Volume 3 — Louisiana Annual Reports

<p>The description of the property offered for sale, contained in the advertisement of a probate sale, is binding both upon the vendor and the purchaser, and neither can insist on any thing said by the auctioneer at the time of sale which in any way varies from, or adds to, the printed conditions or description of the object offered for sale. No error, caused by representations of tile auctioneer at variance with the printed advertisement, will vitiate the sale.</p>

A PPEAL from the Commercial Court of New Orleans, Waits, J, cited Story on Sales, 369. Good faith required that plaintiffs should have declared the time that the salt had been in store. C. C. 2496 to 2499, 2507, 2523. 8 Mart. 709. The vendor is bound to warrant the thing sold. C. C. 2449 to 2451.

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

<p>One who exhibits a judgment regularly obtained, an execution issued thereon, and a sheriff's deed to him, has a just title in the sense of art. 3450 of the Civil Code, sufficient to acquire by the prescription of ten and twenty years. In such a case it is not incumbent on the defendant to show a perfect title from the real owner; a title translative of property, derived from a person whom he honestly believed to be the owner, is a sufficient foundation on which to rest the prescription invoked. C. C. 3447, 3448.</p>

APPEAL-from.the First District Court of New Orleans, McHenry, L The1 facts of this case are stated in the opinion of the court, infrd.

<p>A statement in the return of a sheriff that "he served copies of the petition and citation On defendants, through S., their agent,” is not evidence of the agency; and where there is no allegation in the petition, nor evidence in the record, that the person on whom the service was made was agent of the defendant, plaintiff must ho non-suited.</p> <p>An omission to serve the petition and citation on the defendant is not cured by service of a writ of arrest; nor can the appearance of the defendant, by counsel, on a motion to set aside the arrest, be considered a waiver of service of citation and petition, nor as authorising the presumption of an acknowledgment of such service.</p>

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

<p>An obligation by which the vendor of a butcher’s stall in a city binds himself under a penalty -not- to sell, or cause to be sold, any meat of a particular hind within the city during two years, is not invalid as being in restraint of trade; and if the condition be violated tha penalty maybe enforced.</p>

<p>A PPEAL from tho Third District Court of New Orleans, ICennedy, J.</p> <p>contended that, under the statutes of 6 June, 1806, aud 31 January, 1839, s. 16, children under ten years of age cannot be sold separately from their mother; that any such sale is null; and that the child is the accessory of the mother, and becomes the property of any purchaser of the latter. C. C. 456, 461, 490, 537, 2466. Pothier, Yente, no. 47.</p>

<p>from the Fifth District Court of New Orleans, Buchanan, Jv</p>

<p>Incorporated trading companies are not partnerships, according to the legal principles applicable to partnerships formed by the voluntary agreement of individuals. The association of the share-holders does not constitute a partnership:according to the custom of merchants, nor within the principles of law established respecting jointtraders. Corporations are to be treated with reference to the objects of their creation, and to the express powers with which the legislature may have invested them; and *to that extent the general law of partnership is superseded by the charter.</p> <p>Where the charter of an incorporated trading company declares that its capital shall consist of a certain sum, divided into shares of a certain amount, to be .paid in at such times and in such proportions as may be required by the president and directors, but does not oblige the directors to call in the whole amount of the shares, though the share-holders will he liable to thirdpersons for the full amount of their subscriptions, whether called in or not, yet the adoption of a resolution by the president and directors making the call, being an uncertain event, forms a condition which, as between .the share-holders themselves, suspends the obligation to pay the balance of-their subscription until a call is made as provided by the charter.</p> <p>The charter of a hanking company provided that its capital should he divided „into shares of one hundred dollars each, of whichfive dollars shouldbe paid at the time of subscribing for the shares, and the residue in such'instalments, and at such times, as might.be required by the directors. Fifty dollars on each shave having been .called in and paid, a resolution was subsequently adopted by the directors, providing”that any stockholder who shall pay in anticipation a part, or the full amount due on the stock held by him, shall be entitled to dividends thereon in proportion to the amount so paid in.” Held, «that the payment of the stock in full under the resolution of the board of directors cannot he considered as a loan to the company of the sum thus paid above the amount' called in; that the contraot between those who thus paid in full and the company, was a contract of partnership (C. C. 2772), the consideration stipulated being, a participation in the profits of the company, and not interest; that being entitled to receive the whole profits made .upon the additional sum paid, they cannot be exempted from contributing to losses on that amount; that even an express stipulation to exempt them from such contribution, had .it been made, would be void, both as to the partners and third persons (C. C. 2785) ^ that.the shares were necessarily unequal; and that the inequality exists for the purposes of liquidation as well as for the division of profits.</p>

<p>A party may interrogate his adversary in relation to the character of a witness; hnfc such questions only can be put to him as could be propounded to a witness, in whose place the party interrogated must be considered as standing.</p> <p>Where the general character of a witness has not been impeached, but it has only been attempted to do so in reference to particular facts, the party by whom he was introduced cannot sustain his credibility by testimony of general character.</p> <p>The enrolment, and accompanying affidavit made by the master of a steamer*, are not con elusive evidence that the person stated in them to be the owner of the steamer is really such.</p>

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

Rom the District Court .of Plaquemines, Rousseau, J. contended tliat the claim of Olivier was res judicata; that her action was instituted against the testamentary executor, who was tlie'Only person againstwhom she could prosecute her claim; and that the action being personal, lie was the representative of tlie succession, without citing the heirs. C. P. .art. 123.

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

<p>by the syndic of the creditors of Scott from a judgment of the Third District Court of New Orleans, Strawbridge, J. presiding.</p>

<p>APPEAL from the District Court of the- First District, Buchanan, J. The-facts of this case are stated in the opinion infrd.</p> <p>Judicial sureties must reside within the jurisdiction of the court, before which their bond is given. C. C. 3011-, 3033. To permit defendants to except to the jurisdiction of the court, would be to allow-them to act in frauden legis. The judgment against the pricipal is primd facie evidence against the surety. Defendants, being judicial sureties, are bound in solido.■</p> <p>The domicil of the defendants is pleaded and. proved to be without the jurisdiction of the court. The present case is not that put by the judge a qua, for this is not a security which was bound to be-given by law, or by a judgment of the court. A receiver was agreed upon by the parties, and the defendants were made his sureties by the same agreement. Upon this, a recognition, rather than an order, was entered on the minutes. There is no law that requires a receiver or sequestrator to give security, and it is not usual! It is therefore insisted that this security, entered- into by Lawson and Woolfolk-, did not deprive them of the privileges allowed to them by law, and differs from the cases of bail or appeal bonds, where statutes have prescribed such remedies as pre-suppose them to be parties to the original suit.</p> <p>Article 3011 of the Code intends cases where- the law makes it obligatory upon the debtor to furnish security, and not where it is mere matter of agreement. A person offering himself as security, where the.debtor is obliged to furnish such, is presumed to represent himself as having the qualities required by the law; and, if he have a foreign domicil, that he waives it — but this reason does not hold under any other circumstance.</p> <p>The exception taken by defendants to the introduction of the judgment against Conner, as evidence against them, is a valid one. The judgment against Conner was obtained long after the receivership ceased, and was for moneys abstracted by him before he became receiver, and for cotton diverted to his own purpose, received after the termination of his-office as receiver, so far as can be deduced-from the evidence, which is loose and unsatisfactory. This has nothing to do with the present action.</p>

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

<p>In an action by a contractor, against the party with whom he had contracted for the erection of a building, -for damages for non-performance on the part of the latter, the difference between the amount the contractor was to i*eceive, and that which he was to pay under subcontracts made by him for the materials and building, does not constitute the amount of profit the .contractor* is entitled to recover. PerCwriam: It cannot be ascertained, with•out evidence as to the value of labor and materials at the time, and as to the solvency of the sub-contractors, whether they would have been able to comply with itheir obligations, or .to indemnify the contractor if they had not. When a contrast is broken before the arrival of che time for full performance, and the opposite party sues for damages also before the time for full performance, the market value at the time of the breach, whenever there is a market value, is to govern. Where there is none, as in this .case, the question involves a minute enquiry into the cost of materials, the expense of procuring and transporting them to the place-of delivery, the amount of labor required for putting up the building and the value of the wages of laborers and mechanics, the whole to be assessed at ¡the time of the breach of the contract; and wherever the estimate of profits must be somewhat conjectural, the damages should be moderated so as to allow for any partial uncertainty that may exist.</p>

<p>All personal actions, except those for which the law has provided a shorter term, are proscribed by ten years, if the creditor be present; and neither the nature of the debt, nor the mode of life of the debtor, can effect the rule. C. G.3508.</p>

<p>Where cotton seized under execution by consent of parties is shipped by the sheriff to factors residing in another parish for sale, and the latter accept the consignment with knowledge of the cap acity in which the sheriff held the property, they cannot refuse to pay over the proceeds on the ground of a claim for supplies famished to the plantation on which the cotton was produced'; nor can they question the sheriff's authority to send the property beyond his bailwick. Any priviiege for supplies claimed by them must be asserted before the Gourt under whose process the sheriff holds, the cotton. In such a case compensation cannot take place; the parties not being indebted to each other. C. C. 2203.</p>

<p>Damages cannot be recovered by the owner of a steamer for injuries sustained by a collision with another boat, though the latter was greatly in fault, where the collision might have been avoided by ordinary care on the part of those in charge of plaintiff’s boat.</p> <p>Where a collision takes place between steamers engaged in racing, the owners of neither boat will be allowed to recover damages for any injury sustained, however gross the fault of those in charge of the other boat.</p>

from the First District Court of New Orleans, McHenry, J. In England, under the statutes of 7 Wm. Ill, ch. 23, sec. 1, and 7 Anne, ch. 21, sec. 11, a copy of the indict-m ent has to be served on the prisoner ten days before his arraignment; and if he pleaded without a copy, or to a defective copy, it was considered a waiver of hie right to a copy. See 1 East. Ill — 5. Hawkins, P. C. b. 2, chs. 28, 39, 40. East. P. C. 113. Foster’s Crown Law, 227. 1 Chitty, 404 — 5.

from the Fifth District Court of New Orleans, Buchanan, J. contended that the case should have been continued below, and that it cannot now be tried upon its merits, citing Barry v. Louisiana Insurance Co., 12 Mart. 484; Patin v. Poy.dr.as,.5 Mart. N. S. 639.

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

<p>from the Fourth District Coürt of New Orleans, Watts, J.</p> <p>Benjamin and Micou, for the infcervetoors.</p>

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

<p>from the District Court of .the F irst District, Buchanan, J.</p>

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

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

<p>from the First District Court of New Orleans, Kennedy, J. presiding.</p>

<p>from the Second District Court of New Orleans, Canon, J.</p> <p>cited C. C. 1928, §3, 2294. Starkie on Slander, 140.</p>

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

<p>Section 7 of the act of the Mississippi legislature of 21st Nelxreary, 1840, which deplares, that it shall not be lawfal for any bank in that State to transfer, by endorsement or otherwise, any note, bill receivable, or other evidence of debt, was intended solely for the benefit of the debtors of those banks; and the privilege which it conferred on them, of paying the banks in their own notes, might be waived by the debtors. The transfer of the notes does not place a party claiming under it, in the position of one to whom courts can give no assistance in enforcing his contract, as in case of a plaintiff seeking to enforce an immoral or unlawful contract.</p> <p>In an action on a written obligation payable in the notes of a particular bank, judgment will be rendered for the sum mentioned in the obligation, reserving to the defendant the right to discharge it in notes of the hank designated in the instrument; and not for the value of the sum for which the obligation was executed, in the notes of the bank at their actual value at the time of the breach of the contract by the debtor.</p>

<p>from the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>cited 5 Smedes and Marshall, 268. 7 Wendell, 320. 5 Cowen, 379. 2 Starkie on Evid. 594. 3 Mass. 249. Metcalf & Perkins Dig. 333, 6 Leigh 82. 8 Cowen 200. 2 Term R. 70.</p>

<p>APPEAL from the Fourth District Court of New Orleans, Strawbridge, J. The facts of this ease are fully stated in the opinion of the court infra.</p> <p>There is no evidence that the Mechanics’ and Traders’ Bank ever assented to the agreement made by. Martin, Pleasants 4* Co., for their benefit, or accepted the stipulation made in their favor.</p> <p>Nor does it appear that James B. Bake became a party to the agreement before the levy of the attachment. He afterwards intervened in the case, and claimed to be paid out of the fund in preference to the plaintiff'.</p> <p>The cotton was shipped for account of IV. A. Lake, and consequently was at the risk of the shippers, until received by the consignees. It was shipped by Bruner, Morgan Sf Markham, the agents of the garnishees.</p> <p>It is conceded on ail hands that, while in transitu, the cotton was at the risk of W. A. Lake. As soon as it reached the hands of Martin, Pleasants 4* Co., the agreement took effect. But to what extent? We eontend that, without the consent of James B. Lake and the Mechanics’ and Traders’ Bank, the owner mightretract, except as it relates to Martin, Pleasants 4’ Co.; the agreement on his part amounting only to an indication of payment, the bank and his brother James being only propositi solutionis gratia. And if W. A. Lake at any time before such assent was given could control the fund and revoke his order,, the fund was liable to attachment by his creditors, according to the well settled rule that, while the owner retains the control of his property his creditors may attach. Wilson v. Lizardi, 15 La., p. 255. Bank of Alabama v. Kraft, 18 La. 565.</p> <p>If we regard the agreement of Martin, Pleasants 4* Co., to pay over any balance in their hands, after satisfying their own demand, to the bank and J. B. Lake,, as a stipulation pour autrui, it is clear it might be revoked at any time before-acceptance by those for whose benefit it was intended. Merlin, Qu. de Droit, verbo Stip. pour Autrui. Civil Code art. 1896. Graviev v. Gravier, 3-Mart. N. S. 207. The fund itself belonged to W. A. Lake. He had directed-it to be paid to his brother and the bank; but they had not assented to the arrangement. Invito benefieium non datum. Suppose, after selling the cotton,. Marlin, Pleasants 4* Co., had failed ? On whom would the loss have fallen! Certainly the fund would not in the meantime be at the risk ef the bank and J. B. Lake, who never assented to the arrangement and never constituted that, house their agents, and were not bound by their agreement. Until MartinT Pleasants 4' Co. had paid to the third persons, or until they had accepted the-stipulation in their favor, Lake might have withdrawn the fund, and Martinr Pleasants Sf Co. would not have incurred any liability to said third persons.</p> <p>But the judge of the District Court was of opinion that the case was to be decided by tbe common law prevailing in Mississippi, and not by the law of Louisiana; that the contract was made there and the cotton delivered ; and that the contract of pledge was completed with its conditions. By reference to the contract it will be seen that it purports on its face to be a contract of pledge ; and it appears clear that it was to be performed in Louisiana. It recites that Lake is now shipping cotton to Martin, Pleasant 4* Co., which he says he pledges to them for the payment of certain debts as before mentioned,. There was then no delivery in Mississippi, so as to make the contract of pledge complete in that S-Sate. On the contrary it pre-supposes that, while on board,. the property is still at the risk of the shipper. He then says that the proceeds are to be applied to the payment, first of his debt to the consignees, next to J. B. Lake, and lastly to the bank. This is a pledge only in name. It is in reality nothing but a mandate or agency. The cotton was not to remain in the hands of the pretended pledgee, merely as a security to be sold, if the debts be not paid, under judicial authority, but was to be disposed of at once and the proceeds to be applied as directed. Art. 3132 of the Civil Code forbids the pledgee to dispose of the pledge, and an-agreement to the contrary is null. It is therefore of the essence of a pledge that it should remain undisposed of, until a judicial order is obtained to sell it on failure to pay the principal debtor. But as it relates to J. B. Lake and the bank, there was clearly no pledge— without their express consent they could not be subjected to the obligations of pledgees. The contract of pledge is consensual. The pledgee is bound to a certain degree of diligence. Civjl Code, art. 3134.</p> <p>There was no delegation in this case, but simply an indication of payment. The delegation requires the consent of three persons, at least. 2 Poth. on Obligations, no. 565 et seq. For indication of payment, see same work, no. 569. Bat the judge says lie adopts the doctrine in 4 Mason 217, 17 Mass. 551, and 11 Wheaton, 78 and 96. Those cases relate to assignments of property to trustees for the benefit of creditors, and have no analogy to this case. In cases of assignment at common law, the transfer of the property is absolute. There was no trust in the common law sense of the word. The cotton shipped was clearly at the risk of Lake, until it came into the possession of Martin, Pleasants ¿y Co. ; it was shipped by Lake. The agreement to receive and sell the cotton for account of Lake, amounts neither to a pledge, nor to an assignment to trustees for the benefit of creditors. The transaction is an ordinary commercial one.</p> <p>The only question presented in this cause is, whether the plaintiff or the intervenor is entitled to the fund attached. They are both bona fide creditors to the amounts claimed by them respectively. The intervenor claims a preference on the fund attached, and the defendant and garnishees insist that at the time of the service of the attachment on the latter, there was nothing in their hands belonging to the defendant liable to attachment; that the fund out of which the plaintiff claims to be paid, resulted from a sale of cotton, which, before the attachment, had been assigned and conveyed in trust by the defendant to the garnishees, and delivery thereof made accordingly, in the State of Mississippi, to pay certain debts of the defendant specified in the deed of assignment, and that the said deed of assignment and delivery of possession of the said cotton in the State of Mississippi, by the laws of that State vested a clear legal and perfect title in the garnishees for the purposes of the trust, and an equitable titie in the creditors for whose benefit it was made. The contract was made and executed in the State of Mississippi; the delivery of the cotton to the garnishees was complete in that State; through their agents they received it there, just as though they had been present acting for themselves.</p> <p>The counsel for the plaintiff’contend that this instrument is inform a contract of pledge, and that the contract of pledge is a consensual contract, and that no consent on the part of the beneficiaries is shown. It is time that in the instrument the word pledge is inaptly used — it is evident the contract is not a pledge, for then the property would have been handed over to the creditors directly. There would have been no intervention of a trustee between the debtor and creditor. But bad English should not destroy the effect of an instrument; the inapt use of the word pledge should not and cannot alter the legal effect of this. It is in fair construction and intendment an assignment in trust for the benefit of certain creditors, and by the common law, which prevails in Mississippi, vested a legal title to the cotton in Martin, Pleasants 8>- Co., for the purposes of the trust, and an equitable interest in the creditors named, according to the extent of the provisions in their favor, and that without any assent whatever on the part of the creditors, cesluis que trust. The practical good sense of the common law presumes the consent of a creditor to a conveyance in trust, to pay him his money. To this point the authorities are abundant. 7 Rob, 1. 11 Wheaton, 78. 7 Peters, 608. 4 Mason, 217. 11 Wendall, 241. 4 John. Chan. 522. The case of Layton v. Rowan, 7 Rob. 1, shows that our courts have recognized and protected such rights as the trustee and cestuis que trust claim by virtue of the assignment in question.</p>

from the Third District Court of New Orleans, Kennedy, J. contended that there should be judgment for the plaintiff, citing Civil Code, 2589, 2595. Stat. 10 March, 1834, s. 1. (Bui. & C’s. Dig, p. 8). Stat. 5 March, 1842, s. 3. (Sess. Acts. p. 212.) 1. The omission of the plaintiff to obtain the previous authorization of the judge for the second sale, renders it iny.alid. 4 Rob. 132. 2.

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

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

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

<p>from the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>cited Civil Code, art. 3045.</p>

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

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

<p>The late police jury of the parish of Orleans was authorized by law to impose taxes to meet the disbursements it was required to make. The stat. of 7 April, 1824,is conclusive • on the subject. The power of the Police Jury in this respect was unaifected by the Stat. of 8 March, 1836, dividing the city of New Orleans into municipalities.</p>

<p>A general mortgage resulting from the recording of a judgment, does not operate upon slaves after their emancipation, unless there was fraud on the part of the emancipator. C. C. 190_ One who purchases slaves subject to the condition that they shall be emancipated in a certain time, and who subsequently emancipates them under a decree of court rendered in due form, cannot afterwards be sued in an hypothecary action as a third possessor of the slaves, by the holders of a judgment which had been registered while the slaves were in the possession of their original owner', Per Curiarn: The defendant is not a third possessor, nor can he be treated as the real emancipator. The slaves hold their actual status under a decree of court, which will be binding until overruled in a direct action against {hem and the judgment debtor.</p>

<p>A bankrupt discharged from bis debts under the act of Congress of 19 August, 1841, is still bound in foro conscientim, and this obligation is a sufficient consideration for a new promise. C. C. 1753. But there can be no legal obligation to pay such debts without a new agreement, which may be verbal, or be proved by presumptions where the known fact on which the presumption rests draws after it the unknown fact as an almost necessary consequence. C. C. 1810,2367. The presumption must be precise, and inapplicable to other circumstances than those intended to be established.</p>

<p>from the Fifth District Court of New Orleans, Buchanan, J.</p> <p>cited George v. Fitzgerald, 12 La. 604. State v. Judge of Parish Court, 15 La. 81.</p> <p>relied on JDupuy v. Hunt, 2 An. R. 562.</p> <p>The judgment of the</p>

The husband is shown to have been in necessitous circumstances, in the sense of article 2359. “ pauvreté ne pas á riavoir précisément rien; on est estimé pauvre quand on n’a pas ce qui est nécessaire pour vivre selon son état.” See a decision reported by Merlin, Rep. de Jurisp. verbo Quart de Conjoint Pauvre, p. 690.

J. infra.. If the rights of the parties are to be governed by the common law, the defendants had no right to sell the cotton, until after the maturity of the bills. Held: as the direction had been given to the jury, that the plaintiff was entitled to recover, not merely the value of the stock as it stood at the day, but the value as it stood at the lime of the trial. Shepard v. Johnson, 2 East. 211.

<p>PPEAL from tlie District Court of Lafourche Interior, Randall, J. The facts of this case are stated in the opinion infra.</p> <p>It is contended by the intervenor that the mortgage to secure the stock loan is null, because the amount intended to be secured is not mentioned in the act of mortgage. In reply to this, we say that the charter fixes the amount of the credit to which each stockholder is entitled, and this, being matter of public law, the public was notified of it without its insertion in the act of mortgage. The latter informed the world that the mortgagor was a stockholder of a given number of shares of stock; and the law did the rest. It is not material that the act did not state to what exteut the stockholder intended to use this credit; the world were notified to what extent \tmight be used. The máximum, of prior encumbrances was clearly made known to subsequent creditors. The court cannot fail to remark the analogy of this case to that of a mortgage to secure endorsements, provided for by our Civil Code. All that the law requires is, that the maximum to which the endorsements may reach should be stated; and this is all that the reason of the rule requires. But the intervenor says that, the terms of our act of mortgage do not restrict the mortgage to stook loans, but speaks of all loans that the mortgaging party might thereafter obtain from the bank. We do not claim for the mortgage any such extent as this., We do not seek to avail ourselves of it for any loan but the stock loan, which is clearly included. We are at loss to conceive how the language of the act, by being broader than the law warranted, can prejudice us in that which we are clearly authorised to claim.</p> <p>Art.(jÍ3V7 of the Civil Code provides that, in order to render a conventional mortgage valid, the exact sum for which it is given shall be declared in the act. A mortgage, like any other instrument, may contain separate and distinct obligations separately secured. In the one we are considering, the mortgagees acknowledge that they owe 3526,400 for 264 shares of the capital stock of the bank, and mortgage property for its payment ; so far then as this obligation is concerned, the same is sufficiently set forth in the act. But, in addition to this, they declare that they mortgage to secure whatever loans they may make from the bank; what is the sum secured by the stipulation? There is none declared in the act. Whether these loans shall amount to ten, twenty, or thirty thousand dollars, we search the act in vain to discover. In the case of Linton v. Pardon. 9 Rob. R. 483, there was a sum mentioned in the act of mortgage, but it plainly applied as in this case, to a separate obligation secured in the same act; and the court held that the requisites of the Code had not been complied with. It is of the highest importance that subsequent creditors and alieenes should be able to ascertain from the mortgage act itself, to what extent property,is encumbered.</p> <p>In the french system, as in ours, a mortgage may be given for a future or conditional obligation. But where, as in this case, the mortgage is to take effect on a condition potestative on the part of the debtor, all the authorities agree that the mortgage vests only from the date of the happening of the condition. See Code Napoleon, art. 2125. Troplong, Hypotheque, 1st vol. no. 478. Merlin, Repertoire, Yo. Hypothéque, secs. 1 and 4. So by art. 2132 of the same Code, it is necessary that the sum should be certain and determined in the act, though where the obligation is conditional the creditor may preserve his inscription by an estimated valuation, to be settled between him and his debtor. This qualification is not contained in our Code.</p> <p>It is argued on the part of the bank, in reply to the objection that no determinate sum of Joan is mentioned in the act of mortgage that, a reference to the charter would show the precise sum the parties were entitled to borrow. To this we rejoin, that this does not meet the requirement of the law, which is that the sum be declared in the act; secondly, that a reference to the charter would show nothing more than that the stocldiolder is entitled to borrow up to one half of his stock as a stock loan, but it does not show to what extent he intends to make use of that privilege; and lastly that nothing is said in the mortgage act confining it to stockioans; it is said to bo given to secure all loans the parties may make — an expression which, at least, must be held to refer to other loans besides stock loans, inasmuch as stockholders have the same right as other individuals to borrow upon the mortgage to any indefinite extent.</p>

<p>from the District Court of Iberville, Burk, J.</p>

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

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

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

<p>from the District Court of WestBaton Rouge, Farrar,-J. G. S.</p>

<p>A contract between an attorney and client, by which the latter agrees to give to the former one-third of the judgment to be recovered, is void under the stat. of 31 March, 1808, s. 4.</p> <p>No recovery can be had in an action on a contract by which defendant stipulated to pay a certain amount for services to be rendered by an attorney in a suit then about to be commenced, where there is no allegation that the attorney had fulfilled his part of the con. tract.</p> <p>Tp authorize a debtor to enjoin an execution on the ground of his being the bolder of notes and drafts due by the plaintiff in execution, it must be shown that they were acquired at such a time that they could not have been pleaded in defence to the original action.</p> <p>Where an execution, issued for the amount of a judgment rendered by the Supreme Court and for the costs, is enjoined by the debtor, proof that the costs in the Supreme Court had been paid by the debtor before execution was issued, hut unaccompanied with any allegation that the creditor was aware of the payment, will not subject the latter to the costs of the injunction; nor will the fact deprive him of the right to damages, under the stat. of 25 March, 1831, s. 3, upon the amount enjoined, which was really due.</p>

<p>from the District Count of Ascension, Nicholls, J.</p>

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

<p>from the District Court of Terrebomie, Randall, J*</p>

<p>Whére a party enjoins an order of seizure and' sale, and the defendant in injunction con- I verts his executory process into a a proceeding via ordinarid, and, in an amended answer, pleads the exception rei judicata, no service of the amended answer will be necessary.</p> <p>The execution of a judgment cannot be enjoined on the grounds which have been pleaded in defence to the original action.</p>

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

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

<p>Where anote payable at a bank is held by the bank itself, presentment for payment to the bank by the notary employed to protest it, would be a vain formality.</p>

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

<p>An overseer entitled to a privilege on tlie product of the last crop, under art. 3184 of the Civil Code, may enforce his privilege against a purchaser of the plantation and crop, after the crop has heen sold and the proceeds received by the purchaser. The privilege is not extinguished by the sale of the crop.</p>

<p>Though an adjoining tract of land be subject to the servitude of receiving the waters running naturally from the estate above, .the proprietor of the latter is not entitled to enter at pleasure on tlie contiguous tract, without the consent oí its owner, whenever it may be necessary to remove any obstructions to the enjoyment of the servitude; nor can he widen the drain by which the waters are carried off; such an improvement, if necessary, can alone be made by the police jury, on making adequate compensation to the owner of the laud subject to the usufruct, for the damage he may sustain thereby. The party entitled to the servitude must call upon the owner of the land which is subject to it to remove such obstructions, and may compel him by legal means to do so. Arts. 763, 770 of the Civil Code relate exclusively to conventional-servitudes ; natural servitudes are subject to different rules.</p>

<p>Where a suspensive appeal is allowed to a party, on his giving bond, with surety, in a certain amount, and the surety does not sign the bond, but writes on the back of it r “I am surety for the appellant for costs only on the within appeal bond, but not for the principal,” the appeal must be dismissed for want of a sufficient bond.</p>

<p>Where plaintiffs sue on a note payable to tlieirorder, expressed on its face to be for value received, claiming the privilege of vendors, and asking for a sequestration on the allegation that the note was given for merchandize sold to defendants, it is unnecessary to prove the consideration to entitle plaintiffs to a judgment on the note. The allegation is only material so far as the right to a sequestration, and judgment for a privilege, is involved.</p>

<p>Parol evidence is admissible to prove an agreement with a slave to emancipate her, and tho execution by the latter of her part of the contract. Art. 1783 of the Civil Code, which authorises slaves to contract on their own account for their emancipation, subjects those contracts to no particular formality. i>Tbe rule contained in that article is derived from the laws of Spain, into which it had been introduced from the civil law, and must be interpreted with us as it has uniformly been under those systems of jurisprudence. Per Curiam: The act of emancipation must he in writing and authentic; but this regulation of ' public order has nothing to do with the contract under which the right to be emancipated is acquired by a slave.</p> <p>A child born of a woman after she has acquired the right of being free al a future time, lbl« lows the condition of its mother, becoming] free at the time fixed for her enfranchisement. C. G. 106.</p>

<p>PPEAL from the District Court of Iberville, Burle, J.</p>

<p>from tlie District Court of Pointe Coupee, Farrar, 3.</p>

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

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

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

<p>"Where a plaintiff alleges his residence and that of the defendant to "be in a particular parish, and the defendant, after a judgment by default against him, answers denying specially that the plaintiff was a resident of the same parish with himself, and settingup a claim in re-convention, evidence to prove the residence of the plaintiff to be as alleged in the answer cannotbe excluded on the ground that, the exception to plaintiff’s residence was a dilatory one, which should have been made in limine Ubis. Per Curiam: The allegation in the answer that defendant’s residence was in a different parish, was not a plea interposed to retard the suit, which cannot be set up after a judgment by default; but an averment necessary to be made and substantiated, to enable the defendant, under the stat. of 20 March, 1839. sec. 7, to institute a demand in reconvention, though not necessarily connected with, or incidental to, the main cause of action. The allegation is a plea to the merits, and necessary to give jurisdiction to the court of the reconventional demand.</p>

<p>PPEAL from the District Court of Ascension, Burle, J.</p> <p>cited Florance v. N. 0. Navigation Co. lRob. 224. Perkins v. Campbell, 5 Mart. N. S. 149. Hermann et al. v. Pfister, 2 La. 456. Pepper v. Dunlap, 16 La. 169.</p>

<p>Where a new trial has heen granted to a party to enable him to establish a fact by the evidence of a certain witness, and this witness is not produced on the second trial, nor his absence accounted for, no oilier trial will be granted to the same party, to enable him to prove the same fact, though applied for on the ground of newly discovered evidence, and supported by an affidavit of the applicant in which a different witness is named as one by whom the fact is expected to be proved. Due diligence was not used to procure the evidence*</p>

<p>from the District Court of Assumption, Randall, J.</p> <p>cited Bernard v. Vignaud,, 1 Mart. N. S. 9. Stafford v. Stafford, Iff. 551. Segur v. Fellerin, 16 La. 67.</p> <p>cited C-P. 612. Lalanne v. Moreau, 13 Lr,. 431. Ball v. Ball, 15 La, 177. Code of 1808, book 1, tit. 9, p. 80.</p>

<p>Where, subsequently to the seizure under a.Ji.fa. and advertizementof the property for sala at the court bouse of -the pai-isb, the court bouse is removed, under the provisions of a special law, to another place, the advertizement which had been posted up at the old court house should be l-emoved to the new, and the sale be made at the latter. C. P. 664. Stat. 5 March, 1842. After the new seat of justice was selected, and a court house provided there, it became the only place at which sales under execution could 'be-legally made.</p> <p>Where a defendant in injunction prays .for its dissolution, and that the principal and C. M., his surety, be condemned, in solido,.to pay interest and damages, and it appears fromtho bond that J. J., and not C. M., was surety on it, judgment may be rendered against the party really bound as surety. Under sec. 3 of the stat. of 25 March, 1831, it was-sufKcient to show who was the real surety on the bond, to authorise a judgment against him.</p>

<p>Where an agent fails to ship goods, which he was directed by his principal to do, the latter is entitled to recover the actual value of the goods at the port of destination.</p> <p>In oases of breach of contract through negligence or fraud, no more can be recovered as damages than will fully indemnify the creditor, A jury has no more right to exact a larger sum from a debtor, than they have to increase the amount due by a promissory note.</p>

<p>The delivery of letters of administration is presumtive evidence that the oath required of an administrator has been taken, and w.iU impose upon one who contests the fact the burthen of proving that the formality has not been complied with.</p> <p>The objection that-one who sues as an administrator is not a resident of the State, made for the first time on amotion for anew trial, comes too late.</p> <p>Where an order of seizure and sale is enjoined, and the creditor answers the petition fox an injunction, praying for a judgment against the plaintiff-in injunction for the debt due him, with mortgage, the only effect of the prayer will be to change the proceedings from the vid executive to the vid ordinaria. The change involves no abandonment of the action, but merely authorizes a judgment to be rendered affecting the debtor’s property with a general mortgage.</p> <p>Where an order of seizure and sale is enjoined, and the proceedings are changed from executory to ordinary by the answer of the creditor, both parties being before the court and issue joined between them, the plaintiff in injunction cannot object to the proceedings vid ordinaria, on the ground of want of service of citation and petition.</p> <p>Where the conditions announced at a sale of land, and stated in the procés-verbal, show clearly that it was intended that the property should remain mortgaged to secure payment of the notes given for the price, the effect of an adjudication, made upon those conditions, will be at once to convey title and to create a mortgage. It was not. necessary to the perfection of the title that the adjudication should have been followed by a separate act, signed by the parties (C. C. 2C01); and the procés-verbal of a sale, made under the authority of a Court of Probates, is full evidence of the mortgage retained, and when signed by the purchaser and parish judge, in the presence of two witnesses, imports a confession of judgment. Neither the signature of the administrator of the succession, nor of any agent for him, is necessary to complete the purchaser’s title,nor to give to the procés-verbal the authenticity of an order of seizure and sale.</p> <p>The purchaser of the property of a succession cannot plead in compensation a debt due to him by the deceased. An administrator cannot assent to such an extinguishment of the debt, in violation of the rights of other creditors.</p> <p>A prayer for a jury is too late, after the case has been called for trial. C. P. 494, 495,</p> <p>A party to a suit will not be required to answer interrogatories, where the application to propound them was made after the case had been called for trial, and the party proposed to be interrogated was absent.</p>

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

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

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

<p>The provision of article 2895 of the Civil Code, establishing the rate of conventional interest, has always been confined to loans of money, and held not to apply to the purchase and sale of promissory notes, hills of exchange or other negotiable instruments, nor of credits.</p> <p>An exchange of credits made bond fide, is not illegal; dliter, if the exchange be a mere device to cover usury. In eveiy case the inquiry is, whether the transaction was, in substance, a loan of money; if really a sale or exchange of credits, it will be valid though the contract be in the form of a loan.</p> <p>Where the facts of a case present a double aspect, one of which represents a contract which the law authorizes, and the other one prohibited by law, the contract must be sus. tained.</p>

<p>from tile District Court of'Pointe Coupée, Farrar,- Jv</p> <p>cited Civil Code,- 2080. 3 La. 4-37. 8 La. 523. 11 La. 453. 14 La. 362. 16La. 11-9. 17 La-. 397. 19 La. 414. 3 Rob. 26, 140’. 6 Rob. 351. 7 Rob. 181. 12 Rob. 323.</p>

<p>from the First District Court of New Orleans, McHenry, J.</p> <p>cited Talbot v. Seaman, 1 Cranch, 1. Coulon v. Neptune, I Pet. Ad. Dec. 358. Hughes on Isur. 347. Warder v. Belle Creole, I Pet. Ad. Dec. 42, 80. Matter of the Sarah, 1 Rob. Ad. Rep. 263. Tyson v. Prior, 1 Gallison, 133. Bowev. Brig Blape, 1 Mason’s R. 377. Hand v. Elpira, Gilpin’s R. 60. Frances Mary, 2 Hagg, R. 89. William Beckford, 3 Rob. Ad. R. 355. 1 Sumner R. 400. 2 Story, C. C. 195. Howland's case, 7 ,vol. Mass. Law Rep. p. 377. Sprague's case, 6 lb. p. 14. Frost, on the same .side.</p>

<p>from the Fourth District C.ourt of New Orleans, Slrawbridge, J,</p>

PPEAL from the Fifth District Court of New Orleans, Buchanan, J. The facts of this case are stated- at length in the opinion of the court infra. The exception must be determined by art. 2265 of the Civil Code. The quality of one' of the parties is not the same in these two suits.

<p>The admission in evidence of a record of the proceedings in another action, will not be considered as introducing in evidence the testimony upon which the judgment on those proceedings was rendered.</p> <p>A judgment rendered on the confession of a father in favor of his children, is not evidence against third persons. Per (Juriam: A father cannot he heard as a witness for or against his child. C. C. 2260.</p>

<p>A legatee of the usufruct of the only immovable property of a succession, though under a particular title, must he considered as an universal legatee of the usufruct, and his obligations in regard to debts to which the immovable is to contribute must be governed by the rales relating to legatees under au universal title; and where property is encumbered by a mortgage created by the testator, even were the devise of the usufruct to be considered a special legacy, the heir would not be bound, in the absence of any express provision in the will to that effect, to discharge the mortgage. C. C. 1631.</p>

<p>Objections to the forms of proceedings, made for the first time after appeal, will be considered as having been waived, where the party by whom they are set up can suffer no injury thereby.</p> <p>Though the neglect of the corporators to re-appoint officers may, in certain cases, suspend the existence of the corporation, it cannot be thus extinguished to the injury of its creditors. Per Curiam: A corporation never can dissolve itself so1 as to defeat any of the just rights of its creditors.</p> <p>Where the members of a corporation neglect to appoint officers to the injury of its creditors, the court will appoint a manager to windup the company.</p> <p>Prescription will bar any proceedings, commenced by a creditor of a corporation, under the provisions of sec. 13 of the stat. of 20 March, 1839, by propounding interrogatories to a stock-holder to ascertain if he waS'not indebfced'to the corporation, where more than ten years had elapsed since the maturity of the last instalment due on the stock before the institution of the proceedings. C. C. 3508.</p> <p>The presumption of payment, which the law raises in cases of prescription releasing from debt, is juris ei de jure. In such cases the debtor is not required to produce any title, nor to he in good faith. C. C. 3494, 3496.</p> <p>The rule that where a contract containing reciprocal and synallagmatic conventions continues to he executed by one of the parties, the other cannot refuse to execute his part, under the pretext of prescription, though those conventions be only accidental, forms no part of the law of prescription either under the Code Napoleon, or the Code of this State.</p> <p>Where no period was fixed by the charter of an incorporated company for the payment of a portion of the subscription for each share of stock, but the directors were authorized to call in the amount at such time and in such proportions as they might see fit, a creditor of the company who wishes to enforce payment of the balance so due,'must resort to a direct action. The liability of a stock-holder for this balance cannot be enforced by proceedings authorized by sec. 13 of the stat. of 20 March, 1839. In such a case as no period was fixed for the payment of the balance due on the stock, no prescription can accrue against an action by a creditor of the company.</p> <p>Where a share-holder in an incorporated company, not inhibited by its charter from dealing on credit, resists an action instituted to compel him to contribute to the payment of a note issued by the company on the ground that it was not authorized to issue notes, he must al. lege and prove that the note was given for purposes unsanctioned by, and prejudicial to, the share-holders, and that the holder was apprized of those facts when he took the note, or that he received it after maturity.</p>

<p>from the Fourth District Court’af New Orleans. Strawbridge, J.</p>

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

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

<p>A due bill executed by a married woman, without tbe authorization of her husband, will not be binding on ber, where the .consideration for which it was given is not shown to have inured to her benefit.</p>

The only question which this case presents is. whether the individual creditors of William Flower are entitled to be paid the full amount -of their claims out of the assets surrendered by him; or whether the partnership creditors have a right to participate pari passu with the personal creditors, in the distribution of those funds ? The judge below decided this question in favor of the opposing creditors; from which decision the individual creditors have taken this appeal.

from the. District Court of Concordia, Gurry, J. contended that the transcript might be filed at any time before a certificate was obtained that it had not been brought up, citing 7 La. 350. 10 La. 502. moved to dismiss the appeal, citing 6 Rob. 69. 7 La. 277. 8 La. 206. 14 La. 203, 292. 16 La. 50. Davis v. Hood, 2 An. R. 453.

<p>A sale made by a sheriff, under an agreement of parties, and on terms different from those! prescribed by law for forced sales, will not be viewed as a forced sale, but as subject to the! rules of ordinary sales, in which the vendor is bound to express himself clearly respecting! the thing to be sold, under the pain of having any obscure or ambiguous clause construed] against him.</p> <p>After possession for twenty years by a purchaser under a sale made by one acting as an agent, the authority of the agent cannot be contested.</p> <p>The rule established by art. 2256 of the Civil Code, prohibiting the admission of parol testimony to contradict or enlarge valid written acts, will not exclude such evidence when adduced to identify land sold, where the titles contain no specific! description of the property. Such evidence explains and elucidates tkd title; hut goes neither against nor beyond it.</p>

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

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

<p>APPEAL by the plaintiff from a judgment of the District Court of Ascension, Randall, J.</p>

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

<p>A patent issued by the United States for public lands, is conclusive proof that tbe party in whose favor it was issued bad complied with tbe requirements of tbe act of Congress, as to maMng improvements on the land, &c.</p> <p>Improvements made upon tbe public lands of tbe United States, where tbe party mating them is not in a situation to avail himself of tbe pre-emption laws, cannot form tbe object of a contract. Arts. 1885,1886 of the Civil Code limit the rale contained in art. 1960, that no one ought to be permitted to enrich himself at the expense of another, to cases in which the alleged benefit arises from a lawful act. From unlawful acts, though they may have proved beneficial to others, no rights not expressly authorized by law can arise.</p>

contended that the judgment of the lower court should be reversed, and one rendered in favor of the plaintiff, citing Civil Code, arts. 3021, 3022, 3023. 1 Domat, 401, ss. 1, 2.

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

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

<p>A bankrupt discharged under the act of Congress of 19 August, 1841, who wishes to avail himself of his certificate, must plead it specially.</p> <p>A bankrupt who has failed to plead his discharge under the act of Congress of 19 August 1841, in defence to an action agaiust him, cannot avail himself of it as a means of arresting,by injunction, the execution of the judgment against him.</p>

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

APPEAL fyom the District Court of Carroll, J. This is a to title^ to a large tract parish Both parties claim titl.e und.ep Gibeon Gibson. The facts are as follows: Gibson, who resided in the State of Mississippi, on the 10th of February, 1838, executed a deed of trust of the land in question, together with other properly, in Mississippi, in com, jnon law form, to secure the payment of various notes.

<p>An appeal mast be dismissed, where the judgment from which it Was taken Was not fino!, nor such a one as could cause an irreparable injury.</p>

<p>Facts which appear in the record only from a statement in the opinion of the inferior judge that they were proved, are not in evidence. The evidence itself must be produced.</p>

<p>Prescription being governed by the lex fori, where an instrument executed in another State is negotiable by its laws, but not negotiable by the laws of this State, an action on it here will not be barred by the prescription established by tbe laws of this State for negotiable instruments. Per Curiam: Where certain classes of contracts are enumerated in a statute establishing a prescription, a contract sued upon in our courts must be declared to be within or without tbe statute according to the character which our own laws attribute to it.</p>

<p>Where the defendant in an action commenced by attachment appears on appeal, and asks that tlie judgment against him be reversed, an intervenor cannot object to the mode in which the writ of attachment was executed.</p>

<p>APPEAL from the District Court of Concordia, F. H. Farrar, J.</p>

<p>Where, under an ordinance of the police jury, an inspector of roads and.levées of the parish • adjudicates to a party the construction of a levée for a certain sum, and the adjudication contains no stipulation that the contractor shall look to the land, or to its owner, for payment, and it is not shown that such was the understanding of the parties, the parish will be bound for the price of its construction. C. C. 1952.</p>

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

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

<p>There must be proof of the existence of absent heirs, to authorize the appointment of an attorney to represent them. In the absence of such proof the appointment will be re* voked, as illegal.</p>

<p>Where the reoord of appeal is- not filed within three judicial-days after the return day, and no extension of time has been obtained, the appeal must be dismissed, if required by tils appellee. C. P. 535, 590,</p>

<p>Where mortgaged property is in possession of the mortgagor, one expressly subrogated to the rights of the mortgagee, may proceed against it vid executivd. But where an act of mortgage contains no clause de non alienando, and the property is sold by the mortgagor to a third person, neither the mortgagee, nor any one subrogated to his rights, can proceed against it by order of seizure and sale. The creditor, must resort to an hypothecary action.</p> <p>Where an act transferring the rights of a mortgagee and subrogating the purchaser thereto has been lost, proof of jts contents oaji .only, bo received apon showing a previous advertisement of t}ie loss, and that prop.er measures bad been taken to re,cover it. 0. C. 2258, 2259.</p>

<p>APPEAL from the District Court of St. Tammany, Jones, J.</p> <p>The case should be remanded as there was no issue joined on the supplemental petition, nor any answer to it. 1 Mart. 205. 2 Mart. N. S. 264. 2 Ann. Rep. 352.</p>

Buchanan, J. The facts material to a correct understanding of the decision in this case are stated in the opinion infra. I. The sale from John Gravier to Peter JDelabigarre, in 1804, of two-thirds of the batture in front of the faubourg St. Mary, embracing the locus in quo, is a valid title to the plaintiff, as the daughter and heir of JDelabigarre, to the one-fourth of the batture she now seeks to recover. II.

<p>Under the Spanish taw one having neither ascendants nor descendants Was under no indapacity to dispose of his property by donation in favor of a concubine. By the Code of ISOS, hook 3, tit. 2, art. 10, persons living in open concubinage were declared incapable of making to each other any universal donation, or under an universal title, inter vivos or mortis causa. The prohibition to make any donation of immovables, or any donation of moveables exceeding one-tenth part of the whole value of the donor’s estate, unless in case of a subsequent marriage, was introduced by the Code of 1825, art. 1468.</p> <p>The prohibition by law of donations of a particular character implies the right to make those not within the prohibition.</p> <p>Where the facts of a ease present a double aspect, one of which represents- a contract which the law authorizes, and the other one prohibited by law, the contract must be sustained.</p>

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

<p>Where-a sheriff, by whom a plantation had been seized.under writs in his hands, is, by consent of all concerned, made the factor of the estate, and in that,capacity ships the crop, receives the proceeds, makes disbursements, and has the general supervision and control of the property, the allowance of an item in his account of two and a half per cent commissions on the amount of cash which came into Ills hands for receiving and disbursing, is not in .conflict with art. .71,of the constitution.</p>

<p>A copy of a reeord of proceedings in a court of this State, authenticated by the seal of the court, and certified by a deputy clerk, is sufficiently attested. The deputy is an officer known to the law. C. P. 782.</p>

<p>The drawer of a bill is not entitled to notice of non-payment by tbe acceptors, where the acceptance was for bis accommodation, and he bad undertaken to send funds to them with which to pay it, and failed to do so.</p> <p>To constitute legal fraud, in case of a preference given by an insolvent to one creditor over another, so as to affect tbe preferred creditor, it must appear that the creditor, as well as tbe debtor, was not in good faith, that be knew of the insolvency of tbe debtor, and contemplated the securing to himself of an advantage over tbe other creditors.</p> <p>Tbe action to annul a contract on tbe mere grounds of tbe preference given to one creditor of an insolvent over another, is prescribed by one year. C. C. 1082.</p> <p>Where certain mortgage creditors of an insolvent sue to annul a judgment rendered on the confession of tbe debtor, and recorded anterior*to the date of their mortgage, on tbe allegation that tbe confession was a contract in fraud of tbe other creditors, the action must be brought within the timo prescribed by art. 1982 of tbe Civil Code. Tbe rule Quce tempo? ralia, &c. is inapplicable to this case, it is limited to cases where tbe defendants who set it up as an exception are in possession of tbe thing, or in tbe enjoyment of tbe liberty which tbe contract offered to them is intended to restrain. Here tbe judgment creditor was in possession of a mortgage right dating from the time of its registry.</p> <p>Where a register of mortgages is shown to have kept but one book for the inscription of conventional and judicial mortgages, tbe fact that a judicial mortgage was not recorded in a separate volume of judicial mortgages will not be allowed to prejudice tbe judgment creditor. Pc?' Curiam •* As there was but one book kept, third persons could not be misled.</p> <p>Where, at tbe date of a bill, a statute was in force allowing damages at ten per cent in case of protest, tbe right to damages at that rate must be considered as part of tbe contract. A subsequent statute reducing the late, though in force at the time of suit, cannot affect tbe right of the creditor to damages at tbe rate fixed by the statute in force at the date of tbe contract.</p> <p>One who purchases property, or acquires a mortgage on it, pending a litigation in relation to it, though for a valuable consideration, and without any express or implied notice in point of fact, will he bound hy any decision that may be made against the person from whcm he acquired his title or mortgage.</p>

<p>Where an order of seizure and sale, sued out, under art. 746 of the Code of Practice, on a judgment rendered in another State, was suspended hy appeal at the time of the passage of the stat. of 1 June, 1846, repealing so much of that article as authorizes executory process on such a judgment, the proceedings must be dismissed. Laws regulating the form of judicial proceedings relate to the remedy; and where, before a final decision, a new law changes the form, it must take effect at once, unless it expressly declares that the pre-existing form shall continue to he followed in cases then pending.</p>

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

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

<p>Acceptance of’serVice’of apetition of appeal by an attorney at law will be presumed to have been authorized by his client, unless the latter, by his own affidavit or otherwise, shows that the attorney transcended his authority.-</p> <p>Where an appellee, by his attorney, writes at the foot of a petition for an appeal and of the order granting it, the words, “ Service accepted," it will include a-waiver of citation.</p> <p>One whose possession commenced and was continued in bad faith, is answerable for rents accrued previously td’the commencement of suit.</p>

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

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

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

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

<p>Where a case is tried before a jury who write only french, and the verdict is returned by them in that language, and it is translated into english under the direction of the court, read to them as translated, assented to by them,- signed by the foreman, and recorded by the clerk in their presence, it will be sufficient.</p>

<p>Where a purchaser at a probate sale, who was a party to an action to annul the sale, sets up in his pleading his title as purchaser, claiming a recourse in Warranty against the succession in case of eviction, he will-not be listened to when, in an aetion against him by the administrator to recover the property or its value, he avers that he was not the owner of it at the date of the first suit.</p>

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

<p>Want of amicable demand, is not a sufficient ground to enjoin the execution of an order o f seizure and sale.</p> <p>In proceedings via execntiva, it is not necessary that a copy of the petition should be served on the defendant.</p> <p>In an action on a note payable to, and in possession of the plaintiff, it is not necessary that he should allege, in special terms, that be is the bolder and owner.</p> <p>A prayer that mortgaged property should be seized and sold to satisfy plaintiff’s demand, is equivalent to a prayer for the recognition of the mortgage.</p> <p>Where amortgage contains the pact de non alienando, it is unnecessary to allege in the petition for an order of seizure and sale that, the property mortgaged is in the possession of the mortgagor.</p> <p>Where an act of mortgage given to secure the price of land, recognizes the capacity of the agent by whom the sale was made and the mortgage retained, and recites the mandate, the power of attorney itself forms no part of the testimony necessary to authorize an order of seizure and sale.</p> <p>To suspend the payment of the price, a purchaser must allege and prove that he has been disquieted in his possession, or has just reason to fear that he will he disquieted. C. C. 2533.</p> <p>Payment of the price cannot he resisted on the ground that, the vendor has not complied with his agreement to survey and point out the boundaries of the land, where he has not been putin default for his failure to do so.</p>

<p>APPEAL from the District Court of East Baton Rouge, Burk, J.</p> <p>cited 10 La. 426. O.'C. 1023, 1024,2383. C. P. 977.</p>

<p>By the Spanish law formerly in force in this State, a testament became void by the subsequent birth of a child. 6 Partida, tit. 1, law 20; tit. 12, law 3.</p>

<p>An order of execution must be in english and french, where the latter is the maternal tongue of the debtor, or it may be enjoined. C. I?. 626. The fact that the petition in the action, which was in english only, was not excepted to on that account, is not a waiver of the right to requite that the order of execution' shall be in both languages.</p>

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

<p>Where it is shown that there were two post-offices, one about three and a half or four miles from the residence of the endorser of a note bat on the opposite side of a wide and vapid river, and the other about six miles from his residence baton the same side of the river, and it is not proved that he received his letters from either exclusively or uniformly, notice of protest sent by mail directed to the latter will be good. Per Curiam.- The plaintiffs m ay have fairly considered the latter as the most Convenient, and practically the nearest to the endorser’s residence.</p> <p>In the absence of evidence to justify it, the address of a notice of protest generally to the parish of the endorser’s domicil, is not sufficient.</p> <p>The stat. of 13 March, 1827, was intended to provide a convenient and permanent mode of proof oi notice of protest; hut not to change the tales of commercial law on the subject of notice.</p>

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

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

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

<p>There can be no rente a résnéré without a stipulation for the return of the price. A contract ' of sale, the validity of which is made to depend on the payment of notes which form no part of its consideration, is not a rente á réméré.</p> <p>Where by a contract of saleof land the validity of the sale was made to depend on the payment of certain notes which formed no part of its consideration, the subsequent resumption of possossion of the land by the vendor creates such a presumption of payment as makes it incumbent on the vendee to account for the notes.</p> <p>The vendor is bound, in case of eviction, to refund to the purchaser the whole amount of fruits and revenues which the latter has been condemned to pay to the true owner.</p>

<p>A statement made by a party is inadmissible to explain or contradict a! notarial act made by his authority, where he continues to hold the property conveyed to him by the act.</p> <p>In a dation eh paiement every thing doubtful or ambiguous must be interpreted against the donee or creditor.</p>

<p>IV would boa breach of good- faith to the public and to individuals to resume possession of portions of ground which! Have been deliberately didicated foi streets, or over which the public has notoriously exercised a right of passage fdr more than ten years, which of itself would give the public a-rigbt of way without any dedication.</p> <p>No particular form or ceremony is necessary in the dedication of-land to public use; all that ’ is required is, the assent of the owner, and the fact of its being used for the public purposes intended by the appropriation. But'wlieñ the dedication is not express, and is to be inferred from the acts and conduct of the owner, and the use by the public, these ought to be such as to exclude any other hypothesis but’that of dedication. In all such oases, the consent of the owner must1 appear clearly.</p> <p>If apeice of ground be left unenclosed for the convenience of the owner, who uses it for a specific purpose in the usual'course of his business, the fact that he does not exclude persons from passing through it, or that, when tlie'ground is within the limits of a town, he has represented it as open and unenclosed, as it really was at the time, upon a plan on which he has sold other town lots not necessarily connected with that open space, cannot under any circumstances be fairly- considered as’proof of a dedication, to public use, of the ground thus left open.</p>

<p>A PPEAL from the District Court of West Feliciana, Butler, J., presiding.</p>

<p>Evidence received in the lower court without exception, cannot be objected to, on appeal as inadmissible.</p> <p>Where a person endorsed negotiable paper of a short date in the county of his late domicil, which the holder had reason to believe was still his domicil, and on being sued as endorser resists the aption on the ground that his domicil was in another State and that notice of protest should have been sent to him there, he will be required to establish not only that he had abandoned his former, and acquired a new domicil, but must also show affirmatively that he had given reasonable publicity to the fact, and had left behind him reasonable means of ascertaining his new domicil.</p>

<p>APPEAL from the Court of Probates of West Feliciana, Weems, J.</p>

<p>Wliero, in consequence of tile debtor’s not having been put in default for the non-performance of his contract, damages cannot he recovered, evidence to prove the amount of damage should be rejected.</p> <p>Where a defendant objects to the admission of any evidence on the part of plaintiff until he has elected between two inconsistent canses of action, and the objection is sustained, and plaintiff excepts but insists that the case shall go to the jury, and the judge sanctions this irregular proceeding, evidence in support of the contract sued on must ho admitted.</p>

A PPEAL from the Fourth District Court of New Oi'leans, Strawbridge, J. facts 0f cas0 al.e stated in the opinion of the court infra. Plaintiffs are bond fide holders of negotiable paper, for which a full consideration has been paid in the usual course of business. Both the defendants were capable of making such paper.

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

<p>Where the plaintiff in a petitory action claims the benefit of the possession of his vendors, their declarations may be proved, on the part of the defence, for the purpose of establishing the charaoter .and fact of the possession; and this though one of them was the mother of the defendant.</p>

argued on .a motiou to dismiss. Gi.bson is the only party plaintiff, and Selby the only party defendant in the present action. It is true, the judgment dissolving the injunction is rendered against the present plaintiff and his surety. But the judgment against the surety is only incidental, and .is effective in so far only as the principal judgment against the plaintiff can be maintained.

<p>Where a debt due to a partnership had been transferred by a member charged with the liquidation of its affairs, but who was without authority to make such a transfer, and the other partners subsequently ratify the act, they being thereby estopped from questioning the authority of the liquidating partner, any creditor, who by seizing their interest in the debt, pretends to hold under them, will be also estopped from questioning it.</p> <p>A judgment creditor of persons who were members of a partnership then in a state of. liquidation, for a debt not a debt of the partnership, cannot seize under a fi. fa. a judgment which was an asset of the partnership, nor acquire any legal rights by seizing the interest therein of the individual partners, the defendants in the execution.</p> <p>An individual creditor of a partner cannot seize under a fi. fa. a particular asset of the partnership, nerr the interest of his debtor in a particular partnership asset, He must await the liquidation of the partnership, and, in the meanwhile, seize the residuary interest of the partner in the partnership generally, by seizing in the hands of the partnership, or of the person charged with its liquidation and representing it. The partnership assets are a trust fund for the partnership creditors, who must be paid before the individual partners, and consequently their creditors, can receive any thing.</p> <p>Partners under our law are not tenants in common, in the sense of that term in th« english law.</p>

<p>Notes not payable to order or bearer, are subject only to the prescription of ten years, estab^ lishedby art. 3508 for-personal .actions generally.</p> <p>It is not neceessary to interrupt prescription, tbat the acknowledgment of a debt should bo in writing, nor that it should be made in the presence of the- creditor. C. C. 3486, 3517.</p> <p>The owner of a note due by a solvent succession is entitled to legal interest from the death of the debtor, though there was no stipulation in the note for the payment of interest* C. P. 989.</p>

<p>A judgment creditor is not bound to resort to a revocatory action before seizing property^ which he believes to belong to his debtor, and to be held by a third-person under a sima* lated sale. If opposed in the excution oí his writ, he will be allowed to show the transfer to be simulated; but to authorize such proof, when the possessor avers that he is the owner and exhibits a title, simulation must be specially alleged in the answer. The possessor must be informed by the pleadings of the attack to be made on his title, or testimony to establish its simulation will be inadmissible.</p>

<p>APPEAL by the defendants from a judgment of the District Court of West Feliciana, Penn, J. There was a motion to dismiss this appeal, on the ground that one of the defendants had given no appeal bond.</p>

<p>A sale made without the formalities prescribed by law, by a tutor, of the immovables of his pupil, is absolutely null; but may be ratified by the minor, after majority, expressly or by implication.</p> <p>All absolute nullities resulting from defects of form are embraced within the general provisions of art. 3507 of the Civil Code.</p> <p>Absolute nullities are of two kinds: those resulting from stipulations derogating from the force of laws made for the preservation of public order or good morals, and those established for the interest of individuals. The former are not susceptible of ratification, and the prescription of five years, under art. 3607 of the Code, is inapplicable to them; hut if, by subsequent dispositions of law or by the succession of time, such stipulations cease to be illegal, they may from that time he ratified, and become subject to the prescription of art. 3507. Thus the partition of a succession made before the succession is open, may become valid by ratification, or by lapse of time, after tbeopeningof the succession. But in relation to absolute nullities established in the interest of individuals, the rule is, as to onerous contracts, without exception, that the party in whose favor they are established may ratify the contracts, either expressly or impliedly.</p> <p>In all cases of executed contracts susceptible of tacit ratification, a presumptionjof ratification juns ei de jure, results from silence and inaction daring the time fixed for prescription.</p> <p>Where one who had caused herself to he appointed a tutrix, taires] possession, by virtue of her appointment, of slaves belonging to her pupil, converts their labor to her own use, and when called upon to account denies the existence of the trust, contests the title of her pupil to the slaves, and claims as her own the fruits of their labor, she will not be allowed commissions on the amount recovered from her for the hire of the slaves, which cannot be considered, within the meaning of art. 342 of the Civil Code, as revenues accruing-,,to jthe minors through her care and labor.</p>

<p>In an action by a wife against her husband for a separation of property, intervenors are entitled to the delay necessary to cite the original parties, and for them to answer, though the effect may be to retard the action. ■</p> <p>Where an intervenor in an action between a husband and wife for a separation oí property, excepts to a decision of the court refusing to delay .the trial to enable him to cite the original parties, but afterwards enters into, and files in the case, an agreement by which he waives his opposition to the cause being then tried, in consideration of the plaintiff’s agreeing, as far as she was concerned, in the execution of any judgment she might recover, to sell the lands, slaves, and moveables separately, and tile case is tried and plaintiff obtains a judgment, the intervenor cannot afterwards, on the ground of a violation of the agreement as to the sale of the property, take a.jndgment by default and proceed to try his intervention. The action was ended when final judgment was rendered for the plaintiff, on the waiver of the right of the intervenor. The judge could pronounce upon the merits of the intervention only at the time of deciding the principal action. C. P. 394. The waiver was equivalent to a withdrawal of the intervention'. The remedy of the intervenor, for the violation of the agreement, is by a separate action.</p> <p>Where anote expresses on its face that it was given for value, a denial of consideration, unsupported by evidence, is not enough to impose on the plaintiff the burthen of proving the consideration. f</p>

<p>The sale ofa pre-emption right, in contravention of aprohibitory clause in the act of Congress under which the right of pre-emption accrued, is null; and constitutes no impediment to an entry of the land by the party entitled to the pre-emption, who will, by the purchase from the government, acquire an absolute title, unaffected by the previous sale.</p> <p>Parol evidence is inadmissible to prove an agency for the purchase of real estate»</p>

<p>A mortgage on slaves duly recorded in the parish in which the debtor had his domicil and residence, and in which the slaves wore at the time, is not required to he reinscribed in a parish to which the debtor subsequently removes with the slaves, in order to preserve its effect.</p> <p>Arts. 3442, 3444, which provide that one who acquires a slave in good faith, and by a just title, will be protected by the prescription of five years if the real owner resides in the State, and by ton years if he resides out of it, apply only to the owner; they do not affect mortgage creditors. Prescription is acquired by the third possessor of mortgaged property, not by the lapse of time established for the prescription of the property itself, but by that fixed for the hypothecary action.</p>

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

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

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

<p>A note in these words: “ I-promise to pay to the order of A.” &c., but which, instead of being endorsed by A., has his signature affixed to it under that of the maker, is neither payable to order nor bearer; and-' an action on it will not be prescribed by five years, under art. 3505 of the Civil Code.</p> <p>Where an obligation to pay money at a certain time is silent as to interest, it' will commence only from the time of the debtor’s being put in defauit.</p>

New Orleans, Buchanan, J. Art. 49 of /the Code of Practice points out what is necessary to sustain the possessory action, and we have brought ourselves strictly within its provisions. We have shown, in the first place, possession as owner for eight or nine years preceding the disturbance by the plaintiff.

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

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

<p>The power conferred on the Board of Currency, by the stats, of 5 Feb. 1842, s. 2, and 14 March, 1842, ss. 15, 27, 28, 20, of requiring that the books, papers, and minutes of the proceedings of the board of managers and directors appointed to liquidate the affairs of the Citizens Bank, should be subject to examination by them and of supervising the proceedings of the managers and directors, was not repealed by the subsequent statutes of 5 April, 1843, s. 8, and 6 April, 1847.</p> <p>Art 144 of the new constitution which provides that no office shall ho superseded by the taking effect of the constitution, but that the laws relative to the duties of the several officers shall remain in full force though contrary to the new constitution, and that the duties ■thereof shall .be performed by the respective officers according to the existing laws, until the organization of tho government under the new constitution, and the entering into office of the now officers to be appointed under said government, authorized the secretary of state and treasurer to continue to discharge the duties of members of the Board of Currency after the taking effect of the new constitution, though membership of tho hoard was a civil office of emolument, distinct from that of secretary of state or treasurer, and involved the exercise by them at tho same time, of two civil offices of emolument contrary to art. 12C of the new constitution.</p>

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

<p>from the District Courf of Concordia, Farrar, I.</p>

<p>APPEAL from the District Cpjirt of Carroll, Selby, J.</p>

<p>Where a creditor, who had obtained judgment against his debtor in an action commenced ■ by .-attachment and in which the property was bonded by the latter, after a return of a Jifa. unsatisfied, takes a rule against the surety in the bond to show cause why lie should not be condemned to pay the debt, and appeals from a judgment dismissing his rule, his subsequently issuing an alias fi. fa. will not be considered a voluntary execution of the judgment, authorizing the dismissal of the appeal. The judgment from which the appeal was taken is wholly distinct from that rendered in the principal cause, and in which the Ji. fa. was issued.</p>

<p>On the trial of a slave before a tribunal assembled under the provisions of the stat of 1 June, 1346, which requires that it should be composed of two justices of the peace and ten owners of slaves, no objection can be made, after tbey have been sworn, to the persons empanelled to serve with the justices, on the ground that tbey are not slave-holders.</p> <p>Where a slave, tried for a capital offence before a tribunal, organized under the stat. of 1 June, 1846 which provides (sec. 8) that when an offender " shall be convicted of any crime punishable with death, the justices shall sign a sentence to that effect,” k found guilty, but one of the justices refuses to sign the sentence, and the tribunal is dissolved without the judgment having been signed, the conviction, being one upon which no sentence could be pronounced in consequence of the dissolution of the tribunal, cannot be pleaded in bar of a subsequent prosecution for the same offence: Per Curiam: To sustain a plea of auter foils convict the-conviction must be one, which) at the time of pleading it, is susceptible of being followed by a sentence.</p> <p>A justice of the peace who had formed part of a tribunal for a trial of a slave organized under the stat. of 1 June, 1S46, and who had,after hearing evidence) declared his conviction of the guilt of the accused, is not on that account disqualified to sit on a tribunal subsequently organized for a second trial for the same offence.</p> <p>The oath required of members of a tribunal organized under the stat. of 1 June, 1846, for the trial of slaves, cannot be administered by the clerk of a District Court.</p> <p>Clerks of courts, except in cases specially provided for by law, are authorized to administer oaths only in open court.</p> <p>When confessions of guilt are given in evidence, the whole must be taken together * and where a witness, offered to prove a confession by the prisoner, states “ that the accused told him that he had killed the deceased, and commenced justifying the act, when witness stopped him,” the confession will not he allowed to go to tho jury, he having been deprived of the benefit of the explanations with which he intended to accompany it, and which, if made, would have been admissible in evidence.</p>

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

<p>A contract must be understood in that sense in 'which it will have some effect, rather than in that in which it can have none.</p>

<p>It is not essential to the validity of a sequestration bond, that it should be executed before the clerk of the court in which the action is pending, or any other public officer.</p> <p>Wkoro tii« Rnvcty in a sequestr ation bond removes beyond the jurisdiction of the court, the execution of another Rond with a surety residing within its jurisdiction, will be sufficient. C. C. 3012.</p> <p>Separate actions may be carried on against the same defendant, by the same plaintiff, for the same debt, where in one a judgment is prayed for against him as an absentee and his property is attempted to be reached by attachment, and the object of the other is to annul the sale of the same property, for the purpose of subjecting it to his claim.</p> <p>Where two actions are pending between the same parties for the same cause, the defendant, in case of their inconsistency, can only require that the plaintiff should elect which of the two he will proceed with. If one of the two be dismissed before any exception to their inconsistency, it is enough.</p>

The plaintiffs sued the defendants on a promissory note for $2,240, and attached, at New Orleans, on the 16 February, 1846, as defendants’ property, two flat boats, with their cargoes of pork and beef.

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

<p>An attachment will not lie in an action for damages ex delicio.</p>

It is clear that the plaintiff has property limited his action t'o the -redhibition of that portion of the pork which was unsound, and that he was eve.n compelled to affirm the contract as to the other portion which was not effected with the redhibitory defect.

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

<p>Property of a succession offered for sale at twelve-months’ credit under a fi. fa., may be purchased hy the executor, for the benefit of the succession, with a view to obtain an extension of time for .the payment of the debt; and a twelve-months’bond, executed by him fortheprice, will he valid. The effect of the adjudication was not to acquire for the succession property it did not previously possess, nor to change the nature of its title. The heirs alone can complain of the purchase. If they repudiate the act on the ground that the price offered hy third persons for the property was adequate, the only consequence will be that they may insist on the executor’s taking the property, and accountingto them for the price.</p> <p>A judgment is not satisfied, nor novated, by the taking of a twelve-montbs’ bond fot the. price of property sold under a fi. fa.</p>

<p>Under the stat. of 6 April, 1843, see. 2, the commissioners for the liquidation of banks were entitled to compensation at the rate fixed by that section, until superseded by the appointment of a liquidator under the stat. of 4 May, 1847. The salaries allowed by the stat. of 1843, were not limited to the period .of four years, mentioned in sec. 25 of the stat. of 14 March, 1842.</p>

<p>Appeal, by the opponent, from a judgment of the Fifth District Court of New Orleans, homologating a tableau of distribution, Buchanan, J.</p>

<p>APPEAL from the District Court of Concordia, Mayo, J.</p> <p>cited Story on Bills, ss. 310, 312. Bailey on Bills, 302.</p> <p>cited Bloodgood v. ’Hawthorn, 19 La. 128. 12 Rob. 231.</p>

<p>The acceptance by the judge of the cesswbonorum made by an insolvent does not vest the property absolutely in the creditors, so as to confer on them a right of ownership, or do» minion over it. The property remains in their hands only as a pledge, which they are bound to have sold, in order to distribute the proceeds among themselves, and to pay the surplus, if any, to the ceding debtoi;. The cession is not* a giving of property by the insolvent in payment to his-creditors, by which interest is arrested. The interest forms a parfc’of the debt, which the creditor has a right to exact till the entire payment of his demand ; conse. qnently where the property surrendered is sold on a credit interest is due, not to the date of the sale only, hut to the time of the distribution.</p> <p>Where' a judgment has been obtained on a note, the note itself becomes merged in the judgment, and can only he severed from it by the reversal or recisioii of the judgment.</p> <p>Where a debt, originally evidenced by a note, but subsequently merged in a judgment, is placed on the schedule of an insolvent, the debt, whether described in the schedule as a judgmentor a note, will vest in the syndic in the form in which it existed at the date of the cession. If the erroneous description of the debt, as being by note instead of judgment, was fraudulently made, and injured the sale, the creditors alone cat) complain.</p> <p>It- is-the duty of syndics to administer estates confided to .them with economy, and, in case of any abuse of their trusts in this respect, the creditors will be relieved.</p>

<p>Where plaintiff enjoins the execution of a judgment-atthe same time that he sues to annul it, and, on a judgment being rendered dissolving the injunction with damages and interest appeals therefrom, giving bond with surety to pay such judgment as may be rendered on the appeal, the surety will be bound, in case of the judgment being affirmed, only for the damages. interest, and costs of the^iction of nullity, and not for tbe amount of the original judgment. ^</p>

<p>Decision in Dv/pay v. Bemiss, 2 An. R. 509, as to the jurisdiction of the courts of the United States touching-successions under administration, affirmed.</p> <p>A sale under execution of promissory notes, made without appraisement, is void. C. 3?. 671 to 680.</p> <p>A sale of promissory notes belonging to a debtor, made under ají. fa., without their having been taken possession of by the marshal, is void.</p>

The Object of this suit against the garnishee is, to annul a contract made in fraud of the rights of plaintiffs, creditors of the defendants. We contend: 1st, that the contract, which we attack, is invalid; and 2d, that if invalid, the court may administer the proper remedy, I. As to the validity of the contract. Contracts are valid or invalid, according to the law of the place where they are made, an'd the law controlling the parties who make them.

<p>An administrator will not be liable personally for the costs of a probate sale made at his instance to effect a partition, though subsequently set aside for informalities, where the proceedings to effect it were conducted by counsel, contradictorily with the heirs, and the sale was made under a decree of the court. Having proceeded in good faith, and used the precautions which prudence suggested, the error cannot be imputed to negligence, nor render him personally answerable.</p> <p>Services rendered by counsel, necessary for the settlement and partition oí a succession, enuring to the benefit of all the parties in interest, mast be borne by the succession.</p> <p>Where an -administrator, in the exorcise of a sound discretion, deems it necessary for the security of the property under his administration thatitshould .be insured, it is his duty to ensure it, and the costs must be borne by the succession.</p> <p>Where one of several co-proprietors of a lot of ground pays fcr the whole cost of pavements made on the requirement of the city authorities, and for which the property was bound and the co-proprietor individually liable, having an interest in .discharging the debt he will be ,subrogated to .the rights of .the paver, and may recover irom his co-proprietors their proportions.</p>

<p>APPEAL from tho District Court of Jefferson, Clarke, S.</p>

<p>Where, after the dissolution of the community by the death of one of the spouses, the survivor, as tutrix of a daughter, becomes a party to a marriage contract of the latter, in which itis declared that the daughter is entitled to a certain portion of land belonging to the community, and the daughter subsequently mortgages that portion of the land to a third person, referring in the act to the land as that described in the marriage contract, the surviving wife will be estopped from questioning the title of the daughter to that portion of the land. Per Curiam-. Even if she made an unintentional mistake as to the quantity, her innocence will not protect her, for the rule is that, where one of two innocent persons must suffer, he shall suffer who by his act occasioned the confidence and loss.</p>

contended that the allowance of interest should be determined by the laws of the Slate, which was the place of the contract, citing Story’s Conf. Laws, ss. 284, 287. 3 Wheaton 101. 10 Ibid. 367. 1 La. 249, 254,528. Story on Bills, p. 598.

cites Cbitty on Bills, ed. 1839, p. 277, and notes. Story on Bills, sec. 207 and notes. Story on Notes, sec. 137, and notes. cited Chitty on Bills, p. 278 to 284. 13 La. 216, 217, contending that plaintiffs, by taking a check from a person of whom they knew nothing, and about whom they made no enquiry, were guilty of negligenco.

Flower took the bill under suspicious circumstances, and not in the usual course of trade. When the maker of a note shows it got into circulation by fraud, th& onus is on the holder. 6 Wendell, 615. 12 lb. 484. 13 lb. 605. The holder must be such bona fide, have taken the paper innocently in the usual course of trade, and need not account for his possession unless suspicion be raised. 3 Kent, 80. Miller v. Race, 1 Burr, 452. Grant and Vaughan, 3 Burr, 1516.

<p>The presenting of a claim to the representative of a succession ia in the nature of an amicable demand, and is governed by the same rales.</p> <p>The fallare to make an amicable demand is no ground for dismissing the proceedings,and no bar to a recovery; and unless the want of such demand be pleaded in limine litis, proof that . , , it was not made is not required.</p> <p>The court having jurisdiction in the matter of a succession may order so much of the property to be sold, at the instance of a debtor, as may be necessary to satisfy his demand. Such an order may be applied for by rule ; it is not necessary that the proceeding should he by petition.</p> <p>Where a claim against a succession is liquidated, the creditor is not required to institute ail action ill the ordinary form against the succession to enforce payment; he may proceed summarily by rule. C. P. 991, 992.</p>

<p>APPEAL Appeal from the Fourth District Court of New Orleans, Slrawbridge, J. The facts of this case are stated in the opinion infra.</p> <p>1st. There was gross negligence on the part of the plaintiffs, the drawees of the bill in question, in paying the same when the signature of the drawer, their customer, was a manifest forgery. 2d. There was gross and unnecessary delay and negligence, in not discovering and communicating the fact of the forgery of the defendants, in time to enable them to preserve their remedy on the bill, against all antecedent parties. 3d: There was no knowledge, negligence or laches, nor any direct or indirect representations, or any other act on the part of the defe'ndants calculated to lead the plaintiffs into error in regard to the payment of -the bill. 4th. These facts amount in law to a complete bar to the plaintiffs action, to recover back the money paid in discharge of the bill. See Story on Bills, (last ed. 1847,) s. 451, and note. 6th Taunt. Rep. 76. 3d Barnes and Cress. 428. 9th Barnes and Cress. 902. 17 Mass. Rep. 1, 33. 13 Seargt. and Rawle, 318. 4 Dali. 234. IstBinney, 27. 10th "Wheaton, 333. Civ. Code, art. 2288. 2 Pardessus, 451. 4 Piar, and Johns. 376. 3d Johns. Cas. 5, 259. 1st Wendell, 433. 6th lb. 445. 6th Cowen, 484.</p> <p>It is proved that the defendants’ customers, BrittonnnA Co., took the bill from a person recommended to them by the most respectable introduction. It does not appear that either the defendants or Britton and Co. had any acquaintance with the signature of the drawer, or with that of the payees, Pike and Hart; so that they are not at all in fault, for tbe discovery was not in their power, and they had no reason to suspect a forgery-It is proved that plaintiffs are the factors of the drawer; that, when the bill waepresented, they neither had funds of his, nor his crop in their hands; that they had not received the letter of advice, usually preceding his drafts on them; and that the imitation of Conrads signature was so bad, that any one familiar with his signature could easily have discovered the forgery. It is proved that more than a week had elapsed since the payment of the bill, when the forgery was notified to the defendants and the return of the money demanded. The plaintiffs were in fault for not discovering and giving notice of the forgery immediately. And they are without excuse, for their attention was directed to an examination of the bill, by the extraordinary circumstance attending the draft; and with their familiarity with Conrads signature, they would have detected the forgery had they heeded the call for their scrutiny and examined the signa, ture. See the cases of Price and Neal, W. Blaekstone, 390. Cocks, v. Master-man, 9 Barnes and Cress, 902. Smith v. Mercer, 6 Taunton, 76. Levy'!. Bank of the United States, 1 Binney, 29 ; and United States Bank v. Bank of Georgia, 10 Wheaton, 333. '</p> <p>1st. It is plain from these cases that the diligence in giving notice after the discovery of the forgery is not sufficient, there must be no delay in the discovery.</p> <p>2d. Any prejudice or injury to the holder arising from the delay to give him notice of the forgeiy, releases him from his obligation to return the money. In the earlier cases it was held that the holder ought not to be obliged to refund under any circumstances, although he could not have enforced payment, and although he had immediate notice of the forgery, because the drawee was bound to know the hand-writing of the drawer, and, because the holder, being ignorant of the forgery, ought to have the benefit of the accident of such payment by mistake, and not be compelled to refund. The later decisions have permitted the recovery where the forgery was discovered, and notified on the day of the payment, because the holder “is enabled to proceed against-all the other parties precisely the same as if the payment had not been made, and consequently the payment to him has not in theleastaltered his situation, nor occasioned any delay or prejudice.” Chitty on-Bills, pp. 462, 464. Under the modern doctrine, the holder cannot refuse to return the money, unless he has been injured by the delay to give him notice. Now, it may be said that the parties prior to these defendants are responsible to them without notice, under their guarantee of the genuineness of the bill, and as, in the cases of Cocks v. Mastermann, and Smith v. Mercer, the holder’s recourse on his endorsers had been entirely destroyed bythe-delay, those cases are not conclusive on this, for these defendants have not lost their recourse by the delay. But none of the authorities make the loss of all remedy the only sufficient injury to constitute a defence. When Chitty, in commenting on Smithy. Mercer, remarks that Gibbs, J. was the only judge who put the case on the true ground, viz: the loss of the holder’s recourse, he means the true ground as distinguished from the old doctrine taken by Dallas and Heath, J., the ground of injury by the delay, as distinguished from the doc- ] trine of mere neglect of duty on the part of. the drawee. Chitty means that the only true ground of defence is, an injury from the delay ; he does not mean, that the injury must be, as in that case, the loss of all remedy against the prior parties. For, as we have seen when he gives the reason for which the recovery is allowed where no delay has occurred, he says the holder “is enabled to* proceed against all the other parties precisely the same as if the payment had-not been made, and consequently the payment to him has not in the least altered his situation, nor occasioned any injury or prejudice.” These are Chitty’s expressions, and they imply clearly that if the payment has in the least altered-the-situation of the holder, or occasioned him any delay or prejudice, the drawee cannot recover. Now, if it be true that the defendants have a remedy against all their prior parties, it is also true that by the delay of notice of the forgery they have suffered a delay in the exercise of their remedy, and this, in the expression of Chitty, “any delay or prejudice,” will prevent the drawee’s recovery. The delay is sufficient without evidence of prejudice, for the law will-presume an injury from the delay. “ Proof of actual damage may not always be within the holder’s reach, and, therefore, to confine the remedy to cases of the sort, would fall far short of the actual grievance. The law will, therefore, presume a damage, actual or potential, sufficient to repel any claim against the holder.” Story, J., United, States Bank v. Bank of Georgia, 10 Wheaton, 344.</p> <p>If the plaintiffs had not paid the bill it would have been returned immediately to Britton and Co., who might have recovered the amount of their endorser. Non constat but that he could have been made to pay had steps been munedi- 1 ately taken against him, and during the interval of the delay, his situation may have become worse, and perhaps such that suit had become useless. It is no answer that he was a forger, and had probably fled the country even before the draft was paid. It is a rule of commercial law, that it is no excuse for a neglect of notice to a drawer or an endorser, “ that the chance of obtaining anything on their remedy over was hopeless, that the .persons against whom that remedy would apply were insolvent or bankrupt, or had absconded. Parties are entitled to have the chance offered them.” Chitty on Bills, p. 482. It seems clear on principle, that the same delay of notice that would discharge an endorser must release the holder, who has received payment.</p> <p>3d. But it is-said that this case differs from all the cases cited; that here is a forgery of the payee’s signature, as well as of thatof the drawer; that for the purpose of this discussion, it must be considered that the bill was a true bill; that the defendants, as well as the plaintiffs, are estopped from denying the signature of the drawer, and, .if it be a true bill, that the title is in Pike and Hart; that, as.in an action againstthe plaintiffs, as acceptors, the defendants could not have recovered for want of title, so, having received the amount without title, they must refund it.</p> <p>It is true that in an action on the bill, against the acceptors as such, the proof of title by the endorsement of the payee is essential to a recovery. For though the bill be forged, such an action implies its reality. But is this .implication unavoidable in a action against the acceptor of,a forged bill? Where the fact is that the bill was not drawn by the drawer upon it, is the holder estopped from alleging and proving that fact ? Is he limited to his .action on.the bill, or has he an action on the obligation of the acceptor to hold him harmless from the consequence of the acceptor’s neglect?</p> <p>It is said that the holder is estopped from alleging and proving the forgery of the drawer’s name, by his guarantee of the genuineness of the bill; but does the holder make this guarantee to the acceptor, whose duty it is to know the signature of the drawer? Is not the holder’s guarantee to the acceptor, merely of his own title to the bill ? If such be the extent of his guarantee, he is not estopped by it from showing the forgery. Again, the action.of the holder is put by Judge Story on this ground : 11 First, that the drawee, before he accepts, is bound, as a matter of duty, to ascertain whether the signature of the drawer is genuine or not; .and next, that, where.one of two innocent persons must suffer, he who has caused a misplaced confidence, or has misled another, or has omitted his duty, shall suffer rather than the other party.” Story on Bills, § 411. An action not on the bill, but on the obligation flowing from the acceptor’s neglect, does not imply the reality of the bill, and as there is no obligation on the part of the holder to the acceptor estopping the holder from showing the forgery, he must be permitted to prove it. Further, as it is not inconsistent with his guarantee of title to show that the payees on the bill never held it, the holder may prove that fact also. Thus, the holder can show that neither by the drawing in their favor, nor by holding the bill in ignorance of the forgery, have the payees on the bill had any title to it. And after proof of that, there is no need of evidence of a transfer of title ; no need of proving the endorsement of the payees.</p> <p>In this case the plaintiffs’ allegations, which they are estopped from denying, are that, the bill was never drawn in favor of the payees upon it; and their evidence, which they cannot controvert, is that, the payees.on it never held it. The plaintiffs have presented the fact that the payees never owned the bill; and if the action were against the plaintiffs as acceptors, they could not require proof of a transfer from the payees. All the cases of refusal of recovery, or of judgment to refund, on the ground of forgery of the payee’s .endorsement, are cases presenting a title in the payees. Hick v. Leverich, 11 La. 573. Canal Bank v. Bank of Albany, 1 -Hill, 287.</p> <p>The plaintiffs are responsible to the defendants, from, their neglect in not discovering and giving notice of the forgery. This responsibility .avails the defendants as a grouud of defence, as it would avail them as a ground of action. Their defence is not on the bill, and there is no implication from it of the genuineness of the bill, and of a title in Pike and Hart. The forgery of the bill, and the absence of title in Pike and Hart, are presented by the plaintiffs’ allegations and evidence, and hence, as there is no need of Pike and Hart’s endorsement, the forgery of it is immaterial. In. testing the defendants’ right to retain the money, the counsel for the plaintiffs errs in the premise of his argumenf, the estoppel of the defendants from denying the signature of the drawer. He has assumed this premise, and in doing so he has assumed a point in controversy, whether the holder is limited to an action on the bill, or has his action on the obligation of the acceptor under his neglect.</p> <p>The technical ground taken by the plaintiffs’ counsel cannot prevail. Indeed, it is inconsistent with the ground of the plaintiffs’ action, which is, that the money must be returned, not because it belongs to the payees, but because it does not belong to the defendants, as having been paid them in an erroneous belief that the bill had been drawn by the plaintiffs’correspondent. The forgery of the drawer’s signature is the ground of their action.</p>

<p>No judgment can be rendered against an absentee, where no property of his has been attached, and he has not personally appeared. The appointment of a curator ad hoc cannot give jurisdiction.</p> <p>Art. 2412 of the Civil Code, which provides that the wifo cannot bind herself for the debts of her husband, according to the doctrine of the civilians, is a personal statute. Itis founded exclusively on the personal relations between husband and wife, and is confined in its operation to married persons within our jurisdiction. The disability to contract, which it establishes, exists only in a certain contingency, that of the debts not inuring to her boncf t, and that contingency is strictly personal.</p> <p>The incapacity of a married woman to contract is of the same character as that of a minor, and the laws creating the incapacity of the latter have always been classed among personal statutes.</p> <p>Those statutes are real, in contradistinction to personal, which regulate directly property, without reference to the conditioner the capacity of its possessors.</p> <p>Where a married woman domiciliated in another State, to secure a debt of her husband, mortgages, by an act executed at her domicil, real estate in this State forming part of her separate property, the act, if valid in point of form, and authorized by the laws of her domicil, will be enforced here. Per Curiam: Such an act conflicts with no law of this State, and no reason of comity would authorize a court here to relieve the wife from its effect. It interferes v/ith no real statute, and the personal statute does not reach it; tho person not being subject to our jurisdiction.</p> <p>The disability resulting from the conditions of persons is personal •, and contracts valid at the placo of the domicil are valid without reference to the situation of the property, so far as fho capacity of the party to contract is concerned.</p>

<p>APPEAL from the Fourth District Court of New Orleans, Strawbridge, 1.</p>

<p>APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>cited Gilbert on Execution, pp. 15, 55. 3 Co. Litt. 135 B, p. 357, Thomas ed. 1 Coventry & Hughes’ Dig. p. 436. 4 Dallas, 321. 1 Nott & McCord 405. 8 Johns. 349.</p> <p>cited C. P. 723, 265. 1 Cowen 592. 1 Lord .Raymond, 251. .3 La. 178. 15 La.-461. 8 Mart. 511.</p>

<p>A bequest of land "on the condition that, in case the legatee should die without posterity and without having disposed of the laud, it should belong to a third .person”, creates a fideicommisswn, prohibited by art. 1507 of the Civil Code'.</p>

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

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

<p>An attachment will not lie in an action for damages ex delicto.</p>

as to the right of the widow to claim from the succession of the husband an allowance for mourning dresses, relied on C. C. arts. 2353, 2389, 2391 ; 3 La. 154, 465 ; 12 La. 129 ; contending that such an allowance could only be made where there was a dowry. cited, to the same point, 14 Toullier, no. 279. 13 Ibid. 243. 14 Duranton, 467. 19 lb. 47. Boileau, Comm, on Code Nap. art. 1570. 10 Mart. 188. C. C. 2353.

<p>APPEAL from the Fifth District Court of New Orleans, Buchanan. J.</p> <p>Plaintiff’s lot is entirely surrounded by a fence on his own ground alone ; the pavement of his alley extends to his very line ; the roof of his house to the same, and his cistern and its foundation to the same line. His whole ground was, therefore, occupied and surrounded before the defendant commenced building his house, or erecting his walls. But article 671 of the Code gives the right to build a party wall only to the proprietor who first builds in cities or towns. The right is by no means given to him who purchases along side of property already built upon. In this case the plaintiffhad enclosed and improved the whole of his ground with buildings and a wooden fence, before the defendant purchased his ground. The article of the Code derogates from the right of property, and should, therefore, be strictly construed.</p> <p>The first wall mentioned in the article is a generic term, equivalent to enclosure, and means a brick or wooden wall.</p> <p>Although the plaintiff first built upon his lot, still his property was not surrounded by walls, and, therefore, the defendant’s right to erect a party wall on the dividing line was in no wise abridged. When the latter proceeded afterwards to build upon the adjoining lot, he found the place surrounded only by a fence, and he accordingly planned his building under the full guarantee afforded in such circumstances, by article 671 of the Code. No other reasonable construction can be put upon this artice. Indeed, the question is no longer an open one. The Supreme Court of this State have already passed upon cases entirely parallel to the one under consideration. “ The object of the legislature was clearly to promote the inclosure of lots, with stone or brick walls, as much as possible ; and the circumstance of ahouse having been already erected on the adjoining lot, does not preclude the party from the benefit of the provision, when the partition or wall does not interfere with any building previously erected.” Larche v. Jackson, 9 Mart. 726. “ The evidence shows that the plaintiffhad built first, and that the place was not surrounded by a wall. Tin? plai ntiff, indeed, proved that, anterior to the time the defendanteommenced this work, a wall had been built on the lot of the former, a few feet from the dividing line. But the walls erected by a proprietor on his property, which stiJI leave a space between them and his neighbors, cannot be considered as surrounding the premises ; they are not division walls, and it is only those which authorize one co-proprietor to refuse permission to another to raise a separation between them on the land of both.” Crocker v. Blanc, 2 La. 532. These authorities are conclusive.</p>

<p>APPEAL from the Second District Court of New Orleans, Canon, 3.</p>

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

argued that the judgment below was .erroneous on various questions of fact, and in condemning the plaintiff to pay the costs of the suit below, the judgment being in his favor for a large poitjon of his claim. “ In every case the costs shall be paid by the party cast.” C. P. 549.

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

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

<p>Where a creditor, who had wrongfully obtained certain merchandize from the shop of hiu debtor, on the eve of his cession, in satisfaction of his claim, has a judgment rendered against him in an action by the syndic for the value of the merchandize, he cannot plead in compensation of the judgment the debt, evidenced by a note, due from the insolvent to him. His only right is to a proportional share of the funds of tho insolvent when distributed.</p>

<p>Where it appears by any evidence that property has been appropriated by judicial authority for the satisfaction of a foreign judgment, the judgment could not have been. _ Rendered executory here, even before the stat. 1 June, 1846, without showing what ,¿ygt disp'ositiqn had been made of the property; it being impossible to say, without such evlrjepne, what amount, if any, is due on the' judgment.</p>

<p>The defendants in the action are the only parties who can take advantage of any inaccuracy in setting forth the title of the case in a fi. fa. issued under the judgment; and their rights, in this respect, will be considered as waived, where they subsequently insist on a sale under the seizure and appraisement.</p> <p>Whore, after the appraisement of property seized under a fi. fa., it is discovered that no adjudication can be made on the day for which the sale is advertized.it being a day of public rest, and the sheriff makes a second seizure of tho property, advertizing it anew, no new appraisement can be made, where the defendants in execution insist on the sale being made under the first appraisement.</p>

<p>Ia an action against a religions corporation, service of citation must be made on the president of the corporation in person, “ or at their office, if they hold such in permanence, by delivery to some of their agents.”</p> <p>The’deolaration of a sheriff on a return on a citation'that A. is agnnt of B., is not proof of the fact; and such a return, unaccompanied by prooí aliunde, will not authorize a judg. ment, at least where A. is not designated in the petition as such agent.</p> <p>A case will not be remanded for farther proceedings where there is an utter absence of legal service of citation.</p> <p>Where a judgmeut has been rendered without citation, the party aggrieved is not restricted to an action of nullity, but may be relieved on appeal. C. P. 60S, 609.</p>

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

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

This is an action against Nicholson, Gardiner and Waters, on a written agreement signed by Gardiner, Nicholson, the plaintiff, and J. M. Mackie.

<p>One in the employment of a merchant, whose compensation depends on the profits of tha 'business, and who, if nothing is made, is to receive nothing, and who is shown on several occasions, to have held himself out as a partner, will be responsible as such to third persons, though, as between themselves, the parties neverintended to create a partnership.</p> <p>Partners have a community of interest in every part as well as in the whole of the partnership effects; and, therefore, a sheriff can only make an effectual seizure of the undivided interest of a partner, and preserve it to abide the result of the suit, by taking actual possession of the entire property attached.</p> <p>Merchandize sold on accredit, for the price of which the notes of the purchaser had been received, or contracted to he sold for .cash, where the price had not been actually paid, while still in the possession of the vendors, is liable to attachment for these debts. C. C. 1917.</p>

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

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

<p>A )tatii-liber may sue for his liberty, unaided by a curator or other person. The appointment of a curator to a statu-liber is only necessary to preserve or administer property, givon or B devised to him after 'he has acquired the right to freedom at a future-time. C. C. Í93.</p>

infra. The judge of the District Court rendered a judgment in favor of the plaintiffs against T. B. Warfield for the sum of $2643 33, with Interest at five per .cent a year, from 12 March, 1844, till paid* and costs ; and in favor of Curneal for $159 21, with interests five per cent, from 30 April, . 1844, with costs.

<p>Where in an action on a policy of insurance on merchandize on board of a barge, which was sunk while in tow of a steamer, the evidence shows that the barge was strong and in good condition, and that it was possible that her sinking may have been owing to some unseen and undiscovered peril ot the river, it would be to extend the doctrine of seaworthiness too far, to avoid the policy because the cause of the accident is not specifically ascertained by the evidence.</p> <p>The general rule is, thafseaworthiness is presumed; but where a vessel springs a leak soon after the risk commences, without any apparent cause from perils within the policy, a new presumption arises of unseaworthincss; but this latter presumption is not conclusive; it may rebutted by evidence.</p>

<p>APPEAL by the plaintiff from ajudgment of the Fifth District Court of New</p> <p>In this case, on the first hearing, the judgment of ■the lower court was affirmed, for the reasons assigned by the judge a quo. The case involved no question of law,</p>

ON an application for a re-hearing, Lewis and Bermudez, for the appellant, urged that the stat. of 20 March, 1827, ss. 3, 5, has modified the Civij ■Code, so as to make the registry of acts such as that executed by Vargas in the office of the register of conveyances in New Orleans, equivalent to their registry in the office of a notary public.

<p>Where a purchaser at a judicial sale of property sold under a mortgage retained by tho plaintiff on a sale of the property to the defendant, takes a rale on the plaintiff to show canse why the sale should not be rescinded, on the ground of the existence of alease made by the defendant and not made known at the time of the sale, the defendant, not having been a party to the jndioial sale, need not be made a party to the rule.</p>

<p>Where the directors of a bank, in consequence of a private loss sustained By their cashier/ make him a payment of his salary for six months in advance, and he afterwards pays himself a second time, by monthly insfalmeafs for the same period, the surety on bis official bond, who had bound himself for the faithful performance of his duties by the cashier, and to save the bank harmless from any negligence or misconduct of his, and that the lattes should render a faithful account of all moneys and effects committed to his charge, will be bound for the deficiency. Such an advance of salary cannot release the surety.</p>

APPEAL APPEAL from' the Fifth District Court of New Orleans, Buchanan, J. The material facts in this case are stated ia the'opinion infra. This controversy presents questions of fact and of law. The question of fact is, whether the Metarie road is a public highway, as claimed by the plaintiffs. The judgment of Governor Galvez, in 1779, establishes that it was the king’s road, and Had bee.n public as long as the memory of man could reach before that period.

<p>See. 2 of the stat. of 25 March, 1S44, confers on the surviving spouse where the deceased ha# not disposed by testament of his or her share in the community, the usufruct of the share of the community property inherited by the issue of the marriage, so long as the survivor shall not contract a second marriage. That share consists of the residue after payment of the debts. The statute does not confer on the survivor the usufruct of the share regardless of debts; nor does it impair the rights, either of the creditors or heirs, to insist on the prompt payment of the community debts.</p> <p>The usufruct created by sec. 2 of the stat. of 25 March, 1844, must he governed by the rules prescribed by the Civil Code on the subject of usufruct; and by these rules either the creditors or the heirs may claim that property subject to the usufruct be sold to an amount sufficient to pay the debts, unless the usufructuary prefer to advance the sums necessary for that purpose. The survivor can preserve the property unsold only by paying or assuming the debts thereby releasing the heirs from interest; in which case he will be entitled to all the fruits produced by the property, they being deemed equivalent to the interest on the sums advanced (C. C. 578, 579); and, in his settlement with the heirs, he mast be ranked as a creditor for the amount of those debts, without interest, and held not accountable for the revenues received during the existenee of the usufruct.</p> <p>Where a surviving spouse, entitled to the usufruct of the share of the community property inherited by the issue of the marriage, is treated in the settlement with the heirs as an usufructuary of the whole share of the community property who has advanced the sums necessary to discharge the debts, he can claim no remuneration, in his settlement with the heirs, for services rendered while administering the property for his own exclusive use.</p>

<p>Where a testator directs that a sum of money shall be placed in the hands of o certain person» to be invested by him in real estate or loaned at interest, as he may deem best, the rent or interest thereupon to be paid monthly to a third person during the life of the latter; and the person by whom the investment was to be made purchases at probate sale of the sue’ cession of the testator a large amount.of property, givingto the executor in part payment of price, his receipt for the sum so to be invested; but the purchaser never invests the sum as directed by the will, and some years after makes á cessio bojiorum, including the property purchased from the succession; on an opposition by the legatee to a tableau presented by the syndics of the insolvent; Held, That he has no legal mortgage on the real estate purchased by the insolvent fi;om the succession of the testator, to secure the principal or interest of his legacy; that the legacy has been discharged, so far as the heirs .could doit; that art. X62G of the Civil Code applies only where the heirs refuse to discharge a legacy; that the opponent has only an ordinary claim against the insolvent, for whose acts ar omissions the heirs of the testator cannot be made responsible.</p>

<p>Parol evidence is admissible to prove that a written act of compromise, by which the creditor released a portion of his claim, was made in consequence of fraudulent representations by the debtor. C. C. 3046. The introduction of such evidence is not prohibited by art. 3256 of the Civil Code; it does not tend to vary or contradict the written act, but to show that there never was any valid compromise, it wanting; the essential element of consent.</p> <p>The rule established by art. 2256 of the Civil Code, which prohibits.the introduction of parol evidence to vary or contradict the terms of a written act. is not infringed by the admission of such evidence to prove a new and distinct agreement to pay a debt released by the written act. Although a debt he released on payment of a part, there remains such a natural obligation on the part of the debtor to pay the balance, as will preclude him from recovering back the amount when paid after the release, or will form a sufficient consideration for a new promise,</p>

<p>APPEAL from the Second District Court of New Orleans, Kennedy, J.</p> <p>The bequest in the will of Stebbins Fisk is valid. It created merely an imperfect usufruct in favor of Abijah Fisk during his life, the-ownership being in the children of Sereno Fisk. C. C. 525,528, 533, 601, 603, 604, 605, 552, 1456, 1460, 1465, 1509, 1515. 17 La. 52. 4 Rob. 302, 410. 1 Rob. 115, 118. 5 Toullier, no. 91, p. 99. The bequest to the children of Sereno Fisk is not a substitution. C. C. 1507. 1 Rob. 118. 4 Rob. 204. 3 Marcadé, 418, 428. 8 Duranton, 62.</p> <p>1. The legacy to the children of Sereno Fisk, was clearly a legacy to those who might be living at the time of the death of AbijahFisk, the first legatee, and not to those living at the death of the testator. Such was manifestly the intention of the testator Stebbins. The words used are prospective, and refer for their effect to the death of Abijah— not that of the testator. “ At his death (that is Abijah’s), it shall be divided and given to the children of Sereno ” The testator does not give, but directs, that at the death of Abijah “ it shall be given.” The expression is clearly a direction or command to Abijah, to render or return the legacy, at his death, to the children of Sereno, who may be then living, and this constitutes a "fidei cammissum” conditional, reprobated by our law.</p> <p>2. At the death of the testator, no interest vested immediately, in the two children of Sereno then living; their interest was conditional upon the survivor-ship ; if they had died before Abijah, their heirs would not have been entitled to the legacy.</p> <p>3. All “ fideicommissa” are expressly prohibited by the Louisiana Code, except vulgar substitutioos, and the case where the usufruct alone is given to one and the property at the same time to another.</p> <p>4. This is not a “vulgar substitution,” because the person first called, to wit, Abijah Fisk, was capable of taking, and did take, the legacy.</p> <p>5. It is not a legacy of the usufruct to Abijah, and of the ownership to the children of Sereno, for the following reasons : 1. The terms of the donation are complete and absolute, embracing the fall property and ownership. “ To my brother Abijah Fisk, I give, devise and bequeath the sum of $>100,000”— not the usufruct of $>100,000, but the absolute property and ownership, “during his natural life.” Had the words just quoted been the only ones used, there could be no doubt that the property itself waa conveyed, and that Abijah had a complete life estate in it. The additional words “for his sole use and benefit, without any security whatever, during his natural life,” &c., so far from diminishing, strengthen the character of the legacy. It is to be “ for his sole use and benefit” daring his life. If, at the same time, the absolute ownership was in another,.how could it be sliid to be for his sole use and benefit.? Ownership is property, and can be sold, transmitted, and used like'any other property. He who has the ownership has a use and benefit int.he properly, as well as he who has only the usufruct. The terms of this legacy give to Abijah Fisk, during his natural life, full, complete, and absolute dominion over it. He can do with it as he pleases — “ without any security whatever.” These last words show that the testator intended to give him absolute dominion over the legacy, and that he should hold as absolute owner, and not as a mere usufructuary. This complete dominion rendered him complete and absolute owner during life (see Civ. Code, arts. 480, 481, 483, 484, &c.); and proves that the property, and not the mere usufruct, was given to Abijah. The same property was given to Abijah during his life, which was to be given at his death, to the children of Sereno.</p> <p>2d. We have attempted to show, that by t.he terms of the legacy, it was the intention of the testator that it should he “ divided and given” to the childreu of Sereno, living at the death of Abijah. If this was his intention, he could not at the same time have intended that the property should vest in the children of Sereno then living, at his own death. A usufruct is defined to be “the right to enjoy a thing, the property of which is vested in another. See Civil Code, art. 525. Whenever, then, there is a usufruct lhere must be, at the same time, an owner of the property in existence. If, then, Abijah Fisk took only a usu'fruct, what become of the property or ownership at the same time? If it vested in the children, of Sereno Fisk, then it vested in the two who were living at the death of the testator, and the three children born afterwards, are not entitled to a cent of the legacy. Again, by arts. 1459 and 1469 of the La. Code, “ donations mortis causa” cannot be made to persons, not “ in esse” at the death of the testator.</p> <p>Three of the present plaintiffs were not “in esse” at the death of Stebbins Fisk; he could not, therefore, make them a donation of the property or ownership, because they were incapable of taking. The construction contended for by plaintiff necessarily excludes three of them from the operation of the will. It is manifest that the testator intended that Abijah Fisk should hold the legacy in full property, and, at his death, return it to the children of Sereno who might then be living. This view is sustained by another portion of the will.</p> <p>After various pecuniary bequests, the testator says : “ Should there be any surplus of my estate, after paying these bequests, I give it to my brother Abijah Fisk; but should there be any deficiency, it shall be taken from the bequest made to him.”</p> <p>Even if the first clause of the will does convey to Abijah only a usufruct in the legacy, still it does not follow that the property was in the children of Sereno. We say that if it did not pass to Abijahhy the first clause, it did by the last, in which he is constituted residuary legatee. Abijah Fisk took the usufruct by specific bequest, and the naked property for his life-time, under the residuary clause; thus uniting usufruct and property, he became for the term of his life, absolute owner.</p>

of 1 June, 1846, in the parish of St. James. This case was argued ex parte by The decision of the case depends on a correct application of two cardinal principles of the law of evidence relating to confessions of guilt; one of which is that the confession must be free and voluntary, and “before it is received in evidence in a criminal case must be shown to have been such.” Greenleaf on Evidence. § 219, vol. 1, p. 263. “ A free and voluntary confession,” said Eyre, O. B. in…

<p>A promise to pay a debt, made by .the debtor after a cessio lonorum, will support an action, ■whether the insolvent was discharged by his creditors or not. If not discharged, the legal obligation resting on him is to pay those creditors whose demands accrued prior to the cession, on hi? acquiring property more than sufficient for his maintenance and for the discharge of debts subsequently contracted; and the only remedy of the prior creditors is to require anew surrender. C. C. 8173. Stat. 20 Eeb 1'817, s. 28. The subsequent promise creates a new debt, which may be recovered in a separate action without requiring a new surrender. -Though the debtor have been fully discharged, the previous debtis a sufficient consideration for the subsequent promise. C C. 1752.</p>

<p>Where a succession, which .owes no debts, consists of property susceptible of immediate division, and all the heirs are present, and one of the heirs of age and the tutrix of the minor heirs oppose the appointment of auy administrator, insisting on an immediate partition, and the appointment of an administrator will only produce unnecessary expense and delay, no such appointment should be made. Art. 1040 of the Civil Code which pro yides that, where there are several heirs, some of whom have accepted unconditionally and others claim the benefit of the term for deliberating, an inventory shall he made, and an administrator appointed to manage the effects of the succession until a partition be made among the heirs, must he considered as modified by art. 976 of the Code of Practice, which requires the appointment of an .administrator only in case some of the creditors require it. Per Curiam: Even in case there are no debts we do not undertake to say that an administrator cannot he appointed. There may be cases in which such an appointment would be advantageous, nay necessary, to the interests of a succession.; and the propriety of subjecting the succession to such a charge, must rest with the discretion of the judge, on the facts before him.</p>

<p>Where one w6o had contracted to erect certain buildings, becomes insolvent, leaving the buildings incomplete, and an instalment of the'price, payable on their completion, unpaid, nothing in the stat. of 18 March, 1844, requires that the owner, in order to entitle himself to apply the unpaid balance to their completion, should have an estimate of the work remain» ing to be done made by any disinterested persons. However expedient such a course may be, it is not required by the statute. Whatever has been necessarily expended in the com* pletion of the buildings, must be deducted from the unpaid instalment. The provisions for a submission to arbitration in sec. 3. of that stat., contemplates only disputes between the contractor and those employed by him, or who have furnished them with materials.</p> <p>By the stat. of 18 March, 1844, relative to riiechanics and laborers employed by builders, and the furnishers of materials, these persons, as against the owner, hold under, and not beyond, the building contract.</p> <p>An account, presented by a furnisher of materials, used in the construction of a building, to the owner, in order that the latter may retain its amount. out of subsequent payments, under the provisions of the stat. of 18 March, 1844, which states the quantity of the materials furnished, the dates of the delivery, the prices, and that they were delivered to the contractor tobe used in the buildings, and is certified by a justice of the peace to have been sworii to before him, is sufficient under the statute. '</p> <p>Under the stat. of 18 March, 1844, mechanics and laborers émployed by abuilder, and those' who have furnished him with materials, who have complied with the provisions of that stat by presenting attested accounts to the owner, are entitled to' any amount, not exceeding their claims, unpaid under the contract at the time of the notice, after subtracting the amount necessary to complete the buildings ; hut the owner cannot he made liable beyond' the amount of his contract; nor will he be liable by reason of any paymentmade to the contractors in advance, where the amount so advanced would have become due before the date of the notification to the owner of the claim of the laborer or furnisher of materials*</p> <p>As to the rights of the laborers and furnishers 6f materials’ inter se, they must share the fund! pro rata; they do not rank in the order of time; and any such creditor for labor'of materials' has a right to participate in the fund until distributed.</p> <p>he judgment of a court of the first instance rendered in an action instituted by the owner of a building praying for a distribution of a balance due by him to the builder among the-laborers and furnishers of materials who had presented him with their accounts under the provision of the stat. of 18 March, 1844, admitting any claimant to a participation in the' fund, cannot he examined on appé'al, where the party dissatisfied has not appealed from! the decision.</p>

Art. 3506 of the Civil Code declares that the prescription established by art. 3505 shall run against minors, &c.; it does not provide that if shall run in their favor. The prescription of fiye years does not run in favor of an absentee. See Guittetv. Erwin, 7 La. 58.0. 12 Martin, 76. Ker v. Erwin, 4 La. 217. Garland v. Holmes, 1 Ann. 404. Such is the law in other States. In Buggies v. Keeler, 3 Johns.

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

<p>Where a special verdict is returned, the jury must find all the circumstances'which constitute the offence, to enable the court to render judgment. No defect in- the statement by the jury can be supplied by intendment or implication. Thus where the carrying away and disposing of the slave of another constitutes no offence under the statute, unless the owner be thereby deprived of the use and benefit of the slave, and the verdict does not state that the carrying away was without the owner's consent, no judgment can be rendered on it.</p> <p>A verdict so imperfeet and uncertain that no judgment can he rendered on it, does not operate as an acquittal, and, even if the prisoner he discharged, is no bar to another prosecution for the same offence. In such a case a venire facias de novo should be awarded,</p>

contended thdt the court erred: Firsts in admitting evidence of a distinct and graver offence (B. & C. Dig. 251, no. 52) committed long previous, for the purpose of proving intent. Archibold’s C. Plead, pp. 68, 212, 246. 2 Russel, 694, 696. Wharton’s Am. Cr. Law, 168, 171,194,345. Secondly, in not charging as asked. 1 Russell, p.597. Rex v. Boyce, Moody’s Crown Cases, p. 30. Rex v. Gardener, Ibid 390. 3 Chitty. B. & C. Dig. p. 246, secs. 24, 270, 145. 9 Blacks. 198.

The facts of this case are stated in the opinion infra. Held: by the law merchant, that if .the acceptor .pay .before maturity, but.do not take up the .bill, or otherwise, by carelessness, permit it to be issued again, he will be compelled to pay again,.to an .innocent holder. Chitty on Bills, ,p. 100, a. eng. ed. 1834. Story on Bills, sec. 417.

<p>Art. 71 'of,the constitution, which prohibits any court from making “ any .allowance by way of fee or compensation in any suit ,or proceedings, except for the payment of such fees to ministerial officers as may he established by law", does not affect the right of an attorney or counsellor to recover the value of his services in an action, or in any other legal mod® in which the parties may preset# the claim for adjudication.</p> <p>A contract made by an executor with an attorney for a certain fee as compensation in full for any professional services necessary in the settlement of the succession, whether any action he instituted by or against the succession or not, may he binding between the parties personally, and y,e.t constitute po charge against the succession, ff an executor wh.o receives commission for his services chooses to devolve the whole labor and responsibility of the administration upon an attorney, he must pay for the services rendered by the latter; they constitute no charge against the succession.</p> <p>The succession will be liable.only for the value of the professional services actually rendered for its benefit.</p>

Orleans, Straivbridge, J. contended that there was no valid contract between the parties. C. C. 1791 to 1803. 6 La. 208. Johnson v. Fessler, 7 Watts 48. Chitty on Contracts (Am. ed.. 1842), pp. 9, 10, notes 1, 2; p. 14, note 1. There was no consideration for defendant’s promise. Pothier. Obi. vol. 1, p. 46. The amount was to be paid to plaintiff, after he had paid the judgment creditors.

APPEAL APPEAL from the Third District Court of New Orleans, Maurian, J. The facts out of which the questions of law in this case arise, are stated in the opinions infra. The judgment appealed from is void for want of a statement of the reasons on which it is founded. The stat. of 27 March, 1835, is unconstitutional, so far as it purports to be retrospective.

<p>Where the demand in one case is made by a party in his own right, and in another as executor, the demand not being between the same parties in the same capacity, a judgment in the first case cannot have the force of res judicata in tlio second,</p> <p>The exception rei judicata is stricti juris; and if there should be any doubt as to the identity . of the things claimed, or of the persons claiming them, it cannot be maintained.</p> <p>In an opposition by one who had been a surety on a custom-house bond, to a tableau of distribution presentedby the syndics of the principal, the opponent’ may show by whom a judgment rendered on thebondhad been paid, notwithstanding a’statement’in the marshal's return that it had been paid by a different person. Per Curiam: The statement by the marshal formed no part of the return required by law; and, if it had formed a part, could not take away the right to prove that the opponent had refunded the amount, or a part of it.</p> <p>A surety on a oustom-bousebond, who paid its amount to the United States while the Code of 1808 was in force, became thereby subrogated to the rights of the United States, against the principal, to priority of payment and interest out of the property of the principal. B. 3, tit. 3. art. 151.</p> <p>Under the Code of 1808, b. 3', t. 3;- art. 151, subrogation took place of right for the benefit of one who, ■ being hiinself a creditor, paid another creditor whose claim was preferable to his own.</p> <p>Prescription against the creditors of an insolvent is suspended by a cessio bonorum. TI10 property ceded by the insolvent is the common pledge of his creditors; and that pledge continues as long as there are asset's to be divided.</p> <p>Whore there is doubt upon a question of res judicata, tho party against whom the plea is set up should have the benefit of that doubt.</p> <p>A judgment homologating a tableau of distribution presented by the syndic of an insolvent, and declaring that it shall st and " as the final tableau of distribution of the funds in the hands of the syndic,” on which a creditor, who opposed the homologation, was placed as an ordinary creditor, cannot be pleaded as res judicata to an opposition by the same creditor, to a second tableau, for the distribution of other funds, on which he claimed to be placed as a privileged creditor for the same debt. The homologation has the force of res judicata only as to the funds proposed to be distributed by the first tableau.</p>

The facts of this case are stated in the opinion of the court. 1.

<p>The omission of a person elected to the office of sheriff to give bond within twenty days from the date of his commission, as required' by the stat. of 20 April, 1847, does not, ipso Jacio, .operate a forfeiture of the office. -If a bond be subsequently executed, be will be thereaf* ter competent to execute process.</p> <p>The omission by a sheriff togiveabond as collector of taxes, does not, per se,-affect-his capacity as to the execution of judicial process.</p>

Martin, Overton, J. contended that by payment of the twelve-months’ bond he became subrogated to the rights of the judgment creditor. C. C. 2102, 2157. 8 Mart. 706. 1 La. 401. 6 La. 63, 474. 11 La. 50. Lewis, on the same side.

<p>An action on a contract made with an association must be Brought in the name of all the individuals composing it. if unincorporated, (G. C. 437); if incorporated, in its corporate name. C. C. 433. No recovery can Be had in an action on snob a contract by the president of the association, where the prayer is for a judgment in his favor individually.</p>

Martin, Overton, J. for the plaintiff, cited C. P. 709, 684. 1 An. 32. 2 An. 119. This is an action of mortgage, in which the plaintiff prays that the defendant, who is the owner and in possession of a certain town lot and brick building erected thereon, alleged to be mortgaged for one-third thereof, as security for the payment of a sum due him by two individuals, be condemned to pay him said sum, and that the property be seized and sold to satisfy his demand.

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

Mary, Overton, J. Actions do not abate by the death of the parties. C. P. 21, 120, 361, 903. 1 La. 111. 6 La. 301. 11 La. 357. 6 Rob. 44. 1 Rob. 521. No proceeding can be had, after the suggestion of the death of a party, till his heirs are made parties. 5 Mart. N. S. 430. 3 La. 527. 10 La. 396. 5 Rob. 2.

<p>The wrongful withholding of notes or other evidences of debt, cannot subject the party to greater damages than would result from retaining a sum of money equal to their amount, which cannot exceed the interest. C. C. 1928, 1929. Proof that the creditor could have used the evidences of debt or notes to greater profit, cannot authorize any other damages than the amount of interest.</p>

Martin, Overton, J. The facts of this case are stated in the opinion of the court. cited 3 Toullier, nos. 8, 11, 17, 386, 422, 4.24, 469. Pardessus, nos. 6, 234, 236, 237, 238. Domat, b. 1, tit. 12, sec. 1, no. 2. Codo of 1808, Serv. art. 05.. C. ,C. 749, 774. Orleans Navigation Co. v, New Orleans, 2 Mart. 25, 201.

<p>Appeal by plaintiffs and defendants, from a judgment of the District Court of Lafayette, Overton, J.</p>

<p>APPEAL from the District Court of Lafayette, Overton,-J.</p>

<p>An affidavit at the foot of a petition for an injunction in these words, " that facts and allegations contained in the foregoing petition are true”, is insufficient, no specific fact, rendering an injunction necessary, being sworn to.</p>

<p>Wliore a female child, a slave, was sold, while the Code of 1808 was in force, by a written instrument, reeiting that the vendor “ in consideration of a solemn promise made to him by the purchaser to manumit and sot free the said female slave and of a certain sum (the amountof which is stated in the act) bargains, sells and delivers the slave to the purchaser with full power and authority to manumit her," the sale will be considered to have been made to insure her emancipation. The emancipation was an essential condition without which the sale would not have been made, and was to be regulated by considerations of the slave’s own welfare, and the laws of the State. She did not become free on attaining the age of thirty years ; but her right to have her condition adjudicated upon, and her emancipation and that of her children ordered, so far as her owner was concerned, unless there was some lawful impediment, then became complete. Moreau & Carleton’s Partidas, part. 3, tit. H, law 8. C. C. 185, 174. C. P. 103.</p>

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

<p>On an appeal to a District Court, taken by a land holder from the report of a jury of freeholders appointed to lay out a road, assessing damages for the injury sustained by him inconsequence of the opening of the road over his land under a resolution of the police-jury of the parish, the president of the police jury, being a mere nominal party, is compe tent as a witness. Nor can the members of the jury who laid out the road and assessed the damages be excluded, on the ground that, being proprietors of adjoining lands, they Were interested in the manner of laying out the road, and, consequently, in the event of the appeal. The objection goes only to their credibility.</p>

<p>The liability of a Surviving wife for the debts of the _successioa of her husband resulting from acts of improper intermeddling, cannot be enforced by an opposition to a tableau of distribution presented by her as bis administratrix; it must be established in a separate action. In presenting a tableau she acts in her representative capacity, and, in the litigation which may arise upon it, she can only be held to a strict accountability for the property confided to her administration.</p> <p>A wife has a tacit mortgage on the immovables of her husband for the reimbursement of paraphernal effects alienated by him; and this mortgage is not required to be registered to give it effect against third persons.</p>

<p>A minor, whoso father is dead and who resides with his mother in. another State, is properly rep" resented by a curator ad hoc, in an action in which it is prayed that he may be joined as one of the plaintiffs, when his mother has never been confirmed or sworn as his tutrix, and he is unrepresented here or elsewhere by any tutor or guardian. C. C. 116. Until her confirmation and oath as tutrix, the mother was incapable of representing him. O. 0. 328.</p> <p>Where after the dissolution of the community by the death of- the wife, the husband neglects to cause any partition to be made, and subsequently administers the common property, he will be liable for one half of the nett revenues of the community property from the date-of the dissolution of the marriage. Sums due on contracts bear interest from judicial demand though unliquidated; but, in a case like the present, where the judgment includes the revenues to the date of the decree, interest can only be allowed from that date, and not from judical demand. _ '</p> <p>After the dissolution of the community by tlie death of the wife, the surviving husband can sell only his interest of one half in a slave belonging to the community.</p>

<p>APPEAL from the pistrict Court of Layette, Overton, J.</p> <p>It is contended that the attachment bond being ¡void as to the principal, cannot be enforced against the surety. According to the general principles..of law, this would be correct; but this case is an exception. It }s true that suretyship can only be given for the performance of a valid contract; but one may become surety for an obligation from which the principal debtor might get a discharge, by an exception personal to him, such as that of being a minor or married woman. C. C. 3005. Art. 3029 of the Code says that, the surety can oppps.e to the creditor all the exceptions belonging to the principal debtor, and which are inherent in the debt; but he cannot oppose exceptions which are personal to the debtor. Pothier says: “La nullité de I’obligation passé.e par la femme, n’étant aujourdhui que relative, celie du fidejusseurdoit étre yalable.” Pothier, Obligations, vol. 1, no. 194. Toullier is of the same opinion. Vol. 6, no. 393, 394. But this question has already been .decided in the case of Leckiey. Scott et al, 10 La. 416.</p> <p>The policy of our law declares the wife and husband incapable of contracting with one apother .except in certain cases. A .contract of this kind would be destructive of domestic peace and contrary to good morals. The law, so long .as the community exists, regards the husband and wife as one, apd as possessing a common interest. The obligation contracted by the wife in favor .of th.e husband, was one reproved by the law, and .to which the surety could not accede. Any damages.recovered against the surety formed a part of the community of acquets. .0. C. 1784, 2214, 3215.</p> <p>Pothier, on Obligations, in defining the rights of sureties says: “As the ¿obligation of sureties is, according to our definition, an obligation accessory to that of a principal debtor, it fojlotys that it js of the essence of this obligation that, there should be a valid obligation of a principal debtor; consequently if the principal is not obliged, neither is the surety, as there can be no accessory without a principal obligation; the rule of law being: ‘ Cúm causa principalis non consistit, ne ea quidem quse sequuntur, iocumhabent.” ’NTo. 367. He states that surety cannot make a valid accession to the obligation of a woman, who obliged herself contrary to the prohibition of the Senatusconsultum Velleianum ; that, the obligation being contracted contrary to the prohibition of the law, is, in point of law, regarded as null, and, consequently, cannot serve as .a foundation to the obligation of a surety.” No. 395. Also, that, the engagement of surety on an obligation contracted by a married woman without being authorized, is n,ull and void.</p>

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

<p>Damages may be recovered against a police jury for injury sustained in consequence of any illegal obstruction to the navigation of a river, resulting from neglect in the management of a draw-bridge by persons for whose acts the jury were responsible. '</p>

<p>Wherever a tract ofland is entirely surrounded by other estates, whether they belong to one or more proprietors, and there is no way from it to a public road, the law gives the owner an absolute right to a servitude of way, which must be generally taken on the side nearest to the public road- (O. O. 696, 697); and this rule should only be departed from for weighty considerations. But the most direct course may be deviated from in the construction ofthe road, with a view to render the servitude less onerous to the land over which the road is laid out; and the proprietor of the land over which it passes is entitled to indemnity for the injury sustained by him from its construction.</p>

<p>The action of rescisión for lesion beyond a moiety is personal to the original vendee, and cart., not be maintained against a subsequent purchaser in good-faith. Art. 1871 of our Code iff substantially the same as art. 1681 of the Code Napoleon, from which our law on the subject of lesion beyond moiety was taken, with the exception that the provision in relation ter third persons hds been entirely omitted.</p>

<p>Where two persons qualify as joint administrators of a succession, and there is no severance of their duties, they will he responsible, in solido, for the proceeds of the sale of the effects of the succession which have come into their hands. In such a case the administrator who seeks to relieve himself from responsibility for a dilapidation of the funds received, must show that it was occasioned by no neglect of duty on his part. There is no reason why the rule of responsibility in solido, established by art. 1674, incase of a joint administration by executors, should he confined exclusively to that class of administrators.</p> <p>Interest is due on any balance found to be owing by an administration to a succession, from the date of the judgment establishing the debt. The amount must be considered as due ex contractu.</p>

<p>APPEAL from the District Court of Caddo, Compelí, 3.</p>

<p>After conviction ci a slave tried for murder before a tribunal organized under the stat. off Jase, 1846, judgment will not be arrested on the ground that he was not arraigned, and did not plead to the charge, where the record shows that he was defended by counsel, and the court state that he was convicted after an impartial trial. Under the stat. of 1846, objections not relating to the substance of the prosecution cannot be considered on appeal.</p> <p>Where the day fixed for the execution of a sentence of death pronounced against a slave convicted before atribunal organized under the-stat. of 1 June, 1846, passes by, pending an appeal, the Supreme Court have no power to fix another day.</p>

<p>An accommodation endorsee of a promissory note has no right, on being sued, to require the previous discussion of the property of the drawer.</p> <p>Where an accommodation endorser of a note joins in an act executed by the maker, 'and holder, before the maturity of the note, by which certain securities are given for its payment, and the time of payment is deferred,! declaring that he agrees to the arrangement, and holds himself liable for the final payment of the notes “ as endorser or security ” notwithstanding the postponement, and it does not appear from the terms of the agreement that any change was to he made in the' obligations of the debtors adversely to the creditor, the use of the words “ endorser or security ” will not he considered as releasing the endorser from the obligations of his endorsement, and binding him merely as a surety. As to the maker, he was merely as a surety; and the words must be considered as used in reference to him. O.O. SOUS,</p>

<p>APPEAL from the District Court of De Soto, Taylor, J.</p>

The facts of this case are stated in -the opinion of the court, infrd. The only .question in this case is, whether a citizen of this State, and who is actually in this State at the time of his death, can dispose, by will, of his property in this State, especially if immovable, except under the forms and in the mode perscribed by our laws. The counsel who maintain the validity of the will, rely on art. 1589 of the Code.

<p>APPEAL from the Court of Probates of Avoyelles, Baillio, J,</p>

<p>APPEAL from the District Court of Claiborne, King, J.</p>

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

<p>APPEAL from the District Court of Morehouse, Copley, J.</p> <p>cited Smith v. Bradford, 17 La. 266. Newman v. Willson, 1 An. 48, as to the right to recover counsel fees as damages.</p>

<p>Where a note was made by an individual, and endorsed by several persons for his accommodation, to enable the maker and the plaintiff to carry on a partnership, and was delivered by the maker to his partner during the existenceof the partnership, the endorsers must he considered as mere, sureties, whose obligations -are limited by that of their principal, the maker; and, to enable the plaintiff to recover against one of the endorsers, a settlement of the partnership must have been made.</p>

<p>Where a succession is solvent, and the whole property of which it is composed is under the care of the administrator, he is authorized to make any necessary advances for the support of the surviving widow in community and of the minor heirs; but such advances must be charged to the widow and the minor heirs, who, on a partition of the succession, will be considered as having received the amount so advanced on account of their shares, and the administrator will be entitled to credits accordingiy.</p>

<p>APPEAL from the District Court of Caldwell, Barry, J.</p>

<p>The sale of’ property seized under a ft. fa, cannot be enjoined by the defendant in execution', on the ground that it does not belong to him, but to others ; it is for the latter to resist the' execution, if they desire to do so. If the property was in possession of defendant as agent for the owners, or as administrator of the succession of any one of them,-‘he might have instituted proceedings, in their names, for their protection.</p> <p>Where an injunction, arresting the sale of property seized under a fi. fa., is dissolved on , motion as to a portion of the property, but, after a trial on the merits subsequently had, is maintained as to the remainder, the creditor will not, by executing his ji. fa. against the' portion as to which the injunction was dissolved, deprive himself of the right to appeal from the subsequent decree perpetuating the injunction as to the remaining portion.</p>

<p>APPEAL from the District Court of Qaldwell, Barry, J.</p>

<p>APPEAL from the District Court of Caldwell, Barry, J.</p>

<p>A sale, made of property seized under a Ji. fa., pending an opposition by a third person, if the opposition be sustained, will be nuil.</p>

<p>A justice of the peace, before whom a party is brought for examination, cannot admit him to bail, if the crime of which he is accused be "punishable with death, or with • seven years, or more, imprisonment at hard labor". Stafc. 31 March, 1807, s. 13. This statute is not inconsistent with art. 108, of the constitution of 1845, nor with the cor. responding art. of the constitution of 1812. These articles are silent in relation to the magistrates who shall admit to bail, leaving the subject to the discretion of the legislature.</p> <p>A bail bond taken by a justice of the peace in a case in which he is prohibited by law from admitting the party to bail, is void; and the State canuofc recover on it.</p>

C.C. 3216. The taking of a special mortgage on other property is not a waiver of it. Howard v. Thomas^, 3 La. 111. 3 Rob. 216. 12 Rob. 279. The law being so settled here, it is immaterial that the opposite doctrine was held in Rome, France, or England. Tropiong, Privil. v. 1, § 199. 2 Story’s Eq. Juris. § 1224. The privilege was preserved by registering the sale. 2 La. 577. Parol evidence to show a renunciation of the privilege is inadmissible.

<p>While the father and mother are both alive, the former cannot be natural tutor to the minor children; hut, as their father, he is, during the marriage, administrator of their estate, and competent to institute judicial proceeding for its protection. C. C. 267.</p> <p>The' validity of a donation made to a minor child by a third person, cannot he questioned by a creditor of the father of the minor, who has no interest in'the property, but simply administers it for his child. The validity of the donation is a matter between the donors and those claiming under them, and the donees.</p>

<p>APPEAL from a of the District Court of Catahoula, Barry, J.</p>

<p>Where a defendant is sued on a note, and pleads, in compensation, another note, for a larger amount, due to him by plaintiff, the latter will not be allowed to amend his petition for the purpose of claiming the amount of an unacknowledged account. The new claim not being equally liquidated with the note pleaded by defendant, nor connected with it, was not a plea in compensation or reconvention. C. C. 2205.- C. P. 375.</p>

<p>PPEAL from the District Court of Catahoula, Barry, J.</p>

<p>APPEAL, by the defendant, from a judgment of the District Court of Catahoula, Barry, J.</p>

<p>APPEAL from the District Court of Catahoula, Barry, J.</p> <p>cited 4 Cranch, 219. 1 Wright’s Ohio Rep. 667. 2 Iredell’s N. C. Rep. 338. 4 Pick, 520. 2 La. 48. 5 Cranch, 356. Shepherd’s Touchstone pp. 51-8. Root’s Conn. Rep. p. 159.</p> <p>Parole evidence is inadmissible to invalidate or explain the bond, unless attacked for fraud or forgery. Police Jury v. Haw, 2 La. 48. 1 Greenleaf, Ev. nos. 275, 278, 282 to 284, 1 Phill. on Ev. p. 548. 4 lb. no. 96, p. 1428; no. 984, p. 1466. A bond prepared for three, but signed only by two, is valid. 10 Mass. 442. 12 lb. 137. 8 Pickering, 322. 15 lb. 511. The testimony of the probate judge was inadmissible, Mathews v. Boland, 5 Rob. 200. Briggs v. Stafford, 14 La. 381.</p> <p>relied on Wells v. Dill, 1 Mart. N. S. 59, 4 La. 551. United States v. Paulding, 4 Cranch, 219.</p> <p>cited 1 Serg. & Rawle, 464. 1 Wend, 47S. 1 Binney, 610. 2 Phill. Ev. 757.</p>

<p>In a proceeding, by motion, against a sheriff, under see. 17 of the stat. of 7 April, 1826, to render him liable in the amount for which aJi.fa. was issued, on account of his failure to return the writ within the legal delay, evidence is inadmissible to show that the defendant ■in execution owned property, while the writ was in the hands of the sheriff, which the latter neglected to seize. Such evidence is inadmissible, though the existence of the property be averred in the motion; but it wouldbe proper in an action lor damages.</p> <p>'The stat. of 7 April, 1826, s. 17, does not impose upon a sheriff, .the payment of the amount for wh'ieh a fi, fa. was issued, as a penalty for his mere failure to make a return within the legal delay; and when proceeded against under that statute he may show any circumstance which would- excuse a failure to execute or return the writ. Proof that he notified the plaintiff of his inability to find any property, and of the defendant’s refusal to give up any -when demanded,is a sufficient excuse, the plaintiff being thereby as fully notified of the officer’s inability to execute the writ, as he would have 'been by a return to that effect made on .tile writ within the legal delay. The object of -the statute is not to punish the officer, but to afford -a prompt remedy to the creditor for any injury he may sustain.</p> <p>•Where in a proceeding against a sheriff under sec. 17 of the stat. of 7 April, 1826, for failing ■to return a Ji.fa. within the legal delay, the writ and the return thereon are offered in evidence by the plaintiff, and there is no averment that the statements in the return are incorrect, they will be considered as true.</p>

<p>* P PEAL from the District Court of Caldwell, Barry, J.</p>

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

<p>APPEAL from the District Court of Ouachita, Copley, J.</p> <p>The amended answer was not too late. Troplong, Vente, nos. 988, 999.</p>

<p>APPEAL, by the defendant Hightower, from a judgment of the District Court of Morehouse, Copley, J.</p>

<p>The statementof a notary of thecity of New Orleans, made onaprotest and certificate of notice, that anote was presented and payment demanded, and notice to the endorsers mailed, by Y. D., “ his lawful and duly sworn deputy,” is sufficient evidence oí the ap. pointment and oath of tho deputy, though the appointment and qualification of the deputy ho expressly denied. No proof aliunde is required. Stat. 14 March, 1844. The stat. of 1S44 authorizes a notary in New Orleans to act by deputy, and to certify to what is by such deputy.</p> <p>The acts of an officer defacto, in actual exercise of the ordinary functions of hie office, are valid as to third persons who may be interested in such acts.</p> <p>The stat. of 14 March, 1844, authorizes notaries in the city of New prieans to employ deputies to make presentments, and demands of payment, of bills and notes. The words of the statute — “in the making of protests," must be understood in an enlarged and popular sense, as comprehending whatever is necessary to the validity of a protest.</p> <p>Where a deputy, appointed by a notary in the city of New Orleans, under the stat. of 14 March, 1844. makes demand of payment of a bill or note, it is not necessary that the deputy should certify the official act. The' notary may certify the acts of his deputy, as well as his own.</p>

<p>A party cannot recover in an action instituted here on a judgment rendered in another State, unless the transcript shows the foreign proceedings to have been clothed with the forms necessary to'a valid judgment in the place where it was rendered. Thus where such a jndgment'purports to have been rendered by confession, but it is left doubtful whether the confession was made by the attorney, or by the defendant, and there-is no writ, citation, declaration or complaint upon which the court'was to pronounce, or the defendant confess, no effect can be given to the judgment hero.</p>

<p>¡Police juries are authorized to establish ferries, and to annex -penalties to violations of the exolnsive privileges they may grant to the lessees of such ferries. Stats. 25 March, 1813 s. 5 ; 24 February, 1843, ss. 17,18. Bat the statutes granting such powers mnstbe strictly construed, and the exercise of the powers conferred limited .to the precise terms of the grant. Where a statute empowers a police jury to declare .the penalties for violations Of ■the rights to ferries which it may accord, hut confers no authority on the police jury to dele, gate to individuals, to whom such ferries maybe leased, the right to enforce those .penalties in civil actions, in their own names, the .authority will he presumed to have been inten. tionally withheld. The jury alone, in their own name, can enforce.the penalty; 'the lessee of a ferry, in such a case, has no remedy for a violation of his privileges, but by an action for damages and an injunction.</p>

<p>Slaves, being immovables, a plaintiff may institute an action fot their recovery either in the parish in which they actually are, or in that of the domicil of the defendant. The fact of their belonging to a succession does not exempt the representative of it from the operation of this rule. C. P. 163,983.</p> <p>A petitory action must be instituted against the person in actual possession of the property claimed, who, if he disclaim the ownership, must disclose the name and residence of the owner, when the action should not be dismissed, but the plaintiff should be allowed to cite the real owner. C.P. 43.</p>

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

<p>In an action of slander defendant may offer, in mitigation, the testimony of a witness to establish that, a short time before the institution of suit, the latter heard a third person tell plaintiff, that the prosecution should not cost plaintiff anything; that plaintiff appeared not to wish to sue ; and that such third person said to plaintiff, that he intended to break down defendant, by lawsuits or otherwise. The jury might infer, from the evidence either that defendant did not consider himself injured, or that he felt conscious of his own culpability and feared an investigation, or that he was drawn into the suit, by a third person, as a means of oppressing the defendant.</p>

<p>It is only in case of a simulated sale, not intended to convey any property, that a creditor can disregard the title of a purchaser, and commence by a seizure. In other cases the sale mnst be attacked by a direct action.</p> <p>Though an act of sals sous seing privé, which had been rendered in the office of the parish judge, do not show upon its face that it was either acknowledged or proved before its registry, tho certificate of the notary that the act was of record in his office, is such prima facie evidence that it was legally inscribed as will relieve the party offering it from the necessity of showing upon what proof it was registered.</p>

<p>In an action by one of two makers of a joint and several promissory note, who bad paid the whole amount in satisfaction of a judgment thereon obtained against him, to recover from his co-obligor one half of the amount so paid, a transcript of the record of the action against the former, to which the latter was not a party, is, in the absence of the original note, or of any evidence of its execution or consideration, insufficient to support the action.</p>

<p>Appeal from the District Court of Caddo, Taylor, J.</p> <p>on the question of the ratification by plaintiffs, of the sale of McNeill, contended that, the ratification must be express. C. C. 2990. The difference between the provisions of this and the corresponding article of the Code Napoléon (art. 1998) will be remarked. In the Code Napoléon it is stated that the principal is net bound by the acts of the attorney, not in conformity with the power, except in so far as he has expressly, or tacitly ratified it. By our Code he is only bound in so far as he has expressly ratified it; the concluding words of the Code Napoléon, “ ou incitement,” having been omitted in the latter, though the articles, in other respects, are identical. The ratification must further be in writing, where land is concerned (2 Greenleaf, Ev. 511).; and must necessarily result from the facts, after a deliberate examination of the acts of the agent. 13 La. 158. The act must clearly and unequivocally evince the intention to ratify (17 La. 293. Story on Agency, s. 242, 253); and have relation to the particular transaction. Minas v. Bernard, 13 La. 175. '</p>

APPEAL fr,om the District -Court of Caddo, Taylor, J. -cited .5 La. 463. 11 -La. 86. 15 La. 171. contended that the injury sustained by the plaintiff might have-been avoided by .ordinary care on his part, citing 2 Starkie, 536. 11 East. 60.

<p>The right to annul a judgment is not restricted to the cases specially enumerated by art. 607 of the Code of Practice. But to entitle a party to such relief, a case must be made out showing that it would be against good conscience to execute the judgment, and that the plaintiff could not have availed himself of the matter in the former litigation, or was prevented by fraud or accident from so doing. If there has been laches or negligence, the party cannot be relieved. The matter must be such as the defendant could not, by reasonable diligence, have known.</p> <p>The release of the sureties of an administratrix authorizes the heirs or creditors to compel her to give new security, but' does not deprive her of the right to collect the debts of the succession, until removed from office.</p>

<p>Appeal from the District Court of Union, Copley, J.</p> <p>cited 9 Rob. 173. 1 La. 196. 6 Mart. N. S. 706. Evans’ Pothier, p. 445, nos. 826, 827.</p>

<p>APPEAL from tbe District Court of Union, Copley, J.</p>

<p>APPEAL from the District Court of Franklin, Barry, J.</p>

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

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

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

<p>ííhe charge of five hundred dollars imposed by sec. 4 of stat. of 12 March, 1S3S, on theatres iti New Orleans, for the benefit of the Charity Hospital, is due every year.</p>

<p>APPEAL from-the District Court of Plaquemines, Rousseau, J.</p> <p>cited Code Just. b. 6, tit. 23, law 8. Code Nap. art. 9B5< French Ordon. of 1735, ss. 33 to 37. Ferrari’s Span. Library, vol. 5, verbo Testamentum.</p>

<p>A donation made to a,city of a hospital, which recites that it was made 11 para que sc puedan recoger los leprosos que hay actualmente en gran numero, y el publico goze de este beneficioperpetuamente, a cuyo efecto desde ora para siempre hace donación en forma, renunciando todo derecho que tenga y pueda tener a dichos edeficios y tierra que lleva bajo de los referidos linderos,” is a donation sub modo, and not a conditional donation, and the donees may, without forfeiting the donation, apply the property to another object than that contemplated by the donor. Per Curiam: There is a material difference between the motives which the donor mentions as being the cause of his liberality, and the conditions lie imposes. The failure of a condition annuls the donation, but it remains valid although the motives expressed as the cause of it be untrue.</p> <p>A donation made for the erection of an hospital, being a liberality por obra piadosa, cannot be revoked for a failure to comply with the .charge or condition on which it was made, unless ¿¡he donor has so provided expressly.</p>

<p>Wher.e a plaintiff, in an action in which there is no reconventional demand, fails to appear on the day fixed for the trial, either in person or by attorney, to prosecute his suit, no final judgment can be rendered against him; the judgment should be one of non-snit. C. P-491, 532, 536,</p>

<p>Decision in Banh of Louisana v. Farrar 1 An. 49, affirmed and extended to contracts with the Citizens’ Bank.</p> <p>The charters of banks in this State hich authorize married women to bind themselves jointly na&in solido with their husbands, in any hypothecary contracts or obligations entered into by the husband with those banks, place dotal and paraphernalproperty on-the same footing.</p> <p>Decision in Citizens' Banh v. Nicolas, ante p. 112, affirmed.</p> <p>Where a surety signs an injunction bond in blank, which is afterwards properly filled up, his liability will attach from the time of his signature.</p>

Coiron belonged to Bouchard. He was an absent creditor, cited through the attorney appointed by the court to represent the absent creditors; but, as an absent creditor, he had a right to decline any participation in the insolvent proceedings, and to prosecute his remedy in the Federal court. He selected that course, and refused to become a party to the concurso. In the moan time the property surrendered was sold.

<p>The owners of a steam towboat are responsible for any injury to another vessel, occasioned by the steamer’s having a tow so much bey.ond her .capacity as to disable her powers of locomotion.</p>

<p>An appeal not filed within three judicial days after the return day, where the failure does not result from any neglect on the part of the clerk or other officer, and where no extension of timo has been granted, must be dismissed.</p>

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

<p>'Wksre In an action against co-trespassers tile action is tried as to one of them separately, any objection thereto must he raised by the op-defendant before going to trial on his own case, or it will he too late.</p> <p>Where a person employs others to commit a wrong, the party aggrieved is not required to make the persons so employed co-defendants in an action for damages against the principal. To construe art. 2304 of the Civil Code as requiring this, would be inequitable. Nolis the plaintiff in an action against a principal trespasser and others employed by him, debarred of the right to obtain, from a jury, a higher verdict against the principal than against those whom he instigated.</p>

<p>Where the master of a vessel employs a broker to procure a freight, and the latter introduces to the master a party having merchandize to ship, •which the master declines to take on the terms offered; but, a few days after, while the broker is still employed to procure a freight for him on better terms, concludes, through another broker, a bargain with the same patty on the terms first proposed, and pays him his brokerage, he will be bound to pay a brokerage to the first broker. Per Curiara: To enable the defendant, under such circumstances» to defeat the broker’s claim for commissions, by taking the'identical offer, through another broker or directly by himself, would enable him to commit a fraud upon the plaintiff.</p>

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

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

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

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

<p>APPEAL ffom a judgment rendered by & justice of the' peace in New Orleans.</p> <p>cited stats. 8 March, 1836, and 14 March, 1846. Const, art. 128. 4 Blacks, p. 118. 10 Wendell, 101. 2Cowen,3I6,</p> <p>The resolution should have been of a general character; directed against the defendants personally, it is illegal. Lex esi commune precept-urn. Jura non in singulas personas, sed generaliter conslilu-untur.</p>

relied on Russell v. Wiggin, 2 Story 214. In FonPltulv. Sloan, 2Rob. 145, the bill is drawn instrictconformity to tbedirections, and contained the memorandum that it “ was drawn as authorized by E. C. Sloan’s, (the defendant’s) letter of credit of 12th of same month.” But tlie Supreme Court said that to make parties liable under such collateral acceptances, it is required'that the promise or undertaking should point to the specific bill or bills. “ To supply the-place of a…

<p>The jurisdiction of the Supreme .Court as to fines under $300 in amount, imposed by municipal corporations, is limited to .cases jn which the constitutionality or legality of the fine is contested.</p>

<p>APPEAL from the Fifth District Cojiut of New Orleans. Buchanan, J,</p>

<p>Where a hill of lading is executed for certain cases of domestics, with particular marks and numbers, the words “ contents unlcnown” being written above the signature to the bill of lading, and one of the cases is not delivered, the shipper, on proving that the lost case contained silk goods and not domestics, may recover the -value .of its .contents from the owners of the vessel, where .the misdescription was not intended to impose on the carrier, and it is not pretended that a higher freight would have been charged had its contents been known, nor that a knowledge of the real contents of the case would have induced greater watchfullness on the part of the-carrier. -It would be otherwise, had the misdescription injuriously affected the rights of the carrier.; in sneh a case, -the -consequences should fall upon the party molting it, though innocently.</p>

<p>Appeal from the Third District Court of New Orleans, Kennedy, J.</p> <p>cited Kohn v, Packard, 3 La. 225. 3 Kent's Com. 215. Chickering v. Fowler, 4 Pick.'^73.</p> <p>cited 3 La. 225. 1 Ann. R. 154. 1 Story’s Rep. 603.</p>

<p>An agreement to pay interest mast be established by written evidence. C. C. 2895. FaroS evidence is inadmissible for snoh a purpose.</p>

<p>Decision- in Scott v. Duke, ante p. 253, affirmed.</p> <p>The stat. of 1 June, 1846, whiGh declares :• “ That so much of articles 746 and- 747 of the Cods . of Practice as authorizes a creditor having obtained a judgment in another State of the 'Union or in a foreign country, to proceed by executory process on said judgment, he, and the same is hereby, repealed,” does not violate art. 119 of the constitution, which provides that, “ no law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and-puhlished at length.” Per Curiam : Art. 119 does not include, by its terms, the repeal of laws, or portions of them, and can only be thus extended by an implication of doubtful propriety.</p>

<p>Where a plaintiff in execution receives from a sheriff .the proceeds of property sold by him under a fufa, without making any objection or reservation of any kind, he will be held to have ratified the sale, and cannot afterwards complain of the manner in which it was made.</p>

<p>A purchaser who has paid the price can not demand a restitution of the price nor security, even during the pendency of an action to evict; a fortiori, he cannot do either before he is disturbed by the true owner. The right of a purchaser to have a sale rescinded under art. 2427, must be limited to those cases in whice the price has not been paid.</p>

<p>Where an attachment is set aside, the costs must be paid by the plaintiff. The sheriff has no right to retain the property, until his costs are paid ; and when he refuses to deliver it to the defendant under such a pretext, he will be answerable for any injury the latter may sustain thereby.</p> <p>The allowance of interest on damages ex delicto from the date of the act complained of, is unauthorized by law.</p>

<p>Where a judgment rendered in favor of the defendants, in an action to set aside an adjudication made at a sheriff’s sale, aiid dissolving an injunction restraining the sheriff from putting the purchaser in possession, is affirmed on appeal; and the purchaser afterwards, before taking out a writ of possession, takes a rule on a third person, who is alleged to detain the property unlawfully, to show cause why a writ of possession should not issue, and the rule is made absolute on the failure to answer, the defendant in the rule cannot be relieved by appealing from a judgment refusing him a re-hearing of the rule, which was asked for on the ground of the pendency of an action between himself and the purchaser for the property. There can be no objection to the issuing of the writ, but if it be attempted to be executed adversely to the right of the appellant, he must resort to his re. , medy, as in ordinary cases.</p>

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

<p>Where a testator leaves two wills, provisions in the first contrary to or incompatible with those of the last are considered as having been revoked, and for the purpose of ascertaining any such change of intention, the two wills are to be considered as distinct and as executed at different dates ; but the other dispositions must be considered as forming parts of one will.</p> <p>Art. 1679 of the Code, which provides that "a testamentary executor to whom the testator has bequeathed anylegacies, orother gifts by his will, shall not be entitled to any commission unless the testator has formally expressed the intention that he should have the legacies over and above the commissions,” applies where the legacy was made by one will and the appointment of the executor by another, as well as to those cases in which the legacy and appointment were by the same testament.</p> <p>One to whom a testator bequeaths the residue of his estate after.the payment of a particular legacy, is entitled, as universal legatee, to the possession of the estate of the deceased, where there are no heirs to whom any portion of the testator's property is reserved by law, O. C. 1600, 1602. The only condition which the executor, from whom the seizin is claimed, canimpose on the heir is, that the latter shall advance a sum sufficient to pay the moveable legacies. Creditors may claim security for their demands from the heir, previously to his taking possession (stat. 25 March, 1S2S, s. 15); but the executor cannot require that such security be given.</p>

<p>Where a vessel insured '* at and from N. to H.., from thence to B. and back to N.” is lost while, in the port of H., the loss is covered by the policy. The insurance is the same as if the policy had been '• at and from N. to B. with liberty to stop at the intermediate port H. Tho words “ thence" and "from" when applied to intermediate ports have not the same exclusive sense as when used with regard to the commencement of a voyage ; they are merely descriptive of the course of the voyage. Under policies "from” a port, instead of " at and from," the risk attaches only from the time of sailing; but though "at." is used when it is intended to include the insurance in port at the commencement of the v(oyage, it is not usual to insert it in relation to intermediate ports, to cover the risk while there.</p> <p>Where an insurance company was bound in good faith to furnish a policy in the usual form and with the usual clauses, they will not be allowed to release themselves from any liability to the insured from their neglect to do so.</p> <p>In tho construction of policies of insurance the intent is to be regarded, rather than the grammatical construction.</p>

<p>A testator directed that a certain sum of money should he invested in stock, and the interest paid to a legatee during her life, the amount after her death to revert to his estate. The amount'was not invested, but one of the executors retained it, and paid the interest to the legatee until her death. The residuary legatee bequeated this legacy to plaintiffs, who sued the succession of the residuary legatee for the amount of the legacy: Held, that the legacy not having been paid to the succession of the residuary legatee, it cannot be made liable for the amount; but that plaintiffs’ remedy is' against the party by whom the legacy was retained, and who still holds it.</p>

<p>APPEAL from the Fourth District Court of New Orleans, Strawbridge,</p>

<p>To entitle a surviving wife to claim from tlie succession of hor husband the marital fourth an* der art. 2359 of the Civil Code, she must prove that-hor husband died rich, and that she was loft by his death in necessitous circumstances. Awifewhohad abandoned her husband for several years before his death to live in concubinage with another, cannot he said to have been left by him in necessitous circumstances within the meaning of that article.</p>

<p>Tho prescription of debts is neither interrupted, nor suspended by the death of the debtor. C. C. 3487, 3492. To preserve his rights, the creditor must cause the succession to be represented in time to present his claim.</p> <p>Where a debt is extinguished by prescription, a mortgage giveu to secure its payment, being a mere accessory, is extinguished with it.</p>

<p>Where several'persons-have entered into the same criminal design, the acts or declarations of one of them, in furtherance of the general object, are admissible iirevidence against all the confederates ; but where an information is filed against two persons, who are tried together for the same offence, without any evidence to establish a previous combination, the confessions of one prisoner are inadmissibie in evidence against the other; they will, not be allowed to affect any one but the person who made them..</p>

<p>One accused of crime can plead a former trial in bar of a prosecution for the same offence, only when it resulted in a verdict either of acquittal or conviction, under such circumstances as would enable him to sustain the plea of auterfoits acquit or aulerfoits convict. Where a verdict is so imperfect and uncertain that no judgment can be rendered on it, the accused must be tried again, either upon the same indietmentor onamew bill.</p>

A PPEAL from the Fourth District Court, of New Orleans, Strawbrid-ge, J. In this case, the contract is an exchange. C. C. 263Ü. Merchandize and a small sum of money were exchanged for a bill of exchange. In the case -of Shuff v. Cross, merchandize aud a small sum of money were exchanged for a note. The obligation proved to be of no value, and the defendant was sued for the price of the goods sold.