwriters,, instructed John Youenes, fire warden, to make a searching investigation into the cause anil origin of all fires which occur in buildings, stocks of merchandise, or on board of any vessels, while lying m this port, insured by any insurance compauv m the city of How. Orleans, and to offer a reward of five thousand dollars lor tho conviction of any p.-rsort er persons found guilty ol' participation in any such fire.</p> <p>Jolm Youenes, in conformity to this authority, offered a reward of five thousand dollars, to be-pa'd to any person or persons who will procure such testimony as will convict, in the criminal court of this slat?, any person who maybe guilty of the crime of incendiarism., Two criminals, Rose and Abrahams, were imprisoned for the crime cf arson before the publication of this reward was made. After it was made, and before the trial in the criminal court, the plaintiff in this sail procured such testimony as led to their co ivietion He now seeks ti enforce payment of tho reward. The insurance companies resist the demand, on tho ground that the reward was only intended to cover, and did only cover, such crimes as might he committed after it3 publication, and did not apply to ctimes that had been committed before the reward was made. Held — Tliaf, by a fair interpretation cf the meaning of the language used in the resolution and tho notice given by Youenes, the reward was demaudablo on producing the necessary evidence to convict, whether tho crime had been committed before or after tho publication; that the terms of tho obligation cleat ]y show the object of the company to be to aid in the punishment of crime, and the protection of themselves and the public against criminals cf this character, and xrt merely as a. warning to deter parties from committing incendiary crimes.</p> <p>To enable a defendant to avail himself of the benefit of a transfer of a litigious right by paying to the transferred only the amount which he paid for the claim, with interest, lie must accept the validity of the claim. He can not contest tho claim, and, after being defeated, urge against the transferrec the litigious character oí his tillo.</p>

<p>In tlie testament of William Silliman appeared the following clause: “Item 8. — I give and bequeath to the children of my late brother, Thomas Silliman, one-fourth of the remainder, to be divided equally with those that may be living at my death.” The children of a daughter of Thomas Silliman, who had died befóte the date of the testament, brought suit to be recognized as 1© alces under tho will Held — That the term “children,” as used in this testament, om • included the children of Thomas Sill.man, that might be living at the death of tho testator, and did not inc.ud-* the descendants of those who had died before him; that their mother, having died before the date of the will, was not embraced among tho0 legatees, and her children could not succeed to her; that tho grandchildren could not inherit undor this clause in the will.</p>

<p>'Wliere a stockholder efi the Citizens’ Bank gave a mortgage on his property to secure the subscription ot stock, and to secure a stock loan, under the charter of the bank, which proYideo that each stockholder should be entitled to a loan of one-half of the amount oí his stwck, and the mortgage stipulated that the pi operty mortgiged shouli stand hypo.hecated for any stock loan so mado, it was held that the mortgage included in its securities such stock loan; that the statements in the charier of the bank, ti at one-half of the amount of the stock was the maximum which the bank Was authorized to loan to a Stockholm r < n pledge of Ins stock, and the recital in the act of mortgage of the number of shares of stock owned by the mortgagor, was sufficiently definite, and operated a notico to all parties of tho extent of the incumbrance on the property mortgaged.</p> <p>Barlies acting in a representative capacity or h> Iding bank stock, and having a°sumcd the obligation ol the mortgagor to pay the stock and reimburse the back for a stock loan, occupy iho eamo position towards the bank that the orignial mortgagor did, and if there be any doubt their acts will be interpreted agamst ihera.</p> <p>'The assumption of a mortgage by a third purchaser, or mortgagee is not a novation rf the mortgage. Novation only takes place when the intention of the parties to novate is distinctly announced. The lact that the bank stock was transferred subsequent to the roaL estate subject to the mortgage given to secure the payment of the stock, did not affect the mortgage rights of the bank.</p>

<p>An injunction granted on the allegation of nullity of tlic judgment on which execution issued',. will be dissolved, with damages, if the action of nullity is barred by prescription</p> <p>The dismissal of the appeal on the ground that the judgment of the lower court was not signed by the judge will not interrupt the prescription of the action of nullity.</p> <p>The c nstitutional provision requiring all process to issue in the name of the State of Louisiana, is sufficiently complied with, if the citation is headed “State of Louisiana.*</p>

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

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

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

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

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

<p>Stipulations in an act of sale, in favor of third parties, can not be revoked after they have been accepted by those in whose favor they have been made, except in cases where just cause is shown, such as a failure of consideration of the contract, and the like.</p> <p>In this case, a sale of real property was made, for a fixed price, with a stipulation by tho vendee that he assumes all the mortgages existing on the property, and the amount of the mortgages is above the stipulated price of the purchase, for which difference the vendor executed his promissory note, in iavor of the vendee, and afterwards, and before payment, he absconded. Held — That, by the terms of the contract, this amount was to have been paid before tho vendee became bound to the mortgage creditors; that the vendor, by absconding, had placed himself in default, and that, by the failure of the vendor to comply with the conditions on which the gale depended, the vendee was entitled to have the sale rescinded, and to be discharged from any liability to the mortgage creditors, on account of the purchase of tho property.</p>

<p>APPEAL from Fourth District Court, parish of Orleans. Theard, J.</p>

<p>Where the Board of Metropolitan Police has taken an appeal from a judgment rendered in an action commenced by their treasurer, a motion by the latter to dismiss the appeal will not be listened to.</p> <p>In an action thus commenced by the treasurer, the board has aright to intervene for the purpose of showing that the action was commenced without its approval, or in contravention of its orders.</p>

<p>Attorneys employed by tlie executor to attend to tlie litigations in which, the estate is, or may be involved, are entitled to a fair and liberal compensation for their services.</p> <p>The executor of an estate is only entitled to chargo two and one-lialf per cent, commissions on. the profierty tliab actually comes into his possession to be administered upon. He is not entitled to commissions on all the property which falls into the possession of the legatee, unless it is shown that it first passed through his hands as executor.</p>

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

<p>The ruléis well established that neither executors nor administrators have the power to create-liabilities against the estates they represent, to waive rights which belong to it, to change the nature of its obligations, or to increase its responsibilities in regard to its debts. But, when judgment has been confessed, as in this case, by the administratrix, on demands that are well iounded: Held — That the heirs must show in opposition to a rule by the judgment creditors for a sale of the property, that the confession by the administratrix was made to their injury, and that their rights of defense against the claims wore waived by the coniession.</p> <p>£f the administratrix had no funds in hand with which to pay tli' judgments against the estate, neither her nor the heirs can successfully oppose an application for a sale of the property of the succession to pay the judgment creditors; and a tableau by the administratrix, as a preliminary step, is unnecessary.</p>

<p>The mere filing of a motion or potition for appeal, with an appeal bond, does not divest ihe* court below of jurisdiction over the case. To invest the appellate court with jurisdiction over the case, an order of appeal must be granted by the lower court.</p>

<p>■Property that has been purchased by authentic act and passed into the possession of the vendee, can not be seized under a writ of fieri facias against the vendor. In such a case the sale ot the property thus seized will be restrained by injunction taken out by the purchaser. The case would be different if the seizing creditor shows that the sale is simulated.</p>

<p>In a suit io recover the damages resulting from the unlawful sequestration of a lot of sugar, the plaintiff must show, by undisputed evidence, the actual amount of loss resulting from the fall in tlie price during the time it was detained under seizure. Damages will not be allowed for an alleged deficiency in weight, if the evidence is vague and uncertain, but a reasonable amount will be allowed, as attorney’s fees, for setting aside the sequestration and getting possession of the property.</p>

<p>A consignee of cotton is bound to comply wifcli tlie conditions imposed upon him by the principal in relation to the appropriation of the proceeds, and the acceptance of a draft; drawn by the owner of the cotton gives the factor a preference over the prooeeds to that extent.</p>

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

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

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

<p>Aletter written by a creditor to his commission merchant, in which he agrees to remit the interest on his account against the merchant, when offered in evidence by the latter, the creditor can not be heard as a witness to show that he intended something different from that which its terms express.' In a case of this kind, the party writing the letter can not be allowed to contradict or vary its meaning by parol testimony. The rule is well established that a party can not vary or destroy his voluntary agreement by other than written evidence.</p>

<p>In an action upon a joint obligation, all tlio parties thereto must bo made partios to llic suit. O. C., 2080, 2031, 2032. ■</p> <p>Where, therefore, a. suit was brought in 2!e\v Orleans, upon a joint promissory note, made there, and one of the defendants in such suit, an absentee, who had neither a residence nor property in Louisiana, was cited, through a curator ad hoc: Held — That he was a necessary party; that the only course left was to appoint for him a curator ad hoc, and that lie sub* jected himself to this eventuality by signing the agreement in suit. 5 An. G7á.</p> <p>Whether or not such a judgment, as against the absentee, can have any extra territorial effect, it is not, in Louisiana, a nullity.</p>

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

<p>The intervenor is not entitled to appeal from a judgment against the defendant, if no judgment has been rendered by the court below on the intervention.</p>

<p>The wife can not bind herself for ber husband, nor conjointly with him, for debts contracted by him before or during the community. C. C. 2Í12.</p> <p>The question of the effect of the renunciation of the wife’s mortgage can not be examined by the appellate court, if, in answer to the appeal, she fails to ash for the amendment of the judgment in her favor.</p>

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

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

<p>2kq mortgage granted by article 3282 of tlie Civil Code in favor of tlie tntor on tlie property of his ward for advances made, has effect against third parties only from the date of inscription. Tacit mortgages exist only in favor of those persons included in the exceptions established by law, and no exception is made in favor of tutors. The mortgages granted in their favor must, to havo effect, be recorded.</p> <p>The rank of mortgages, which aro required to be recorded to give them validity, must be determined by the date of inscription.</p>

<p>The hypothecary right granted by C. C. 1626, in favor of a particular legatee upon the immovables of a succession, is a legal, mortgage; and it must be recorded, in order to maintain its priority, as against a conventional mortgage, imposed by the universal legatee, and duly recorded. C. 0. 3297.</p>

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

<p>.-A judgment of the court ordering a partition of succession property in kind, to be made in ■ conformity with a report of experts and demanded by all parties in interest, will not be set aside because a new inventory and appraisement was not made, as required in such cases by article 1218, Civil Code.</p>

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

<p>A judgment ordering the sheriff and. seizing creditor to return to tho purchaser tho price of the adjudication ot property sold at sheriff's sale is equivalent to a judgment formally annulling the adjudication. Therefore, when such a judgment has been rendered, and not appealed from, tho surety on the appeal bond, is estopped from setting up on a rule to show cause why he should not pay the judgment, that the first adjudication is still in force, because it has not been legally annulled.</p>

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

<p>TVhere an appeal is taken by petition from an injunction suit, and the appellant iails to have tbsurety on tlie bond cited with other parties, the appeal will be dismissed for wantof proper parties. The surety on the injunction bond is a necessary party to the appeal, and must bo cited.</p>

<p>The Supreme Court will ex officio notice the fact, and dismiss the appeal, if the amount claimed does not exceed five hundred dollars at the time judicial demand was made.</p>

<p>A preponderance of testimony in favor of a marriage, is sufficient to base a judgment1 for alimony, pending tlie suit lor divorce; but such judgment, rendered on rule, will not preclude the husband from urging the plea at the final trial that there was no marriage.</p>

<p>APPEAL from the Sixth District Court, parish of Orleans. Théarcl, (Judge Fourth District Court), presiding.</p>

<p>Tho aofc of renunciation by the wife of her rights on property ostensibly belonging to the com* munity, does not preclude her from reclaiming it, free from any mortgages or incumbrances placed upon it by the husband, if she shows that it is actually her paraphernal property.</p> <p>The renunciation of the wife, in an act of mortgage given by the husband, on the separate property of the wife, is a nullity. C. 0. 24=12.</p> <p>The simple .denial by the wite that she derived benefit from an act of mortgage given by her husband and signed by her, on her separate property, is sufficient to put the creditor upon proof that the debt contracted by the act inured to her advantage, or to the advantage of her separate estate.</p> <p>A mortgage {given by the husband on the paraphernal property of the wife, with her renunciation, the paper title to which he has acquired by a series of probate proceedings, resulting in a sale of the property, at which he became the purchaser, can not be enforced after the sale made by the order of the probate court has been declared null. In such a case, the possession of the property is restored to the wife, unincumbered by the mortgages which the husband had placed upon it, even though tho wife had made a renunciation of her rights in the act of mortgage itself.</p>

<p>A. bequest in iavor of slaves is null, and can not be enforced by the legatees against the heirs.</p> <p>The Jaw of 1857, which prohibited the emancipation of slaves, applied as well to the heirs as to the testator; and the act of tho heirs, in confirmation of the clause in the will directing the emancipation of tho slaves named as legatees, was without legal effect, on account of its being in contravention of a prohibitory law.</p>

<p>Defendant purchased slaves at succession sale, for which he gave his promissory notes; at their maturity plaintiff loaned defendant a sufficient amount to pay them, for which defendant gave his note; defendant applied the money, thus obtained, to the payment of the original notes for the purchase of the slaves; plaintiff brings suit on the note, to which the defendant opposes the plea of a slave consideration. The evidence shows that the consideration of the last note was loaned money: Held — That the plaintiff must recover; that the fact that defendant applied the money loaned to the payment of the slave notes, did not entitle him to the benefit of the plea of a void consideration.</p>

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

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

<p>In this case it appears from the evidence, that A & B owned the Pelican mills in partnership; that in operating said mills they were commercial partners; that O, a third party, loaned A, one of the partners, an amount of money for the use and on account of the partnership, and to be paid by the partnership funds. 0 brought suit against the partnership for the amount of money loaned, and A, one of the partners, confessed judgment. Execution issued on the judgment thus confessed, and the mill, the partnership establishment, was seized. B, the other partner, enjoined the sale. Held — That the judgment having been confessed by one of the partners, for a partnership debt, before the dissolution thereof, the sale of the partnership property could not be restrained by injunction taken out by the other partners.</p>

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

<p>In a suit to settle tlie rank of mortgages, if the claim of ilie third opponent did not originate until after the other judgments were rendered and recorded, he can neither contest the reality of the judgments, nor the validity of their consideration. In a contest of this character, evidence is not admissible on the part of the third opponent to show that the consideration of the judgment, which was recorded before the existence of his own claim, was-for the sale of slaves.</p>

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

<p>In a contract made between parties residing in Mississippi, by which notes and mortgage aro given on property situated in Louisiana, to be entirely executed in this State, the question of usury must be governed by the laws of Louisiana, where the contract is to have effect.</p> <p>Tho act of 1860, abolishing the penalties in the act of 1854 (re-enacted in 1855), against usurious contracts, only relieved parties from such penalties for making usurious contracts attar its passage. It is not retrospective, and has no effect on usurious contracts made before its passage.</p> <p>Payments made on obligations must be applied to that which is lawfully due, and not to usurious interest; and where an over payment of the debt due has been made, excluding the unlawful interest, it may be reclaimed by the debtor, if demanded within one year.</p>

<p>Tho judge of the court a qua may, in the exercise of a sound, discretion, refuse a continuance, on the application of one of the litigants, to obtain answers to interrogatories, where the interrogatories themselves are manifestly frivolous, and intended for delay only.</p> <p>An agent can not relieve himself from responsibility for moneys which he has collected for his principal by showing that he has invested them in the purchase of cotton for his own account, with the sanction of his principal. He must show, in addition, that he has turned over the cotton to the principal, or that the principal has authorized him to retain it.</p>

<p>Tbe capacity of a sheriff, duly commissioned and acting as such, can not bo tested or inquired into collaterally on a motion to quash a venire of jurors. 21 An. 513.</p> <p>In th s case the petit jury was regularly drawn, and a list thereof was served on the accused three days before the trial. On tho day of the trial, when the jurors were called, it appeared •that six or seven of the number had not been iound by the sheriff, alter diligent search, and that those who failed to answer to their names had been legally excused for good and valid cause shown: Held — That a sufficient number, from among the bystanders, to fill out tue panel, were properly summoned as talesmen.</p> <p>The statute of 1868, relative to juries in all the parishes of the State, except that of the parish of Orleans, repealed all former statutes on that subject, whether of a general or local character Acts of 1868, Ho. 110, page 143.</p>

<p>An action for a settlement of a partnership can not be maintained, if the evidence fails to establish the existence of such partnership.</p>

<p>It is not necessary in an indictment for larceny of money, to specify the kind or denomination of the gold or silver coin alleged to have been stolen. The simple averment of “money *' in snch a case will admit proof of the amount. Eevisecl Statutes of 1856, p. 176, § 88</p> <p>In this case the indictment declares that the accused took money, and that its value was one hundred and fifty dollars: Held — That this averment placed the accused on his guard, and. that his plea of guilty admitted the truth of the averments.</p>

<p>• Parol testimony is admissible to show the consideration of a promissory note,</p> <p>Payments that have been made, after emancipation, on notes given for slaves and personal property before emancipation, will be imputed to that portion of the debt which is ascertained to be for the personal property; that being the most onerous, and in fact the only pari of the debt that is exigible at all.</p>

<p>APPEAL from District Court, parish of St. Mary. Gates, J. A. L.</p>

<p>APPEAL from Third Pistriot Court, parish of St. Mary. Train, J.</p>

<p>Ihe holder of a note given for land and slaves can only recover that portion which is ascertained to he for the land predicated on the entire price of the sale. Sandidge v. Sanderson, and Satterfield v. Spurlock, 21 An. 757, 771.</p>

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

<p>The surviving wife has thirty days within which to make a choice between renouncing and accepting the succession of her husband. But after this delay she still has the right of renunciation, which is continuous until she has been compelled by an action to make the choice. Therefore, no personal .judgment can be rendered against her until the action by the creditor, to compel her to make the choice, has been passed upon.</p>

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

<p>The privilege given to a furnisher of supplies attaches to every fibre of the cotton made during the year, as fast as it matures, and a sale, or other disposition, made of any portion thereof, by the planter, will not defeat this lien. Therefore, if the planter has sold or transíorrecl a portion of the crop to the laborers, in payment of their wages in malting the crop, the assignee or transferee of the cotton by the laborers, in payment of a debt they owe, will not enable such third party to hold the cotton in opposition to the claim of the furnisher of supplies.</p>

<p>'Tliis is an action to recover on an obligation under private signature, viz: a draft. The defendant, in Ills answer, did not acknowledge, expressly, bis signature, but contended that it was a forgery. Held — That, under this averment in the answer, the inquiry-must be limited to the genuineness of the signature. C. 3?. 324.</p> <p>The evidence of one witness “that he was present when the draft was given,” with that of another “that he is very familiar with the signature of the defendant, and believes his signature to the draft sued upon to be genuine,” corroborated by circumstantial evidence given by two other witnesses, is sufficient to establish the signature over the averment of the defendant that it is a forgery. C. 3?. 325.</p>

<p>An ordinance of a police jury of a parish, passed while the constitution of 1864 was in force in this State, levying a specific tax of one dollar on every four hundred pounds of cotton made in the parish, in one year, is in opposition to article 121 of said constitution, which declares that taxation shall be equal and uniform. Therefore, if such a tax has been assessed and collected it may be recovered from the parish, by suit, by the party who has paid it.</p>

<p>APPEAL from the Eleventh District Court, parish of Claiborne.</p>

<p>The plea of compensation admits the correctness of the plaintiff Js demand. 14 An. 54.</p> <p>The defendant when sued on his individual note can not plead in compensation a partnership note -which he holds against a commercial firm of which the plaintiff is a member.</p>

<p>This is an hypothecary action hy a surety on a twelve months’ bond, who had paid the debt, to force a sale of the property mortgaged, to reimburse him. The application i3 opposed by the defendant, who alleges that he was a co-surety on the bond, and therefore the plaintiff is only entitled to recover his portion; that subrogation does not taté place by operation of law between co-surelies. The evidence shows that the defendant was not legally bound as co-surety on the twelve months’ bond which plaintiff has paid. Held — That, not being legally bound on the bond as surety, he could not oppose the sale of the property mortgaged for the benefit of the real surety, who had paid the debt.</p> <p>If the plea of prescription is filed by the defendant, for the first time, in the Supreme Court, and the plaintiff demands it, the cause will be remanded to try that issue in the court below.</p>

<p>APPEAL from the District Court, parish of Ouachita. Hay, J.</p>

<p>Tlie surviving wife is entitled to tlie usufruct of tlie community property during Iier widowhood, witliout accounting to tlie creditors- for the rents and revenues arising from tlie use of the property, or the value of animals that perish from natural causes. The fact-that she has qualified as administratrix, and administered the estate in that capacity, does not affect her rights as surviving spous e.</p>

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

<p>After an appeal ig granted, and the bond given and filed in the record, the jurisdiction of th 4 court a qua ceases, except to test the solvency of the surety on the bond. Therefore, a second order, rendered afterwards by the -judge a quo, changing the return day, and granting further time to the appellant, is a nullity, and the appeal will be dismissed, if not filed in the Supreme Court, within the time allowed under the first order.</p>

<p>ÍPPEAL from tlie Fourteenth Judicial District, parish of Ouachita. IF. J. Q.'Baker (attorney at law), Special Judge, vice Ray, J., recused.</p>

<p>Tiie accuse! was convicted of the crime of murder, and duly sentenced. Through his counsel, three bills of exception, were taken to the refusal of the judge to charge the jury as re-ques ed.</p> <p>I. — The court; was requested to charge the jury “that where all the circumstances of the killing are shown, it devolves on the State to show that the killing was malicious, to make it murder." Held — That this charge was well calculated to mislead the jury by its vagueness, and was properly refused.</p> <p>II. — “That if the life of accused was not in danger, but he had a reasonable ground oi believing that ifcwas, at the time of the killing, he had a right to kill the deceasedHeld— That this request, standing alone, as it does in the record, is erroneous as a legal proposition. That there are many instances in which a man may reasonably believe his own life in danger, without thereby acquiring the right to take the life of some one else. The charge was properly refused.</p> <p>III. — “That if the accused had a reasonable ground to believe from appearances, that his life was then and there in danger, and killed the deceased to save his own life, he was justified, although not attacked.” Held — That the right of self-defense, in America, is sufficiently extended without giving it such a latitude as is implied in this request, and the judge did not err in refusing the charge.</p>

<p>APPEAL from tlie District Court, parish of Caddo. Levisee, J.</p>

<p>APPEAL from the Parish Court of Morehouse. Bussey, Parish Judge.</p>

<p>A promissory note given by a married woman, with mortgage on her paraphernal property to-secure it, executed under the authorization of the district judge, according to the act of 1855, may be enforced against the wife, in the hands of a third holder, without showing that it inured to her advantage or benefit.</p> <p>The holder of negotiable paper, indorsed inblanlr, is presumed to have acquired it liona fide belore maturity, and the burden of showing the contrary falls on the party raising the question of ownership.</p> <p>The fact that the party accepting an act of mortgage has no interest therein docs not affect the-validity of the mortgage. 21 An. 3.</p> <p>Written documents, under private signature, are inadmissible in evidence until the signature is proved.</p>

<p>APPEAL from the Eleventh District Court, parish of Claiborne. <J. 8. Young (attorney at law), Special Judge, vice Egan, J., recused.</p>

<p>A contract of sale of a lot of tobacco, the price of which is fixed at a certain rate payable in Confederate trea-vury notes, can hot be judicially enforced. Constitution, Art. 127. Nor can the plaintiff, if he declares on sucha contract, be permitted in the same action, to recover on a quantum meruit, on showing the value of the tobacco in lawful currency, f*</p>

<p>If the district judge lias not original jurisdiction, and it is not necessary to aid liim in tlie exercise of his appellate jurisdiction, he can not issue the wr.t of prohibition against the parish judge, restraining him lrom proceeding further in the cause.</p>

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

<p>"Where the original answer of the defendants admits that there was a sale and transfer of the goods from the plaintiffs to defendants, and the question at issue between the parties is, was the transfer legitimate, as alleged by plaintiffs, or fraudulent, as alleged by defendants, an amended answer alleging that there was no sale, will not be permitted after, the cause-is fixed for trial. Such amendment being calculated to change the issue raised by the original answer.</p> <p>If the verdict of the jury is not responsive to the pleading3 and the evidence in the record the cause will be remanded with instructions to try the issues raised by the pie adings.</p>

<p>Payment of a note given in favor of an agent, and discounted by a bank in Confederate notes, and the proceeds thereof handed over to the maker of the note, can not be enforced. Con* stitution, article 127. The fact that the agent or factor of the maker of the note, who negotiated it with the bank, sent a small amount of groceries to the maker of the note, which he had purchased with a part of the proceeds, with the balance in Confederate notes, will not enable the bank to recover the amount of the supplies so furnished, they forming no part of the consideration for which the bank discounted and became the owner of the note.</p> <p>The rule that courts will not enforce an obligation with an unlawful cause, is not affected by any confirmative acts of the debtor. Therefore, a recognition or acknowledgment by the debtor, does not free it from the taiut which the law has placed upon it.</p>

<p>Where the appeal is granted, on motion in open court, and the bond is given in favor of the ' clerk, all tbe parties to the suit, who"are not appellants are appellees, and the appeal will » not be dismissed for the want of proper parties.</p> <p>The rule is well settled thatan injunction will not be dissolved for an alleged informality, if it appear from the record that there exists good cause for an injunction.</p> <p>Where mortgage notes have been given to factors or commission merchants, to secure advances made and supplies furnished to a planter, and an account is rendered and a. balance struck showing the amount due by the planter, the factor can not resort to theexecutory process to enforce payment of the balance claimed to be due, even if a mortgage exitsts to secure the balance.</p> <p>In such a case the factor should be compelled to establish the correctness of his account contradictorily with the planter.</p>

<p>The Supreme Court can only take jurisdiction of appeals from parish courts, in probate cases, when the amount involved is above five hundred dollars. Therefore, no appeal will lie tc the Supreme Court from a judgment of the district court, rendered on appeal from the parish, court.</p>

<p>Ilic revenue act of ninth of March, 1809, which prohibits all courts from enjoining or .otherwise interfering with State tax collectors in the discharge oí their duties in collecting licenses or taxes, has no application to parish taxes or parish tax collectors.</p>

<p>APPEAL from Eighth District Court, parish of Orleans. Dibble, J.</p> <p>This case was tried iu tho court below by a jury.</p>

<p>In a criminal case only questions of law can be reviewed on appeal. Therefore the decision c f the judge aguo on a question of diligence, raised by the accused in a motion for a new trial, can not be examined by the appellate court.</p> <p>In this case a bill of exceptions was taken to the ruling of the judge admitting the testimony of\vitnesse3, not physicians, to prove the cause of the death of the deceased. Held — That the judge did not err in receiving the witnesses. That they were introduced to prove the .actual infliction of the wounds by the accused, and the actual death of deceased. That ■the jury were to determine from the facts given by the witnesses whether deceased ■came to his death by the wounds given by the accused.</p>

<p>Obligations given for tbe biro of slaves are illegal, and can not be enforced.</p>

<p>APPEAL from Fourteenth District Court, parish of Richland. Bevy, J.</p>

<p>If tlie debt exists, and the mortgage and privilege have not been legally extinguished, the iliird possessor can be compelled, by the hypothecary action, to pay the whole debt, or surrender the property.</p> <p>If the prayer oí the petition, in an hypothecary suit, contains all the material requests required by this form of action, it will not be dismissed because it contains some requests which the law will not grant.</p> <p>In this case, it appears ihafc the act of mortgage, given on lands situated in the parish of Franklin, was regularly recorded in the proper office, in that parish; that, in 1868, alter the mortgage was given, the parish of Richland was created by law, and the lands covered by this mortgage were included in the boundaries of the parish oí Richland. The mortgage was not recorded-in. the office of the recorder of mortgages in the parish of Richland. Held — That the law does not require the recording of the mortgage in the new parish thus created, after the inscription in the parish where the laud was situated at the time; that the mortgage rights attached to the land from the date of registry in the parish where it was situated, and the subsequent changing of the boundaries, and the creation of a new parish, did not operate a relinquishment of the mortgage, even though it had not been recorded in the new parish.</p>

<p>APPEAL from the Eleventh Judicial District, parish of Claiborne. Fgan, J.</p> <p>This case was tried by a jury in the district court.</p>

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

Egan, J. This case was before the Supreme Court in 1869, and remanded See SI An. 461. It was tried the second time by a jury.

<p>An offer to pay a promissory note in a worthless currency, such as Confederate notes, unac_ cepted by the holder, will not interrupt prescription.</p>

<p>In a suit to make the indorser of a promissory note liable the holder may, under the allega* tion that due notice has been given, introduce parol evidence showing that demand has been made and notice given. The fact that protest has been made and notice given by the notary, does not preclude the holder from introducing other evidence of notice.</p> <p>The acts of the Legislature of 1855 and 1858, declaring that on all bills and notos made negoti • able by law or custom, three days of' grace shall be allowed, do not repeal or modify the general law merchant, which allows three days of grace on-aon-negotiable, as well as negotiable notes. Therefore notice to the indorser of a non-ncgotiable note is in time, if given at the expiration of the three days of grace allowed by the law merchant.</p>

<p>APPEAL from the Parish-Court of De Soto parish. Sutherlin, Parish Judge.</p>

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

<p>Tlie tacit mortgage allowed bylaw in favor of minors on the properly of tbeir tutors, to secure tlie faithful administration of tlieir estates, does not attach to property that has come into the possession of the tutor under a deed from a party, who did not himself own the property,</p>

<p>A. promissory noto, given for Confederate notes or bonds as an equivalent, is void for want of a legal consideration.</p>

<p>Tlie evidence of a donation inter vims of real estate must be in writing. But, in a suit by the wife against her husband for a separation of property, in which sho claims the price of a tract of land which she acquired from her ancestor by donation inter vivos, parol testimony is admissible to show that the husband sold tho land and received the proceeds thereof. Third parlies, creditors of the husband, in a suit to annul the judgment of the wife against the husband, can not inquire into tho validity of the donation. 8 An. CIO.</p>

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

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

<p>In a petitory action, if the plaintiff establish a good and valid title to the land claimed, and the defendant holds under a title translative of property, but it is shown that the title of his vendor is defective and void, the plaintiff will recover the land, but the defendant, not being aware of tbe delects in his title at the time of purchase, can not be condemned to pay rents.</p> <p>A party purchasing real property, in good faith, under what he believes to be a valid title, is entitled, on eviction, to recover the value of the improvements he has put upon it. But, aftor making h.s claim for a certain amount expended for improvements, and failing to amend his petition, in order to augment his demand, he must lose the overplus. C. P. 156.</p> <p>The prescription of five years, urged by a possessor of lands in good iaith, only covers the informalities which may have occurred in the execution of a decree or other sufficient mandate to sell real estate, but this prescription can not be urged by the possessor to cure manifest fundamental defects in the title of his vendor.</p>

<p>APPEAL from Tenth District Court, parish of Caddo. Weems, J.</p> <p>This case was tried by a jury in the district court. .</p>

<p>In a case like this, where the verdict of the jury is found to "be contrary to law and the evidence in the record, the cause w'U he remanded to be proceeded with according to law.</p>

<p>APPEAL from the Parish Court of Morehouse parish. James JBussey,</p>

<p>APPEAL from the Parish Court, parish of Bossier. L. W. Baker, Parish Judge.</p>

<p>A bond was executed for borrowed money from a trustee, secured by a mortgage on slaves, and the mortgagor sold the slaves to a third person, who, as apart of the price, executed his bond to the trustee, and the trustee thereupon released the original obligor. Held, That the consideration of the latter obligation, as between the trustee and the purchaser, was not a sale of slaves, and was therefore valid.</p> <p>The Supreme Court of the United States is the proper tribunal to decide finally upon the validity and effect of the acts of Congress, and the State courts should follow its decisions. Therefore, it having been decided by that tribunal that the legal tender act of February, 1862, does not apply to contracts made before its passage, the courts of Louisiana will render judgment thereon in gold.</p>

<p>In this case suit was brought to recover tbs amount of a noto alleged to be lost or mislaid. The evidence admitted on trial, without objection, shows that the holder had received from the maker an amount of Confederate bonds, and had delivered the note to the maker, who shortly afterwards died; and the holder never had possession of the note afterwards. Held — That, having accepted the Confederate bonds, and delivered the note to the maker, amounted to an extinguishment of the note. That the delivery of the note to the maker at the time the bonds were received, rendered it certain that the bonds were not given as collateral security.</p> <p>To enable a party to recover on a lost instrument, he must show by direct testimony, or by circumstantial evidence, supported by his oath, such a stato of facts as render the loss probable. The oath of the attorney can not be substituted for that of the party. But if the attorney know of the loss, from his own knowledge, he is competentjto establish the fact.</p> <p>The failure to advertise the loss of a note within a reasonable time, will defeat the claimant in a suit to recover.</p>

<p>This is an action to annul a transfer of a judgment under the allegations of fraud and deceit, practiced by the defendant. Held — That under these allegations parol evidence was admissible to show the fraudulent and simulated character of the transfer.</p> <p>The objection that the suit is premature, because the plaintiff has not offered to return the.money received for the transfer of the judgment before bringing suit to annul it, if not urged in the court below, will not be noticed on appeal.</p>

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

<p>The heir and widow in commnnity have the legal right to partition and divide the community property.</p> <p>If a partition of the community property has been made between the heir and the surviving widow, a debt that was contracted by the husband before the marriage, is chargeable to that portion which has fallen to the heir, and not to the share of the community belonging to the wife.</p>

<p>In interpreting a patent to lanas, issued by tbe Government to an individual, all its clauses must be construed, the one by the other, giving to each the sense resulting from the whole instrument. C. 0.1950.</p> <p>In an action of rescission, the party seeking relief must first offer to restore his adversary to the' situation he was in before the contract. C. 0.1906; 3 An. 208; 14 An. 56,474,716; 21 An. 425".</p>

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

<p>APPEAL from the Parish Court of Caddo. Oreswell, Parish Judge.</p>

<p>from Tenth Judicial District, parish of Caddo. D. Cresivell, Parish Judge.</p>

<p>tin agreement, in writing, acknowledging the ownership in lands does not dispense with the production of the primordial title in a suit to recover. On the question of, land titles in this State, the settled doctrine appears to be that where an agreement in writing acknowledges ownership in lands, if the title of such ownership is set forth in the instrument, and the existence and loss of the primordial title is shown, then the claimant is entitled to recover on producing the acknowledgment. But if the instrument or acknowledgment does not contain the original primordial title, the claimant under it can not recover without producing the ¿irimordial title íelerred to in the act referring to it.</p>

<p>APPEAL from the District Court, parish of Caddo. Le visee, J.</p>

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

<p>APPEAL from Tenth District Court, parish of Caddo. Levisee, J.</p>

<p>APPEAL from the Tenth Judieial District, parish of Caddo. Levisee, J.</p>

<p>Tli© payment of a promissory note to a receiver of the so called Confederate States, under compulsion, during the late war, in an unlawful currency, does not interrupt prescription, and the action to recover on the note is therefore barred by ñve years.</p>

<p>APPEAL from Tenth District Court, parish of Caddo. Levisee, J.</p> <p>This case was tried by a jury, in the court below.</p>

<p>Two parties, Broolcs aud Norris, owned tracts of land adjoining, both, included in the Gaddo cession to tbe United States. Norris sold bis tract to Hall. Brooks brought suit against Hall for a settlement of boundary. A plat of survey was made under an order of court rendered on tbe consent of parties, describing tbe metes and bounds of Hall's tract of land, and describing and marking other tracts contiguous thereto, and included in tbe same grant. Daniels afterwards purchased sixty-one acres of land from Brooks, included in tbe same grant, and brings this suit against Half for tbe same, who, be alleges, claims it as 1 owner. Tbe plat of survey, and tbe evidence in tbe record, shows that this sixty-one acres lies outside of tbe six hundred and forty acres purchased by Hall from Norris. Held — That tbe order of survey, rendered on consent of tbe parties, although not made in strict accordance with law, must be taken as a finality, and thereioro the plaintiff must recover tbe land sued for, with rents and revenues.</p>

<p>'Tlie legal representatives of tlie defendant liaving adopted the allegations in tlie answer filed by the deceased, will not be permitted afterwards to file an amended answer contradicting the allegations in the first answer. Nor will the amendment be permitted if not made within the time allowed by the rules of the court. Case v. Watson, ante p. 350.</p> <p>An obligation given for a part of the purchase price of land is not invalid because the value oi Confederate notes was taken as the standard by which the value of the land was measured.</p>

<p>APPEAL from the Tenth District Court, parish of Caddo. ¡3. JO. Taylor, (attorney at law), Special Judge, vice Devisee, J., recused.</p>

<p>The act of the Legislature, approved March 16, 1870, entitled “Act Act to regulate public education,” etc., repealed all iormer laws on that subject, therefore the School Directors, appointed prior to its passage, are fundi officiis, and can not stand in judgment in a suit to annul a sale of school lands, and cancel the obligations given for the price.</p>

O. O. Henderson (attorney at law), Special Judge, vice Levisee, J., ■recused. This case was tried by a jury in the court below, and involves only «questions of fact on the merits.

<p>"The State has tho right to restrain, by injunction, persons who have combined together for the avowed purpose of doing what is prohibited by law, and also to prevent such persons from interfering with her agents in the execution of the legislative will. And the At_ torney General of the State is the proper officer to institute proceedings against such persons.</p> <p>•Courts are not permitted to go behind an enrolled, duly authenticated and promulgated public statute to inquire into the motives which may have influenced the members of the General Assembly in enacting it. Therefore, evidence tending to establish bribery and corruption against the members of the General Assembly, which, is alleged, procured its passage, is not admissible.</p> <p>Article G6 of the Constitution provides that tho Governor shall return all bills which he does not approve, with his objections thereto, to the House in which they may have originated, in five days from the day of presentation, except where such return is prevented by an adjournment. In that case the Governor is required to return all such bills as he does not approve, on the first day of the next General Assembly. Held — That by this article of the Constitution, tho Governor has until the meeting of the next General Assembly to deliberate as to whether he will approve or disapprove any bill that has passed less than five days before adjournment, and in case he approves any bill thus situated, lie. may sign it at any time before the meeting of the next General Assembly, and .such act becomes a law from the moment he signifies his approval by affixing his signanature .thereto.</p> <p>In all matters of a purely legislative character, tlie Legislature is supreme, in all respects, except when restricted by the Constitution of the State, or the United States. As a legislative body, they form and constitute an independent, co-ordinate branch of the Government, and are in nowiso under the control or supervision of the judiciary department.</p> <p>Objections that the charter parties, in a charter granted by the State, have not completed the works within tho time specified in the law, can only be urged by tho State, in a suit by the State to have the charter forfeited. They can not be urged by third parties in a suit brought by the State to restrain them from interfering with her agents in the enforcement of the law.</p> <p>Tho designating of the place or places where the slaughtering of animals shall be done, and prohibiting their slaughter at other places, falls within the police powers of the State-Whatever the State can lawfully do itself, it can do through, tho agency of a corporation. Therefore, tho State, through the action of her Legislature, can make whatever police regulations may be necessary to preserve the public health, and can create, by the same authority, a corporation through which the police regulation prescribed by her may be enforced.</p> <p>The act of the Legislature of 1869, Uo. 118, entitled “An Act to create the Crescent City Live Stock and Slaughterhouse Company,” while it gives to said comjjany the exclusive right to keep a slaughter house, and also the exclusive control and supervision over the inspection of all animals slaughtered for market in the city of Uew Orleans, yet it does not prohibit or exclude any person from the business of purchasing or butchering live stock, and selling the meat in the markets of tho city. It only requires persons engaged in the business of slaughtering, etc., to comply with the police regulations prescribed by the law. Therefore, this act is not a violation of Article I, Section 2 of the bill of rights in the State Constitution, which provides that all persons shall enjoy the same civil, political and public rights and privileges. Nor is it in violation of the fourteenth amendment to the Constitution of the United States.</p> <p>The designation, in the act of 1869, No. 118, of the places or wharves at which all live stock shall be landed from steamboats, is not a regulation of commerce between the States, and is not, therefore, a violation of the laws or Constitution of tho United States. This provision of the law comes strictly within tho police powers of the State, and is therefore legal.</p>

<p>In caso of a suspension from' office of the sheriff, by the district judge, for alleged neglect of duty, if the next Legislature, to whom the report of the suspension has been made, in accordance with the provisions of act Ho. 123, approved September 14,1868, fails to take, any action thereon before adjournment, the sheriff is entitled to resume his office again, the same as if the suspensation had not taken place.</p>

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

<p>An appeal taken "by the State in a criminal case will be dismissed for want of jurisdiction, if the accused has not been sentenced with tlio penalty of death, nor imprisonment at hard labor, and a fine exceeding three hundred dollars has not been actually imposed. Constitution, Art. 74.</p>

<p>Article 83 of tho constitution gives to tho Legislature express and plenary power to create as many district courts in the parish of Orleans as the public interests may require. Under this general power, the Legislature has the undoubted power to control the organization and jurisdiction of the several district courts which it finds it necessary to establish. The latter* clause in this article of the constitution, which creates seven district courts for the parish of Orleans, and defines the jurisdiction of each court, is provisional only, and to last till otherwise provided. Therefore, the act Eo. 2, approved March 16,1870, which creates tho Eighth District Court, and defines its jurisdiction, is not in conflict with this provision of tho constitution, because it divests some of tho other district courts, created by the constitution of a portion of tho jurisdiction granted. to them by this article.</p> <p>Section three of this act, creating the Eighth District Court for the parish of Orleans, gives-, to this court exclusivo jurisdiction to entertain all injunction suits. Section four requires-the judges of all the other district courts of tho parish of Orleans to immediately transfer the records of all injunction suits pending in their courts, to the Eigth District Court, to he proceeded with according to law. Tho same' section declares tho judges thereof’ incompetent to do any other act in such cases, oxcopt to malic said order of transfer^ Therefore, the judge of the Seventh District Court of tho parish of Orleans is without jurisdiction from and after the passage of the act creating tho Eighth District Court, to try or determine any injunction suit, although the writ might have issued from his court, and the cause be still on the docket.</p> <p>A writ of mandamus will not, thereforo, issue from tho Supreme Court, compelling the judge of the Seventh District Court of tho parish of Orleans to try and determino an injunction suit which has been granted prior to tho passage of the act RTo. 2, creating tho Eighth District Court, and is still pending. In such a case tho record should he transferred from tho Seventh to tho Eighth District Court.</p>

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

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

<p>In this case a rule is taken by the purchaser of property at public sale to compel the sheriff to make a title. The sheriff answered that the purchaser claimed to be a first mortgage creditor on tho property sold to a large amount, and offered the balance after deducting tho amount of his mortgage; that tho other mortgage creditor had filed oppositions contesting the rank of the purchaser to the first mortgage; that he could not pass the adjudication because he could not determine tho rank of mortgages. Held — That the oppositions never having been tried in the lower court could not be considered on appeal; that a decision on the rule before tho oppositions were disposed of would be premature; that in a case like this the ends of justice and the rules of correct practice require that the case should be remanded and cumulated, and tried with the oppositions.</p>

<p>A motion, in tlio nature of an answer to a motion to dismiss an appeal for want of proper parties, which, aslcs that the effect of the appeal he restricted to the parties who have been cited, will not he granted by the Supreme Court.</p>

<p>APPEAL from the Fifth District Court of Now Orleans. Heaumont, J.</p>

<p>A creditor of an insolvent can not urge tbe pendency of the insolvent proceedings as a suspension of prescription, and, at the same time, ignore the provisions of the insolvent laws as to the form of proceeding against his ceding debtor.</p> <p>A judicial admission made in an insolvent proceeding whereby the claim of the creditor is allowed, is prescribed by ten years.</p>

<p>Clerks of district courts are not permitted to demand tlie fees from tlie defendant for making a transcript of appeal in a case where judgment lias been given in favor of tbe plaintiff and the defendant appeals.</p> <p>The act of 1870, page 161, which regulates the fees of clerks for making transcripts of appeals and authorizes them, upon complying with certain formalities, to issue execution against 'the principal and security for costs, has reference only to the party filing the suit, and applies to all costs to which clerks oi district courts are entitled.</p>

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

<p>An action for rent is prescribed by three years. C. C. 3503.</p> <p>A suit that has been eommouced and afterwards voluntarily discontinued by the plaintiff does not interrupt the current of prescription. C. C. 3485.</p> <p>A military order which permitted the bringing of suits for rent, but suspended the progress thereof, can not be invoked by the lessor to defeat tne pica of prescription.</p>

<p>Tho Chief Justice of the Supremo Court, or the senior Justice thereof, may, in vacation, on application for a writ of mandamus against a court of inferior jurisdiction, grant a rule nisi against such judge, ordering him to show cause on a day fixed at the next regular term of tho court, why the writ should not isssue.</p> <p>A rule nisi or order of the Supreme Court, directing a court of inferior jurisdiction to show causo on a day fixed, why a writ of mandamus should not issue compelling him to grant an appeal in tho case, is not a judgment of tho court. Therefore, such order may he granted in chambers and signod by the Chief Justice or the senior Justice thereof.</p> <p>Tho Supreme Court has appellate jurisdiction only, and the right of appeal is seemed to every litigant by tho constitution. It therefore becomes the duty of the Supreme Court to rotect litigants against all encroachments upon this right by inferior jurisdictions.</p>

<p>'The aot number thirty-five, approved sixteenth of March, 1870, which appropriates two thousand dollars for the payment of costs in suits, where the State is a party, and loses the case, does not apply to the payment of costs in suits brought by tax collectors to enforce payment of taxos against delinquents. Therefore, the Auditor of Public Accounts is not authorized, nor can he be compelled, by mandamus, to warrant against this appropriation, in favor of a clerk of a district court for his costs that have accrued in suits brought by tax collectors, to enforce the payment of taxes due the State.</p>

<p>Where an appeal bond has been given according to law, the clerk of the district court can not exact payment of his costs in money, or additional security from the appellant, as a condition precedent to the delivery of the transcript.</p> <p>In case the return day for filing the transcript in the Supreme Court has passed, through the fault of the clerk of the district court, in refusing to deliver it, until his costs were paid, after the bond had been given, the time for filing the transcript will be extended, and the t&erk will be compelled, by mandamus, to deliver the record, and pay the costs of the writ.</p>

<p>A purchaser of property at public sale will be held responsible for his bid, unless he show that the vendor has been guilty of such deception or fraud as would mislead a prudent-purchaser.</p> <p>In this case the property sold was advertised in the official journal, in the English language, as required by law. It was also advertised in the Erench language, in which an erroneous description of the property was given. Eotli notices were read at the sale by the auctioneer, without objection being made at the time as to the discrepancy. The defendant in this suit bid off the property, and afterwards refused to comply with his bid by paying the amount. The property was re-offered, and failed to bring the amount of the first bid at the second offering. Held — That the bidder at the first sale must be condemned to pay the difference.</p>

<p>'The purchaser of personal property, such as a mule, at a public sale, made under the regulations prescribed for the sale of estrayod animals, gets a good title thereto, even though it may be shown that the animal was originally stolen. C. C. 3474.,</p>

<p>Insanity, when pleaded in defense of a criminal act, sucli as homicide, must he clearly shown to have existed at the time of the commission of the act. Therefore, evidence of a witness, to show such a state of mental excitement in the accused, produced by the insulting language and threats used towards him by the deceased, his wife’s paramour, at the time of the hilling, is not admissible to show insanity.</p>

<p>' Where a judgment of nullity has been rendered at the suit of the creditor against the husband and wife, avoiding the judgment of the wife against the husband, and canceling the sale of real estate by the husband to the wife in payment thereof, the judge a quo must fix the amount of the bond for a suspensive appeal, C. P. 577. And in case of refusal, a mandamus will issue, on application of the relator, compelling him to fix the amount of bond and grant a suspensive appeal.</p> <p>In fixing the amount of the bond for a suspensive appeal, where the title to real estate is involved, and no judgment for money has been given, the judge a quo must take into consideration the estimated value of the revenue to be derived from the use of the property, and such further amount as he may determine, as surety for injury or deterioration which the estate may suffer while in possession of the appellant, and fix the bond in an amount exceeding by one-half such estimate.</p>

<p>A judgment against a garnishee, rendered on a rule to show cause why he should not be condemned, on his answers filed, to pay the amount of plaintiff’s demand, is erroneous, if the answers do not admit an indebtedness, and the rule contains no averment under which proof could be introduced, and no proof was introduced traversing the answers* In such a case the judgment against the garnishee will be reversed on appeal.</p>

<p>If more than five years are allowed to elapse from the date of maturity of drafts, to the service of citation, and no interruption is shown, the plea of prescription will be main» tained.</p>

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

<p>from the Parish Court, parish of Jefferson. Breuning, Parish Judge.</p>

<p>AH trade and traffic in articles of merchandise, between persons occupying opposite sides of the military lines during the late war, was expressly prohibited by acts of Congress. Section five, act of thirteenth July, 1861. Therefore all dobts contracted and obligations ■ given, on account of any such trade, are null, and no action lies to enforce them. 19 An. 328. 20 An. 211.</p>

<p>The Louisiana State Bank was the creditor of X. 0. Patrick, and took as security therefor his1 notes, payable to and indorsed by A. D. Kelly & Co. The bank held these notes until, after their maturity, and sold them, and placed the proceeds to the extinguishment of their debt against X. C. Patrick. About this time the bank was forced into liquidation ‘ by military order, and, by a provision of their charter, they were obliged to receive their own notes, (which were then at a heavy discount), in payment of debts due them. The purchaser of the Patrick notes, in pledge, and sold by the bank, paid for them in the notes of the bank. The indorsers on the notes, who now admit their liability, seek to discharge them by paying in the notes of the bank. That being the currency or paper in which the holder paid the bank for the notes who held them in pledge. Held — That it was no defense for the maker or indorser of a promissory note, in the hands of the present owner, that he might at one time, while the bank was the owner, have discharged it in the notes of the bank; that the holder of negotiable paper, transferred after maturity, is only liable to be met with the equities existing between the original parties.</p>

<p>In. a suit to test the right to office under the intrusion act. the appeal from the judgment of the court "below must be taken, returnable in ten days after the judgment of the lower court. Section 7, act, approved March 16,1870.</p> <p>Therefore, an appeal taken more than ten days after the judgment of the lower court, in a suit to test the right to an office, will be dismissed, unless it bo shown that the fault was not attributable to the appellant.</p>

<p>The action accorded to a surety to have a personal recourse against his principal for whom lie lias paid, is only prescribed by ten years»</p> <p>A ruling of the court, refusing an intervention, if correct at the time it is made, does not afterwards become incorrect by the party changing his character from that of an individual to that of a representative. Hor can a party, by way of intervention, compel other parties to litigate for his benefit or gratification.</p> <p>Evidence to establish that a document was executed under the erroneous belief that the claim was prescribed, is not admissible under the allegation that the paper is a nullity because of the mental incapacity of the maker.</p>

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

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

<p>‘The Governor is tlio proper representative of tlxe State and bound to protect Iier interests, Therefore, in a ease where the other officers, such as the Attorney General or other officers, are absent from the State or fail to discharge their duties in taking an appeal, the Governor is bound to intervene in behalf of the State and take tlie appeal.</p> <p>An appeal will lie from a judgment against the State when the affidavit shows that the injury done by the judgment is above five hundred dollars.</p> <p>In all cases where an officer of the State, such as the State Treasurer, has a discretionary power to do or not to do any act coming within the range of his duties as an officer, the writ of mandamus will not lie from a court of justice to compel him to perform such an act.</p>

<p>If the verdict of the jury, in awarding damages against a street railroad company for the infliction of an injury through the gross negligence of a street car driver, is sustained by the testimony in the record, as well for the amount given as for the liability, the Supreme Court will not enter on an examination of the question whether vindictive damages have any place in the law of Louisiana, where the principal is made liable only for the neglect of his agent. But in such a case the verdict of the jury, being sustained by the evidence in the record, will he affirmed on appeal.</p>

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

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

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

<p>APPEAL from the District Court, parish of Jefferson. Pardee, J-</p>

<p>if the alluvion or batturc which has formed on and is attached to a niparian tract or lot of land has attained a sufficient elevation above tho waters to be susceptible of private ownership at the time of the sale, it does not pass with the sale of the land or lot, unless so expressed. But if it has not readied a sufficient elevation to render it susceptible of private ownership, then it passes to tho vendee, who is invested with all tho rights of accretion which the vendor had, without any expressions of the vendor, indicating its transfer.</p> <p>In this case tho plaintiffs allege that they have lost tho title to the lot on which it is claimed the batturo has formed, by prescription, but they claim to be the owners of the batturo, notwithstanding. The evidence failed to show that the batturo had attained a sufficient elevation to render it susceptible of private ownership at the time the plaintiff parted with the ownership. Held- — That they having lost their title to the lot itself, by prescription, could not recover tho batturc, oven though the batturc were shown to have been formed to an elevation sufficient to render it susceptible of privato ownership, before they parted with the title by transfer to their vendee.</p>

Cooley, J. This case was tried by a jury in the court below. The verdict, which was based entirely on the facts, was set aside on appeal because •it was not sustained by the evidence in the record.

<p>A judgment that lias been rendered against a lifo insurance company in favor of one claimant of the policy, can not be invoiced by the company as res judicata in a suit brought by another claimant, who was not a party to the suit in which it was rendered. It may, however, be set up in defense to the second action, and the company be permitted to show that they paid to the party legally entitled to the money.</p> <p>The possession of a printed or written policy of insurance is not conclusive proof of a right to recover the insurance money. It is merely the evidence of the contract. The right to the money may be assigned without any reference to the policy.</p>

<p>Tf the record shows that the amount in dispute in the court below is less than five hundred dollars, the Supreme Court will notice the fact ex ojjicio and dismiss the appeal. 21 An. 728.</p>

<p>A judgment that has heen regularly obtained by the wife against her husband can not bp contested or inquired into collaterally by a creditor of the husband whose claim only arose after it was rendered. 10 An., 564.</p> <p>The burden of proof falls on the creditor who alleges that a judgment in favor of the wife and against her husband is simulated.</p>

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

<p>Hotes that have keen given to the city of New Orleans for a lease of certain markets, secured ky mortgage, which have keen transferred ky the city, and passed into the hands of third parties before maturity, can not ke discharged in city notes. In such a case, the holder can recover from the maker the full amount in lawful currency.</p>

<p>APPEAL from Eighth District Court, parish of Orleans. Dibble, J..</p>

<p>A contract for - materials furnished and repairs done to a steamboat or other vessel in the-home port is not a maritime contract, therefore the admiralty courts of the United States, have not exclusive jurisdiction to enforce alien arising from such a contract.</p> <p>Ry the home port of a vessel is meant the port or place of her permanent registry and enroll-, ment, and the place where every act of sale or mortgage must be recorded to give it effect against third persons.</p> <p>The States are competent to create such liens as their Legislatures may deem just and expe- ' dient in favor of furnishers of supplies and materials used in the construction and epairing of vessels, and to enact reasonable rules and regulations prescribing the mode-of theft enforcement, provided they do not amount to a regulation of commerce between, the States.</p> <p>"Where suit is brought in a State court to enforce a lien on a vessel, which lien is given by statute, and the owners of the vessel except to the jurisdiction on the ground that the* lien is an admiralty one, which the State court is without jurisdiction to enforce, the State court will, in case of doubt, maintain its jurisdiction.</p>

<p>This is an action by the owners of the schooner'Ladies’ Delight to recovey damages from the owner of the steamer Louise for a collision which occurred between these vessels in Lake Pontchartrain. The evidence shows that the night was dark; that the steamer showed all the lights required by law j that had the schooner showed the lights required by law, the collision would have been avoided. Held — That the collision having occurred through the fault and negligence of the officers of the schooner, her owners could not recover damages.</p>

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

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

<p>APPEAL from the District Court, parish of St. John Baptist. Beauvais, J.</p>