Volume 3 — Robinson's Louisiana Reports

<p>Appeal by Kemper, from a judgment of the District Court of St. Mary, King, J.</p>

<p>Subrogation, whether legal or conventional, invests the person in whose favor it takes place, with all the rights, actions, privileges, and mortgages of the creditor against his debtor.</p> <p>One who has paid the debt due to a plaintiff, and been expressly subrogated to his rights, may take out execution against the defendant. Such an express subrogation, is equivalent to an authority to use the plaintiff’s name in prosecuting the suit for the recovery of the debt.</p>

<p>Appeal from the District Court of St. Landry, Willson, J.</p>

<p>The right of a mortgage creditor is on the thing itself, and may be exercised into whatever hands it may pass.</p> <p>AJsale by the administrator of a succession of property held by the deceased, subject to a mortgage, gives the mortgagee no claim against the succession. His rights cannot be affected by such a sale ; and he must pursue the property in the hands of the subsequent third possessor.</p> <p>Where the creditors of a succession are litigating their rights contradictorily with each other, and the value of the succession exceeds three hundred dollars, an appeal will lie to the Supreme Court, though the claim of each creditor may not amount to that sum.</p>

<p>An overseer, though entitled to a privilege on the crop for the payment of his wages, cannot maintain an action against his employer in the parish in which the plantation is situated, where the domicil of the latter is in a different parish. The privilege granted by law to overseers, is, like all others, an accessory to the principal obligation, and must follow it.</p>

<p>1. So far as a release from the continuing obligation of a specialty, or its modification, and the satisfaction of a liability incurred under past breaches are concerned, a distinction is observed between the modes of so releasing, modifying and satisfying them. An instrument of equal solemnity, unless in case of performance, is necessary to discharge the first, or modify it, except as to time of performance, and then only by way of estoppel; so that an acceptance by parol, neither of an executory agreement nor a chose ^in action, in consideration of a .parol contract to modify or discharge it, Will operate as such modification or discharge, even although such new agreement be subsequently performed; whereas, a cause of action arising under a breach of covenant may be barred by the acceptance by parol of a new executory agreement in satisfaction thereof.</p> <p>2. All the cases on this subject lay great stress on the existence of some agreement to accept the new undertaking in place of the performance of the old, and the distinction between accepting the acts agreed -to be done, or the thing to be delivered, in satisfaction, and an acceptance of the mere agreement to do or deliver them in the same way, is preserved. There must be an accord.</p> <p>3. Hence it is necessary, in all cases, to allege and prove, either by the terms of the new contract, or evidence aliunde, the existence of an agreement to accept, in satisfaction of the prior contract such new contract itself, and not the mere performance of its terms.</p> <p>4. The plaintiff proposed in writing, in June, 1861, to do three things on certain terms therein specified, viz: 1st, To release the latter from all the obligations of a contract between the parties, made in October previous; 2d. To return to him four of certain promissory notes therein mentioned; 3d. To release him from all obligations in selling certain merchandize, (plumbago.) The defendant was required, among other things, to discharge a certain note of his, in which a certain sum (§540) was due; to pay a small sum ($21) for interest; and to deliver over certain notes of his own for certain amounts, as well as notes of S. & 0. It closed by the plaintiff agreeing to return such four notes when the defendant had paid the note for $540, and the $21, to the plaintiff, and have passed over to him such notes of S. G. and his own, or to have them ready for delivery on a certain day which should be prior to a specified day in Jidy; and that on those terms he would give the defendant a receipt in full for all demands, (except a certain specified note,) cancel the contract, and take also a receipt in full for ail demands. The referee found, as facts, not only the absence of any understanding between the parties that the making and acceptance of such proposition, and the defendant’s assumption, thereby, to perform what was therein required of him, should be a substitute for, or in extinguishment of, the original agreement, or of the defendant’s promises as maker of the five notes therein mentioned, but an actual understanding that only ~h\s performance of the terms of the proposition should determine and put an end to the original agreement, and his liability as maker of the notes.</p> <p>Held that this was a mere accord, "where performance, and only that, was to he satisfaction, or work an extinguishment of prior liabilities; and that the terns ■never having been complied with, the proposition was no bar to an action upon one of the defendant’s notes specified therein.</p>

<p>Appeal from the District Court of St. Mary, King, J.</p> <p>There was judgment below in favor of the plaintiff, from which the defendants have appealed.</p>

<p>Appeal from the Probate Court of St. Martin, Briant, J.</p>

<p>Appeal from the District Court of St. Mary, King, J.</p>

<p>Where it does not appear from the record, that the amount in controversy exceeds three hundred dollars, the appeal must be dismissed. The appellant must show that he is entitled to an appeal.</p>

<p>Appeal from the District Court of St. Martin, King, J.</p>

<p>Appeal from the District Court of St. Martin, Boyce, J.</p>

<p>Appeal from the District Court of St. Martin, Boyce, J.</p>

<p>Appeal from the District Court of St. Martin, King, J.</p>

Appeal- from a judgment of the District Court of St. Landry, King\ J., in favor of the plaintiff, for one hundred and twenty dollars damages,

<p>Appeal from a judgment entered on the verdict of a jury, and from an order made at special term denying a motion for a new trial.</p> <p>The action was brought to recover damages against the defendant for having, by himself, servants, agents and employees, “forcibly, willfully, wrongfully and unlawfully” taken personal property from the premises occupied by the plaintiff; and also for doing the same “ carelessly,” negligently, willfully and maliciously. Also for the conversion of a certain workshop, the same being personal property.</p> <p>The answer avers the issuing of a warrant, and the proceedings thereunder, as a justification of the removal of the chattel property, and denies the allegations in the complaint, “ except that prior to, and at the time referred to in the complaint, the plaintiff was in possession of the premises in said complaint mentioned, wherein and whereupon he had- certain personal property,” &o.</p> <p>The material facts appearing on the trial are stated in the-opinion of the court.</p> <p>The jury found a verdict in favor of the plaintiff for $374.50.</p>

<p>Where the condition of a recognizance is, that the principal shall appear at court to answer such matters and things as may be objected against him on behalf of the State, and shall not depart the said court, without leave thereof; and no formal surrender has been made of him to the sheriff by his sureties, and the accused effects an escape from the court room while the jury are deliberating on his case, the recognizance will be forfeited. His sureties might have released themselves, at any time, by a surrender of their principal; but until manifesting, by an actual surrender, their intention to be no longer bound, the principal remained in their custody, notwithstanding his appearance in court.</p>

<p>Appeal from a judgment dismissing the plaintiff’s complaint, and from an order made at a special term, denying a motion for a new trial.</p> <p>Darby Ginnon, the plaintiff, a boy about 17 years of age, got upon one of the defendants’ city cars, with a large leather sack containing shoe trimmings. He was on the front platform with this sack. He did not ask the conductor for a seat. He did not try to go into the car. The conductor collected his fare, on the platform. ■ When the car got near Sixth street,- going up the Bowery, the plaintiff told the driver to stop. The driver did not stop. He spoke to him again, and he testifies that the driver told him to jump off, or get off. He did not speak to the conductor. He attempted to get off on the east side of the car. He took the bundle in his left hand, and took hold of the railing with his right hand. He put his left foot on the step, and as he was going to step off with his right foot, his left foot slipped, and went under the car, and was crushed by one of the wheels, before the car stopped. The plaintiff was in the daily habit of riding on the cars. He was in the employ of one Pepper, (a shoe dealer,) carrying shoes and collecting money from his employer’s customers. ,</p> <p>The action was brought-to recover damages for the above mentioned injuries to the plaintiff's person, which were alleged to have been caused by the defendant’s negligence. On the trial, the plaintiff requested the judge to submit specific matters of fact to the jury, and especially that he should leave it to their determination whether there was any want of ordinary care on the part of the plaintiff, contributing to the injury he received. The judge refused, and ordered the complaint to be dismissed.</p>

<p>Appeal from tlie District Court for the parish of St. Landry, Lewis, J. This was a action by the widow of one John Thompson, suing in her own right, and as the mother and natural tutrix of her minor children, against Girard Chrétien, a resident of the parish of St. Martin, and Hypolite Chrétien, of the parish of St. Landry. The plaintiff represents that her late husband, Thompson, believing himself largely indebted to the United States, conveyed to the defendants a large amount of property, to be sold or otherwise disposed of by them, to indemnify themselves against any loss they might sustain, as heirs of their deceased brother, Louis Chrétien, in consequence of the obligation of the latter to the government as security for Thompson. That the defendants advertised the property for .sale ; became themselves the purchasers of nearly'all, at a great sacrifice; and have ever since possessed it. That its actual value greatly exceeded the amount which the defendants paid to the United States on account of Thompson. The petition further represents, that the defendants, to prevent Thompson from ever obtaining any benefit from the property conveyed to and subsequently sold by them, induced him to execute an act before a notary, by which he ratified the sales made by them. That the only consideration for that act, was the payment by the defendants, as heirs of their brother, of a sum of $ 14,806 27, to the United States. That immediately after the execution of the act of compromise, the defendants applied to Congress to have the amount paid by them refunded, and received $12,999 of the $14,806 27, originally paid by them, with interest thereon at six per cent, on the ground that the amount had been illegally collected from them. That, in consequence, the consideration for which the property was transferred to the defendants by Thompson, has wholly failed. The plaintiff concludes with a prayer, that the acts of sale to, and of compromise with the defendants, may be annulled; that they maybe ordered to convey the property so obtained by them to the plaintiff, or to account for the value of any which may have been sold by them ; or, in case such conveyance should not be decreed, that the defendants be ordered to pay to the plaintiff the amount received by them from the United States, with interest from -the time when it came into their hands.</p> <p>Girard Chrétien excepted to the jurisdiction of the court, on the ground that his domicil was in the parish of St. Martin. The exception was sustained, and the petition dismissed as to him. The plaintiff took no appeal from the judgment of dismissal.</p> <p>Hypolite Chrétien having answered, there was a judgment against him for the whole amount, and the plaintiff was considered to be entitled to recover.</p>

<p>Heirs of age can accept a succession simply, or do acts rendering themselves unconditionally liable. Minors are necessarily beneficiary heirs.</p> <p>Art. 996 of the Codo of Practice, which authorizes actions for debts due from a succession to be brought before the ordinary tribunals, where the heirs, though all or some of them ba-minors. are in possession of the estate, should, perhaps, be confined either to heirs absolute, or to beneficiary heirs in possession of a succession after it has been fully administered. But-where a succession appears to have had but few debts, and to have been administered to a certain extent, and to have been in the possession of the widow and heirs of the deceased for several years, an action to recover a debt due by it, may be brought before the courts of ordinary jurisdiction.</p>

<p>Posterior testaments, which do not expressly revoke prior ones, will annul such dispositions in them, as are incompatible with, contrary to, or entirely different from the provisions of the former. Thus, the appointment of one as sole executor, will annul any appointment of another executor made in a previous will.</p>

<p>Appeal from the Probate Court of St. Mary, Palfrey, J.</p>

<p>Notice must be given to the forced heirs, of any application to sell the property of a succession in which they are interested. It may be to their interest to prevent a sale, by furnishing the means necessary to extinguish the debts and legacies.</p> <p>The heirs should be informed of every act of an executor or creditor, which may charge- or materially affect the property of a succession.</p> <p>An application by an executor for authority to sell a part of the effects of a succession, is in the nature of a rule to show cause ; and it is only necessary that reasonable notice thereof should be given to the parties interested.</p>

<p>1. The acceptance of vouchers or certificates of a government officer for goods received for the use of government, of the same amount as the value of merchandise sold hy vendors to persons in whose favor such vouchers are issued, under an agreement hy the latter to deliver similar certificates to such amount, and a written receipt therefor given by such vendors, expressly stating such receipt to be “ in payment of bill of goods,” will not so extinguish all claim for the price of such goods as to preclude the vendors from recovering so much thereof as shall be equal to any amount which government officers shall afterward legally deduct from the amount certified to in such vouchers, with the assent of such vendees.</p> <p>2. A finding by. a referee, in such case, that vouchers were not delivered in payment and satisfaction of the demand of the plaintiffs on account of the sale and delivery of the goods, is fully justified by the evidence.</p> <p>3. The government not having recognized the vouchers for the amount named therein, but only for about $6000; Held that the defendants had not complied with their agreement to furnish vouchers for the amount of the plaintiffs’ bill of goods.</p>

<p>Appeal from the Probate Court of St. Mary, Palfrey, J.</p>

Mary, Dumartrait, J. Garland, J. The plaintiff, who is a sister of Thomas E. Bowles, alleges that she is entitled to a portion of his succession, which amounts to about $35,000; that Mathison, claiming to be the executor of her deceased brother, has taken possession of all the property, and obtained from the court two orders or judgments, decreeing a sale of the same, under which judgments, dated December the 29th, 1841, and January 13th, 1842, the property is' advertised to…

Action to recover the possession of personal property alleged to have been unlawfully taken from the plaintiff and carried away and detained by the defendant. The defendant justified the taking, as sheriff, under and by virtue of an execution issued against William J. Dunlop and Marvin 0.

<p>Appeal from the Probate Court of St. Mary, Dumartrait, J.</p>

<p>Appeal from the Probate Court of St. Mary, Dumartrait, J.</p>

<p>Appeal from the District Court of St. Martin, King, J.</p>

<p>Appeal from the District Court of St. Landry, King, J.</p>

<p>The penalty imposed by the eighteenth section of the act of 7th June, 1806, on the owner or occupier of a plantation, for keeping slaves thereon, without a white or free colored person as manager or overseer, can only be recovered by civil action before an ordinary tribunal. The action must be brought before a Justice of the Peace, a Parish, or District Court, according to the number and amount of the fines claimed.</p> <p>Where the act which imposes a fine prescribes that it shall be recovered by a civil action, the officers of the State cannot, by instituting a suit in the form of an indictment, deprive the party of the right of appeal to the Supreme Court.</p>

Landry, Boyce, J. The plaintiffs sue as endorsees of a promissory note made by Andrus & Harman, payable to the order of the defendant, and by him endorsed to the plaintiffs. Petition filed 13th April, 1840.

<p>1. A common carrier who has contracted to carry goods to a specified point is not justified iri storing the goods at an intermediate point, because he considers the further carriage thereof would be unsafe.</p> <p>2. If he has any doubts about the safety of any portion of the route, he should inform the consignor thereof, and notify him that unless the goods are called for at an intermediate point, he will store them there.</p> <p>3. A person holding himself out to the world as a carrier to a certain place; whose custom it is to carry goods to that place; who tells a consignor and his agent that he carries to that point, and charges freight thus far, is liable for any neglect to carry the goods the whole distance; unless he expressly limits his liability to an intermediate point, at the time.</p> <p>4. Where a package sent by express was marked “ 0. O. D. $292Held that this was ample notice to the express company of the value of the package, to enable the owner to recover beyond the extent of $50, as limited in its receipt.</p>

Action by the plaintiff, as transferree of certain instalments due for the price of “ one hundred and six arpens of prairie land, and twenty arpens in tlic, commune of prairie Sorrel, besides the woodland belonging to said land in the concession of prairie Sorrel, with the buildings and improvements thereon,” &c.

<p>Appeal from the District Court of La Fayette, King, J.</p>

This action was brought 'to recover the possession of real estate. It was tried before a justice of this court and a jury. On the trial the plaintiff proved that one Augustus Wynkoop, in his lifetime, and at the time of his death, in July, 1836, was owner and in actual possession of the property described in the complaint in this action.

<p>Appeal from the District Court of St. Mary, King, J. The plaintiff claimed $4013 64, with interest at five per cent from the 10th August, 1832. There was a judgment in his favor for the amount, with interest from the 21st of June, 1833, from which the defendant has appealed.</p>

<p>Appeal from the Probate Court of St. Mary, Dumartrait, J.</p>

<p>Appeal from the District Court of La Fayette, King, J.</p>

<p>Appeal from the District Court of St. Landry, Boyce, J.</p>

<p>Where, after obtaining an order allowing him an appeal, plaintiff does not appear to have attempted to avail himself of it by giving bond and security, nor to have taken any steps, until after the expiration of a year from the date of the judgment, to procure a transcript of the record, nor to have made any application to the judge a quo for a new appeal, the right of appeal will be lost.</p>

<p>Appeal from the Court of Probates of Ouachita, Lamy, J.</p> <p>Morphy, J. The plaintiff seeks to recover from the succession of Felix Matthes $4000, the amount of a promissory note of the deceased, made to her order, bearing date the - 1st of March last, and payable on the 1st of February next. The curator of the estate pleads the general issue, and avers that the note sued on, if ever executed by the deceased, is a feigned donation, made for the purpose of giving the plaintiff all the property of the deceased without any consideration whatsoever, and is therefore null and void. The attorney for the absent heirs intervened, and after setting up some matters of defence much to the same effect, propounded interrogatories to the plaintiff, inquiring into the consideration of the note sued on, and as to the means of which her late husband, William Brittain, died possessed. There was a judgment below rejecting the petitioner’s claim, from which she has appealed.</p> <p>The execution of the note is proved by a witness who drew it up and attested it, but it does not appear to us that the plaintiff has succeeded in showing that a valuable consideration was given for it. She says, in her answers to the interrogatories, that the note was given to her in consideration of the kind treatment which the deceased had received from herself and her,late husband, and for money sent to-him by the latter, in the State of Mississippi, some time in .the year 1825 ; but that she does not know tlfe amount lent, nor in whát money it was given. She states that her husband died in the latter part of January, 1842, and did not leave more than about $700.</p> <p>Joseph Hedge, the subscribing witness to the note, testifies that when it was signed by Matthes, he was sick at the plaintiff’s house, but in sound mind ; that he said, that if he did not get relief, he would certainly die, and, as he signed the note, remarked that it would be nothing but plaintiff’s just due ; that about two months before that'time Matthes declared, at his (witness’) house, that some years ago his uncle Brittain gave him $250, with a horse, saddle and bridle, to enable him to go to Red River or Texas, and get into some business that would be of advantage to him, and that his uncle had frequently assisted him, as he had always been a spendthrift and a good customer to coffee houses ; that he knows of no other consideration received for the note than the $250, ancl the horse, saddle and bridle, except that Brittain furnished Matthes with some provisions which he brought from New Orleans, and that the deceased lived at Brittain’s house, where he boarded, although he had a separate place. The record shows that the property left by the deceased amounted to $1292 25, and that he had a sister married to one McAllister.</p> <p>The evidence shows that there was a sufficient consideration for the note. The court baust presume in this, as in all other contracts, that there was a sufficient consiration. He who alleges the contrary, must prove it. 8 Mart. 181. 8 Ib. N. S. 295. 4 La. 220. 5 lb. 78. A donation under the form of an onerous contract is not void. 2 La. 215. The forced heirs, alone, can sue for the reduction of a donation exceeding the disposable portion, (Civ. Code, arts. 1491, 2418,) or to annul a disguised donation; and the onus probandi is on them. The record shows that Matthes had no forced heirs.</p> <p>The instrument is void, as a note, for want of consideration (Civ. Code, arts. 1887, 1888. 3 La. 435); or as a donation inter vivos or mortis causa, for want of the forms prescribed bylaw. Civ. Code, arts. 1523-5, 1563: All donations must be made by public act. Ib. art. 1623.</p>

<p>Appeal from the District Court of Ouachita, Boyce, J.</p>

<p>Appeal from the District Court of Union, Boyce, J.</p>

<p>The act of Congress of 29th May, 1S30, granting pre-emption rights to settlers on the public lands, which provides, sect. 2, that “ where two or more persons are settled on the same quarter section, it may be divided between the two first actual settlers, if, by a north and south, or east and west line, the settlement or improvement of each can be included in a half-quarter section, and that in such case the settlers shall each be entitled to a pre-emption of eighty acres elsewhere in said land district,” is directory only. Its object is to give to each settler, first, the portion of land on which his improvements were made, and secondly, as nearly as possible, an equal quantity of land. Equality of value was not considered important. The direction of the line of division was of secondary consideration, and only intended to effect the principal object.</p> <p>Where the United States have sold, and given a patent for a tract of land, the property is vested in the purchaser; and the laws of the State in which it is situated operate on it as on other property, exeept as to taxation, or other special exception ; and in effecting a partition, such laws, and the contract of the parties, will, as in other cases, control.</p> <p>In ordering a partition between settlers on the same quarter section, holding as tenants in common, by purchase from the United'States under the pre-emption law of 29th of May, 1830, or between others holding under them, the provisions of that act will he considered as expressing the original intention of the parties as to the direction of the line of division, where the quarter section is a regular one ; nliter, as to irregular or fractional suryeys. Where lines drawn north and south, or east and west would not give to each an equal quantity of land, as well as his improvements, the line must be drawn in some other direction, or the land .cannot be divided in kind.</p> <p>The verdict of a jury must he always understood with reference to the pleadings, and as responsive to the issues made by them.</p>

This action was brought to recover the valué of the carcases of forty-two dead hogs, alleged to have been taken and carried away by the defendant, in 1862. The case was tried before a justice of this court and a jury. It appeared upon the trial that a large number of hogs arrived on the cars at the Hudson river railroad depot in the city of New York, in November, 1862. That the hogs in question had died from suffocation, upon the passage from Albany.

<p>Appeal from the District Court of Natchitoches, Campbell, J.</p>

This was an action to rescind the sale of -a slave, the plaintiff having given his note for the price. There was a judgment rescinding the sale, and ordering the note to be given up, or, in default thereof, security to be given to the plaintiff to protect him against any liability on the note.

<p>Under art. 335 of the Code of Practice, the exception of Htispendéncia, must show the pendency of another suit, between the same parties, for the same object, and growing out of the same causes of action, before another court of concurrent jurisdiction.</p> <p>Courts of Probate have exclusive jurisdiction of claims for money against successions administered by curators, executors, &c.; and all suits for money, pending before the ordinary tribunals, against one who dies leaving a vacant succession, must be transferred to the Court of Probates of the place where his succession is opened.</p>

<p>The provisions of the Code of Practice, art. 746, et seq , authorizing summary process to enforce judgments rendered in other States or in foreign countries, instead of the ordinary action on the record, which was formerly the only mode of proceeding, must be strictly pursued ; and the party resorting to it must show, that he comes clearly within the law, not in appearance only, but in reality.</p> <p>Defendant having procured an order of seizure and sale, on a judgment rendered in another State against the plaintiff, a resident of Louisiana, under process of arrest, the latter enjoined the proceeding, alleging, though it appears from the record that an • answer was put in for him by an attorney, that no one was authorized to appear for him, and that he never appeared or defended the action. On a motion to dissolve, on_ the ground that the facts alleged, though truc, are insufficient to maintain the injunction : Held, that admitting the allegations of the petition to be true, the judgment can have no greater effect than one rendered, after personal services, but without • appearance, oh a judgment by default; and that the motion should have been overruled.</p>

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

<p>The right of children to attack donations made by their parents which ’exceed the disposable portion, accrues only after the death of the latter ; for they might survive all their forced heirs, in which event all donations would be valid and binding.</p>

This was a case agreed on by the parties, and submitted under the 372d section of the Code for decision. The plaintiffs were incorporated in February, 1855, under the general law authorizing the formation of gas companies.

<p>Appeal from the Court of Probates of Ouachita, Lamy, J.</p>

Bullard, J. This suit was commenced by an injunction, to stay proceedings upon executory process issued on a judgment recovered against the plaintiff in the State of Mississippi, on the ground that the judgment creditor had, at the time, an execution issued on his judgment in that State, and levied on property amply sufficient to satisfy the same.

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

<p>Parties are always allowed to exercise their own judgment, as to the order of introdttcing their proofs.</p>

<p>Under art. 722 of the Code of Practice,'the creditor acquires, by the mere act of seizure, a privilege on the immoveable or moveable property seized, which entitles him to a preference over other creditors, unless the debtor has been declared a bankrupt previous thereto. If the seizure created a privilege only where the property of the debtor was sufficient to pay all his debts, it would only attach when it would be useless.</p> <p>Art 301 of the Code of Practice, which declares that the “sheriff may be enjoined from paying the claim of the plaintiff out of the proceeds of the sale of the property.seized, if a third person oppose such payment, alleging that the defendant has no other property to pay his debts, and pray that the proceeds may be brought into court, to be distributed among all the creditors of the defendant, according to the order of their respective privileges or hypothecations,” makes a provision in favor of the creditors who have a higher privilege than that of the seizing creditor. It directs the proceeds to be divided among the creditors according to their respective privileges and hypothecations, including the privilege obtained by the seizure.</p>

<p>Appeal from the District Court of Natchitoches, Campbell, J.</p>

<p>Appeal from the District Court of Ouachita, Willson, J.</p>

<p>The discovery, since the final decision of the appellate court, of new evidence tending to establish allegations in the original petition, is no ground for enjoining the execution of the judgment. The matter is res judicata,.</p>

<p>Where an appeal is taken, after the lapse of twelve months from the day on which final judgment was rendered, by one who alleges in his petition of appeal that he is anon-resident, and the allegation is denied, the case will he remanded to try the issue ; and until the judgment rendered thereon, and the evidence on which it is based, is sent up, no opinion will be pronounced on any other point in the ease.</p>

<p>The testimony taken before the Court of Probates, on the trial of the issue sent down, having established that the appellants were non-residents, this case came up for examination on its merits.</p>

<p>Questions of fact and claims for damages are peculiarly within the province of a jury, whose verdict will not be disturbed unless manifestly unjust.</p>

The tutor of the minor heirs of Samuel Clare is appellant from a judgment of the District Court of Carroll, Curry, J., recognizing the validity of a sale of the tract of land in dispute, made by the parish judge of Ouachita, and rejecting the claims set up by the heirs.

<p>The trial of an injunction is a summary proceeding, in which neither party is entitled to a jury.</p> <p>In an action against a seizing creditor and the sheriff, in which plaintiff prayed for an injunction and damages, he cannot call upon the latter to testify as a witness. He must release him, or propound interrogatories to him as a party.</p> <p>An amended petition propounding interrogatories to a party to the action, offered after the trial has commenced, will be too late.</p> <p>As a general rule, amendments should be admitted where the justice of the case will be promoted thereby, but they must be presented before going to trial. The case must be an extraordinary one, to justify the reception of an amendment after the trial has commenced; and the amendment must not be calculated to produce delay.</p> <p>The circumstance, that the sale of property seized under execution was advertised before the expiration of the three days allowed for notice of the seizure, is immaterial.</p> <p>Where sufficient property could not be found, or has not been seized to satisfy an exe- [ cution, a further seizure may be made when the deficiency is discovered, or other property found. Where more property has been seized than sufficient, the remedy is pointed out by arts. 652 and 653 of the Code of Practice. Such an over seizure will not authorize an injunction,</p> <p>A proper construction of the third section of the act of the 25th March, 1831, will not authorize the court, on dissolving an injunction, to increase the interest, where the original judgment bears interest at ten per cent a year. Whatever else it may be proper to allow, must be in the form of damages.</p>

<p>A slight variance between the description of the property in the advertisement, and that in the notice of seizure, which cannot mislead the debtor* is immaterial.</p>

<p>Appeal from the District Court of Rapides, Boyce, J.</p>

This is an appeal from a decision of the Court of Probates of Ouachita, Lamy, J., and was submitted without argument, by Mc-Gidre, for the appellant, and Garrett, for the appellees.

<p>Appeal from the District Court of Claiborne, Campbell, J,</p>

<p>A defendant will not be permitted, by shifting his grounds of defence, to contradict, by an amended answer, facts stated and admissions made by him in his original answer.</p> <p>A purchaser, fully aware of the danger of eviction at the time of the purchase, cannot resist payment of the price on the ground of eviction. C. C. 2481.</p> <p>Action by the payee on a promissory note. Defendant answered, pleading a failure of consideration, and alleging that the note was given in error, for the price of a"tract of land, purchased by plaintiff from a person to whom defendant had previously sold it. In an amended answer, filed at a subsequent term, he averred, that the note was executed for the price of a tract of land belonging to the United States, to which plaintiff pretended to have a pre-emption right, and which he bound himself to convey by a good title to defendant; that plaintiff had no pre-emption right to the land ; and that the United States had sold the land to a third person, which sale had come to defendant’s knowledge, since the last term of the court. The sale by the United States was established. Held, that defendant could not be allowed to gainsay the admissions originally made by him, and that he must be estopped by his warranty, as vendor, from praying for a rescission on the ground of want of title in the plaintiff. Judgment in favor of the latter.</p>

<p>Under the act of Congress regulating pre-emptions, the Register and Receiver of the Land Office in the district in which the lands lie, have, alone, authority to decide upon the claims for pre-emptions; and proof must be made, to their satisfaction, of all the facts necessary to establish the applicant’s right to purchase by preference. The right to claim a pre-emption, conferred by act of Congress, does not give the party entitled thereto, any title in or to the land, until he exhibits the necessary proof, and procures the adjudication of the Register and Receiver of the Land District.</p> <p>In an action by one claiming land under a patent from the United States, against a party in possession who had made valuable improvements thereon, the latter will be entitled to claim the excess of the value thereof above the fruits received since the commencement of suit.</p>

This was an action before the District Court of Carroll, Gurry, J., on a promissory note, for $6000, signed by Atchison, Hall, Preston, Whitman, Dorsey, Bosworth, McCullough, and Nubert, payable on the 1st of January, 1839, to the order of one Tompkins, and by him endorsed to the plaintiff.

The plaintiffs brought this action as assignees of the firm of Lanes, Boyce & Co., for the benefit of their creditors, for certain moneys, the proceeds of the assigned estate, deposited by the plaintiffs, as such assignees, with the defendants, in 1,861. They made their demand therefor by drawing their check, as assignees, for the amount, by an attorney, in fact, (Mr. Bowdoin,) on the 2d February, 1863, which check the defendants refused to pay.

<p>Where the matter really in dispute is under three hundred dollars, and a larger amount is claimed in the petition, evidently for the purpose of giving jurisdiction to the appellate court, the appeal will be dismissed.</p>

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

<p>Appeal from the District Court of Ouachita, Boyce, J.</p>

One Brooks, having obtained a judgment against Abraham Marler, seized under execution certain property of the latter, which was sold on a credit of twelve months, and purchased by Marler himself, for the price of which he executed a bond, with Meredith Marler as his security. The bond not being paid at maturity, an execution was issued against both the obligors, and under it the sheriff seized their undivided shares in the succession of their father.

<p>Appeal from the District Court of Union,Willson, J.</p>

Action against the executors of Richard Winn, before the Court of Probates of Rapides, on two bonds executed by one Hale, and Winn, as his security, for the price of property sold, at twelve months’ credit, under a ji. fa. in favor of the plaintiff. General denial, and allegation that the bonds were filled up after the death of Winn, and are, consequently, void. On the trial, Winn’s signature, and his death on the 5th October, 1840, were admitted.

<p>One who purchases a note, knowing that the payment will be contested, will hold it subject to any defence to which it would have been subject in the hands of the payee.</p> <p>On a question of fact, the judgment of the lower court will be affirmed, unless manifestly erroneous.</p>

<p>The provisions of arts. 697 and 698 of the Code of Practice, requiring the sheriff to cause the act of salo execuied by him for property sold under a fufa., to be recorded in tho office of the clerk of the court from which the writ was issued, were designed to give to the sheriff’s deed the authenticity of a notarial act, and to authorize its introduction in evidence without further proof of its execution. They do not repeal, nor in any way modify the act of the 24th March, 18Í0, which declares, sect. 7, that no notarial act concerning immoveable property shall have effect against third persons, until recorded in the office of the parish judge of the parish in which it is situated ; nor that of 26th March, 1813, providing, sect. 1, that sales of land or slaves, under execution, shall, except between the parties, be void, unless so recorded.</p> <p>The act of 20th March, 1827, establishing the office of Register of Conveyances for the city and parish of New Orleans, was intended only to create a particular office, for that city and parish, in which all transfers of immoveable property should be recorded, which, in other parishes, were required to be recorded in the office of the parish judge.</p> <p>Where the sheriff’s deed for immoveable property sold under a fi fa., subject to a previous mortgage, has not been recorded in the office of the parish judge of the parish in which the property is situated, it will be without effect as to the hypothecary creditor, who may seize and sell the same as if in possession of the original debtor.</p>

<p>Defendants having obtained a judgment against plaintiff in a Circuit Court in another State, procured an order of seizure and sale in this. Subsequently to the order of seizure, plaintiff obtained an injunction from the Chancellor of the State in which the original judgment was rendered, staying its execution until the further order of court. On an application to enjoin the order of seizure and sale : Held, that the injunction should be maintained until the termination of the chancery proceedings on the original judgment.</p>

In January, 1856, Erastus Wheaton transferred to the plaintiff five shares of the capital stock of the defendants’ bank. The transfer was by an instrument under seal, executed by Wheaton, whereby, for value received, he “ bargained, sold, assigned and transferred” unto the plaintiff, “five shares of the capital stock,” standing in his name on the books of the bank.

<p>The act of thirteenth of March, 1827, relative to the protest and notices to drawers and endorsers of bills and notes, does not change the general commercial law, as to the diligence to be used in serving notices of protest; it merely provides a new mode of proof of such diligence, by authorizing the notary, or other officer, to state in his protest, the manner in which the demand was made of the drawer, acceptor, or person by whom such order or bill was drawn or given, and, in a certificate subjoined thereto, the manner in which the notices were served or forwarded, and by making a certified copy of such protest and certificate evidence of all the matters therein stated. The provisions of this act being in derogation of the general commercial law, the mode of proof which it authorizes will be received as sufficient evidence of notice, only, where the formalities it prescribes have been strictly complied with.</p> <p>■Where the party to whom notice is to be given does not reside in the town where the protest was made, the second section of the act of 1827, requires: first, that the notice be put into the post-office nearest to the place where the protest was made, and secondly, that it be addressed to the party to be notified, at his domicil or usual place of residence ; and the omission of either will be fatal.</p> <p>A notice of protest addressed to a party, at the post-office from which he receives hie letters and the one nearest to his residence, or addressed to him, without indicating any particular place, and deposited in such post-office, will not be a sufficient compliance with section two of the act of 1827. The notice must, in addition, be addressed to him at his domicil or usual place of residence.</p>

<p>In an action in this State against the endorser of a note, dated at a place in this State in the parish in which the endorser resides, payable in another State, the presumption will be, until the contrary is shown, that the note was endorsed at the place of its execution ; and the obligation will be governed by the lex loci contractus.</p> <p>Notice of protest to an endorser, put into the post-office at the place where the note was payable and at which he was in the habit of receiving his letters, addressed to him there, is insufficient by the law of Mississippi. Otherwise, in this State, since the act of thirteenth of March, 1827.</p>

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

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

<p>Appeal from tbe District Court of Rapides, Waters, J., presiding.</p> <p>Garland, J. The petitioners represent themselves to be the owners of a tract of land containing six hundred arpens, more or less, on the left bank of the bayou Bbeuf, adjoining Dent’s estate below, and bounded above by the defendants’. They aver that the upper limit of their land is at the first turn of the bayou below the main Biloxi village, where the lower limit of the land of the defendants commences. They allege that the defendants were informed, and well knew of their rights, particularly from a survey made in their presence, but have, notwithstanding, taken possession of a part of their land on the bayou and on the back line, without any title, and that they refuse to surrender it. The plaintiffs state that they derive their title to the land, from a purchase made at the probate sale of the estate of Samuel Levi Wells,' in the year 1829.</p> <p>■ The petitioners further allege, that after the survey was made of the land in controversy, the defendants promised and agreed to surrender the same, but have since refused to comply with their agreement, and continue to hold possession. They pray for a judgment for the land, and for $2000 damages for its illegal detention.'</p> <p>The defendants answer, after a general denial, that Samuel L. Wells, the ancestor of the plaintiffs, owned twenty-five arpens front, by a depth of forty, on the left bank of the bayou Bceuf, bounded above by lands owned by George Mathews, which land Sami. L. Wells sold to L. B. Compton, one of the defendants, from whom the other obtained title, and that the land thus sold was to include the Biloxi village. They deny that they are in possession of any land owned by the plaintiffs, and aver that, on the contrary, the plaintiffs are in possession of the lower part of the tract sold by their ancestor to L. B. Compton ; and they now claim, in reconvention, the portion of land within their limits, defined by a line commencing at the lower line of Mathews’ estate, and running down twenty-five arpens. They pray that they may be quieted in their title to said twenty-five arpens front, and may recover $5000 damages from the plaintiffs for their wrongful detention of the land.</p> <p>Several years after the commencement of this suit, the plaintiffs amended their petition, claiming damages of the defendants to the amount of $10,000, to which the latter responded, that, they have possessed in good faith, and if made responsible for rent or damages, that they are entitled to be paid for clearing the land, and for improvements put on it, worth $5000, which they claim in reconvention. They also present a plea of res judicata.</p> <p>An agreement was entered into, by which the depositions of several witnesses, previously taken in other suits, were to be used as evidence in this, if admissible under the allegations, waiving all objections to the form of taking them.</p> <p>The cause was continued from term to term for about ten years, several times upon the affidavits of the defendants or their counsel, and, at other times, without cause being shown. Some of the statements, in one or more of these affidavits, it will be necessary to notice hereafter.</p> <p>On the trial, it was shown that Samuel L. Wells was the proprietor of a part of the Indian claims on the bayou Bceuf, purchased by Miller and Fulton, the history of which is given in the cases of Compton v. Mathews and Wells' Heirs v. Compton, (3 La. 128, 164,) and in some other cases. S. L. Wells claimed to be the owner of sixty-five arpens front, and, before the claim was acted on by the land officers of the United States and Congress, he claimed a depth of eighty arpens, on each side of the bayou ; but his claims were finally confirmed for only forty arpens in depth on each side. A probate sale of a portion of this tract of land, was exhibited, showing that the plaintiffs had become the purchasers of six hundred superficial arpens, more or less. If there was more, they were to pay for the excess, at the rate of $12 50 per superficial arpent; if less, there was to be a deduction of price at the same rate. . The plaintiffs, therefore, purchased whatever quantity of land might be found in the tract. It was further shown that, in the year 1808, Sami. Levi Wells agreed to sell “ all his right, title, and interest” in and to fifteen hundred superficial arpens of the Indian lands to Leonard B. Compton, at the rate of two dollars the superficial arpent, payable in one, two, and three years, without interest. Five hundred arpens were to be on the west side of the bayou, and about these there is no controversy. The thousand arpens were to be laid off as follows : “ The lower line to commence on the east side of the bayou Bceuf, and at the first turn in the said bayou below the main Biloxi village, and to run twenty-five arpens, one hundred and eighty feet to the arpent, measure of Paris, up the said bayou, parallel with the base line of the whole tract of the Indian claim, as it was run by Frederick Walther; aline then to start at the upper end of the twenty-five arpens line as above, and to run at right angles with the course thereof, till it strike the said bayou, and then meandering with the said bayou to the beginning. And if there should not be one thousand arpens of land within the lines above mentioned, whatever may be wanting of said one thousand arpens, to be laid off on the back of the first line, in. parallel lines, and the course of the line running at right angles to the first, to be continued.” The tract of five hundred arpens was to be laid off with a front of twelve and a halfarpens, with forty in depth. Samuel Levi Wells “engages with the said Leonard Compton, his heirs, &c., that in case the consideration money, or any part thereof should be paid, and after such payment being made, the claim of him, the said Wells, to the said land, on the final decision thereon be condemned and rejected, that then, in such case, the sum or sums so received by said Wells, his heirs, &c., shall be refunded or repaid to said Compton, his heirs, &c., without interest.” It is further stipulated, in case the claim should not be confirmed, that Wells is not to be liable .for any improvements which Compton may put on the land. At the date of this sale, the defendants were living together on the land, and had their buildings on, or very near to the site of the Biloxi village, which was a well known place. The defendant John Compton, who afterwards purchased half of Leonard’s interest, and, since the commencement of this suit the other half, has ever since occupied the place. From the Biloxi village, the bayou runs in a nearly straight course for a considerable distance, bearing a little to the left as represented by the survey ; it then changes its course and curves gradually, until it forms a figure nearly resembling a horse shoe, the points or heels drawn close together. At the point where the bayou begins to deviate from its nearly straight course, and forms the upper part of the curve, is an elm tree, which has become celebrated from this controversy ; and the public road from Alexandria strikes the bayou at nearly the same point.</p> <p>About the year ]810, Philip B. Compton, a brother of the defendants, settled on the bayou about the apex of the curve, where he built a house, and cleared and cultivated the land for some distance above and below him. He remained at that place, until about the year 1820, when he moved into another house near the elm tree, where he lived for several years. The defendants contend that Philip B. Compton settled there with their permission, and held under them. The plaintiffs say. that he was an intruder, or was there by permission of Samuel Levi Wells. That P. B. Compton was there during the lifetime of Samuel Levi Wells, and with his knowledge, there is no doubt. It is also very clear that Wells was very intimate and friendly with him, and with the defendants, up to the time of his death in 1815, and particularly with L. B. Compton, to whom he sold the land; and it is also evident, that no act of sale was made by the defendants to Philip B. Compton until 1825, some short time after which he re-conveyed to them.</p> <p>The evidence leaves it doubtful whether a line was ever established, with the consent of S. L. Wells, below the improvements of P. B. Compton. That there is a line there, represented on the plat by the line 4 H, is certain, and that it was an old line in 1841. It commences at the lower part of the curve, and runs parrallel with the other lines. In the proces-verbal of a plat made under the order of the court in this case, dated in February, 1842, McCrummen, the surveyor, says, it was laid off “ some few years since.” In the proces-verbal of another plat made by McCrummen, the same line is represented ; and he says that, at the request of Samuel L. Wells, he had laid off the whole tract of sixty-five arpens front, only with a view to ascertain where the lower line would cross the bayou, and “ where the several intruders on the land were situated on the bayou. Such part of the lines as are dotted on the plat were not marked in the woods.” This line is not a dotted one, but the plat has no date, and it is shown by the record, that Samuel L. Wells had a son of the same name. Whether this plat was made at the request of the father or son, does not appear ; but it is certain that the former died in 1815, and the law creating the office of Parish Surveyor was not passed until March, 1818. But if Samuel L. Wells, the vendor of Compton, did put him in possession by such a survey, there is no accounting, on fair principles, for the suit instituted by Leonard B. Compton against Mathews in 1820, as the line of the latter is on this plat exactly as he contended it should run, and as Compton said it should not. The best construction, therefore, which we can put on it, is, that the plat was made at the request of Samuel L. Wells, the younger, and does not, therefore, bind the plaintiffs. Alex. Compton, a witness •for the defendants, says in his deposition, that he does not know, that Samuel L. Wells ever caused this line to be run or marked, but that he recollects that in the year 1813, Wells visited the defendants soon after the line was run, and, in company with them and witness, examined the line and marks or posts, when some conversation took place between the parties about the line. That Wells made no objection, but appeared to be satisfied, and so expressed himself. It is shown that this witness, at the time of giving his deposition, was in Texas, a fugitive from justice ; and further, it is clear, that if he told the truth in this instance, he testified falsely in the case of Compton v. Mathews, which case was tried ten or eleven years ago. His testimony in that case was taken down in writing, and has been offered'in this, and cannot be reconciled with his present statements. The statement of the Survey- or, in his proces-verbal, does not, therefore,' fix the period when. this line was run, and we do not think Alexander Compton a credible witness; so that all the testimony proves is, that the line is there, and that Philip B. Compton’s improvements extended down towards it, below the elm tree.</p> <p>In the year 1820, Leonard B. Compton, in whom the title to the land purchased from Samuel Levi Wells was then vested, commenced a suit in the District Court against the late Judge Mathews, alleging himself to be the owner of the tract of land described in the deed from Wells to him. In his petition he describes the land almost in the words of the deed, and says that he has had it surveyed by McCrummen “ according to the above description, a plat of which is herewith filed, and ready to be exhibited on the trial of this suit.” This plat was withdrawn from the record of the suit of Compton v. Mathews, by the attorney of the former, after its decision, but subsequently to the commencement of this suit. A duplicate of it has, however, been offered in evidence, and it shows that the defendants then claimed that the point of beginning should be at the elm tree, on the upper curve of the first turn or bend ; and the plats of survey filed in that suit, and the cage itself, show that the defendants persisted that it was the true point of beginning, until the case was finally decided in favor of Mathews. 3 La. 128.</p> <p>It is also shown that, at the time of the sale from S. L. Wells to L. B. Compton in 1808, the Indian claims were not recognized by Congress or by the Land Commissioners. There had been a partition of the land between Clark, Fulton, Wells, and Miller, the co-proprietors, on a map which had been made by F. Walther, but as the country was covered, at the time of the partition in 1803 or 1804, by a heavy forest and stiff cane-brake, no dividing lines seem to have been traced, and it was in that condition when the sale from Levi Wells to L. B. Compton was made.</p> <p>These are the material facts of the case. Some others of minor consequence we shall touch upon, in connection with the different points that will arise. Upon these facts, and the law, as the judge below, after a laborious examination, understood it, a judgment was given in favor of the defendants, and, upon their demand in reconvention, against the plaintiffs, for the land in their possession down to the line marked on the plat of the surveyor Phelps, 4, H; from which judgment the plaintiffs have appealed,</p> <p>The language of the deed is unambiguous. No doubt was ever entertained by the defendants as to the proper point of beginning the line, until after the decision in the case of Compton v. Mathews, 3 La. 128. In construing any agreement, the great object must be to ascertain the intention of the parties, at the time of the contract. Civ. Code, art. 1940. 12 La. 546. The rule that obscure or ambiguous clauses are to be construed against the vendor, .is one of extreme severity, and to be resorted to only when all other modes of interpretation have failed. 3 Toullier, (Brass, ed.) p. 447-8, Nos. 318— 325. The acts and declarations of the defendants, furnish conclusive proof as to the correct point of departure. Civ. Code, art. 1951. In the case of Compton v. Mathews, we find the defendants, as far back as 1820, fixing the point of commencement at the elm tree. Their instructions to McCrummen, the surveyor, were to the same effect. The action against Mathews could only have been maintained, on the allegation that the elm formed the correct point of departure. As to the admissibility of the record of the case of Compton v. Mathews, see 2 Starkie Ev. 17, 22-24. 2 Phillips, Cow. & Hill’s ed., 201 ,''205, 206, 207, 212, 213, and the authorities there cited. As to the admissibility of the ¿declárations of deceased surveyors, see 1 Starkie Ev~ 25-29. 2 Phil. Ev., Cowen & Hill’s ed., 628-639. 6 Peters, 341. 7 Cranchy-296. • Peters’ C. C. R. 496. As to depositions taken in a former suit to which one of the present parties was , a party, see Cutty’s Eq. Dig. 991. The real intention of the parties, in ,1808, wás, that the defendants should take a fair proportion of back and front land for their thousand arpens. Parties cannot be permitted to deny in one suit, what they have alleged in another. Coke’s Instit. 352. lOMass. 155. 2PhiI.Ev., Cow: &"H'iH’s ed.', 20ijets-eq.</p> <p>The plaintiffs do not claim as heirs of S. L. Wells. The defendants must resort to an action of warranty against the heirs, for any deficiency in the land purchased by them. The rule, that the first purchaser shall take the whole of his portion, and the second, only what remains, does not apply to a case like the present, where the sale was by specific metes and bounds, and a part of those bounds natural ones. 4 Wash. C. C. R. 415. Admitting that the language of an instrument is to be most strongly construed against the vendor, the utmost latitude to which the rule could be extended would be, to consider it, in case of doubt, as to a natural object, as giving to the vendee the right of selection. In this case the defendants have made their selection, by adopting, in their suit against Mathews, the elm as the true point of beginning. When such a selection has been once made, it is binding. There has been no mistake in the boundaries, on the part of the defendants ; and such mistakes can only be corrected, when manifest. The purchase made by the plaintiffs at the probate sale of their father, S. L. Wells, was in 1829, many years after the institution of the suit of Compton v. Mathews, in which the defendants contended that the elm was the proper boundary of their land. The plaintiffs may have been influenced by this circumstance, in making their purchase ; and the defendants are estopped from gainsaying their own allegations in that suit. 2 Phil. Ev., Cowen & Hill’s ed., 200, 205-7, et seq.</p> <p>Under the deed from Sami. L. Wells to L. B. Compton, the defendants are entitled: first, to a front of twenty-five arpens, in a line parallel with Walther’s base ; secondly, to the quantity of one ihousand arpens on the east side of bayou Bceuf, within the Miller and Fulton grant. These points being settled, to wit, the extent of front, and the quantity, there can be no difficulty in fixing the proper place of beginning. According to the deed, we must begin at the first turn in the bayou below the niain Biloxi village. This expression, which, by itself, would be indeterminate, is rendered sufficiently clear by the context. Taken in connection with the two controlling expressions before noticed, it can only mean such a point, within the turn, as will give the front and quantity mentioned. This court has already decided in the case of Compton v. Mathews, 3 La. 128, that any part of the turn will satisfy this condition of the title; and such a construction must be adopted ut res magis valeat quam pereat. Code of 1808, 270. Civ. Code, arts. 1943, 1946. Comyn on Contracts, 23, 24. As the plaintiffs claim to run the line, starting from the elm, the defendants will have but fifteen and a half arpens front, and cannot obtain the quantity to which they are entitled. It has been urged that this was a sale per aversionem, and that the description of the boundaries must control the other expressions of the deed. But the lower boundary has been shown to be indefinite, and we contend that that the upper boundary is exactly twenty-five arpeñs from the point, within the curve, at which the lower one is fixed; and this is the very question, which the court is now trying. The case of Compton v. Mathews, the record of which has been offered in evidence, is res inter alios acta. The plaintiffs in this action, were not parties or privies to that; and though it should be shown that the defendants were,'the record could not be received for want of mutuality. 1 Starkie Ev. 221, 266, 267. 1 Munford’s Rep. 402, 403. 2 Cond. Rep. 496. 3 lb. 465. Gill & John. 34-5. One of the present plaintiffs was a witness in that case, for which reason the record should be excluded. 1 Stark. 221. Another ground for its exclusion, is, that the suit did not involve the question to be determined in this. 1 Stark. 324. The testimony of McCrummen is inadmissible. The boundary in dispute is not an ancient one, and hearsay evidence cannot, under such circumstances, be received. 1 Stark. 33-4. 7 Cranch, 293. 10 Peters, 434, et seq. But, if admissible, it would not be conclusive. It tends to prove an error in fact on the part of the defendants ; and a location made in error is not binding. 3 Mart. N. S. 11. 6 Ib. N. S. 701. 2 La. 499. 12 lb. 544. Even a judicial admission may be revoked, in case of an error in fact. Code of 1808, 314. Civ. Code, art. 270. 1 Whites’ New Recop. 292.</p> <p>Both parties claiming under S L. Wells, the defendants’ purchase, being the earliest, must be first satisfied. Civ. Code, art.' 843. 9 Mart. 81. 6 Mart. N. S. 700, et seq. The deed from Wells to L. B. Compton, must be so construed as to give effect to all its clauses. Civ. Code, arts. 1940, 1941, 1943, 1946, 1950. 12 La. 546. If there be any ambiguity, it must be construed most favorably to the vendee. Civ. Code, arts. 1952, 2449. Plaintiffs being purchasers from Wells, have no greater rights than he had. The vendor is bound to deliver the whole extent of the premises sold, in the exact form stipulated. Civ. Code, arts. 2467, 2468. Tolhier, Vente, 47, 48. Admitting the surveys relied on by the plaintiffs to be legal evidence, if not in conformity-to the titles they can neither give, nor take away any thing. 3 Mart. N. S. 12-16. 6 Ib. N. S. 701-2. 2 La 502. 12 lb. 545.</p>

This was an action to recover the value of certain buildings erected and being upon land on the easterly side of the Ninth avenue, between Forty-fourth and Forty-fifth streets in the city of New York. Upon the case being rested on behalf of the plaintiff, the defendant moved to dismiss the complaint, which motion was granted, and the plaintiff excepted.

The action was to recover damages for the non-delivery of a quantity of barley. On the 24th of October, 1862, the defendants verbally agreed to sell to the plaintiffs a cargo of Jefferson county barley, of about 9000 bushels, to be delivered before the close of navigation, at White’s malt house, in the city of New York, at $1.30 per bushel, payable on delivery.

<p>1. A party to an arbitration may resort to the original cause of action embraced therein, where the award of the arbitrator is void.</p> <p>2. A lessor may maintain an action on a covenant in a lease of a furnished house executed by the lessee, to pay all damages accruing to the house or furniture during the term, notwithstanding an agreement contained therein, that such damages should be determined by a named person, where his appraisal of such-damages may be void for want of notice of time or place of such appraisement.</p>

On the 15th day of July, 1855, Eobert Sturgeon, and Anna his wife, executed and delivered to the plaintiff a mortgage upon a certain lot of land, situated in West Thirty-second street, in the city of New York ; which mortgage was given as security for the payment of a certain bond for five hundred dollars. On or about the 9th day of December, 1862, the plaintiff commenced an action in the Supreme Court to foreclose this mortgage.

<p>Appeal from the District Court of Avoyelles, Boyce, J.</p>

<p>Appeal from the District Court of Ouachita, King, J.</p>

<p>An exception to the jurisdiction of the court, waived below, cannot be revived in the appellate court.</p> <p>A power of attorney admitted to record in another State, is not “ a record or judicial proceeding of any court,” within the meaning of the act of Congress of twenty-sixth May, 1790. A copy of such an instrument, must be certified in the manner required by the act of twenty-seventh of March, 1804.</p> <p>The declarations of one who had acted as an agent, made after the termination of his agency, are not binding on the principal, though the former be dead at the time of the trial.</p> <p>An attorney cannot object, on the ground of professional confidence, to being interrogated as to the manner in which he became possessed of papers introduced by him in support of his client’s cause, where it does not appear that he received them from his client or his agent.</p> <p>A party to a suit, interrogated as to a particular fact, cannot, under the pretext of answering the interrogatory, annex to his answer letters of a third person, and thus introduce in evidence statements not under oath, for the purpose of influencing the jury on other points in the case.</p> <p>The joint owners of a plantation are liable, each for his virile share, for supplies furnished for its use.</p> <p>Though the powers of attorney given to the manager of an estate by the joint proprietors, may have been revoked by the death of one, and the marriage of another, yet if he continue to act as such, for the benefit of the joint owners, without any express disavowal of his authority, or if he be subsequently recognized as such, either tacitly or expressly, the proprietors will be bound by his acts.</p>

<p>1. The implied warranty of the seaworthiness of a ship by the insured is limited to the beginning of the voyage. If she become unseaworthy afterwards, from any cause whatever, the underwriters are liable.</p> <p>2. It is a presumption of law that when a vessel is wrecked, or founders at sea, shortly after sailing, without any stress of weather, or storm sufficient to destroy or impair a sound ship, but she founders in ordinary sea-going weather, her loss is to be attributed to decay, or some inherent defect in her material; and the insurers, under such circumstances, are exempt from the risk.</p> <p>8. When there is a conflict in the evidence, as to the seaworthiness of a vessel, or the extent of perils encountered, it is proper for the court to submit those questions to the jury, as being questions of fact for them to determine; and if the jury, after passing upon them, finds a verdict in favor of one the parties, that disposes of the case, so far as the question of the weight of evidence is concerned.</p> <p>4. Where a policy of insurance was “for the account of whom it may concern,” in case of loss the amount insured to be paid to the plaintiff or order; Held that the action was properly brought in the name of the plaintiff; the contract being, in substance, with him if authorized, for the benefit of all the owners. In such a case he has a right to sue on the policy as trustee for the owners, under the Code of Procedure.</p> <p>6. Where the loss, if any, was payable in thirty days after proof of loss'and proof of interest in the vessel insured; Held that it was not necessary that tho particulars of loss should be stated in the preliminary proof.</p>

<p>Proof of the signature of the grantor, and of that of one of the subscribing witnesses residing in another State, is sufficient evidence of the execution of a deed sous seign privé.</p> <p>Plaintiff offered in evidence copies of deeds taken from the records of the office of the Parish Judge, on making oath that he had inquired in vain, from all persons who were likely to have any knowledge of the matter, for the originals, which he believed had been lost or destroyed. It was shown that the deeds were more than thirty years old ; that the Record of Conveyances had been regularly kept; that it was formerly the practice to give back the originals after they were recorded ; and that the Parish Judge and subscribing witnesses were dead. Other circumstances tended to show that the deeds were genuine. Held, that the copies were properly ad- . mitted.</p> <p>In controversies between the original grantee of a tract of land, or those claiming directly under him, and one in whose favor, as assignee, the title has been confirmed by the Commissioners of the United States, the certificate in favor of the latter, and the facts recited in it, will not be evidence, but the confirmation will enure to the benefit of the party having the inchoate title. Otherwise, as to third persons showing no title. The Commissioners appointed to decide upon land titles emanating from the former sovereigns of Louisiana, being authorized, by different acts of Congress, to confirm inchoate titles existing at the time of the change of government, in favor of certain grantees, or their legal representatives, had authority, incidentally, to decide whether one who claimed, not as the original grantee, was entitled to a confirmation ; and such confirmation, in favor of an assignee, has been uniformly regarded as entitling the latter to a patent. It is evidence against the government, and though not binding on the original grantee, or those claiming under him, is prima facie evidence against the rest of the world.</p> <p>A petitory action may be maintained against a naked possessor, upon a title which, if accompanied by possession, would be regarded as a just title.</p> <p>A petitory action may be defeated, by showing that the title is in a third person, or that the latter has a better title than the plaintiff.</p> <p>Jurors are so far the judges of the law as well as of the facts, that they have a right, in all cases, to find a general verdict. But the court, if not satisfied therewith, may grant a new trial.</p>

This was an action upon a bond given by the defendant upon the purchase of certain land in Brooklyn, to secure payment of the purchase money thereof, of which bond the plaintiff was assignee. Such premises were conveyed in fee by the seller, who was the obligee in such. bond, (Hawke,) to the defendant -by a deed with covenants of seisin, for quiet enjoyment, against incumbrances, for further assurance, and with warranty.

This was an action to recover possession of a piece of land in the city of New York, described in the complaint.

<p>Appeal from the Court of Probates of Catahoula, Taliaferro, J.</p>

<p>In contests between the creditors of an insolvent, the confessions or acknowledgments of the latter are not evidence. Such declarations are presumed to be fraudulent.</p> <p>Where the vendors of slaves have left them for a number of years in the possession of the vendee, without taking any steps to preserve their privilege, they cannot assert it to the prejudice of creditors who have obtained judgments against him, or received special mortgages from him. C. C. 3238.</p>

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

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

<p>It is no objection to a witness that he is interested in a case, when offered to testify against his interest.</p> <p>An attorney is not admissible as a witness to disclose facts, the knowledge of which he acquired confidentially, in the practice of his profession. But when in possession of papers belonging to his client’s adversary, or when called on, after having had them in his possession, to disclose what he has done with them, or to point out where they may be found, the rule does not apply ; and he may be as properly called on to produce the papers necessary to establish the rights of the adverse party, if still in his possession,-or interrogated as to facts which may lead to their discovery, as his client himself eould be. C. P. 140, 473.</p>

<p>The formalities prescribed by art 254 of the Code of Practice, which requires where the defendant has no known place of residence, or conceals his person, or is absent, or resides out of the State, that the sheriff shall serve the attachment and citation, by affixing copies thereof to the door of the parish church of the place, or to that of the room where the court in which the suit is pending is held, stand in the place of citation, and form the basis on which all subsequent proceedings must rest, and their omission will be fatal. Service of citation on the defendant, is the first step to be taken.</p> <p>The remedy by attachment is a harsh one, and those who resort to it, must comply strictly with the requisites of the law.</p>

<p>Where one entitled to claim a tract of land, as an actual settler prior to the twentieth of December, 1803, under the act of Congress of the third of March, 1807, relative to land claims in the territories of Orleans and Louisiana, sells all his right, title, and interest therein, and the claim is subsequently confirmed in the name of the original settler, the confirmation will enure to the benefit of his vendee.</p> <p>One who sells all his right, title, and interest in an improvement made on the public lands, must be considered as parting with all the ulterior advantages to which he may be entitled in virtue thereof.</p>

<p>The signature of the petitioner to an affidavit which the law requires to be annexed to the petition, is a sufficient signature of the petition itself.</p> <p>There is a class of exceptions which may be pleaded for the first time on the appeal; but the facts necessary to sustain them, must appear from a mere inspection of the record.</p>

<p>The defendants are appellants from a judgment of the District Court of Concordia, Curry, J.</p>

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

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

<p>Appeal from the District Court of Rapides, Boyce, 3.</p> <p>submitted the case without argument.</p>

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

<p>Appeal from the District Court of Caddo, Campbell, J.</p>

<p>This was an appeal from a judgment rendered on a report of a referee. The complaint was for goods sold and delivered; the answer was a general denial of the allegations of the complaint. The referee found that in September, 1863, the plaintiff sold and delivered to the defendants, through one Victor Fleury, the goods in question, and the defendants promised to pay a certain sum ($8391.63) therefor on demand. That in the same month the defendants paid the plaintiff a certain sum, ($5391.63,) leaving a residue ($3000) due on the price of such goods, for which, with interest, he gave judgment.</p> <p>Fleury being examined as a witness, testified that the plaintiff was to have the bill of lading of the goods imported, and pay any thing outside ; and he was to pay the plaintiff the cash on receiving the bill of lading. When he did not pay the plaintiff and take the bill of lading, the latter made the entries at the custom house and paid .the duties. He sold the goods to one of the defendants, (Maas,) who was to pay the amount to the plaintiff, who had made advances on such goods. The plaintiff sent the goods by his own cartman to the defendants, whose porter received them and gave receipts according to his custom therefor, in which he stated he received them from the plaintiff. The same witness further testified, that he required the defendants to pay the amount to the ■ plaintiff, on account of his having made advances on the goods ; that he himself had power to sell the goods; they belonged to him, after he had paid the plaintiff; the latter had nothing to do with the profit and loss on the goods. On the 1st of September he delivered a written order, signed by him, to the defendants to pay, absolutely, the price of the goods sold, to the plaintiff, to which was annexed a bill of parcels specifying the amount due ; they delivered to him in-return, a written promise to do so. The bills rendered were for the goods as bought by Eleury, but the price mentioned therein was stated to be payable to the plaintiff.</p> <p>The plaintiff testified that he had imported a good deal of the same kind of goods for Eleury, for which the latter at first paid him, but latterly could not do so, so that he kept possession of the goods. He then gave Eleury liberty to sell them, with the understanding that the price should be paid to him. On a previous occasion he sold some of the same goods to the defendant Maas, and received a similar order for the price. He was informed on that occasion, when he inquired, that it was all right. He further testified that the difference between his advances on those goods and interest, and what he claimed from the defendants, would be very small, not over one or two hundred dollars; there might be a loss. Eleury then owed for other advances by him which were not paid. There might be a loss as well as a profit on that transaction, because he had not closed it.»</p> <p>One of the defendants (Maas) testified that he did not know the plaintiff, in making the purchase, until the bargain was concluded; that he advanced Eleury a certain sum ($1500) on account of such goods, after he had given the latter the written promise before mentioned, to pay the price to the plaintiff; the latter then owing them another sum, ($1430.02.) He subsequently promised, to pay them the whole, but again borrowed a third sum, ($500,) which he promised to pay before they paid the plaintiff. Maas, on behalf of both defendants, on the 12th of September, sent the plaintiff a check, in a letter, for a certain sum, ($5391.63,) excusing themselves for not having sent the check before, in consequence of having paid Fleury part. To this the plaintiff replied, claiming the balance, ($3000,) to be paid as agreed on, and asking a check therefor. On a personal application by the plaintiff, on the 12th of September, the defendant Maas told him he had no transaction with him ; that as Fleury asked him to pay an amount to the plaintiff, he thought he had the right to countermand it.</p> <p>The referee reported in favor of the plaintiff for $3227.50, together with costs; and the defendants appealed from the judgment entered on the report.</p>

<p>A claim for conventional interest must be established by written proof. C. C. 2895.</p> <p>Action for the balance of an account, with interest, and verdict and judgment in favor of plaintiffs for a certain sum, without interest, and no new trial applied for by the latter. On an appeal by defendant, and prayer by plaintiffs for an amendment of the judgment, so as to allow the interest claimed : Held, that no attempt having been made to correct the judgment in the court below, by moving for a new trial, no amendment can be allowed in the appellate court.</p>

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

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

<p>Appeal from the District Court of Rapides, King, J.</p>

<p>A surety who binds himself with his principal, in solido, is not entitled to the benefit of discussion ; and may be sued alone for the whole debt. His obligation must be regulated by the principles applicable to debtors in solido. C. G. 3014.</p> <p>Pleas in compensation must be set forth with the same certainty as to amount, dates, &c , as would be necessary if the party setting them up were the plaintiff in a direct action. General allegations will not suffice.</p> <p>To entitle a defendant to a trial by jury, under the 24th section of the act of 20th March, 1839, he must show, by his affidavit, that his means of defence are certain and unequivocal, and that they will affect the plaintiff’s right to recover.</p>

<p>The certificate of a notary that “ he left the notice of protest at the domicil of the endorser,” is sufficient. It is not necessary that it should show whether he delivered the notice to one in the house, or simply left it there, as a notice either way is good.</p> <p>Notice to one who resides in a place where the protest was made, must he served personally, or hy leaving it at his residence or place of business.</p>

<p>Appeal from the District Court of Catahoula, Boyce, J.</p>

The action was to recover wharfage. The complaint alleged that on or about the 16th September, 1863, the plaintiff was the lessee of the bulkhead in the East river, at the foot of 49th street; that for fifty-eight days, commencing with said 16th September, the defendants- deposited and left remaining, on said bulkhead, a quantity of goods, wares and merchandise, exceeding, one hundred and fifty tons in weight.

<p>The signature of the appellant is not necessary to the appeal bond. His obligation to discharge any judgment rendered against him on the appeal, results from the judgment itself.</p> <p>The provision of art- 984 of the Code of Practice, requiring the holder of any claim for money against a succession to present it to the curator or executor before commencing an action, is like the amicable demand to be made of a debtor before suit. Its omission may prevent the recovery of costs, but not that of the debt itself.</p>

<p>By the laws of Mississippi, the forfeiture of a forthcoming bond extinguishes the original judgment; and the forfeited bond itself acquires the force and effect of a newt judgment.</p> <p>In an action on a judgment obtained in Mississippi, defendant having established that the judgment had been extinguished, by the execution and forfeiture of a forthcoming bond : Held, that there must be judgment as in case of nonsuit.</p> <p>Where, by the laws of a State in which a judgment has been obtained, no execution can be issued against the property of the defendant for a certain period, plaintiffs cannot, by suing on the judgment here, proceed against his property in this State, before the expiration of the delay to which defendant had acquired a right. The judgment cannot have a greater effect extra-territorially, than in the State in which it was rendered.</p>

<p>This action was brought to recover damages sustained by reason of the sale and assignment by the defendant to the plaintiff of a judgment obtained by a third party (Brown) against another person (Wyman) in the state of Alabama, after the collection by the plaintiff in such judgment against the defendant therein of nearly a thousand dollars, without disclosing the fact of such collection. The judgment was for a considerably larger 'sum ($6575) and recovered in the year 1838; in which year such moneys were also so collected. The judgment remained under the control of the attorney by whom it was recovered (Mr. G-oldth waite) to the time of its assignment to the plaintiff. In the year 1852 the plaintiff in such judgment (Brown) assigned it to the present defendant and a deceased partner (Ogden) composing the firm of Ogden, Ferguson & Co. In August of that year one of such firm, (the defendant Ferguson,) on behalf of the-firm, sold and assigned the judgment,' for a considerable sum ($2576.) The instrument of assignment, which was signed by him alone, contained a recital of the recovery of such judgment; its assignment to the defendants and its being in such attorney’s hands for collection. A transcript of it, certified by the clerk of the court in which it was recovered, in which certificate was included a statement that it was unsatisfied, was annexed to such instrument of assignment. The instrument assigned not only the judgment but “all sums collected thereon, and all securities for the same, held as collateral” by the defendants, or such attorney, or by any one for their “ benefitand in case of the prior payment of such judgment, or' its discharge or transfer, “ the proceeds or price of any settlement or sale of the same.” Such assignment was by its terms subjected expressly to any prior contracts made by such attorney for the benefit of the defendants, by their authority, and also to the payment of his charges. The intention of the defendants was declared therein to be to substitute the plaintiff in their place and transfer to him all their rights to or growing out of such judgment.' The defendants warranted thereby their title to such judgment and their power to transfer it only to the extent of the consideration paid, and after ninety days all responsibility arising out of such assignment was to £( end unless notice was given within that time specifying the ground of such liability.”</p> <p>The foregoing facts are alleged in the complaint, which also avers the delivery by the plaintiff within ninety days of a notice to the defendants specifying the grounds of their liábility, and the payment by him of the costs and charges of such attorney, and alleges the legal rate of interest in Alabama to be eight per cent. The answer takes issue on the payment of such costs, the collection of such amount upon the judgment, and the rate of interest in Alabama.</p> <p>A former judgment of dismissal of the complaint in this action upon a trial was reversed by the Court of Appeals by whom it was sent back for a new trial, (15 N. Y. Hep. 437.) Subsequently a verdict for the plaintiff, on a second trial, was set aside by this court at a general term ; because the recovery was for the full amount of the moneys collected. And the verdict on which the present judgment was entered was for an amount of damages according to the rule established at such general term.</p> <p>A motion made on the last trial,' before any evidence was introduced, to dismiss the complaint, was denied. It was established in evidence that a certain sum had been collected by the attorney of the plaintiff in the judgment ($988.85) before the 9th of April, 1839, part of which ($113.85) had been retained by him for services in other cases, and part ($43.75) for commissions in collecting part of such sum ($875.) Such attorney also had a claim for a commission upon the amount of such judgment, for recovering it, which was paid by the plaintiffs and was proved to be a proper charge.</p> <p>The defendants’ counsel offered to prove facts tending to show entire ignorance by the defendants of the collection of any moneys on such judgment before their assignment thereof to the plaintiff, their good faith and innocence of fraud, the making by the plaintiff of inquiries relative to such judgment, before its purchase, and his reliance therein; which offer was excluded, and an exception was taken to such refusal.</p> <p>The judge before whom the action was tried charged the jury, that the plaintiff could recover the same proportion of the consideration money paid by him, and interest, as the amount paid over to the original plaintiff in the judgment in question, on account of it, was of the amount due on such judgment and interest, but no more. Both parties excepted to the charge so given, and appealed from the judgment entered on the verdict.</p> <p>- On the trial the plaintiff claimed to recover the whole amount of the moneys collected for the original plaintiff, less his commissions, with interest at eight per cent according to the law of Alabama, for over twenty-three years, being from the time of collection to the trial, and his counsel requested the court to charge the jury that he was entitled to recover it, and for a refusal so to charge he excepted. He also excepted to the charge as given, for not so instructing the jury. The defendants' counsel also made various requests to charge, founded mainly upon the principles, 1st, That a warranty of title to a judgment did not include warranty of the amount due on it, or the non-collection of any sums thereon. 2d. That if a sum equal to the amounts collected on such judgment was not collectable on such judgment after the assignment, the plaintiff was only entitled to nominal damages ; and that he could not recover any thing more than the excess of what was collectable thereon after the assignment, if such previous payments had never been made beyond the difference between what could have been collected at any time and the amount of such payments. 3d. That the assignment in question did not transfer any sums collected on such judgment previous to the assignment, unless they had been collected for the benefit of the defendants ; all of which the presiding justice refused to charge, and the defendants’ counsel excepted to such refusal.</p> <p>The jury rendered a verdict for nearly $530, under the charge of the judge, to which the plaintiff's counsel excepted. How such sum was made up did not appear by the case; but no error therein was pointed out in case the charge of the court was wrong.</p> <p>Both appeals were heard together.</p>

<p>In an action, on an open account, against the heirs amongst whom a succession has been partitioned, for articles furnished to their ancestor, interest will be allowed from judicial demand, and not from the death of the ancestor.</p>

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

<p>Appeal from the District Court of Rapides, Boyce, J.</p>

<p>"Where the certificate of the magistrate, to whom a commission was addressed, attests that the witness appeared and answered the interrogatories, and signed his name thereto *£ after having been examined upon the Hol'y Evangelist of Almighty God1,” it will be sufficient. The language of such a certificate is immaterial, provided' it appear clearly that the requisites of the Taw have been complied with.</p> <p>The object of the 7th sect, of the act of 25th March, 1828', which requires that interrogatories to be propounded to witnesses examined under.commission, shall be served ón the opposite party or his counsel,, three days previous to being forwarded, is to afford the latter sufficient time to examine them, and prepare his objections or cross-interrogatories ; and where such interrogatories-have been handed to a party, with a request that he will accept service thereof and return them the next day, and he acknowledges service, and returns them, accordingly, with his cross-interrogatories, he will be considered as- having waived any further delay.</p>

<p>This action was brought against the defendant as indorser of six promissory notes, hearing different dates, payable at different times, (though all made on the same day,) and in the following form:</p> <p>“ $500.00. Northfield, January 15th, 1858.</p> <p>Eight months after date, we promise to pay to the order of James A. Dorr, five hundred dollars, at No. 34 Pine street, New York city.</p> <p>The Northfield Brick Company, by James A. Doer, Treasurer.”</p> <p>Indorsed, “ Protest waived,</p> <p>James A. Doer.”</p> <p>The defense set up in the answer, so far as involved in the trial, was that the defendant indorsed the notes for the accommodation of one Myers, and that Myers passed them to the plaintiff after their maturity.</p> <p>The cause was tried before a referee, who found the following facts, namely :</p> <p>First. That the Northfield Brick Compan}’-, in or about the month of June, 1858, made the notes described in the complaint, bearing the dates and for the amounts and payable at the times and place in said complaint stated, amounting in all to the sum of $4000. Second. That at the time of the making of such notes, such company were indebted to Michael A, Myers in the said sum of $4000, which indebtedness was evidenced by notes given by said company and held by Myers, past due and unpaid. Third. That Myers surrendered to the said company the past due notes, so held by him, and received therefor the notes in the complaint described ; such notes indorsed by the defendant at the request of said Myers, to enable him (Myers) to use them. That no consideration was paid to the defendant for so indorsing the said notes, but that Myers gave to the company, for the notes in the complaint described, so indorsed by the defendant, the said past due and unpaid notes of such company. Fourth. That there was no agreement between Myers and the defendant, by which Myers was restricted as to the use which he might make of any of the notes in the complaint mentioned. Fifth. That Myers continued to hold such last notes until after their maturity ; after which Myers transferred and delivered the same.to the plaintiff, for a full and.valuable consideration, equal to the amount of the said notes, paid by the plaintiff to Myers therefor.</p> <p>And, as a conclusion of law from the foregoing facts, the referee adjudged and determined that the plaintiff was entitled to judgment for the amount of the said notes, and interest as specified in the complaint.</p> <p>From the judgment entered upon the report, the defendant appealed.</p>

<p>A wife has a privilege on the moveables of her husband, for her dotal, but not for her paraphernal property. For the latter, she has only a tacit or legal mortgage, on his immoveables. C. C. 3367, 3183.</p> <p>Defendant having seized under a Ji.fa. certain moveables belonging to the husband of the plaintiff, the latter procured an injunction, pending which she obtained a judgment against her husband in a suit for separation of property, and, in virtue thereof, caused the moveable property, previously seized by defendant, to be sold, and purchased it herself, crediting the amount upon her judgment. On a motion to dissolve the injunction : Held, that by his seizure defendant had acquired a privilege on the moveables seized ; that the rights of the wife, being merely paraphernal, gave her no privilege on the moveables ; and that having, by the effect of her seizure, disabled the defendant from enforcing his privilege, she was responsible in damages for the injury he sustained from her act.</p>

<p>Appeal from the Court of Probates of Concordia, Dunlap, J.</p>

<p>One who seeks equity, must do equity.</p>

<p>Appeal from the Court of Probates of Ouachita, Lamy, J.</p>

This was an action for an alleged libel published by the defendants, and was three times tried.

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

Auguste Metoyer, who had been cited in warranty to defend this suit, is appellant from a judgment rendered in favor of the plaintiffs, by tbe District Court of Natchitoches, Campbell, J.

This was an action on. an open policy of insurance, with a special risk under the same notified to the defendant. At the commencement of such policy partly written and partly printed, “ H. Cohn & Co. on- account of.

<p>A prayer for a trial by jury, by one of two or more debtors bound in solido, will not enure to the benefit of those who have not joined therein.</p> <p>Under the act of 28th February, 1837, actions against the sureties of a sheriff on hie official bond, are prescribed by the lapse of two years.</p>

<p>Appeal from the Court of Probates of Rapides, Waters, J.</p> <p>Morphy, J. This suit is brought to recover, from the estate of Wm. B. Pearce, abalance of $1288, due on two notes, one for $7000, and the other for $8100, drawn by Josiah S. Stafford, to the order of and endorsed by Wm. B. Pearce, by David M. Calliham, the plaintiff, and by Leonidas A. Robert. The notes were originally held, by one John Dunwoodie, who, after they had been protested for non-payment, presented them to the defendant as administrator of the estate of Pearce. They were allowed as a just claim against the deceased, and placed on a tableau of distribution filed by the administrator, which was homologated on the 2d of May, 1838. Suits were brought by Dunwoodie in the District Court against Stafford, the maker of the note, and against Calliham and Robert, the other two endorsers, and on the 23d of May, 1838, the defendants confessed judgment for the amount claimed, with interest at ten per cent per- annum from the 3d of February, 1838, upon Dunwoodie’s allowing them a stay of execution until the 1st of March, 1839, with the understanding, that if one-third of the judgment, interest and costs, were punctually paid on that day, the defendant should be entitled to a further stay of execution on the remainder until the 1st of March, 1840 ; and that if, on that day, one-half of the remainder of the judgment were punctually paid by the defendants, they should be allowed another stay of execution on the remainder, until the I st of March, 1841, Sec. An execution, which issued upon one of the judgments for a balance due, was levied upon property of the plaintiff, for which he gave his twelve months’ bond, with James D. Spurlock as his security. At the maturity of this bond the plaintiff paid its amount, which, with the interest calculated at ten per cent up to the time of payment, makes the sum of $1288, which he now claims of the estate of Wm. B. Pearce, the first endorser, as having been subrogated to all the rights of Dunwoodie for the amount thus paid. Under these facts, the judge of the court below rendered a judgment in favor of the estate of Pearce, from which the plaintiff has appealed.</p> <p>By the acknowledgment of the debt by the administrator of Pearce’s succession, and the homologation of the tableau filed by him in the Court of Probates, there was an absolute judgment against the succession, for the amount due on the notes on which Pearce was endorser. The indulgence was subsequent to this judgment. In Pole v. Ford, 2 Chitty’s Reports, 125, cited in 3 Kent’s Comm. Ill, it was decided, that “indulgence to the acceptor, after judgment against the drawer, will not discharge the latter.”</p> <p>The surety is discharged by a prolongation of the term of payment, granted to the principal without his consent, where the indulgence is for a valid consideration, and precludes the creditor from enforcing his claim against the principal for the time. C. C. art. 3032. Bailey on Bills, 223. 3 Kent’s Comm. 111. Chitty on Bills, 8th ed., 441, and notes. Ib. 446, 447. 3 Mart. N. S. 59S. 7 Ib. 13. 4 La. 295. 11 Ib. 107. 16 Ib. 218. 19 La. 211. 6 Peters, 250. The case of Pole v. Ford, cited from 3 Kent’s Comm., by the counsel for the appellant, was probably one in which the indulgence was not founded on a valid consideration. Here, there was a good consideration for the extension of the term, and the contract was binding.</p>

<p>Appeal from the Court of Probates of Rapides, Waters, J.</p> <p>Simon, J. This case is before us on an opposition by the widow of Richard Winn, deceased, now the wife of J. N. T. Richardson, and by her husband, to the appointment of the appellee, as tutor of the minor children of the deceased.</p> <p>The facts of the case are these : Richard Winn, the father of the minors, died in the parish of Rapides, in October, 1840, leaving three minor children, the issue of his marriage with the opponent. The deceased left a large estate in the parish of Rapides, where his succession was opened. His widow was confirmed as natural tutrix in January, 1841, and on the 15th of the same month, an under-tutor was appointed by the Judge of Probates of the parish of Rapides. In March following, the opponent, E. M. Winn, went to the State of Tennessee to pass the summer, and for the avowed or alleged purpose of educating her children. Whilst there, she contracted a second marriage with James N. T. Richardson, a resident of the parish of Carroll in this State. This marriage took place on the 10th of August, 1841, without her having provoked a family meeting to retain the natural tutorship. In the following autumn, Richardson and his wife returned to Louisiana, to their domicil in the parish of Carroll; and in November, 1841, a family meeting was held in that parish, and an under-tutor having been appointed, Emma M. Richardson was, pursuant to the recommendation of the family meeting, appointed tutrix, and her husband co-tutor to R. Winn’s minor children. Letters of tutorship were issued to them on the 19th of November, 1841.</p> <p>On the 29th of the same month, the appellee made an application to the Court of Probates of the parish of Rapides, founded on the fact of the second marriage of R. Winn’s widow, by which she was, ipso facto, deprived of the natural tutorship of her children, praying that the tutorship might be conferred upon him, as 'the grandfather of the minors. An opposition was made to' this appointment by the appellants on various grounds, after the trial of which such proceedings were had as to submit the application to two successive family meetings, who finally recommended that the grandfather should be appointed tutor to the minors ; whereupon a judgment was rendered by the Probate Judge of the parish of Rapides, homologating the proceedings, and appointing W. H. Overton tutor of the minors. From this judgment the opponents have appealed.</p> <p>The decision of the Probate Court of Carroll, can only be reversed by appeal or action of nullity. The parish of Carroll became the domicil of the tutrix and minors. Civ. Code, arts. 48, 268, 289. Code Pract. arts. 944, 950. B. & C.’s Dig. p. 580, sec. 8. 14 La. 478. The mother did not los'e the tutorship, by her temporary absence from the State. 4 Mart. 715.</p> <p>By omitting. to convoke a family meeting, previous to her marriage, to decide whether she should continue to be the tutrix, the tutorship of the mother was, ipso facto, forfeited. Civ. Code, art. 272. The tutorship devolved .upon the grandfather, by operation of law. Civ. Code, art. 281. 6 Mart. N. S. 455. 10 La. 541. The Probate Court of Carroll was without jurisdiction. The whole estate of the minors is in the parish of Rapides, where their father lived and died, and where their mother resided till her marriage. The Probate Court of Carroll had, clearly, no jurisdiction before this marriage. The marriage of the tutrix, contracted without the convocation of a family meeting, could not divest the jurisdiction of the Probate Court of Rapides.</p>

<p>The certificate of a notary, that no note signed or endorsed by a particular person, was protested by him within a certain period, is inadmissible. A notary can only certify copies of proceedings in his office ; any other fact, within his knowledge, must be disclosed under oath.</p> <p>Where it clearly appears that defendant intended to authorize a third person to endorse certain notes in his name, he will be bound by such endorsement, though the letter of attorney were received by his agent after the endorsement. The authority, subsequently received, would amount, at least, to aratification of the act of the agent.</p> <p>When the rate of interest to be charged by a Bank on loans or discounts, is limited by its charter, it cannot stipulate for a higher rate on the amount of any loan or discount, in consideration of its forbearance to sue.</p> <p>Where a party resides at two places, alternately, being generally at one during one portion of the year, and at the other during the rest, but goes frequently from one to the other, notice of protest, directed to either, will be sufficient.</p>

The action was upon a bond conditioned to pay $3800, on the 21st of May, 1865, with interest payable semi-annually, on the 21st days of November and May, in each year. The plaintiff alleged the non-payment of the interest which became due and payable on the 21st day of May, 1863, and demanded judgment therefor, with interest thereon from said 21st of May, 1863. . The action was tried by a justice of this court, without a jury.

<p>Appeal from the District Court of Rapides, Boyce, .1.</p>

The plaintiff Belvidere Eliza Tippett, assisted by her husband, presented a petition, representing that Elizabeth, the wife of Hamilton Jett, died some years previously, intestate; that at the time of and prior to her marriage, she was the owner of a tract of land in the parish of Concordia, which was, subsequently, sold by herself and husband to one Hunt, for $1800 ; and that the amount was received by the defendant, and applied to his own use.

This was an action to recover from the defendants, as stockholders of the High Shoal Mining and Manufacturing Company, a company created under the act of 1848, respecting corporations for mining, mechanical and chemical purposes, (2 R. S. 5th ed. p. 658,) the sum of $1611 for the services of himself and wife, as servants of said company, performed for them before November 1, 1860.

<p>Appeal from the District Court of Rapides, King, J.</p>

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

<p>1. Where a policy of insurance provides for payment, by the insurers, “in case of loss, in thirty days after proof of loss,” &c. service of proof of loss, and the expiration of thirty days thereafter, are conditions precedent to a right of action upon the policy.</p> <p>2. And if, in an action by the insurers, upon a premium note, the defendants, admitting the allegations of the complaint, set up as a counter-claim a loss occurring under a policy issued by the plaintiffs, but give no evidence tending to show that any proof of loss was ever served, the counter-claim should be disallowed.</p>

This was an action against one of the acceptors, by the payee of a bill, for $434 25, payable “ in funds equivalent to Mississippi Union Bank post notes,” protested at maturity, on the 3d June, 1839. The defendant averred that he had always been ready to pay the bill, and that he had actually rendered the amount to the agent of the plaintiff.

This action was brought to recover rent of premises No. 10, West 13th street,, from the first of November, 1863, to the first of February, 1864. The defendant entered into possession thereof about the 15th of May, 1863, and abandoned them about the 21st of September, 1863. The amount of the claim and interest was conceded to be $242.32. The' defendant set up in her answer, First.

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

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

<p>A vendor may refuse to deliver the thing sold, though he may have granted a term for the payment, where, from the absconding of the vendee, he would be in imminent danger of losing the price. C. C. 2464.</p> <p>A sale is perfect, between the parties, as soon as they agree as to the thing and the price. As to third persons, the property of the thing sold passes to the vendee, only by delivery.</p> <p>A vendee who has not received the thing sold, nor paid the price, can transfer to a third person only his right to require the delivery of the thing on the payment of the price, or on giving security for its payment at the time agreed on.</p> <p>One who stands by and sees his property sold as belonging to another, will not be permitted to set up his title in opposition to a bona fide purchaser, who has bought on the faith of his declarations or apparent acquiescence. Aliterf where the purchaser knew the extent of the rights of the claimant, and was not misled by the acknowledgments so made.</p>

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

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

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

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

<p>A bill of exceptions is only necessary, where something is to be brought to the knowledge of the appellate court, which would not otherwise appear in the record.</p> <p>In an affidavit for a continuance, on the ground of the absence of a witness, a statement “ that the witness has left the city for a few days,” is equivalent to an allegation that he is expected to return at the expiration of that period, and will be sufficient.</p> <p>Where, on an application for a continuance, defendant swears, that he expects to prove by a witness, who is absent, “ that plaintiffs had caused great damage to him by their illegal conduct, that he is not indebted to them, and that he cannot safely go to trial without his testimony,” the circumstance of his having other witnesses to the same facts, ought not to deprive him of the benefit of a continuance ; for the absent witness might have the means of speaking more positively than the others.</p>

<p>Where a mortgage recites, that the mortgagor wishes to place the mortgagee “ á Vabri de ses avances d'argent, et des ejfets des endossemens que cclui-ci vpudra bien lui fournir,” it will be considered as having been given to secure past, as well as future advances.</p> <p>Acts granting mortgages will, in cases of doubt, be strictly construed.</p>

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

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

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

<p>A second ji. fa. cannot be issued on a judgment, until the first is returned.</p>

cited the case of Rouzel v. McFarland, 8 Mart. 704. The plaintiff cannot recover. The defect alleged to have existed, is one that must have been discovered by simple inspection, and is, consequently, not a redhibitory vice. Civ. Code, art. 2497. Briant v. Marsh, 19 La. 391. Moreover, no tender has been proved. Barrett v. Bullard, 19 La. 281.

The contract should be governed by the laws of this State, and the interest, if allowed, should be five per cent. Story, Conflict of Laws, 247. Fanning and others v. Consequa, 17 Johnson, 510.

A rule was taken on the plaintiffs, to show cause why an attachment, which had been issued in this case on an affidavit that the defendant “ had absconded from the State with the intention of never returning,” should not be set aside, on the ground that the affidavit was false. The record of the case of. The New Orleans Canal and Banking Company v. Comly, (1 Robinson, 231,) was the only evidence introduced on the trial of the rule.

<p>A balance due on an unliquidated account, cannot be pleaded in compensation in an action on a dne bill or Ion; nor in reconvention, when unconnected with the plaintiff’s claim.</p> <p>Pleas in reconvcntion must be set forth with the same certainty as to amounts, dates, &c., as if the party opposing them were plaintiff in a direct action.</p> <p>Instead of striking out any portion of the pleadings, a moro regular course'is to permit the parties to go to trial, and to reject, on the objection of the opposite party, any evidence offered to sustain such portion.</p> <p>Evidence, when required to be reduced to writing, must be taken down by the clerk, and should, in all cases, be read to the witness before he leaves the stand. The judge has no right, under any circumstances, to add to, or take from it, without recalling the witness.</p> <p>A broker, examined as a witness to prove the market value of certain stocks, will not he compelled to disclose the names of persons to whom he has sold shares of the same stock, where there is no intimation of any intention to examine such purchasers for the purpose of contradicting him, their names being, under such circumstances, immaterial.</p>

<p>Appeal from a judgment of the Commercial Court, Watts, J.</p>

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

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

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

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

<p>Where, in an action against the maker of a note, in whose hands different creditors of plaintiff have seized all sums due by him to the latter, defendant denies that he is indebted to the plaintiff, he will not be exempted from the payment of interest, on the ground of his Uncertainty as to’ whom he should pay. Having denied that he was at all indebted, he cannot allege that he was prevented from, paying by any uncertainty as to whom he should pay.</p> <p>Where different seizures have been made in the hands of defendant, of whatever sums may be due by him to plaintiff, on a judgment in favor of the latter, execution will be stayed until the seizures are proved to have been satisfied or abandoned. No law authorizes a judgment ordering the amount to be deposited in court, subject to the claims of the seizing creditors.</p>

<p>One acting as an agent, will not be liable, personally, to a party aware that he acts as such.</p> <p>A party, who seeks to render another liable for the debt of a third person, must prove such liability beyond all doubt, or he cannot recover. C. C. 3008.</p> <p>Mere voluntary payments, on some previous occasions, will not, of themselves, create an obligation to pay under future, though similar circumstances.</p>

<p>A sheriff has a right to retain possession of property sold by him, during the pendency of a rule to show cause why the sale should not be set aside.</p>

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

This action was brought to recover $1000, received by the defendant from the plaintiffs, upon the making of a contract between them, whereby the former agreed to sell to the latter a certain lot of land, “tobe occupied for a Jewish synagogue,” and to convey the same to them on the first of May then next, and the former undertook to pay therefor one thousand.dollars, at the time of the making of the contract; and the further sum of seven thousand dollars on the first of May…

<p>An appeal will lie from a judgment on a demand in reconvention, where the sum claimed in reconvention is sufficient to give jurisdiction to the appellate court, though the original demand be under three hundred dollars; but the judgment on the latter cannot be examine into. The demand in reconvention is in the nature of a new action.</p>

<p>Where a note, secured by mortgage, is prescribed, the mortgage is necessarily extinguished. A mortgage can only exist as an accessary to a principal obligation, with the extinction of which it disappears. C. C. 3251, 3252, 3374.</p> <p>The transfer of a negotiable note, by endorsement, operates a transfer of any mortgage given to secure its payment. O. C. 2615.</p>

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

This action was brought to recover damages for a refusal by the defendant to allow a transfer to the plaintiff, upon the defendant’s books, of 473 shares of the capital stock of the defendant, a mining corporation incorporated under the general act. The stock stood in the name of John H. McDowell, as his property, and a certificate to that effect had been issued by the company to, and was held by him.

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

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

<p>Application for a mandamus to the Judge of the Court of Probates of Jefferson, Dugué, J.</p>

Appeal, by the plaintiff, from a judgment of the Commercial Court of New Orleans, Watts, J. Morphy, 3. This suit is brought to recover the difference between the price at which two lots of ground were adjudicated to the defendant, and that which they brought on a re-sale at public auction, on his refusal to comply with and carry into effect the first adjudication.

<p>A party entitled to the compensation due to the owners of the contiguous lots, from a proprietor of the intermediate ground, who has made use of their walls, may cumulate in one action the debts due for the use of the walls of both owners.</p>

The action was instituted by the' plaintiff under the act of 1855, to recover damages for injury to property by a mob, during a riot. The case was tried by Mr. Justice Moncrief, and a jury. The plaintiff having proved his damages, the justice instructed the jury, that they should find interest upon the amount of the plaintiff’s damages, from the time of the second demand upon the comptroller. To this direction the defendants excepted.

This was an action by the Second Municipality of New Orleans, to recover one-third of the cost of certain pavement in front of property belonging to the defendant, with interest at eight per cent per annum, from the expiration of ninety days from its completion.

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

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

The action was for an account of moneys received by the defendant for through fares on the railroad from New York to Boston. The plaintiffs owned a railroad from New Haven to Springfield; and the defendants a railroad from New York to New Haven. Other companies owned a railroad from Springfield to Boston; such railroads formed a continuous line of railway from New York to Boston.

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

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

<p>Application by W. R. B. Wills and T. M. Wadsworth, for a mandamus to the Judge of the District Court of the First District, Buchanan, J.</p>

<p>By the first section of the act of 1 March, 1836, amending the charter of the New Orleans and Carrollton Rail Road Company, it is provided that “ the Company shall pay to the State, in ten equal annual instalments from the acceptance of the present act, seventy-five thousand dollars to be employed by the State for the completion of the Attakapas Canal through Lake Verret, whenever such improvements shall have been undertaken and the work actually commenced by the State, or by any Company legally chartered for the purpose.” In an action, under this act, by the State, against the Company, who had accepted the act, for the' instalments due : Held, that the State is entitled to recover, whether the works or improvements have been commenced or not; and that the defendants have nothing to do with the appropriation of the amount they contracted to pay.</p> <p>A debtor does not, by the indication of another as the person to whom he is to pay, become the debtor of the latter -, he continúes to be the debtor of his original creditor.</p>

The action was to recover damages for a breach of contract to deliver 100 shares of the stock of the Chicago and Rock Island Railroad Company, deliverable, at seller’s option, in ten days. The contract was made March 28, 1865, and matured on the 7th of April, on which day the plaintiff demanded the stock of the defendant. The latter refused to deliver.

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

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

<p>Submission, under section 372 of the Code of Procedure, upon the following facts.</p> <p>On the 14th of April, 1861, the plaintiff, then an infant, was married to John I. Me Ilvaine. On the 13th of April, 1863, while still underage, she ,in conjunction with her husband, executed and delivered to Charles Tracy, a deed conveying to said Tracy, upon certain trusts therein named, for the sole benefit of the plaintiff, certain real estate therein described, belonging to the plaintiff.</p> <p>The trustee accepted the trust, and entered upon his duties, and continued to act until the 20th of November, 1863. On that day the plaintiff became of age. She thereupon, again in conjunction with her husband, executed an instrument under seal, revoking and annulling the trust deed to Tracy. The plaintiff then entered upon the premises, and has since continued in possession; the trustee ceasing to act upon the revocation of the deed to him. The plaintiff and her husband, (who is living,) have two children now living. On the 19th of September, 1865, the plaintiff and defendant entered into an agreement for the sale and purchase of the premises in question. On the 1st of November, 1865, the plaintiff tendered to the defendant a deed of the premises, properly executed, in conformity with the agreement, which the defendant refused to receive, on the ground that the instrument of the 20th of November, 1863, was not a legal revocation of the deed, by reason of the coverture of the plaintiff. The plaintiff asks that the defendant may be required to perform his contract by receiving the deed tendered, and paying the consideration money therein expressed. The case was submitted on printed points.</p>

<p>Objections to a verdict lose much of their weight, when not made before the court which tried the case originally. A case will be less readily remanded on a question of fact, where ajnew trial has not been moved for below. An appeal from the judgment of an inferior tribunal, founded on a verdict, should only be taken after the refusal of a new trial.</p> <p>The verdict of a jury will not be disturbed, unless clearly wrong.</p>

<p>The purchaser of a slave, to entitle himself to the benefit of the third section of the act of 2d January, 1834, which provides that one who institutes a redhibitory action on the ground that the slave is a runaway or thief, shall not be bound to prove that such vice existed before the sale, when discovered within two months thereafter, where such slave had not been more than eight months in the State, must show that the slave has not resided therein for eight months preceding the sale.</p>

<p>A debt, as between the debtor and creditor, is indivisible, without the consent of both. A debtor cannot be compelled to pay his debt to a number of transferrees, among whom it may please the creditor to divide it. C. C. 2107, 2149. The provisions of the twelfth chapter, of the seventh title, of the third book of the Civil Code, arts. 2612-2624, must be understood as applying only to entire debts, rights, or claims.</p>

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

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

The plaintiff having enjoined the execution of a judgment obtained against him by the defendants, a rule was taken on the former to show cause why the injunction should not be dissolved, with damages, on the ground that the petition discloses no legal ground for issuing it. The defendants are appellants from an order discharging the rule.

<p>The fees to which a notary public is entitled for his services being fixed by law, he cannot, under any pretence, demand additional compensation.</p>

<p>This action was brought to recover the value of certain personal property, consisting principally of household furniture, of which the plaintiff claimed to be the owner, and which, as he alleged, the defendant had unlawfully converted to his own use.</p> <p>The plaintiff made title to the property by virtue of a chattel mortgage, executed to him by Augustus Smith. The execution of the mortgage was admitted, and the articles mentioned in the complaint were described in the mortgage. This mortgage was dated December 31, 1860, filed in the register’s office, in the city of New York, 2d January, 1861, and renewed on the 30th December, 1861. It appeared on the trial, that Augustus Smith was the owner of the property at the time of the execution of the mortgage, and that it was then situated in Beekman street, in the city of New York. The mortgage was payable on demand, and payment of the indebtedness intended to be secured by it, was demanded. On the 28th September, 1861, Smith, the mortgagor, assigned and transferred to the defendant, among other things, the furniture specified in the mortgage given to the plaintiff, subject to the payment thereof, &e. and the defendant thereupon took possession of said property under such assignment, and continued the business with Smith. The plaintiff, claiming title to, and the right to possess himself of the property under his mortgage, default having been made in the payment thereof, on the 2d day of April, 1862, permitted the defendant to have possession thereof, who promised to keep it for the plaintiff, and to surrender it to him when requested. On the 25th of April, 1862, the plaintiff demanded the property of the defendant, who refused to surrender it; whereupon this action was commenced. The case came on for trial before one of the justices of this court, and a jury. The defendant offered in evidence, as a defense to the action, the leases of Rainbow Hotel and the. assignments thereof from the defendant to Smith and Stone, and a chattel mortgage, dated April 1, 1857, executed by Smith & Stone to the defendant, upon the property in. question, to secure the payment of certain promissory notes, and the rent due, and to- become due, upon the leases ) and proposed to prove that the rent was in arrear from July to December, 1861, and was paid by the defendant out of his own money, and that at the time the plaintiff took his mortgage, he had notice of the defendant’s ■ mortgage, fthe learned justice excluded this defense and offer, and limited the defendant to proof of the value of the property. The jury,- under a charge from the court, • to which there was no exception, found a verdict for the plaintiff, for the sum of $2620.16. A motion was made, at special term, for a new trial, and denied. From the judgment entered upon such verdict, and from the order denying such motion for a new trial, which was made solely upon the minutes of the learned justice presiding at the trial, the defendant appealed.</p>

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

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

Simon, J. The petitioners allege, that with their brother and sister, they are the only children of Ferdinand Liautaud and of the defendant, who cohabited together, but were not married-when their children were bom.

The action was to recover for goods sold, and was tried before a justice óf this court, and a jury. At the close of the plaintiffs’ evidence, the justice dismissed the complaint, and the plaintiffs excepted. A motion was made, at special term, for a new trial, which was denied. Thereupon judgment was entered. The plaintiffs appealed from the order denying the motion for a new trial, and from the judgment.

This was a controversy submitted, without action, under the 372d section of the Code of Procedure, upon the following facts: On the 28 th of December, 1864, an instrument in writing was duly made and entered into between the above named plaintiffs, then being in possession as owners of the premises hereinafter described, and one Warren Brady, by which the plaintiffs agreed to sell to the said Brady, or his assigns, the certain gore lot described as follows : “ All that…

On the 18th and 20th days of August, 1862, Wales, Wet-more & Co., the appellants, made two contracts with Newton & Gregory, for the delivery of naptha and benzole.

Bullard, J. This is an action, upon a policy of insurance, on freight to be earned by the schooner Dolphin, in a voyage from New Orleans to Matamoras. The plaintiffs allege that the schooner sailed about the 23d of April, 1838, and proceeded with her cargo to Matamoras, where she anchored about the 28lh, but was prevented, by a French national brig, from landing her cargo, and compelled to return to New Orleans about the 9th of May.

Exceptions ordered to be heard at the general term in the first instance.

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

<p>The parties reside in Boston. The plaintiffs, on the 9th February, 1842, attached the rights of the defendant for debt, in the hands of certain garnishees residing in New Orleans. On the 14th February, in Boston, the defendant filed his petition, under the bankrupt law of the United States, praying to be declared a bankrupt. The attorney appointed by the court from which this appeal is taken, to represent the absent defendant, pleaded “ the surrender of the bankrupt’s property and his act, of bankruptcy, as conclusive of all suits, whether lay attachment, or otherwise.” The fact of the filing of the petition, to be declared a bankrupt, was admitted ; but the exception was overruled, and judgment rendered for the plaintiffs. The defendant, by his counsel appointed, &c., has appealed. On the 17th May, after the appeal had been filed in this court, upon the suggestion of the counsel for the defendant that a decree of bankruptcy had intervened, “ it was ordered that George F. Kuhn, assignee, be made a party to the suit, in lieu of the defendant.” The record does not show that there was any appearance on the part of the assignee, nor that any steps were taken to make him a party to the proceedings. The counsel of the defendant has contended, that the filing of the petition to be declared a bankrupt, operates as a supersedeas or stay of proceedings in the State court; and that the court below could proceed no further in the case, until the appearance of the assignee. The opinion pronounced hy this court recognizes the position, and, accordingly, remands the case, and orders the court below to allow a reasonable time for the appearance of the assignee, and then to proceed in accordance with the views expressed in the opinion.</p> <p>It was not until this opinion had been pronounced, that the counsel, now appearing, became interested in the case, and prayed for time to present a petition for a re-hearing. The court, willing to hear and examine all that could be urged against its opinion, and no doubt desirous that its decision on a point of such delicacy and importance,' should not, when final, incur the imputation of having been pronounced without proper deliberation, granted time. Under the circumstances of the case now presented, it devolves upon the court to determine what effect is produced upon judicial proceedings, both as to the property and person of a bankrupt, by proceedings in bankruptcy under the late law of Congress.</p> <p>■ The 3d section of that act declares, that all the property, &c. of every bankrupt, “ who shall, by a- decree of the proper court, be declared to be a bankrupt within this act, shall, by mere operation of law, ipso facto, from the time of such decree, be deemed to be divested out of such bankrupt,” &c.; “ that the same shall bo vested, by force of such decree, in such assignee,” &c.; and that “ the assignee shall be vested with all the rights, titles, powers and authorities, to sell, manage and dispose of the same, and to sue for and defend the same, as fully to all intents and purposes, as if the same were vested in or might be exercised by such bankrupt, before or at the time of his bankruptcy declared as aforesaid.”</p> <p>The words used are plain, concise and exclusive. It would seem, that if the estate is divested from the time of the decree, it is not divested before the decree; and, consistent with itself, the law, recognizing the bankrupt to be the owner until the decree, leaves to him the prosecution and defence of all suits involving the rights of the property, until an assignee be appointed and authorized to succeed him. The same section provides, that “ all suits in law and equity, then pending, in which such bankrupt is a party, may be prosecuted and defended by such assignee,” &c.</p> <p>If the question is to be decided under these provisions of the law, it is easily put at rest. The language is plain beyond the necessity of interpretation. The bankrupt remains the owner and represents the property in court, as well as out of court, until the decree ; then his place is filled, quoad the property, by the assignee. In regard to his personal rights and his future property, the bankrupt himself remains their guardian. To make the application to the case before the court, we would say that the exception filed should not have been regarded, and that the court should have proceeded, as it did, to give judgment against the bankrupt, who was the only defendant in the cause. The rights of the assignee, if one were appointed, would not be precluded by the judgment.</p> <p>The only expression in the law itself relied on to control the provisions of the third section, is that contained in the first section. It declares that any debtor whose debts, are of a certain character, filing his petition in the form prescribed, “ shall be deemed a bankrupt within the purview of the act, and may be so declared,” &c. The argument, then, assumes, that the debtor, being deemed a bankrupt from the date of the petition, the decree, when pronounced, necessarily reverts to the date of the petition, and that the property is therefore divested from that date; in other words, that the consequence of being deemed a bankrupt, is the divesting of the property and judicial rights. But we must not forget that this is the sole act of the United States upon the subject of bankruptcy ; that there is no law, either common or statute, of the United States, which says that a bankrupt shall have no rights of property; and, that our ideas of the effect of bankruptcy, are derived principally from the English law. There is nothing in the meaning of-the word bankrupt, any more than in the word insolvent, that necessarily implies a divesting of property. If the law fixed no time, from which the decree, when pronounced, should operate, the courts would hardly be justified, under this expression, in giving it a retroactive effect. Still less can so remote an inference control the positive provisions of the law.</p> <p>The counsel argues, that the supposed stay of proceedings from the filing of the petition, and the relation back to that date of the powers of the assignee, result—</p> <p>First. From the object and intent of the law itself.</p> <p>Second. From the established principles and cases under bankrupt laws in general.</p> <p>Third. From the spirit and policy of the bankrupt laws of Louisiana.</p> <p>Before considering any of these arguments, we must advert to the first principles or rules of interpretation. The object of construction is to ascertain the will of the legislator. If the words of the law are plain — if one part of the law does not contradict another, nothing remains for interpretation. The will of the lawgiver being understood, courts have only to carry it into effect. “ When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing the spirit.” Civil Code, art. 13.</p> <p>So Blackstone, vol. 1, p. 59, says, the xoords of the law in their ordinary meaning, are first to determine the will of the legislature. It is only when the language of the law is ambiguous or obscure, that judges are permitted to resort to the context, the subject matter, the effect and consequences, ox the reason and spirit of the law.</p> <p>There being nothing ambiguous in the language of the third section — there being.nothing in the law itself contradicting its expressions, it might well be assumed that the words of that section put an end to the argument. But a proper deference for the authorities cited, and for the court itself, which has pronounced an opinion adverse to these views, admonish me that it may be unsafe to rest upon even these indisputable principles.</p> <p>In examining the positions taken by the opposite counsel, I will reverse the order adopted by him, and first consider the enactments of other systems of bankruptcy, because, by comparing them with our own when analogous, and by contrasting them when different, we shall be better prepared to form a correct opinion of what was the true intention of Congress upon this important point.' The statute of 13th Elizabeth, c. 7, gave to the commissioners in bankruptcy “ full power to dispose of all the lands and tenements of the bankrupt, which he had in his own right, when he became a bankrupt, or which shall descend to him,” &c. 2 Blackstone, 285.</p> <p>“ By virtue of the statutes of 1 Jac. I, chap. 15, and 21 Jac. I, c. 19, all the personal estate and effects of the bankrupt, are considered as vested, by the act of bankruptcy, in the future assignees of his commissioners.” 2 lb. 485.</p> <p>“ The property vested in the assignees, is the whole that the bankrupt had in himself, at the time he committed the first act of bankruptcy,” &c. 2 lb. 485. For the words of the statutes, see Bacon’s Abridgment, verbo Bankrupt. As the act of bankruptcy might have long preceded the suing out of the commission, the dealings of the bankrupt with others, even without notice, were liable to be set aside, and great injury and injustice frequently resulted. Hence the necessity of modifying the doctrine of relation was soon felt, and various exceptions were made, from time to time, by the laws. These exceptions are stated in their order, in Eden on Bankruptcy, (258-9, London edition,) and, with every other portion of the bankrupt code of Great Britain, were digested in the consolidating act of 6 Geo. 4, c. 16. By the statute of 2 & 3 Yict. c. 29, “ all dealings and transactions with any bankrupt, bona fide made and entered into before the date and issuing of the fiat against him, and all attachments and executions against the lands and tenements or goods and chattels of the bankrupt, bona fide executed or levied before the date and issuing of the fiat, shall be deemed to be valid, notwithstanding any prior act of bankruptcy provided the person so dealing with the bankrupt, or at whose suit such execution or attachment shall have issued, had no notice of the prior act of bankruptcy. See statute quoted in note, 38 Eng. Com. Law, Rep. 134.</p> <p>The Code de Commerce of France enacts, art. 441. “ L’ouverturedelafaillite est declarée parle tribunal de commerce, son époque estfixée, soit par la retraite du debiteur, fyc.</p> <p>Art. 442. “ Le failli, a, compter du jour de la faillite, est dessaisi de plein droit, de Vadministration de tous ses Mens.”</p> <p>Art. 443. “ Nul nepeut acquerir privilege ni hypothéques, sur les Mens du failli, dans les dix jours qui precedent Vouverture de la faillite.”</p> <p>Under the first bankrupt law of the United States, the provisions of the English law were adopted. The assignment made by the commissioners to the assignee of the bankrupt’s estate, “ shall be good at law and in equity, against the bankrupt and all persons claiming under him. by any act done at the time, or after he'shall have committed the act of bankruptcy provided, that bona fide purchases by persons having no notice of the commission of the act, shall not be invalidated. Acts of 1800, ch. 19, sect. 10.</p> <p>The provisions of the law of Louisiana are too familiar to justify their being quoted at length. Suffice it to say, that a judicial stay of proceedings was granted by the judge, as the first step in the cessio bonorum, under the Spanish jurisprudence, whence our own is derived. Elmes v. Estevan, 1 Mart. 193. That the same formality was directed to be observed by the Code of 1808, p. 294, art. 172 ; by the act of 1817 ; and by the Civil Code of 1825, art. 2172. The petition of the debtor imports a surrender of property, which the act of 1826 directs the judge to accept for the benefit of the creditors, and all subsequent attachments, seizures and levies are expressly forbidden. The date of the cession, when the surrender is voluntary, and of the petition of the creditors, in the few cases of involuntary bankruptcy, is definitely fixed as the period when the power of the debtor over his estate ceases, and that of the creditors begins.</p> <p>The first and most striking suggestion, presented by the quotations which we have made from these laws, is that in no one of them is the point of time, at which the debtor ceases and the assignee begins to be the owner of the property of the bankrupt, left to inference or argument. In all of these systems, that date has been fixed by positive and express enactment. Indeed, there is no single feature of the bankrupt law of greater importance ; none so apt, if left uncertain, to give rise to litigation, and to unsettle the titles to property and estates.</p> <p>Now in the construction of a law, other laws in pari materia are properly consulted. “ What is clear in one statute, may be called in aid to explain what is doubtful in another.” Civ. Code, art. 17. This rule must generally refer to acts of the same legislature, for the will of one legislature may be better inferred from its own acts, than from the acts of other legislatures. Yet if the laws of two countries, on the same subject, appear, from their points of resemblance, to have had a common origin — to have been founded on institutions, habits and wants of a similar character, each code forms for the other, a valuable and legitimate source of argument and authority. But in their comparison, we must take care not to confound them, or to adopt for one country the will of the legislature of another country. If particular provisions of the two laws coincide, the clear expressions of the one code, may be cited to illustrate the doubtful terms of the other. But if, from the comparison, a contrast results, instead of a resemblance — if the language of our law be clear, but in direct opposition to the corresponding provision of the statute cited for illustration, what are we to conclude, save that the foreign system has been examined and rejected, and that our legislature has willed that the law shall be different from it elsewhere ? A reference to foreign statutes, with any other view, is inadmissible. To argue that a positive provision of our law can be controlled, by showing that it differs from other laws, is to maintain that the will of a foreign legislature is superior to the power of our own. The argument degenerates into paradox, and assumes that the law is different from what the legislature that made it, intended it should be. Yet the counsel contends, that the policy and language of the law of England and of the law of Louisiana support his doctrine, and, therefore, that the law of Congress upon the same subject, must necessarily be the same. If the argument be not striking from its force, it is certainly remarkable for its novelty.</p> <p>The counsel quoted at large the provisions of the third section, yet he did not favor us with any comment upon the expressions used “from the time of the decree,” &c. He treats the question at issue, as one depending solely upon deductions from the spirit and intent of the law, and of other laws; and in his eagerness thus to infer a rule, he has overlooked the rule expressly prescribed by the law itself.</p> <p>The omission of Congress to fix a date at which the bankrupt law should affect the property of the bankrupt, would have evinced the most culpable disregard of the public welfare, which it is supposed to be the object of all laws to promote. If such an extraordinary omission had occurred, perhaps it would have been the duty of the courts, at all events they would have found it necessary, to fix the date which the law bad failed to prescribe. Other systems would then be referred to, their provisions would be compared, and the will of the legislature would be supposed to approve the period adopted by that system offering the most numerous points of coincidence with our own. But no such omission can be imputed to Congress. The bankrupt law has fixed the date of its own operation. That it differs from the date prescribed by other laws, .only shows more clearly the intention to adopt a different rule. The will of our legislature is placed in more prominent contrast with the will of other legislatures, and other systems must be cited to show, not what has been adopted,. but what was rejected.</p> <p>We find, accordingly, that the English law expressly refers the operation of the bankruptcy, and the powers of the assignee, to the Commission of an act of bankruptcy. That the law of France divests the debtor, from the day of the failure. That the bankrupt act of the United States, passed in 1800, re-enacted in termsthe provision of the English law; that the law of Louisiana vests the property in the creditors, from the moment of filing the petition ; and that the law of Congress, in terms equally explicit, vests the property in the assignee, from the date of the decree.</p> <p>Each system has its rule. Which is the most conducive to the public welfare — which is best adapted to ensure a just and equal distribution of the property, are questions of legislative and political economy, which it would be worse than idle to discuss in a judicial proceeding before this court. The law having prescribed a rule, that rule must be obeyed, although the court should be of-opinion that a better one might have been adopted.</p> <p>The argument of the opposite counsel begins with the assumption, “ that when the bankrupt files his petition and schedule, he surrenders his property to the court, which by law is made the administrator of the debtor’s effects, for the benefit of all his creditors ; and that the property and rights of property surrendered, become by operation of law divested out of the bankrupt, and pass from the hands of the court into those of the assignee.” In the consideration of questions arising under the late bankrupt act, we should be careful not to suffer our familiarity with other systems to mislead us, or to withdraw our attention from the actual provisions of the law itself. It is difficult to divert the mind from its accustomed bias, and to conduct its impressions into a new channel. The theory of the bankrupt laws of England and of Louisiana, have been so deeply impressed upon our minds, that we are led almost unconsciously to consider the doctrine of relation, borrowed from the one system, and the stay of proceedings and the concurso of all the creditors, peculiar to the other, as forming a necessary and indispensable part of every system of bankruptcy. This caution is of the greatest importance. No stronger illustration of its necessity could be given, than the quotation of the paragraph from the argument on the other side.</p> <p>In reading it, one would necessarily suppose that the counsel was stating the law of Louisiana, and not the law of the United States. Applied to the latter, it begs the question. It begins where the argument should have ended; and every proposition in the quotation is unfounded and erroneous. The filing of a petition in bankruptcy is not a surrender of property. The court is not by law the administrator of the debtor’s estate ; nor does the estate pass from the hands of the court, to those of the assignee.</p> <p>The filing of the petition is not a surrender of property. The most attentive examination of the first section of the act, and of the form of the petition, prescribed by the Supreme Court of the United States, wall furnish no ground for such an idea. ' The petition does not purport to be a surrender. It is not treated as such by the law, or by the court. It is simply a confession of insolvency, and a prayer for a decree and discharge. It implies an offer to surrender the property; for the divesting of the property of the petitioner, is the consequence of the decree which he solicits^ The most ingenious construction can make it no more. But the difference between an offer to surrender, and an actual surrender, is sufficiently obvious. It may well be questioned whether this offer be irrevocable. There is nothing in the law which forbids the petitioner from retracting it. Before the decree, his circumstances may change, or he may conclude that they do not require the' interposition of the law, and discontinue his prayer for the relief he no longer desires. His debts may be of such a character as to exclude him from the benefit of the law; and his creditors, cited for that end, may appear and show cause why the decree should not be granted. So far then from being a final and irrevocable surrender, the petition is but an offer to surrender, which may be withdrawn by the'petitioner, resisted by the creditors, or refused by the court.</p> <p>The court is not by law the administrator of the bankrupt’s effects. Wé have seen the fallacy of supposing that the property is vested in the court, either in form or substance, by filing the petition; and the court cannot administer that of which it has not possession or control. Nor does the law provide any mode of temporary administration.</p> <p>The commissioners under the English law and under the bankrupt act of 1800, took immediate possession of the bankrupt’s estate, and held it until the appointment of assignees. In Louisiana the judge accepted the cession, and appointed, if necessary, provisional syndics. In France the seals are affixed to the debt- or’s effects, and commissioners and agents are named by the decree opening the failure. Code de Commerce, arts. 449, 454. No corresponding provisions are found in the act of Congress. If it was intended that the property should be divested from the filing of the petition, the omission to provide some guardian for the estate, until the appointment of an assignee, would have been most remarkable. The absence of any such provision, corroborates the opinion that the property remains in the debtor until the decree.</p> <p>If, then, the property never vests in the court, we may safely conclude, that it does not pass from the hands of the court into those of the assignee. It passes at once from the debtor to the assignee. The decree, which divests the one of his estate, invests the other, and makes the assignee, like the heir of the ancestor, the legal representative of the bankrupt.</p> <p>The position assumed by the counsel leads to another anomaly. The court is not empowered itself to administer the property and protect the rights, either of creditors or of the debtor, during the interval between the petition and the decree, or to appoint an agent for that purpose. But, says the counsel, the bankrupt is divested by filing his petition. It follows, then, that there is an interval, during which the property has no owner and no administrator, and suits can neither be prosecuted nor defended. Such,a result is contrary to the whole policy of our laws. Accident sometimes leads to delay in the qualification of an administrator, or the appearance of a new party to a suit; but no legislature ever enacted, that there should be, in the ownership of estates, or in the progress of judicial proceedings, a necessary and unavoidable hiatus.</p> <p>But the argument which seems to have had the greatest weight with the court, is drawn from the supposed policy of the bankrupt law. Tt is said that the great object of the law is to secure a pro rata distribution of the property of the debtor among his creditors ; and that this object may be defeated by leaving the debtor in full control, and permitting the prosecution of suits, after filing of the petition. It is feared that creditors might suffer by the frauds of the debtor, and that suits, by collusion, or in the usual scramble for preferences, being prosecuted to execution, the property, the pledge of all the creditors, might be engrossed by a few. It is even suggested, that the description of property in the schedule would point it out for seizure, and assist in defeating that equitable distribution which the law intended to secure.</p> <p>These objections appear very formidable, but we think a little reflection will diminish their importance. The first step in the proceeding, is the presentment, under oath, of a statement of the property and debts of the bankrupt. The creditors are cited to a public investigation of his affairs. The least violation of the law deprives him of the relief which he asks from the court; and his conviction of falsehood consigns him to a prison and to disgrace. Fraud, at such a time, need not be apprehended. The dishonest debtor, seeking to defraud his creditors, would scarcely await the filing of his petition, to accomplish his purpose. He would be more inclined to execute his fraud, and to allow such time to elapse as would cover it with the mantle of oblivion, before making his application, than to select for its perpetration, that period, of all others, the most unpropitious of success and impunity. Nor can it fail to strike the court, that the stay of proceedings itself would be a cover for fraud, and afford the greatest facility for its perpetration. The legislature of Louisiana, impressed with this fact, provided various modes of protecting the interests of creditors, by the appointment of provisional syndics in some cases, and the imprisonment of the debtor, or the sequestration of his estate, in others. But in the act of Congress we find no such precautions against the frauds, to which a stay of proceedings would tempt the dishonest.</p> <p>It is true that, in the interval between the petition and the decree, some of the creditors may press their suits to execution, and obtain a preference over the rest. If this preference be acquired by fraud or collusion, the law condemns it, and the assignee is authorized to have it set aside. If, on the other hand, it results from the regular course of judicial proceedings, we cannot perceive any reason why the creditor should be deprived of the reward of his vigilance. A levy, on the day before the filing of the petition, would certainly secure a lien. Would it be any more unjust or unreasonable, to grant the same lien to a levy made on the day after the filing of the petition ? In both cases the gain of the seizing creditor is the loss of others ; he is paid at the expense of the mass. In every case of insolvency, the creditor who forces payment by execution, is paid at the expense of other creditors— he diminishes the fund, from which they are to expect payment. As a matter of abstract justice and equality, the period of insolvency would then seem to be the point, at which preferences should cease to be acquired by legal pursuit; but that period is too vague and indefinite — too difficult of proof, and too fluctuating, to furnish a safe or salutary rule. Such a principle would throw open the doors of litigation and doubt so wide, that no man could rest secure upon his judicial rights. No system, with which we are acquainted, has attempted to adopt it.</p> <p>The general policy of the law, is to encourage the competition of creditors; the most vigilant obtain the highest favor. But bankrupt laws are an exception to the principle. They prescribe a period when the race of vigilance shall cease. To say that this period should be fixed by the courts, upon considerations of equality and justice, would only be to leave it uncertain. To be definite, it must be fixed by arbitrary power. The legislature, in the exercise of its peculiar duties, having weighed all the considerations of policy applicable to the subject, must prescribe a rule. When prescribed, it governs the courts, like any other arbitrary act of the superior power.</p> <p>This evil of occasional preferences, acquired by vigilance, is, however, more imposing in theory than in practice. It is only in a few large cities, that legal process is so summary, as to afford facilities for its occurrence. Throughout the country generally, the process is too slow ; the delay between citation and trial — between judgment and execution, is too great, to give room for many, or important changes, in the rights of creditors, in the short interval between the petition and the decree. Congress may well have regarded such occasional preferences, as a less evil, than the increase and complication of the machinery of the court, necessary to prevent it. In the attempt to establish a system both cheap and simple, some minor considerations would necessarily be sacrificed.</p> <p>In England, bankruptcy was regarded as a crime. The forfeiture of the property was a punishment of the offence. As treason operated a forfeiture to the king, from the moment of its perpetration, so the estate of the bankrupt was forfeited to his creditors, from the commission of an act of bankruptcy. The suing out of a commission, wTas likened to the interdiction of a prodigal or a madman. It was the action and execution at once. (Bacon’s Abridgment, verbo Bankrupt) — the execution paré of the common law. But this system has been greatly modified. A bankrupt is no longer treated as a malefactor. A debtor, desirous of surrendering his property, is no longer compelled, though innocent, to assume the demeanor of the criminal — to keep his house — to depart the realm — to lie in prison — in order that the most friendly of his creditors, may sue out his commission. By the act of 6 Geo. 4, sec. 6, he is permitted to make his declaration of insolvency, before the chancellor’s secretary in bankruptcy, and thus openly solicit the interposition of the law.</p> <p>So the doctrine of relation, originally a stern and unbending rule, annulling all transactions after the commission of the act, was from time to time relaxed. The extreme hardship and injustice sometimes resulting from its enforcement, led to the enactment of .many and important exceptions, (Eden, 259,) until at last, by the statute 2 and 3 Viet., all transactions, payments, and seizures under execution, are protected, unless the party benefited thereby had actual notice of an act of bankruptcy.</p> <p>The government of the United States once adopted the original system of Great Britain, but abandoned it, after a short trial. In resuming the consideration of the subject, forty years afterwards, it would have been indeed unwise in our legislators, to have rejected the improvements which had intervened in the system, and to have re-enacted it, with all its obsolete and discarded errors. Congress did not fall into so lamentable a mistake. They endeavored to improve upon the system now in force in England, and to adopt one more-simple, more expeditious, and more liberal. The law which resulted from their deliberations, is in many respects imperfect. It could not have been otherwise. A system of such great importance, could not, by a single effort, be brought to perfection ; but the desire to abandon the errors of other systems, while their best features were preserved, was, no doubt, the prevailing spirit in the formation of the law.</p> <p>The declaration of insolvency, is still the only step which the debtor can take, under the English law. The creditors alone can prosecute the fiat or commission. Congress went still farther. It authorized the debtor, not only to initiate the proceedings, but to prosecute them to the surrender of his property, and to his own discharge. So, instead of reviving the doctrine of relation, almost abandoned where it originated, Congress discarded it altogether, and fixed upon the date of the decree as a more definite and noto-: rious point, from which the powers of the assignee over the estate of the bankrupt should commence. At the same time, the rights of creditors were protected, by stamping with nullity every act in contravention of the law, and by giving to the assignee full power to recover any advantage, illegally obtained.</p> <p>We infer then, from what is enacted by the law, and from all that it has failed to enact, that until the decree, there is no change in the title to the bankrupt’s estate, or in his right to administer and protect it; and, consequently, that the filing of the petition is not a reason for a stay of judicial proceedings.</p> <p>The stay of proceedings under the law of Louisiana, was a consequence of the concurso of all the creditors, an institution, with its name, derived from the Spanish jurisprudence. As all creditors, without exception, were brought ipto the bankruptcy, there was no occasion for separate proceedings. For the same reason, it was a part of the theory of the law that the bankrupt, from the moment of his cession, was civiliter mortuus. Elmes v. Estevan, 1 Mart. 193. David v. Hearn, lb. 207. The control of the syndic extended over all the property of the. debtor, without regard to the liens, pledges, mortgages, or privileges affecting it. The law did not profess to annul these preferences, but it altered the remedy upon them. The execution of writs, issued even on final judgment, was superseded. The syndic took from the hands of the sheriff, property seized under execution, and became himself the executive officer of the law in selling it. Bermudez's Syndics v. Ibanez, 3 Mart. 39. Civ. Code, art. 2180. Act of 1826. After the sale of the entire property, the proceeds were distributed to those having liens and privileges, in their respective ranks, and then to the ordinary creditors. The tableau of the syndic, therefore, embraced the whole range of liens, privileges and mortgages, conventional, tacit and legal, that abound in our laws.</p> <p>But the whole of this system is unknown to th’e English law. Judicial process, there, is never interrupted.</p> <p>“ Although all acts in relation to his property, done by a bankrupt after an act of bankruptcy, may be avoided by the assignees, subject to certain exceptions by express statute, yet the bankrupt, is still capable of maintaining actions, and no one can take advantage é against him, by plea of his bankruptcy, before the commission and assignment under it; the legal property remaining, till actual assignment, in the bankrupt himself. Cullen, 412.</p> <p>Even after the issuing of the commission, although .the property of the debtor is thereby withdrawn from new pursuit by legal process, the creditor is “still at liberty (until the discharge,) either to come in and take a proportionable benefit, under the commission, or to proceed against the person of the bankrupt, in the ordinary course of law.” Cullen, 148.</p> <p>The discharge itself does not operate as a stay. The mandate of the judge in the cessio bonorum, was binding upon the courts and creditors, without a plea — a judgment, rendered in violation of it, was a mere nullity ; while the discharge of the bankrupt, in England, can only avail him by plea or motion. Cullen, 399. Its operation is not to supersede legal process, but to confer on the bankrupt a new means of defence, which he can plead in bar, and which secures a judgment in his favor. If a creditor in England has a mortgage, a pledge, or a lien, or if he has made a seizure under execution, the bankrupt law does not interfere with his rights. It leaves him to his possession, or permits the sheriff to proceed with the sale, and to pay over the money to the plaintiff. The assignee has no power to disturb the possession, either of the creditor or of the officer. He is only authorized to redeem the property, by paying the amount of the lien, or by a performance of the condition, on which the right to the possession depends. Eden, 286, 290, 294. Cullen, 209. “ He takes the property, in the same condition and subject to the same burthens, as the bankrupt himself had it.” Cullen, 185. Hence the jurisdiction of the bankrupt courts is limited to the superintendence and control of matters in bankruptcy, and to controversies with, or between creditors, who come into the bankruptcy. 3 Chitty’s Gen. Prac. 543.</p> <p>Creditors having securities may keep out of the court. They have the choice of tribunals. They may proceed in the ordinary courts, or, if they ask the assistance of the bankrupt court, it will be given them. Eden, 451-2. 38 Eng. Com. Law Rep. 582. They discuss the property, affected by their peculiar claims, not in a concurso, but in their own suit. If it is more than sufficient to pay them, the assignee receives the excess ; if less than their claims, they then go into the bankruptcy as ordinary creditors, for their pro rata upon the balance. Proof in bankruptcy is a technical proceeding, involving a submission to the jurisdiction of the bankrupt court, a release of all right to preference, and a consent to a pro raía dividend. Cullen, 145. Hence the English assignee is the agent, and English bankruptcy is the concurso, not of all the creditors, but of the chirography creditors alone.</p> <p>Now the two systems — that of Louisiana, and that of England, are not only unlike, but in these important particulars are diametrically opposed. Which of the two was adopted as the model of the bankrupt law of the United States ? A Congress, composed of the representatives of twenty-six states, all, save one, governed by the common law of England, and familiar only with the English jurisprudence, would naturally prefer the system with which it was best acquainted. The English system was, beyond all doubt, the model of our own. The act of Congress is but an abridgment of its provisions, with such changes and omissions, as were deemed necessary to accommodate it to the greater freedom and liberality of our institutions. An extension of the right of voluntary bankruptcy, a further restriction of the doctrine of relation, and a greater facility in obtaining a discharge, are the most prominent changes in the principles of the law. The court has observed, that the bankrupt law of the United States assimilates in a great degree, to the law of Louisiana. In certain points, all bankrupt laws must necessarily bear a resemblance to each other. The appointment of an administrator of the property of the bankrupt, ihe distribution among the creditors, and the release of the debtor, either partial or entire, are of the essence of ail bankrupt laws. But take out these points of resemblance, and look through the details of the respective laws — the powers of the assignee — the rights of particular creditors — the extent of bankruptcy jurisdiction, and the cumulation of suits, and we find, instead of resemblance, the most striking and pointed contrast. On the other hand, compare the law of Congress, in all these particulars, with the English law, and we observe a coincidence, as marked as the contrast exhibited by the first comparison.</p> <p>There is certainly no provision in the act of Congress for a judicial mandate, staying proceedings either against the debtor or his property. How far the proceedings, from their character, operate as a supersedeas, will be seen by a short review of some portions of the law.</p> <p>The concurso in bankruptcy, does not embrace all the creditors. The law distinctly recognizes two classes of creditors, viz : those who claim under the bankruptcy, and those who do not claim, under the bankruptcy. Over the latter, the law assumes no control. If they are ordinary creditors, they lose their dividend, by neglecting to make their claims ; if they have securities, they are left to the exercise of the legal rights resulting from such securities, without being forced to come into the bankruptcy.</p> <p>Although the general provisions of the law could not fairly have been held to destroy any securities, lawfully acquired before the bankruptcy, the law, from abundant caution, has made express reservation of such rights. The description of the rights so protected, is given in the most comprehensive terms. “ The lawful rights of married women or minors, or any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the States respectively,” (sec. 2,) fairly embrace every right to a preference, known even to the laws of Louisiana. There is a qualification that such rights must not be “ inconsistent with the provisions of the second and fifth sectionsand, it is sometimes contended, but without reason, that this reservation destroys the proviso, to which it is appended. The only securities inconsistent with the provisions of the second section, are those given by the bankrupt, “ in contemplation of bankruptcy,” by way of preference to creditors, or fraudulently to persons other than “ creditors and bona fide purchasers “ without notice.” All securities, so conferred, are declared to be a fraud upon the law and void ; the assignee is authorized to have them set aside ; and, of course, they do not come under the protection of the proviso. Let us now see what securities are inconsistent with the provisions of the fifth section.</p> <p>That section declares, that “ all creditors coming in and proving their debts, under the bankruptcy,” shall share in the bankrupt’s estate “pro rata, and without any priority or preference whatever,” except only for debts due to the United States, to certain sureties, and to laborers. It further enacts, “ that no creditor, coming in and proving his debt, shall be allowed to maintain any suit, at law or in equity, therefor, but shall be deemed thereby to have waived all right of action and suit against such bankrupt; and all proceedings already commenced, and all unsatisfied judgments, already obtained thereon, shall be deemed to be surrender-ed thereby</p> <p>Thus it would seem, that by securities not inconsistent with the provisions of the fifth section, are meant those which shall not have been proved in bankruptcy. The proviso of the second section protects them, unless, being waived by proof, their further existence, as preferences, becomes inconsistent with the prorata distribution to all who have proved their debts.</p> <p>If, then, a creditor, holding a security, values the protection offered to him by this proviso, he must keep out of the bankruptcy. If he “ comes in and proves his claim," he does an act inconsistent with, and destructive of his right to a preference. The loss of the preference is, in that case, not the result of the law, but the voluntary act of the creditor, duly and fairly admonished by the law of the consequences of the act. If he prefers his dividend to his pledge, to his mortgage, or to his right of action, the law throws no impediment in the way of his free selection. “ He can claim under the bankruptcy or against it, but he cannot do both, at the same time.” Cranch, J. The law prescribes no mode of proof, by creditors holding securities ; no form of reservation, by which, when proving, they may secure their preference. It contains no instructions for a classification of debts, giving to one creditor the proceeds of. this property — to another, the proceeds of other property — recognizing this creditor as entitled to a general, and that to a special privilege. With the few exceptions already named, all who prove, are paid pro rata; and the very form of division dwindles, from the complication and ceremony of a tableau of distribution, to the simple declaration of a dividend.</p> <p>The securities in question, though protected by the law, are not available in the bankruptcy. By bringing them into the bankruptcy, all right of action is waived, and all proceedings and unsatisfied judgments surrendered. Does it not follow, that if a creditor will not waive his right of action against the bankrupt, the right still exists ? If it were destroyed by the mere filing of the petition in bankruptcy, no right would rest in the creditor, to be afterwards waived by him. Does it not follow, that the proceedings at law, by which alone mortgages, liens and privileges can be enforced, remain within the reach of the creditor, unless he consents to surrender them 1 If these proceedings, the sole remedies upon such securities, are destroyed by the transfer of the bankrupt’s rights to the assignee, what means the solemn farce of enacting how the right to them, no longer in existence, may be surrendered ?</p> <p>If, then, the law intends that these rights shall not, by its provisions, “ be annulled, destroyed, or impaired,” and, if they cannot be enforced in bankruptcy, it follows, necessarily,- that they must be asserted in the ordinary tribunals. So far from impairing them, the law does not interfere with them. The remedy upon them remains the same; the form of action is unaltered, save that the claims asserted before the decree, against the bankrupt, must, after the decree, be ascertained and enforced, contradictorily with the assignee. Hence the assignee is empowered to sue and defend, like the bankrupt; to succeed him m all suits, pending at the date of the decree ; and to prosecute and defend, in the same manner, as the bankrupt might have done before his bankruptcy. He is not confined to the court of bankruptcy ; but under these broad expressions, every court of ordinary jurisdiction is open to him, as plaintiff; and every such court, whose process can be served upon him, may exercise jurisdiction over him, as defendant, and bind him by its decrees. His position is more consistent than that of a syndic under the laws of this State, who is the representative and agent of conflicting interests and parties. Representing only the creditors who come into the bankruptcy, and specially charged with the protection of their rights, he contests, in all courts, the claims of creditors who do not come in, and who seek to diminish the assets of the bankruptcy.</p> <p>The very organization of the bankrupt court, adds force to the position contended for. The sixth section, which confers the jurisdiction, limits it to “ matters and proceedings in bankruptcy.” In further defining this jurisdiction, it is said to extend to all “ controversies in bankruptcy,” between the bankrupt and creditors who shall claim any debt or demand, “ under the bankruptcy,” between “ such creditors” and the assignee, and between the bankrupt and the assignee. The law gives no further jurisdiction, except that conferred by the eighth section concurrently on the District and Circuit Courts, over suits at law and in equity, between the assignee and “ persons claiming an adverse interest, touching any property or rights of property, transferable to or vested in such assignee.” With this exception, the jurisdiction is limited as strictly to bankrupt proceedings, as that of courts of probate to mortuary proceedings. But every suit against an executor is n.ot a mortuary proceeding; nor is every suit against a bankrupt or an assignee, necessarily a proceeding in bankruptcy. The neglect, then, to provide for the transfer of all suits against the bankrupt to one tribunal, and for their cumulation in a single proceeding, was not the result of casual omission. Legislators, educated under a system of laws whose forms contain no analogous proceeding, would have listened with surprise to any proposal that such a cumulation should form a feature of the law.</p> <p>It is sometimes said, that the bankrupt’s property cannot be pursued elsewhere than in the bankrupt court, because all his property and rights of property are by law vested in the assignee. The estate vests in the assignee, as it vested in the bankrupt. . He succeeds to the same rights, and enjoys by the same title ; but he has no higher rights. .If the property, before the bankruptcy, was subject to liens or privileges, it was vested in the bankrupt subject to such liens and privileges, and it vests in the assignee under precisely the same burden. If, before obtaining possession, the bankrupt would have been obliged to redeem or discharge the pledge, so must the assignee, before he can acquire the possession; and the law provides.for the contingency, by directing that the assignee may, under the revision of the court, redeem the property from such incumbrance. Sec. 11.</p> <p>Considering then the language of the law, its apparent intent and policy, its analogies and contrasts with other systems, we are led to the conclusion, that Congress intended that there should be no stay of proceedings, no cumulation of suits, no concurso of all creditors, and no divesting of property (even by relation) before the time of the decree. The law makes no distinction, in these particulars, between voluntary and involuntary bankruptcy. In the latter class, the folly of suspending judicial process, would be flagrant. Such suspense would afford the debtor the best opportunity of withdrawing his person and property from the reach of the court.</p> <p>With respect to the personal rights of the bankrupt, and his capacity to stand in judgment, we have already seen that the law does not interfere with them. Indeed, the argument of the counsel destroys his case. If the capacity of standing in judgment, was lost to the bankrupt by filing his petition, by what right is he prosecuting an appeal before this court ? The court might well inquire of him, in the language of the judge of one of our lower courts, when a similar position was taken — If you cannot appear in court, what are you doing here ? The counsel, probably perceiving that his position embarrassed his argument, obtained an order that the assignee should be made a party to the suit; but he has not been made a party, nor has he appeared. The counsel conducted his case in the same right after, as before this order. When the bankrupt shall have obtained his discharge, he may plead it in bar to the suit; but there is nothing in the law giving him the right to plead his petition, or even his decree, in bar or in abatement. So it has been decided by Judge Cranch, on the application of a bankrupt to be released from imprisonment for debt, after his decree, but before his discharge.</p> <p>The plaintiff claims to have acquired a lien upon the credits attached in this case. It is not pretended that he has Waived his lien, or surrendered his action, by going into the bankruptcy. The law does not require, nor even permit, the cumulation of his suit with the proceedings in bankruptcy; he then'remains free to claim a judgment against the defendant until his discharge; and free to prosecute his suit against the property attached in the case, until the assignee shall appear and show, that the attachment was illegal or void. We do not pretend that the judgment in this case would be binding upon the assignee, if his appointment should have been made before the judgment; but it is not an unusual proceeding, for a plaintiff to prosecute his suit against one party in interest to final judgment, leaving other parties interested to protect their interests in some other form. Whatever lien was acquired by the levy — whether inchoate or complete — that lien still exists. The assignee succeeding to the rights of the bankrupt, and to his rights only, cannot claim the property, without relieving it from the lien. If he shall think proper to appear, and if he can satisfy the court that the lien was inchoate only, and that the bankruptcy of the defendant prevented its being perfected; or, if he can show that the levy was made by collusion with the defendant, and in fraud of the law, then the court will decree the property to him, instead of the plaintiff. But he is the only person who can present such issues for the determination of the court, and any decision upon them before they are properly presented, would be premature. It is sufficient for the plaintiff to maintain, that the judgment from which the defendant has appealed, is correct.</p>

The plaintiff was a tenant of the defendant, under a lease having nearly four years to run, at a rent of $700. The plaintiff underlet the ground floor of the house to a person named Gutter, who, annoyed him by using it as a recruiting office, This use of it also damaged the defendant, by injuring the premises.

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

<p>Under the act of Congress of 26th May, 1790, an act of the legislature of another State , can only be authenticated by affixing the seal of the State thereto.</p> <p>A copy of an act of the legislature of another State, certified to have been made “ from Liber, I. G., one of the law records of the State, belonging to the office of the Court of Appeals,” is inadmissible. A copy from the original deposited among the archives of the State, would be better evidence.</p>

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

On the third of April, 1841, Laurent Millaudon presented a petition to the Parish Court of New Orleans, alleging : That the corporation created by an act of the legislature of 9th February, 1833, under the name of the New Orleans and Carrollton Rail Road Company, was, by an act of the 1st April, 1835, invested with banking privileges, and authorized to increase its capital from three hundred thousand dollars, as fixed by the original charter, to three millions.

This was an appeal from an order made at special teYm, overruling a demurrer to the complaint; which lattér is as follows: [Title of action.] “ The above nameá plaintiffs complain against the above named defendants as follows : First.

Appeal, by the defendants and certain intervenors, from a judgment of the District Court of the First District, in favor of the State, Buchanan, J. Bullard, J. The second section of the act of 12 March, 1838, entitled “ An act amendatory of an act to expedite the construction of the New Orleans and Nashville Rail Road,” declares, that the State engages to make a loan, among others, to the Gulf of Mexico Rail Road Company of $100,000, provided that before receiving the bonds…

This action was brought by the plaintiff as assignee of Ulysses B. Brewster, to recover of the defendant Ward, as sole acting executor of Robert Smith, deceased, and of the defendants “ The Masterton, Smith & Sinclair Stone Dressing Company,” one eleventh of the proceeds of the sale by Smith to the latter, of the property of “ The Empire Stone Dressing. Company,” whereof Brewster (the plaintiff’s assignor) had been a stockholder, and owned one eleventh of the stock.

This action was brought to recover $20,000 upon an open policy of insurance, made in February, 1862, whereby the defendants insured the plaintiffs “ on merchandise free of particular aver age,” by vessels from ports in Europe to New York, risks to be reported for indorsement as soon as known to the assured. In January, 1863, the plaintiffs reported for indorsement 801 bags of coffee, and sixty-four bales of wool, from Havre to New York, by the ship Mortimer Livingston.

The object of this1 action was to compel the defendant Allerton, as assignee of the defendant Nussbaum and Mr. Strauss, to pay the plaintiff a claim due by the former. The assignment in question was of all the property of the assignors, upon trust, first to pay partnership debts due by them, and secondly individual debts. No property ever passed into the hands of such assignee under such assignment, except individual property of Strauss.

This is an appeal from, an order directing a retaxation of costs. The. action was upon a bond for $7600 conditioned to pay $3800 on the 21st May, 1865, with interest at 7 per cent per annum, payable semi-annually.

This was an appeal from a judgment upon a verdict against the defendants, in an action upon a valued policy of insurance, for a loss of cotton shipped on board of a brig (Trade Wind) at Matamoras, bound for New York. Of 265 bales of cotton composing the cargo, 166 belonged to the plaintiffs. The remainder were the property óf other consignees. All of the bales were marked. The brig, on her voyage, went ashore and filled with water, and part of the cargo of cotton was lost.

This is an action for limited divorce on the ground of cruelty. The defendant, after having answered, alleging the like conduct on the part of the plaintiff, moved for leave to file a supplemental answer, setting up adultery on the part of the plaintiff, and asking for an absolute divorce, by way of counterclaim.

Aeter the order of arrest was obtained, in this case, an order was obtained by the defendants, calling upon the plaintiff to show cause why such order should not be set aside, “ or for such further or other order as to the court will he meet and proper;” On the return of that order, the parties appeared, and were heard.

<p>1. The court cannot allow an amendment of the complant, the effect of which would be to introduce a new cause of action. The right of amendment is limited to the subject matter for which the action was originally brought.</p> <p>2. An amendment will not be allowed, the effect of which would be to enable the plaintiffs to recover the half of a claim which they have purchased since the commencement of the action, and which they could not have recovered as the action was originally framed.</p> <p>"3. Nor will an amendment be permitted for the purpose of introducing a new cause of action, instead of the one laid in the complaint—a cause of action barred by the statute of limitations.</p>

<p>In an action by one partner against his co-partner, for a dissolution of the part-ship, partly upon the ground of his fraudulent sale of partnership property to a third person, it is proper to make the fraudulent vendee a party; as the sale may, in such action, be adjudged fraudulent and void, and the vendee be compelled to account for it, or its value.</p>

<p>Motion to discharge an attachment granted under section 229 of the Code of Procedure. In the affidavits upon which the attachment was issued, it was alleged that the defendant, on being informed, after his refusal to pay a note held by the plaintiff, tha't he would be sued, threatened that if he was sued, he would turn over all his property, and that the plaintiff would not get a cent. This the defendant denied.</p>

<p>The complaint in this action was dismissed by the judge, at the trial, on the 22d of May, 1862. The further proceedings were stayed by the order of the justice who tried the cause, until a case could be made and settled, and a motion for anew trial could be made and decided. The motion for a new trial was made at a special term, and denied at the May term, 1864. Judgment was thereupon entered against the plaintiff, for costs, the costs being taxed under the the law existing May, 1864.</p> <p>Upon an appeal from the taxation, the justice at special term decided that the costs must be adjusted according to the fee bill as it existed at the time of the dismissal of the complaint (i. e. May, 1862,) and that the application at special term, on a case for a new trial, was a motion, the costs of which are regulated by section 315 of the Code.</p> <p>From this decision the defendant appealed to the general term.</p>

<p>A receiver, substituted in the place of one who has died, who moves for leave to continue in his own name as such receiver an action begun by the latter, by supplemental complaint, after it has become barred by the statute of limitations, may he required, as a condition of granting the relief sought, to assume the onus prolandi.</p>

<p>Motion for the appointment of a referee to hear and determine.</p>

<p>A plaintiff who does not reside in the city of New York, may, though a resident of the state, be required, on commencing a suit in the Superior Court of the city of NeV? York, to file security for costs.</p> <p>Mrs. Arthur, one of the plaintiffs, resides in the state of Iowa; her co-plaintiff, Mrs. Bolton, resides at Staten Island, in the county of Richmond, FT. T. On the 27th of September, 1864, an order was granted in this action on the application of the defendants, requiring the plaintiffs to file security for costs. From that order the plaintiffs appealed.</p>

<p>An appeal does not lie from an order granting a motion for judgment on account of the frivolousness of a demurrer to the complaint, under section 247 of the Code.- The defendant can only appeal after judgment is entered for damages and costs, when the decision made at.the special term may he reviewed upon that appeal. Robebtson, Ch. J. dissented.</p>

<p>Appeal from an order made at a special term, allowing a demurrer to the complaint.</p> <p>The complaint alleged,</p> <p>First. That in or about the month of March, 1861, Thomas Gumming departed this life, leaving his last will and testament, bearing date the tenth day of January, 1861, whereby he authorized and empowered his executors, therein named, among other things, to sell and dispose of the real estate of which he should die seised ; that the plaintiffs were appointed by said will executors thereof; that on or about the first day of April,</p> <p>1861, the said will was duly proven before the surrogate of the city and county of Hew York, (that being the county where the said Thomas Gumming resided at the time of his death,) as a will of real and personal property; and that on the same day letters testamentary thereon were duly issued by said surrogate to the plaintiffs, who duly qualified as such executors, and took upon themselves the execution thereof.</p> <p>That the said Thomas Gumming, at the time of his death, was lawfully seised and possessed, in fee simple, of the equal undivided one half part of certain lots of land situate on the northerly side of 114th and 116th streets, in the Í2th ward of the city of Hew York, and which were bounded as follows: [Describing them.] That, under and by virtue of the power and authority given to the plaintiffs in and by said last will and testament, they, on or about the thirtieth day of October, 1862, by E. H. Ludlow, auctioneer, proceeded to sell and dispose of the said lots of land and premises at public auction, at the . Merchants’ Exchange salesroom, Ho. Ill Broadway, in the city of Hew York. That at such sale the defendant became the purchaser of the said undivided half of said lots of land and premises, for .the price or sum of twenty-three hundred and thirty-five dollars. That, by the terms and conditions of such sale, ten per cent of the purchase, money was to be paid on the day of sale, and the balance thereof on the twentieth day of November, 1862, when the deed for said lots of land and premises was to be delivered. That the defendant paid on said thirtieth day of October, 1862, ten per cent of the purchase money of said lots, as required by said terms of sale; but that on the twentieth day of November, 1862, he was not ready to complete said purchase. That on the twenty-eighth day of April, 1863, the plaintiffs tendered to the defendant a conveyance of the undivided half of said lots of land and premises, duly executed by them as such executors as aforesaid ; also, a quit-claim or release executed by the widow and the children and devisees of said Thomas Gumming, deceased, and demanded from him payment of the balance of said purchase money, to wit, the sum of two thousand one hundred and one dollars and fifty cents; but that the said defendant wholly refused to pay the same or any part thereof.</p> <p>Second. And the plaintiffs further showed, that the said defendant having refused to pay the balance of the purchase money for said lots, as thereinbefore mentioned, upon the ground that the title of said Thomas Gumming to said lots of land was defective, on or about the first day of May, 1863, the defendant and the plaintiffs made and entered into an agreement in writing, whereby they agreed that they would submit the question as to the validity of the title to said lots to William Mitchell, Esq. of the city of New York, counsellor at law, and would abide by his decision. And in case he should decide that the title to said lots was good and valid, that the said defendant would immediately pay the balance of said purchase money, with interest thereon, from May 1,1863, and would also pay the fee of said William Mitchell,' Esq. And in case the said Mitchell should decide that said title was not good and valid, that the plaintiffs should repay to said defendant the money already paid by him, with interest thereon from May 1, 1863, and also the fee of said Mitchell. That, in pursuance of said agreement, the plaintiffs and defendant did submit the question as to the validity of the title to said lots to said William Mitchell. And that, on or about the thirteenth day of J une, 1863, the said William Mitchell made and rendered his decision, in writing, that the title to said lots was good and valid; that the objections thereto were not good; and that the defendant should be - compelled to complete his purchase. That the plaintiffs paid to said William Mitchell the sum of fifty dollars, that being the amount of his fee ; but that the defendant, notwithstanding such decision, still refuses to pay the said balance of the purchase money, or the said sum of fifty dollars, so paid to the said William Mitchell, for his fee as aforesaid.</p> <p>: Wherefore, the plaintiffs demanded judgment against the defendant for the sum of two thousand one hundred and fifty-one dollars and fifty cents, with interest on the sum of $2101.50. from May 1, 1863, and on the sum of $50, from June 13, 1863.</p> <p>The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute á cause of action.</p> <p>■ The court, at special term, allowed the demurrer; and the plaintiffs appealed.</p>

<p>This was a motion to set aside the complaint in the action for non-conformity with the summons ; to compel the plain-to file security for costs, under the penalty of dismissal of the complaint, and to pay costs heretofore granted on a motion ; and to have the undertaking given on an attachment heretofore issued in the action and set aside, delivered to the defendants to be prosecuted. It was founded on an order previously made in this action, setting aside the attachment issued therein, and also the complaint, for not corresponding with the summons, unless an amended one should be served in ten days, and ordering security for costs to be filed by the plaintiff; giving him ten days to serve such amended complaint; and directing him to pay $ 10 costs ; and was made on an affidavit showing a demand of such costs on the plaintiff’s attorney, which also stated that the summons was for relief, and the complaint for a money demand on contract, and that the defendant had sustained damage by the attachment.</p> <p>The affidavit on the part of the plaintiff to oppose such motion showed that no summons was ever served upon the defend-, ant, who is non-resident of this county, and has never been in it since the attachment was issued, and that an appeal has been taken from the order before mentioned.</p>

<p>The defendants, being common carriers, certain property placed in their charge, for transportation, and put on board their steamship, so that a large quantity of other freight was stowed above it, was claimed by two different parties, having distinct and separate interests, just before the sailing of the ship, and one brought the present action for the recovery of the goods, and the other threatened an action, Held that it was a proper case for the interposition of the court, under section 122 of the Code, to substitute, by an order, the other party claiming the property, as defendant.</p>

<p>Appeal from an order made at special term, requiring the plaintiff to deliver to the defendant sworn copies of certain letters written by the latter.</p> <p>This was an appeal from an order made at special term requiring the plaintiff to deliver to the defendant sworn copies of two letters written by the latter to a third person, (Mrs. Bedell,) and by her delivered to the plaintiff’s counsel. The motion for such order was made on the pleadings, the answers of Mrs. Bedell to interrogatories on a commission, and a petition in the defendants’s name, but verified by her brother, (J. A. Stevens,) in which verification the contents of such petition were stated to be true, of his own knowledge, except as to matters stated therein upon information and belief, as to which he was informed and believed they were true. Absence of the petitioner from the city of New York, and ignorance as to her place of residence, were assigned as reasons for not verifying such petition by her own oath. Such motion was opposed on an affidavit by the plaintiff, and also of his counsel, (M. Hoffman, Esq.) admitting the possession of the letters.</p> <p>The action was for an absolute divorce. Mrs. Bedell, in answer to interrogatories annexed to such commission to examine her, testified to the contents of certain letters received by her from the defendant, and by her destroyed, and stated that in them the defendant confessed her criminality. The letters in question were not exhibited to the witness on such examination, nor were either they or their contents proved by her; she only testified to sending them to the plaintiff’s counsel. The petition in question alleges what the plaintiff’s affidavit denies, namely, that Mrs. Bedell testified to the contents of the letters in question. The former also stated that the defendant had no copies of them, and therefore could not state with accuracy their contents.</p>

<p>Motion for a new trial on exceptions taken at the trial, and ordered, after the trial, to be heard in the first instance at a general term.</p>

<p>This is an appeal from an order of Mr. Justice G-abvin, setting aside an attachment in this action against the property of Mason as a non-resident. The motion below was to vacate the attachment on two grounds, viz: 1st. Irregularity; the plaintiffs having failed to cause the affidavits on which attachment was granted to be filed in the county clerk’s office of Kew York.</p> <p>2d. The action is one in which by the Code an attachment cannot be granted.</p> <p>The attachment was granted August 5,1864. The defendant is a non-resident of this state. The attachment was granted on that ground. By the complaint it appears that the action is brought to recover the value of a lot of hub wood, wrongfully seized, taken and carried away, and converted in the state of Maryland, on the 29th July, 1864. .From the plaintiff’s, and also the defendant’s papers on this motion, it appears that the seizing, taking away and conversion of the plaintiff’s property complained of was the defendant’s taking judicial proceedings by attachment in Maryland, by virtue of which the property in question was seized and sold. It is for such seizure and sale the present plaintiff now sues and claims damages. The goods in question were attached as the property of one Nash. The present plaintiff now claims he owned them at that time.</p>

<p>1. A trial by the court without a jury, cannot, properly, be had before several judges, in succession, so as after being decided in part by one, to be taken up at a subsequent term, and completed by another justice. A cause cannot thus be tried and determined by piece-meal,</p> <p>2. There is no such thing permissible &s an interlocutory judgment, in any case. The only judgment authorized or permitted by the Code is a “final determination of the rights of the parties to the action.’</p> <p>3. No judgment can now be considered as final, which expressly reserves any question whatever for future consideration and determination by the court.</p> <p>4. A determination in writing, entered as a judgment, in which not only the question of costs is expressly reserved, but which contemplates and provides for further action by the court, upon the coming in of the report of a referee appointed by it, is not "the final judgment of the court, but is at most an order, and will be vacated and set aside, on motion, so far as it purports finally to adjudicate and determine the rights of the parties.</p> <p>6. But so much of it as orders a reference, may be permitted to stand, so as to save to the parties the trouble and expense of a re-eXammation of the witnesses . upon questions which they have already answered.</p>

<p>1. To obtain a discovery of books and papers, parties cannot substitute their own judgment, on vague information, the nature and source of which they do not disclose, for that of the court. Enough must be shown to enable the court to decide that the discovery is necessary.</p> <p>2. Where the necessity of an examination is alleged to be that such books will show that the defendants are partners; that they contain entries of moneys received and paid by one of the defendants, and a statement of his account; but the affidavits do not allege the character of a single entry which the court can determine to be material, a motion for a discovery will be denied.</p>

This action was brought to set aside an alleged fraudulent sale of goods, and the assignment of certain promissory notes received in payment therefor. The trial of the issues was had before one of the justices of this court at a special term, without a jury, who found in favor of the defendants, and against the several material allegation of the complaint. From this judgment the plaintiffs appealed.

<p>2. The death of a party entitled to double costs in an action, and the substitution of his representative as a party, in his place, does not change the right to double costs.</p>

<p>1. A joint undertaking between two or more persons, who are to participate in the profits and loss resulting from it, constitutes a, partnership.</p> <p>2. To make one a partner, he must not only share in the profits, but share in •them as principal.</p> <p>3. An agreement between two persons, giving one of them one half of the net profits of the business, but not making him liable for any losses, does not make him a partner.</p> <p>4. Where the action is one in which an order of arrest can issue as of course, it is not proper to try the case upon the merits, on an application to set aside the order of arrest.</p>

<p>Appeal from an order confirming the report of a referee.</p>

<p>An action to recover the value of property lost to the plaintiff hy the negligence of the defendants is not upon a contract, hut upon a breach of duty, as a tort, and is not referable.</p>

<p>2. An injunction to restrain a lessor from asserting any right to cancel a lease, under a reservation of a right to do so in case of a sale, or an election to build, will not be granted, upon a mere general allegation tha!t an alleged sale and conveyance by the lessor was sham and colorable, and made only with tha design to deprive the lessee of the remaining term of the lease by a collusive and pretended sale of the premises; if the defendants deny every material allegation of the complaint, and assert that the conveyance was made in good faith; and the case can probably be tried and disposed of upon its merits before the time fixed by the lessor, in his notice, for cancelling the lease.</p>

<p>1. The Code of Procedure does not provide for any other undertaking, in an action for the claim and delivery of personal property, than that to he taken and approved hy the sheriff, however inadequate the amount for which it is' given.</p> <p>2. The defect of the want of a stamp, upon an undertaking, can he cured upon an exception to the undertaking.</p>

<p>1. The question whether facts set up in mitigation are or are not such as should be admitted to be given in evidence for that purpose, can only be determined by the presiding judge, upon the trial.</p> <p>2. Whether or not the plaintiff is sufficiently apprised by the contents of the answer, of circumstances to be introduced by the defendant in mitigation of damages, depends upon the question whether at the trial if the evidence offered in its support is admitted, he will be taken by surprise, and therefore be unable to proceed with such trial.</p> <p>3. The allegation of matter in mitigation of damages, in an answer, is not material; it requires no reply, is not the subject of demurrer, and not being set up as a defense, but as a notice, merely, a motion to make such matter more definite and certain, cannot be entertained.</p>

<p>After the plaintiff, in an action for a libel, has, upon the defendant’s failing to appear^ procured an order for the assessment of damages by a sheriff’s jury, he cannot move to vacate that order, and have the damages assessed by a jury before a judge of the court; if the probability of complicated questions of law arising in the case,' or the existence of any incapacity on the part of the sheriff to "act, or any difficulty in regard to mitigating circumstances be shown, and nothing new appears to have been discovered, rendering it proper that the change should be made.</p>

<p>1. The .sole ground of the effect of a release to one of several joint contractors or wrongdoers, in discharging all is, that it is in presumption of law a satisfaction. Whenever the" instrument creating the release is in such a form, or accompanied hy such restrictions, as to repel sttch presumption, it does not necessarily discharge all the parties.</p> <p>2, When a release in form to a joint debtor of wrongdoer is accompanied by the . reservatiop of the liability of his associate in the contract or tort, it is as plainly the intention of the releasor not to abandon his claim against the latter as it is to relinquish the right of proceeding against the releasee, if he can do so without prejudice to his claim against both.</p> <p>3. Both purposes can only be accomplished by restricting the right of proceed- " ing against the releasee to actions directly against him, because that will still leave the right of proceeding against the other party. And this can only be done by construing the words of present release as executory and a covenant against actions; leaving the releasee to his right of action for damages-thereon, in case he is prejudiced by a subsequent suit brought against him, and his associates.</p> <p>4. The .plaintiff executed a release to the members of a firm who, it was alleged, were joint tort feasors with the defendant; if any tort was committed by him, containing the following reservation: “It being expressly understood and</p> <p>■ agreed that I "do not hereby release or prejudice any claim, suit or demand, which I may have against any other person or persons or corporation, for any matter or thing arising out of, or connected with,” &c. “ or for any other matter or thing whatsoever.” Held that the release did not have the effect to discharge the defendant, or to prejudice the plaintiff’s claim against him for matters arising out of, or connected with, the transaction referred to.</p> <p>5. A release, given after issue is joined in an action, can only properly be the subject of a supplemental answer, and not of an amendment of that originally put in.</p>

<p>1. Good cause for granting alimony in an action for a limited divorce, must be shown, It is not a matter of course.</p> <p>2. Mere allegations of abandonment, generally, and of a neglect or refusal to support, are not sufficient to warrant a grant of alimony, where they are denied. The applicant is bound to set forth the facts and circumstance which constitute the supposed abandonment, in order to enable the court to decide whether it ever occurred.</p> <p>8. A wife who, without any assigned cause, quits the home provided for her by her husband, and goes to live elsewhere, without offering to return, or to live with him, has no right to alimony.</p>

<p>1. To sustain an order of arrest, a plaintiff is bound to make out his case, beyond a doubt.</p> <p>2. The affidavit on which an order of arrest was granted, stated that the plaintiff delivered to the defendant $3000, wherewith the defendant promised to purchase certain bonds of the United States, and deliver them to the plaintiff; and alleged a failure to do so, and that the defendant was insolvent. The defendant, in his affidavit, alleged that he had previously borrowed money of the plaintiff, and furnished him with United States bonds at one per cent less than the market value, and without charging commissions ; that the plaintiff lent him the sum in question upon the same terms of furnishing bonds of the United States, at one half per cent below the market price, and without any commission ; and that such omission to charge it, and such deduction from the price, was to be the defendant’s compensation for procuring and delivering such order. That the plaintiff knew, at the time, that such bonds could be purchased at the subscription price. This statement was corroborated by other evidence.</p> <p>Meld, that the statement of the defendant, corroborated by the testimony of another witness, being diametrically opposed to that of the plaintiff, it was not a proper case for an order of arrest.</p>

<p>1. Every thing should be excluded from issues to be tried, in an action for a divorce, except "what will affect the decision. Both parties are bound to point out the particular circumstances intended to be established, with reasonable precision as to time and place, as well as person. Therefore an issue, whether the plaintiff was guilty of adultery at any time, generally, before the commencement of the action, with a person mentioned in the defendant’s answer, should not be included among those to be tried, where there is no reference in the allegation in the answer of the commission of such adultery, to either time or locality by which to identify the offense charged.</p> <p>2. That is not one of “ the facts contested by the pleadings ” in the action, which the statute authorizes to be tried as an issue.</p>

The defendant was sued by the plaintiffs as trustees under a deed made by him, in England. He answered, admitting the alleged contract, and setting up certain proceedings in bankruptcy, in England.