Volume 4 — Louisiana Annual Reports

<p>A statute exempting the property of an institution “from all taxation, either by the State parish, or city,” will not exempt it from liability to contribute to the expense of paving sida Walks in front of property belonging to it, ordered to be paved by an ordinance of a city corporation, made in the legal exercise of its authority. The charge imposed by the ordinance is not a tax.</p> <p>A statute exempting an institution from liability to taxation, being in derogation of common right, must be construed strictly. It cannot be extended beyond its clear import.</p>

<p>The surety in a bond given for an appeal taken after the lapse of ten days from the notification of judgment, will be hound, in ease the appellant he east, only for costs, though the bond was for an amount large enough for a suspensive appeal, and the surety hound himself, in case the appellant should he oast and fail to satisfy the judgment, “to satisfy -whatever judgment may he rendered against him." C. P. 578. Per Curiam: The bond mast he construed w-ith reference to the articles of the Code of Practice applicable to the subject matter.</p> <p>‘The “ costs” for which the surety on a bond given for a devolutive appeal is hound, are the costs both of the lower court and those of the appeal.</p>

<p>A report made by commissioners appointed, op an application to open a street, under tho provisions of thestat. of 3 April, 1832, was recommitted with directions to make anew report within ascertain delay, but no report was made within the time. Subsequently, after arule had been taken by a party interested to show cause why the proceedings should not be dismissed, buf before its trial, an amended report was filed, which, on a compromise between the plaintiff in the mle and the petitioners for opening the street, was confirmed and homologated. There was no evidence that the appellant, who was a party, had appeared, or had any knowledge of the proceedings after the recommitment of the report. Iield, that no order oi extension having been made when the period within which the report was to be returned was about to expire, the appellant cannot be bound by the expartB homologation.</p> <p>The stat. of 3 April, 1832, authorizing a municipal corporation to take the property of a cifci. zen for public use, to be paid for by others supposed to be benefited thereby, being in derogation of the rights of property, must be strictly construed.</p>

<p>Where a verdict allows no interest, the court, in rendering judgment on the verdict, can allow none. If the interest be omitted through inadvertence, the error may be corrected before the verdict is closed; if the jury refuse to allow interest when duo, the remedy is by an application to set aside the verdict and for a new trial.</p> <p>Where tho verdict of a jury allows no interest in a ease in which it was due, and the plaintiff prays for a new trial on the general ground of the verdict being contrary to law and evidence, and on certain special grounds, but no relief is asked against the error in the omission to allow interest, the judgment will not be altered so as to subject the appellee to the costs of the appeal, where the amount of interest is but small.</p>

<p>Under the statute of 3 April, 1832,-regulating the opening and'improving of stre'ets and pulk lie places' in the city of New Orleans and its suburbs, the court before which the proceedings have been instituted can, in no case, amend an assessment made by the commission., ers. The report must be approved, or rejected, in toto; and in the latter case, the court is bound either to appoint new commissioners, Or to refer the whole matter back to the same.</p>

<p>$he pendeíitíy of an action in which one of the joint proprietors of a lot of ground claims from his co-proprietor a sum for improvements, with a privilege upon the lot, cannot prevent the latter from obtaining a partition of the property until the claim is settled. Per Curiam: Such a claim is to be' taken into account in malting the partition, but cannot prevent it. C. C. 1272.</p> <p>It is no objection to a judicial partition that the experts selected to form the lots under article 1289 of the Code1, had acted Us appraisers when the property was inventoried.</p> <p>A notary is not bound, under art. 1290 of the Civil Code, when contestations aviste in the" course of a partition, to prepare, in all cases, a procés-verbal of the objections and declarations of the parties, and to suspend his proceedings and refer the parties to the judge having cognizance of the partition for his decision thereon. He must exercise a sound discretion in ascertaining When they are serious, and, when satisfied that they are not, should disregard them.</p> <p>Where a partition, made by 8 notary, provides that a party Who had drawn one of the lots’ into which the property was divided, should pay a certain sum to his co-proprietor on account of the greater value of the lot drawn by the former, judgment should he rendered in favor of the latter for the amount, at the time of homologating the report. The party should not be compelled to institute a separate action for the amount.</p>

<p>Advances made to the captain and owners of a steamer in the home port, to enable him to pay for stores and provisions fot* the boat, arrears of wages due the crew, and for expenses due to third persons upon merchandize shipped on the steamer, confer no privilege; the party by whom the advances are made is not legally subrogated to the privileges of the furnishers of provisions and crew. The word supplies in the 8th paragraph of art. 3204 C. C. applies to materials sold or furnished to the vessel, and not to advances of money.</p> <p>The 7th paragraph of art. 3204 applies to sums lent the captain, afcaportnot the home port, in the absence of the owner, and for the necessities of the vessel, that she may be enabled to complete her voyage.</p> <p>Advances made to the captain and owner of a steamer in a home port, to enable him to pay charges due to other parties on merchandize, in order to procure it as freight for his steamer, arc not such advances as are contemplated by paragraph 8 of art. 3204 of the Civil Code.</p>

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

<p>Where, after a third person had been made a party to an action in place of the original plaintiff and recognized as such, defendant excepts to his right to sue as plaintiff, praying that the action may be dismissed, and the exception is sustained and the motion to make him a party to the proceeding is refused, no appeal will lie from the judgment of refusal. IJer Cwicwi: The judgment ought to have been in conformity with the conclusion of the exception that the suit be dismissed; and from such a judgment an appeal might have been sustained.</p>

<p>from a decision of a Justice of the Peace in New Orleans.</p>

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

<p>Where sugar and molasses contained in a sugar-house', and covered by an ordinary fire policy# are destroyed by an explosion of the steam boilers used in manufacturing sugar, the damage having been, produced by the explosion, and not by fire, the insurers will not be responsible. Per Curiam: The chances of loss from explosion, are not the same as those from fire.</p>

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

<p>1'he only effect of a deed of trust or common law mortgage in the countries where they aro used, is to establish a lien upon property. A deed of trust has none of the essential requisites of a sale; it convoys no property, is not made in consideration of a price, or of a merely nominal price only, is not necessarily accompanied by a change of possession, and Is intended only as a security for the payment df si debt. Under our laws it cannot be held to confer any higher right than that of a mortgage.</p> <p>Where slaves conveyed to a trustee by a deed of trust executed in ahother State, are subsequently brought into this State, the deed must be recorded here to give it effect as a mortgage against third persons; and where, in such a ease, the deed has not been recorded here, and the grantor sells the slaves to a third person ignorantof the deed, the lien will be lost; nor can it be revived against the property in the hands of a vendee of such third person, though he purchased with knowledge of the deed. íhe last purchaser is protected by the good faith of his vendor.</p>

<p>A party intending t'o appeal, in a ease in which the testimony was not taken in writing, must require the adverse party, or his counsel, to draw jointly with him-a statement of the facts proved in the case; audit is only after the refusal of the adversary to join iir making the statement, or on the failure of the parties to agree as to the manner of drawing it up, that the judge can he called on for a statement, and this-, though the party desiring to appeal was not present at the trial, either in person or by counsel. C. P. 603, 603.</p>

<p>from llie Fourth District Court of New Orleans, Slrawlridge, J.</p> <p>contended that the second carrier was the mere agent of the first, citing 19 Wend. 329, 534. 25 Wend. 660.</p>

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

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

<p>'i'o entitle a purchaser of a boat load of coal to recover damages of his vendor for a breach of contract, where it is shown that the latter had subsequently sold and delivered the coal to a third person for immediate use, proof of tender of the price is not required; such a tender would have been a vain thing.</p> <p>In actions for damages for breaches of contract, the market value at the time of the breach, where there is a market value, is the measure of damages; the party being entitled to recover advances made and expenses incurred by him under, or on account of, tho contract, and, in certain cases, interest.</p> <p>In an action for the breach of a contract of sale for a cargo oí coal, sold for a certain price, to be delivered to the purchaser at a certain place, at the expense and risk of the vendor, but resold the next day by the vendor to a third person for the same price, which was shown to have been the market price, the latter agreeing to take the cargo at the place at which it was lying at the time of the first and second sales, the first purchaser can only recover as damages the expense of transporting the coal from the place at which it was sold to the place at which it was to have been delivered to him, and the value of the risk incurrediir its transportation.</p>

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

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

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

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

<p>Tbe powers vested in police juries and other political corporations must be exercised by ordinances general in their operation.</p> <p>Though the stat. of 28 March, 1840, creating a police jury for that part of the parish of Orleans on the right bank of the river, should be considered as vesting the police jury with power So regulate the proportions, directions and repairs of the levees, and so far repealing the stat. of 7 February, 1829, concerning roads and levees, tbe last act remains in force and must govern tbe rights of the reparian proprietors until the powers confirmed by the stat. of 1840 have been legally exercised.</p> <p>The object of sec. 16 of the stat. of 28 March, 1840. creating a police jury for that part of the parish of Orleans on the right bank of tbe river, was merely to make the owners of back lots contribute with the front proprietors to the construction and repairs of levees, which afford them all equal protection. It provides at whose expense they shall be made and repaired, bat is silent as to the manner of making them, and as to the place whence the necessary materials are to be taken.</p> <p>The property of the banks of rivers is in those who possess tbe adjacent lands, and they have aright to preveufc an unlawful use of them by the agents of the public.</p>

<p>Where a suspensive appeal has been dismissed on account of the failure to file the record within three judicial days after the return day, the appellant cannot afterwards take a devolutive appeal from the same judgment.</p>

<p>Section 3 of the statute of 6 March, 1819, punishing any person u who shall inveigle, steal, or carry away any slave, so that the owner of such slave shall he deprived of the use and benefit of such slave", creates several offences, and a separate indictment for any one of them would be goodj but they may all be charged conjunctively in one count. Per Curiam: When a statute enumerates several offences, connected with the same transaction, or the intent necessary to constitute such offences, disjunctively, they may all be alleged cumulatively in one count, and in that event must be charged with the indictment conjunctively*</p> <p>A nolle prosequi maybe entered upon one count of an indictment, and a judgment be claimed on the remaining counts, even after a general verdict.</p>

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

<p>Money deposited with a'sheriff, under art. 3034 of the Civil Code, as'secuvity for tKe'releasB' of property provisionally seized; must be restored to the depositor-.on the dissolution of tho-seizure.</p>

<p>'The'liabilily of the owners-of any ship, vessel, or other water craftto the owner of any slave illegally carried from one part of the State to another,under the stat. of 26* March, 1835, only exists where the master.of the vessel would be subject to the pains and penalties of the stat. of 13 February, 1816.</p> <p>’The duty, imposed by the stat. of 13 February, 1816, on the master of a vessel who discovers a fugitive slave on board, to land him at the nearest place, is substantially obeyed by landing him at the nearest place where he can be landed with reasonable facility, and in such a mode as may be best calculated to ensure his safe keeping. Ht would be unreasonable to require a captain to stop in the night, and to go on shore in search for a justice or other inhabitant, when, by proceeding on his voyage till daylight he could reach a principal town of the State, where he might provide for .the safety of the slave, and give publicity to his elopement.</p>

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

<p>A verbal agreement for the sale of land or slaves is not null. The defect of such a’ contract relates only to the proof; and if one of the parties acknowledges the agreement, or permits parol evidence of it to be given without opposition, it must be carried into effect.</p>

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

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

<p>The power to relieve the indigent sick, especially in times of epidemic disease, and to provide for the poor who are unable to labor, is inherent in every municipal corporation.</p> <p>The power to relieve the indigent sick, and to provide for the poor who are unable to labor, is is conferred on the municipal authorities of Now Orleans, by stats, of 14 March, 1816, s. 1, and 17 February, 1321, s. 2-</p>

<p>A transaction entered into on documents which are subsequently discovered to be false, is null in toto. In such a case it is immaterial to enquire to what extent those false documents may have been the moving or determining cause of the transaction. C. C- 3048.</p>

<p>from the Distriot Court of Assumption, Randall, J.</p>

<p>One who purchases,¡at a sale of the assetts of .a bank made by commissioners .appointed to liquidate its affairs, a note made by an insolvent, will acquire no.greater-right against the •than the bank had at tho time of the sale.</p> <p>A creditor of an insolvent has-a right ito require the production in court of the bank-book of syndics the syndic to enable him to ascertain-tbe state of the insolvent's affairs.</p>

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

<p>Though the defendant in an action on a lost note allege, under oath, that the note was a forgery, the testimony of witnesses will be admissible to prove a presentment of the note and her acknowledgment of its genuineness. In such a ease, plaintiff will not be restricted to proof by witnesses who saw the defendant sign the'act, or who know it to be her signature because they have frequently seen her write and sign her name, or by experts or comparison-of writing. Art. 325 C. P. is an exception to the general rule of evidence, and must not be extended beyond those ordinary eases to which it clearly applies.</p>

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

<p>An act of sale of real estate acquired by a partnership, must be executed by all of the part.nors. If signed by two only, it will convey only their interest.</p> <p>A partition cannot be decreed where one of the co-proprietors has not been represented in the action.</p>

<p>The provisions of sec. 33 of the stat. of 7 June, 1S06, relative to the police of slaves, must be strictly construed, and the authority it confers upon a freeholder cannot he extended to-any other person, and where one not a freeholder, in attempting to exercise the authority conferred by that section, shoots and injures a slave, he will be responsible to his master in damages for any permanent diminution of the value of the slave, for the loss of his labor, and the expense of surgical treatment.</p>

<p>from the District Court of West Baton Rouge, Penn, J-</p>

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

<p>from the District Court of Points Coupee, Farrar, J.</p>

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

<p>, One who has constructed,’ a levée on tile lands of an absentee, under an adjudication mads by the police jury, which has been acceptedby the inspector, in case of the lands not selling for the amount of the adjudication and of there being no other property of the absentee within the parish, rapy recover the balance from the police jury.</p>

<p>fi'om the Fifth District Court of New Orleans, Buchanan, J.</p>

<p>In an action in this State for damages for an offence or quasi-offence committed' in another State, hy the laws of which a jury might have allowed interest on the amount of damages assessed, the plaintiffs may recover interest from judicial demand on the estimation of the damage, where such interest is allowed as a part of the damages.</p>

<p>APPEAL from the District Court of Madison, Selby, J. This appeal was taken by the plaintiff from a judgment rendered on the verdict of a jury, in favor of the defendants.</p>

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

<p>The surety in a tutor's bond cannot be released, for the purpose of testifying in. favor of the tutor in an action against the latter to compel him to account, though other and sufficient security be offered by the tutor.</p> <p>Where a wife, after remaining in this State, where her husband wan domiciled, removes to another in conformity with the decree of her husband, on account of superior advantages supposed to be afforded by the latter for rearing and educating their children, and does'not return, property acquired by the husband in this State during the absence of the wife will be community property. Per Curiam: We cannot say that, in discharging, the duties of a mother at the place selected by her husband, she was rendering him no assistance.</p> <p>Though a party have no authority to receive the funds of a succession or to pay its debts, yet if the funds of the succession have been applied by him as the law would have applied them, the heir will be bound by such payments, and he will be entitled to credit for tlieir amount in a settlement with the heirs.</p> <p>A receipt so»s seing- privé given to an administrator on the payment of an- account, is not evidence that the account was due, if the fact of its being due be disputed.</p>

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

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

<p>In cases unattended with any of those circumstances which give rise to aggravated damages, the direct and immediate, or the natural and proximate, consequences of an act are alone to be considered, in ascertaining the responsibility for the commission of an act unauthorized by law. C. C. 1938 s. 2, 2294, 2304.</p> <p>Where a deed was executed in another State, by which certain slaves were conveyed in trust to secure the payment oí a note payable to the creditor or hearer, the slaves remaining: in the possession of the debtor, the trustee cannot, in case of the removal of the slaves to this State, enforce the execution of the trust, nor take possession of the slaves, without proof of the debtor’s being in default by the non-payment of the note. Without such proof the trustee would be responsible for any loss sustained by the debtor from a seizure of the slaves. Per Curiam: We must not be understood as recognizing the right of trustees to execute trusts created on slaves actually within this State, without the intervention of judicial proceedings.</p>

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

<p>No appeal w-illlie from a ¡judgment rendered by-tlie mayor of a-town, for a sum under three hundred dollars, for an alleged infraction of an ordinance of the corporation, where the only question raised is as to the constitutionality of an act of the legislature vesting judicial power iu .the officer who rendered the judgment.</p>

<p>A fi. fa. issued from a district court andievied on property within the jurisdiction of another district court, may be enjoined by the latter.</p> <p>It being the duty of the police jury of each parish to provide a sufficient house for the courts land jurors, and a good and sufficient jail to receive and keep prisoners, where buildings have been thus provided by a parish for the State, andaré used and occupied for public purposes, they are not liable to seizure and sale under execution against the police jury.</p>

<p>Where one who purchased, in his own name, slaves sold at a judicial sale, applies to the Probate Court, alleging that he bought them as an investment of funds of minors to whom he was under-tutor, and praying for a family-meeting to consider the propriety of adopting and confirming the purchase on behalf of the minors, and they recommend its adoption, and that the under-tutor be authorized to execute his notes for the credit part of the sale, and the deliberations are homologated and the under-tutor authorized to execute the acts, but, on the next day, be subscribes notes and consents to a mortgage in his own name, without mentioning these proceedings, the minors will not be bound thereby. Per Curiam: The purchase having been made by the party in bis own name, there was no contract to ratify; the alleged ratification was a sale from the underitutor to the minors; and article 1788 C. C. is inapplicable to such a ease.</p> <p>A minor will not bo bound by a purchase, though ratified by a family-meeting whose deliberations have been homologated by the court, where the purchase exceeds his available means, and instead of being an investment is a speculation which may involve him in debt and difficulty.</p>

<p>In an action for freedom a judgment rendered in a similar suit by a brother of plaintiff against the same defendants, establishing his freedom, on proof that his mother and grandmother were free long before the birth either ef plaintiff or his brother, is= not admissible in evidence. The1 judgment has not the force of res judicata as to the plaintiff, who was no party to it. The authority of the thing adjudged takes place' only with respect to what was the object of the judgment, which was the freedom of the brother.</p> <p>A judgment admitted to prove rem. ipsam establishes nothing more than that Such ajadgm'oh* was rendered.</p>

<p>An act of the legislature authorizing the reduction of the stock of a bank to the amount paid in at a certain period, accepted by the stock holders, will exonerate the latter from any liability beyond the amount of tlie reduced stock, as to creditors who have become so since the reduction,</p> <p>The date of a bank note is no evidence, even against the bank, at the period at which it be* came the property of the holder; nor can a subsequent holder claim to be vested with the rights of the first holder, so as to consider the debt due to him as dating from the period of the original issue.</p> <p>Though the date of an ordinary written obligation to pay money is evidence of the date of the' origin of the debt, the rule does not apply to bank notes.</p> <p>Where the note of a bank is re-issued in the course of its daily business, the obligation of the’ bank is fixed by the re-issuing of the note; the date on its face is of no moment.</p>

<p>In tin action for thG~riander'of title to property judgment may be rendered ordbring tiie defendant to institute, within a certain-period, a suit to establish his pretensions to the pro perty, and this judgment, on-the failure of the defendant to comply with it, will stand to the plaintiff as a perpetual default of the defendant; but tbe court lias no power to fix a term within which the defendantmust set forth his title or institute suit, under the penalty of being forever after precluded from asserting his claims.</p>

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

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

<p>ñ-om the District Court of West Baton Rouge, Nicholls, J..</p>

<p>A demand against a surviving husband for ail amount due to the succession of liis wife, received by the former from sales of the separate property of the wife during marriage, cannot be cumulated with proceedings for the liquidation and partition of the succession. To cumulate such proceedings would be irregular, and tend to embarrass judicial proceedings. The demand must be made by a separate action.</p>

<p>Where a party is placed on the tablean of distribution of the effects of a succession as a creditor for a certain sum, and the tableau is homologated, the homologation of the tablean is a judgment in favor of the creditor, which, so far as the succession is concerned, cannot be prescribed by less than thirty years.</p>

<p>Where a party interrogated on facts and articles in relation to a verbal contract to transfer real estate denies th'e contract, her answer cannot be contradicted by parol evidence; nor is parol evidence admissible to prove such a contract, in an action to recover damages for a breach of it. '</p>

<p>One who parchases the right of action of a minor against his tutor, can acquire no greater right against the latter than his assignor had ; and the tutor may make the same defence to the action, and avail himself of the same means as though the suit were brought by the pupil himself; and if the defendant has become the creditor of his pupil by any advances made to him since his majority, and previous to the purchase by the plaintiff, he will be entitled to set them up in defence to the action.</p> <p>The object of art. 2622 C. 0. which provides that, “be against whom a litigious right has been transferred may get himself released by paying to the transferee the real price of the transfer, with interest from its date,” is to prevent unnecessary litigation. But where a defendant, instead of paying the price for which the right was transferred, and thereby putting an end to the litigation, continues to contest the suit, opposes the plaintiff’s right to recover, and protracts the litigation, he defeats the very object of the law, and cannot avail himself of the provision established in his favor.</p>

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

<p>from the District Court o'f Madison, Curry, J.</p>

from the District Court of Lafayette, Clarke, J. The purchasers from Wiltz acquired only a usufruct or right of use to the vacant space in front, to the batture, pasture and cypress swamp. They acquired only a right to enjoy, and not to dispose of it. Code of 1808, p. 100, art. 34; p. 102, art, 1; p. 110 art. 1; p. 124, art. 63. Civil Code, 479, 483, 525, 621. Code Nap. 544, 578, and Rogron’s Comm, on those arts, and on art. 625.

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

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

<p>It is no objection to the right of a tutrix of the minor heirs to sne for the removal of tho adjninistrator for neglect of bis duties, that the plaintiff, although an order had been made for her appointment as tutrix, bad not famished the bond and security required by law. Art. 332 C. C., the objecS.of which is to prevent die tutor from assuming the administration of the minor's estate before furnishing the required security, .does not apply to an action for the removal of an administrator. Proceedings for that purpose are governed by art. 1018 C. P., which authorizes an heir,.creditor, or other person.eoncornod, to pray for the removal of an administrator.</p> <p>Technical objections opposed to investigations into the.condnct of administrators are entitled to little favor.</p>

<p>By the law of Kentucky where, under an absolute bill of sale of a slave, possession remains in the vendor, such possession is not merely prima facie evidence of fraud, but renders the sale fraudulent per sc. and inoperative against creditors of the vendor who had no notice at ¿he time of trusting the seller.. But when possession is taken by the vendeo before third persons have acquired any rights, the fact of the anterior continued possession would not be regarded as any thing more than a suspicious circumstance, to be considered in oppreciatingthe subsequent conduct of the parties. And, supposing the sale to have been real and in good faith, where the vendee, some time after the sale, takes possession of the property and holds it ior several months, the rcacquisition of possession by the vendor under a lease would not subject the property, in Kentucky, to the pursuit of creditors of the vendor who became such alter the lease; nor would the purchaser lose his rights, as against the creditors of the lessee, by permitting the lessee to bring the property into this State, although the possession and declaration of the lessee, that he was owner, may have induced them to trust him.</p>

<p>Claims of creditors which have been presented to the administrator bat have not been ad. mitted to be due, and which have not been prosecuted by sixit, afford no ground for withholding from the heir money in the hands of the administrator (stat. of 25 March, 1828, $ 16); nor are such creditors entitled to notice of the demand of the heir to be put in possession.</p> <p>A note not payable to order or bearer, is not prescribed by five years. C. C. 3505.</p>

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

<p>Where one who had purchased real estate in a State in which the common law prevails, with fall warranty, is evicted in an action of ejectment instituted by a third person, and, without contesting the claifn of the latter in the court of the last resort, purchases his claim before delivery of the premises by the sheriff to such third person, his recourse against his warrantors will not be thereby affected. The submission tó the judgment by an attornment was no waiver of the right to prosecute the writ of error -, the rule that the voluntary execution of a judgment or decree is a waiver of, or bar to, an appeal or writ of error, has no place in the common law. Nor was the purchase from the plaintiff in ejectment a release at law of the errors in the judgment, nor could it be pleaded in bar of a writ of error prosecuted for the exclusive benefit of the purchaser.</p> <p>By the common law one judgment in ejectment is nobar to another, and not being adecisioa on the mere right does not prejudice the proprietor in his assertion of it in a higher degree of action.</p> <p>What constitutes title and what seizin, or, in the language of our law, the possession as owner of immovable property, must be determined by the law of the place where it is situated, and that is the only law which can determine whether a covenant of title and seizin has been broken or not.</p> <p>A covenant of wavranty, in an act of sale executed here, of land in another State, is a contract to be performed in that State, and what amounts to a fulfillment or breach of it must b e determined by its laws.</p> <p>To recover against a vendor of real estate on his covenant of warranty, under the laws of Mississippi, the purchaser who has been evicted by a judgment, in the absence of notice to the vendor of the former suit, must show that the recovery was by a title paramount to that conveyed to him.</p> <p>Where a purchaser of land is evicted by a third person under a judgment in an action of ejectment, if his vendor defended the action himself or by an agent authorized to represent him in the matter, or if he had sufficient notice of the institution of the action so that he mighthave defended it, his covenant of warranty, by the law of Mississippi, is broken; otherwise the judgment will not be binding on him.</p> <p>in an action against a vendor of real estate situated in another State on a covenant of warranty in the act of sale executed here, founded on an eviction hy a third person tinder a judgment rendered in that State, the notice of the institution Of the action hy such third person required to he given to the vendor in order to render the judgment conclusive as to the breach of warranty, must be such as the laws of that State require, and not such as would be necessary under our law had the land and action-been in this State. The provisions of arts. 2493, 2494, C. C., which hind the vendor by a judgment of eviction against the purchaser even in the absence of a notification of the suit, unless the vendor show that he possessed proofs which would have sustained his title, and which, for want of such no-» tice to him, have not been made available, does not apply to such a case.</p>

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

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

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

Strawbridge, J. Judgment of separation was rendered by the lower court in this case, on of blows inflicted on the wife, the husband.

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

<p>Though adefendant have omitted to plead in compensation in an action against him a debt due to him by plaintiff, he may, on the ground that compensation takes place by mere operation of law, oppose the compensation to any attempt to execute the judgment; and this though, at the time of instituting the suit against him. or of executing it, the claim offered in compensation would otherwise be prescribed, provided that the prescription had not been completed at the time when the debt due by him was payable.</p>

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

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

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

<p>The husband, as head of the community, is bound to pay its debts. If he uses the separate funds of his wife for that purpose, he becomes her debtor for the amount.</p>

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

<p>An award rendered by amicable compounders cannot be revised by the court for errors of judgment; it can only be attacked for fraud or Usurpation of power on the part of the! auditors.</p> <p>An award of arbitrators, not binding on account1 of the Want of- authority from a married woman toiler husband, who had agreed, in the name of the former, to an extension of tho-time for making the award, and in consequence of its not having been duly homologated, will be rendered' valid' by a subsequent execution of it by the parties. Its execution by the wife would cure the Wane of original authority in the husband', and the execution of tho award by the parties would entitle them'to its benefits, as fully as though it liad been-duly homologated.</p> <p>To confirm an act not binding on a-party a formal instrument is not indispensable. Its voluntary execution involves a renunciation of-tho exceptions which might have been opposed to it.</p> <p>A partial execution demonstrates, as well as- an entire execution, the wish to confirm a defective act. It is a tacit approval.</p>

<p>A creditor who has obtained a judgment, with an acknowledgment of his rights as a raortga gee, may seize other property than that mortgaged to him. All the property of the debtor is liable for the payment of his debts.</p> <p>The fact that a partial payment has been made on a judgment, which has not been credited on the fi. fa., will not authorize an injunction for the entire amount of the execution.</p> <p>Where no'answer has been filed-by an appellee, an- application to amend the judgment im his favor by allowing him higher damages-on Che dissolution of an injunction, will notba considered.</p>

<p>Where a petition for an injunction is presented by a party who describes himself as a trustee, it is unnecessary that his capacity as trusteeshonld.be repeated in the affidavit.</p> <p>Where ap ap application to .obtain an injunction, made .by several persons representing distinct interests, the affidavit is made by only one of the parties, and it does not appear either from the petition or.the .affidavit that he acted as the agent of the others, the injunction must be dissolved as to the parties by whom no affidavit was made.</p>

<p>Executory process cannot be issued on a mortgage containing mutual covenants, which was never accepted by the mortgagee, there being no authentic evidence that the hitter ever bound himself to the implied covenants contained in tho act. The institution of proceed* ings under the mortgage is not a sufficient acceptance to authorize the issuing of executory process. The evidence on which executory process issues must be authentic. The judge, in granting the order, can take no cognizance of other evidence.</p>

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

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

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

<p>from the District Court of Can-oil, Seldy? J.</p>

<p>JÍ memorandum in writing, containing the terms of a transaction, drawn up in the presence of all the parties interested, and signed by two of them who incurred the heaviest obligation under it, and delivered to a mutual friend of the parties for the purpose of being recorded, will bo binding without any formal acceptance by parties who, though they did not. sign it, afterwards sued to enforce it.</p>

<p>A -transaction signed by a married woman without the authorization of her husband, if subsequently ratified by her, with the assent of her husband, will he obligatory.</p>

<p>No judgment can be rendered in favor of a party, declaring liim entitled to a right of way-over the estate of an adjoining proprietor on the ground of liis being cut off from access to the public road or river, without showing, by proof of where the shortest road can bo obtained with the least injury to the party required to submit to the servitude, from which of the adjoining proprietors the passage may be legally exacted. It may be that the passage is not due from the party from whom it is claimed, but from another contiguous proprietor.</p>

<p>An acton to recover immovable property is a real action, and not affected by the prescription of ten year's established by art. 3508 C. C. Nor does that prescription apply to judgments.</p> <p>The administrator of an insolvent succession represents the creditors, and not the deceased; and he may maintain an action for the benefit of the creditors, which the deceased, were he alive, could not do for his own advantage.</p>

<p>All acts or hindrances—-ames dé fait et empCchemens, coming from the debtor, which deprive’ the creditor of the remedy and forum contemplated at the time of the contract, suspend1 prescription.</p>

<p>The prescriptioiiiOf five years, C. G. -3.505, does not apply to a note not negotiable. Such s. note is prescribed by ten years. C. C. 3508.</p>

<p>Article 3411 C. C. applies to tlie abandonment of the possession of moveables only. An abandonment of the title to land must be made in writing.</p> <p>Where a road and levée ordered by the police jury to ho constructed on a tract of land is adjudicated to the proprietor of the land fqr a certain sum, who complies with the terms of the adjudication, being himself, as proprietor of the land, the first party bound to pay the amount of the adjudication, his claim will be extinguished by confusion.</p>

<p>from the District Court .of St. Helena, Penn, 3.</p>

<p>from the District Court of Concordia, Farrar, T,</p>

<p>PPEAL from the District Court of East Baton Rouge, Burle, J.</p>

<p>The exculpatory oath authorized by seo, 17 of the stat. of 7 June; 1806, to be takeh by a party prosecuted under that statute for the cruel treatment of a slave, in the absence of any wit' ness, is not conclusive of the innocence of the accused, but must be received and weighed as other evidence, and may be rebutted. ' '</p>

<p>One With whom slaves, belonging to a succession opened in another State, were deposited lens' safe-lieeping in that State, by whose laws they are personal property, and from whose possession they have been fraudulently and forcibly taken, ánd brought to this State and sold, has such a qualified property in them as'will enable him to’maintain an action for their possession against the purchaser; but he cannot recover the value of their hire while in possession of the defendant; for that he is answerable to the succession-to which they belonged.-</p>

from the District Court of Madison, Selby, J. 1. An obligation in favor of a firm, or several persons jointly, cannot be sued for by any one member of the firm or payees, but the action must be instituted by all the members or payees; and a judgment rendered in their joint name or firm, at the suit of any one or any part of them, would be no bar- to a suit by the whole firm for the same cause, or of the other partners for then- shares.

<p>No action will lie against a police jury representing a parish, for the amount of an adjudication, under the stat. of 7 February, 1829, for the construction of a levée in front of land belonging to an absentee, until the plaintiff has exhausted Ms remedy against the land. Where in an action against a police jury the tax payers of the parties to be affected, they will not be held to allegations in pleading made in error by their agents.</p>

<p>A claim for work done to a public levéc, under the provisions of the stat. of 28 April, 1847, relativo to the parish .of Tensas, may be recovered in an action against the police jury of the parish, unless it be shown that they had provided the specific fund which that act, (s.5,) maltes it their duty to raise, and a satisfactory reason be given for tbeir failure to pay the plaintiff out of it.</p>

from a special tribunal organized under the stat. of 1 June, 1846, for tire trial of a slave, in the parish of St. Tammany.

PPEAL from the District Court of East Baton Rouge, Burle, J. • relied on Williams v. Duer, 14 La. 537, Neilson v. Pool, 17 La. 212. The action was premature. C. P. 14, 158. 3 La. 300. A sequestration cannot issue before the debt is due. It is urged that a sequestration isa conservative measure; so is attachment; but it was found necessary in order to give the right to attach before the debt falls due, to amend the law, and give such right in express terms.

<p>PPEAL from the District Court of East Baton Rouge, Burle, J. In this case, which was commenced by attachment, a c'opy of the petition and citation were left with the wife of the defendant at his residence. It was proved that the defendant had absconded. The plaintiff appealed from a judgment refusing him permission to take a judgment by default, on the ground that an’ attorney should have been appointed to represent the defendant as an absentee.</p>

<p>from the District Court of East Baton Rouge, Burle, J.</p>

<p>A planter who removes with Ms family to a village in an adjoining parish,- for the purpose of having his children instructed at a school in the village, and occupies a house there, hut who continues to perform the-duties of a citizen of the parish in which Ms plantation is ¡situated, and manifests, by continuous acts, 1ns intention to retain Ms domicil there, cannot be sued in the parish to which-he had removed with Mg family, for & merely temporary purpose.</p>

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

<p>The fact that the petition and citation were not served in the french language, the maternal tongue of the defendant, must be pleaded in limine litis. It affords no ground for reversing the judgment on appeal, nor for enjoining its execution.</p> <p>On the dissolution of an injunction by which the execution of a judgment was arrested, damages to the extent of twenty per cent on the amount of the judgment enjoined may be allowed without proof.</p>

<p>JJarol evidence is admissible to prove tlie period at which a bill was intended to be payable, which was drawn payable “-months after date,” and discounted by a bank without filling up the blank. The testimony does not contradict the instrument, but supplies an omission, which, on the face of the contract, was either an oversight of the parties, or an intentional submission of the term to the discretion of the bank. 1</p> <p>The cashier is a competent witness for the bank by which he is employed.</p>

<p>Decision in State v. Diclc, ante p. 182, as to the liability of a slave to be punished for murder, in hilling another slave, affirmed.</p> <p>After conviction it is useless to enquire by what authority the accused was arrested.</p> <p>The provision of sec. 13 of the stat. of 1 June, 1846, directing that an affidavit be made before the arrest of a slave, is intended for the protection of his owner, who cannot be required to surrender his slave until facts shall have been sworn to authorizing a prosecution. The neglect of the master to insist on this right, is not an irregularity of which the slave can complain.</p> <p>The statute imposing on the district attorneys the duty of prosecuting slaves accused of capital crimes, does not render their presence necessary to the validity of such proceedings. All the courts of the State are empowered to appoint counsel to prosecute on behalf of the State, in the event of the absence of the district attorney. Stat. of 28 January, 1817» h. 20.</p> <p>An objection that a second justice of the peace was not present to aid in selecting the ten owners of slaves for the trial of a slave under the stat. of 1 June, 1846, must be made before the persons selected are sworn. If they are permitted to be sworn, without objection, it will be a waiver of the irregularity.</p> <p>Where one accused of a crime is prosecuted as a slave, and he submit to a trial without ob* jection, the fact of his being a siave will be considered so far admitted as to exempt the .State from proving the slavery. The stat. of 1 June, 1846, providing for the trial of slaves, does not require that the sentence should be signed by both justices of the peace. The signature of one is sufficient.</p>

<p>Plaintiff obtained a judgment on one of a series of notes, given to his testator for the price of land and scoured by mortgage thereon, and defendant became the surety of the debtor in an appeal bond. The judgment was affirmed on the appeal. Pending this appeal proceedings were had by the holder of another of the series of notes, which had been negotiated by the executor, with his endorsmeent, and judgment was rendered therein, on his consent, under which the land was adjudicated to the holder of the second note. Plaintiff having subsequently attempted to execute his order of seizure and sale it was enjoined by the purchaser, and the injunction perpetuated. In an action by plaintiff against the surety on the appeal bond: Held, that defendant, if bound on his appeal bond, would be entitled on paying it to a /subrogation to the rights of the creditor; and that the judgment bv wlácli the mortgage rights of the plaintiff were extinguished,- which rights she contends that the appeal bond was given to secure, having been rendered by her consent,the surety is released.</p>

<p>Hearsay evidence, admitted “without exception, cannot be objeetdd to afterwards.</p> <p>To enable a jmrty to become the owner oí’ a thing which he finds; it is necessary that tfiti former owner should have completely relinquished or abandoned it. O. 0. 3384; 3387;</p> <p>Where a raft of logs is accidentally stranded upon the'land of andthor; and the prdprietor of the land, though notified of the intention of the owner of the raft not to abandon it, cuts up the logs into firewood and sells them for a price exceeding, after deducting the cost of cutting them up, the value of the logs in their original condition, being a possessor in bad faith, and having thus put it out of his power to restore the thing in its enhanced condition upon being compensated for his labor, he will be responsible for the enhanced value of the timber when cut up for fire-wood, dfter deducting (lie cost of cutting it up.- Such a possessor cannot be permitted to profit by his own Wrong. C. 0. 517, 518,* 524, 2292. Per Curiam: As the plaintiff has ashed for an affirmance Of the judgment, which allowed him the value of the wood in the form Of firewood, after deducting the? cost of converting the logs into that form, it is unnecessary to decide whether a possessor in bad faith, under such circumstances, is entitled to compensation for the labor of converting the wood into a more valuable form, which is, at best, questionable.</p>

<p>"Where the creditors of an insolvent are tlie parties in interest in a contest as to a privilege claimed by one of them, tho claim cannot he established by an action against tho syndics; they represent the mass and not individual creditors.</p>

<p>To malee an account a stated account, it is not necessary that it it should be signed by tira parties. It is enough if it have been examined and accepted by both, and such acceptance may be inforred from, circumstances. Hence an account rendered will be deemed to be an accont stated from the presumed approbation or acquiescence of the parties, unless objected to within a reasonable time. What is reasonable time mu/3t be determined with reference to the relations of the parties, or the usual c.ourse of busip.es/? of the particular class of persons concerned-</p>

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

<p>Whore a debtor, in embarrassed circumstances, sells the contents of liis shop to a third person, but remains in the shop acting as a salesman, and the purchaser, for his own advantage in business, retains the name of the former owner over the door, and the boxes and packages in the shop are marked with the name or tho initials of the former owner, and, on an attempt by a sheriff to seize the goods as the property of the debtor, he and the purchscr inform the sheriff that they had been sold, but the purchaser does not exhibit liis bill of sale, nor his books, offering nothing but his naked assertion to establish the sale, and the officer seizes and takes away the goods, but, on the trial of an action instituted against him by the purchaser for damages, brings the property into court, and offers to deliver it up if the court so direct, judgment will he rendered against tho officer, though the court ho satisfied of the bona, jides of the sale, only for the restoration of tho property, and for any damage it may have sustained from want of proper care while in the hands of the sheriff*, and for costs. Per Cnriam,: The purchaser held out the vendor in a false light, to the public, and was bound to give the officer something more than liis mere naked assertion as proof of sale. Nor are we prepared to say that there was such a legal change of possession as would perfect the sale against creditors, supposing it to have been real aud bond fide.</p>

<p>A judgment which does not contain the reasons for which it was rendered, cannot have the force of res judicata.</p> <p>An intervenor cannot complain of want of notice of an order made in open court, between the original parties. An intervenor is presumed to be always in court, ready to plead-C. P. 391.</p> <p>Art. 1934 of the Civil Code does not apply to merchants’ accounts.</p> <p>The commercial law, as settled in the other States of the Union, is uniformly followed by the courts of this State, where no statutory provision prevents a resort to it.</p> <p>By the genera] commercial law, where the custom of the place and the practice of the parties is to strike a balance of their accounts at fixed periods, and to render the account, the balance, composed of principal and interest to date, is viewed as the capital of the creditor, on which he is entitled to charge interest from that date. Acquiescence in an account so rendered, though not per sc an agreement to it, is evidence from which it may be inferred that the party, who received it without objection, agreed to continue the same course of dealing, and to retain the balance on paying interest.</p> <p>By the custom of this State, it is understood between planters and their factors that the latter are to render accounts annually, after the sale of each crop, and, if the balance in favor of the factor is not paid, that interest is to be charged on such balance, at the rate agreed on, though made up of capital and interest.</p> <p>The laws regulating the rate of interest apply to commercial as well as ordinary transac_ tions, and conventional interest cannot ho changed in any case without a written agreement to pay it.</p> <p>A preparatory decree, prescribing the manner of proceeding deemed necessary by the court to arrive at a final decision, cannot have the force of res judicata. It remains under the control of the court, subject to its revision, until a final decision.</p>

<p>Whore a caso has been finally decided on its merits by the Supreme Court, and the politest still pending relates merely to tho execution of tho judgment, it is too late to intervene therein. C. P. 389, 394.</p>

<p>An appeal will be dismissed where the matter really in dispute is under three hundred dollars, though damages are claimed to a larger amount, whore the claim for damages is evidently flotations. Such a claim can give no jurisdiction to the court.</p>

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

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

<p>A sheriff -cannot’ recover under the stab -10 March, 18-15, -any compensation for the custody of ■slaves seized vnder an order of seizure and salo, when he never had the actual possession ■of tho slaves—never appointed a hooper to them, nor was ever subjected to any expense or trouble for their safe-keeping, or exercised any supervision over thorn.</p>

<p>"Where one of the parties to a contract of exchange, by which one tract of land is exchanged for another, is evicted from the land received by him, the tract given by him in exchange represents the price, and its value, and not that of the land from which he was evicted, must determine the amount of damages. C. C. 2482, 2633, 2637.</p>

<p>The testimony of a witness received and taken in writing on the trial of a case between the same parties for tlie same cause of action, where the witness lias died since the former tidal, will be open to all objections which might be taken if the witness were personally present; and where, on the first trial, the witness wa3 objected to on the ground that, **being the drawer of the note sued on he was incompetent to testify for the indorser jn a «contest between the latter and the holder,” and the objection was overruled, the party by ■Whom ho was offered cannot require that bis testimony should bo received in-the second case on tlie ground that tho objection made did cot point specifically to the true canso of objection that-tbo defendant was tlie accommodation endorser of tho witness, otherwise it would have hoen cured by a release, which the subsequent death of tho witness has rendered impossible.</p> <p>Decision iu Union Bank v. Morgan, 2 An. 418, as to the sufficiency of a presentment of a note for payment, affirmed.</p> <p>A case will not be remanded, thou3h material evidence was received below which was inadmissible, where, from the circumstances-of the case the only effect of remanding it -weuld be to delay the plaintiff, -without promoting'the ends of justice.</p>

<p>A PPEAL from the District Court of St. Tammany,. Penn, .1.</p>

<p>After a plea of prescription by an administrator, in an action ag-ainst him for a debt duo by the succession, it is too late to urge that tho suit was prematurely brought, he never having refused to acknowledge the debt.</p> <p>Notes payable .Co the order of minors, not being transferable by endorsement or delivery so1 long as the minority lasts, are not subject to the proscription of five years.</p> <p>Where one who is under-tutor to a minor, borrows funds belonging to him, his responsibility, so far as he holds funds belonging to the minor, cannot be distinguished from that of tho tutor; nor can tho nature of that responsibility ho changed by the form in which he may choose to put the debt.</p> <p>¿Jreditors cannot plead a prescription which would not have availed the' debtor if pi'e’aded by him.</p>

<p>Si a partition-of land ordered to be made in kind the notary cannot dispense with the drawing of lots- without an express agreement in writing made by the parties and notified to him.</p>

<p>from tho District Court of East Baton Rouge, Nicholls, J.</p>

<p>There can be no ratification where there is no title.</p> <p>One who had boen a probate judge cannot, after lie has ceased to hold the office, authenticate a sale made by him when in office.</p> <p>Parol evidence is inadmissible to prove a title to real estate.</p> <p>The receipt by the tutor of a portion of the price of land belonging to minors, can never he construed into a ratification of a sale, to their prejudice.</p> <p>Parol evidence, inadmissible to prove a title to real estate, cannot be received to prove the nature of the possession of-a party, in order to establish that, as a possessor in good faith, he was not liable for rent, and entitled to recover the value of his improvements. Where questions of title arise in actions for damages the proof required is the same as in petitory actiq-qs.</p>

<p>Under the statutes of M- and 26 March, 1842, and S'April, 1848,' providing for tho liquidation o? banking companies, a debtor to a bank was entitled to give in payment tbe obligations of the bank, without reference to the date at which he acquired them.</p>

from the District Court of Concordia, Farrar, J. contended: 1st. That the note was prescribed by six years under the stat. of Mississippi. 2d. That all claims against the succession of the deceased person not presented &c., -within eighteen months after publication of notice for that purpose, are declared by section ninety-two of the act of 1821 (H. & H. Dig, 413), “tobe for ever barred, and the estate of the testator, or intestator,” “discharged.” Administration was taken…

<p>An action on a promissory note, commenced by attachment against a non-resident maker, by whom the note was executed in the State of A., where he resided, payable in the State of SI., cannot be maintained,, here after the time required to prescribe the note by our laws, on the ground of the claim not having been prescribed by the laws of M. Per Curiam: The maker having lived iu A. at the time he became a party to the note, plaintiff could not have contemplated his bringing or keeping himselfwithin the jurisdiction of M., and he,cannot be considered as having done any act by which his creditor has boon prevented from collecting his debt.</p> <p>The general rule is that, prescription is governed by the lexj'ori..</p>

from the District Court of St. J. The directors of the branch were themselves without authority to grant a discharge. They were agents, having only a power of administration, and could not remit a debt, for remission is an act of ownership. Union Bank of Louisiana v. Bagley, 10 Rob. 43. Pothier, Oblig. 619. Mandat, 164. C. C. art. 630.

<p>for a Mandamus to Buchanan, Judge of the Fifth District Court of New Orleans.</p>

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

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

<p>Where one, who had contracted to furnish marble for a building within a time fixed, finds it impossible, in consequence of the inundation of his quarries und marble works, to comply with his contract within the time specified, is permitted by the other party to furnish the materials afterwards, the latter mustpayfor them.</p> <p>Where one, who had been unable to comply with a contract to furnish materials at a certain time, and who is permitted to furnish them afterwards, claims m his petition the original contract price, but, in a supplemental petition, demands a larger sum on a quantum meruit, the amount claimed in the petition will be considered as fixing the price for which the contract was to be performed after the period originally fixed for its performance.</p>

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

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

<p>from the District Court of West Feliciana, Lawson, J.</p> <p>contended that, the executor had a right to make himself a party to the action in the District Court. He could even have acknowledged the debt. C. P. 120, 161. Henry v. Key, 12 La. 214. Morgan v. Morgan, 2 Wheaton, 290.</p> <p>The District Court was without jurisdiction from the moment of Swift’s death, his succession being administered by his executor in West Feliciana. See Code of Practice, arts. 606, 923,983,984,986. C. C. art. 1105. Succession of Ludewig, 3 Rob. 92. Picou v. Hussuau, 4 Rob. 412. Acts of 1828, p. 156. Fleming v. Hilligs'berg, 1 Rob. 77. Succession of Jacobs, 5 Rob. 270. Kerr v. Kerr, 14 La. 177. McManus v. West, 18 La. 41.</p> <p>' The executor could not, by appearing and answering in the District Court of East Baton Rouge, give that court jurisdiction, as he was acting under the authority of the court of Probates of West Feliciana. No. consent of parties can give jurisdiction to a court that has no jurisdiction ratione materice. See cases cited above, 11 Rob. 77. C. P. 93, 933. 14 La. 177.</p>

<p>A party cannot controvert the title of one under whom he claims.</p> <p>Where a husband purchased, during the existence of the matrimonial community, a settlement right on the public lands of the United States, and after its dissolution the government made to him individually a donation of land on account of the settlement of the party from whom he purchased, the land, under the Spanish law then in force in this State, did not inure to the benefit of the community, but belonged exclusively to the individual to whom it was given. Novis. Recop. b. tit. 4,1. 1. The rale that things given by the sovereign formed no part of the community, but belonged exclusively to the party to whom they were given, applied to all cases except where the donation was in remuneration for military services rendered to the sovereign by a husband, who had served without pay and been supported by tlie community. Fuero Real, b. 3. tit. 3,1.3. But tlio right of the wife as to auy improvements made on the property is distinct from her right to the property itself: the augmentation of value by the common labor alone makes a part of the acquests and gains. The facts that the improvements were not made by the spouses, but were purchased by them, does not affect the principle.</p> <p>Purchasers of land from a party in whose favor a judgment had been rendered based on the admission of his title by the defendant, are not bound to enquire into the truth of the admission. It is sufficient for them, in a contest with the heirs of the party by whom the admission was made, that the admission is on the records of the court, and that a judgment had been rendered on it.</p> <p>Under the stat. of the Legislative Council of 10 April, 1805, regulating the practice of the*. late Supreme Court of the Territory, in all cases of liquidated accounts or demands, wheat no answer had "been filed, the allegations in the petition were to be taken \pro confessisy and the judgment rendered in consequence of \the default of the defendant became fin&U aftcr three days, in consequence of Iris negligence, without any agency of the court.</p> <p>¿Sec. 12 of art. 4 of the constitution of 1812, and sec. 70 of the constitution of 1845, which require the judges of all courts, as often as it^may be possible to do so, in every definitive* judgment, to refer to the particular law in virtue of which suoli judgment may have been, rendered, and in all cases to adduce the reasons on which their judgment is founded, does-not apply to an order making final a judgment by default.</p> <p>A certificate of the auditor of public accounts that, “ upon examining the tax-roll for the parish of T. for the year-, there appeared to be assessed thereon, in the name and as the property of A. H., five hundred acres of land,” is inadmissible in evidence; though proof had been previously made that the original tax-roll, which was required by law to be deposited in the office of the parish judge, could not be found there. The certificate disclosing the existence of a copy of the tax-roll ip the possession of the auditor, an extract-from that copy, properly certified, is alone admissible.</p> <p>The certificate of a mere matter of fact by a public officer is inadmissible. If he was bound! to record the fact, a copy of the record, duly authenticated, is the proper evidence. • As to matters which he was not bound to record, his certificate is merely the statement of a private person, and therefore inadmissible.</p> <p>In sales for taxes the assessment stands in lieu of the judgment in ordinary judicial sales, and the party relying on a sale of that description is bound to show its existence and legality. Want of proof of a proper assessment and of a sufficient description of the land, where no actual possession has followed, are not defects that can be cured by the prescription of five years, under the stat. of 10 March, 1834, s. 4.</p> <p>The purchase without warranty, by third person, of the right, title and interest of a party in a tract of land bought by him at a public sale for taxes, but of which he never had possession, cannot form the basis of prescription. The second purchaser was apprized of the nature of his title, and that it was defective.</p>

<p>Minors will not be bound by a promissory note signed by tbeir tutor in liis < the absence of proof of judicial authority to malte the note, or that its consideration to their benefit.</p>

<p>A marriage settlement, executed in another State, where the property was situated and where the parties resided at the time, if valid by its laws, cannot be effected by the subsequent removal of the parties to this State.</p> <p>By the laws of Mississippi, no covenant or agreement in consideration of marriage, nor any deed of marriage settlement or deed of trust, though the consideration be a valuable one and the bonaJides of the parties unquestionable, is good against creditorá, unless acknowledged by the parties bound thereby, or proved before a judge of the Supreme Court, or a justice of the county court, or justice of the peace, or notary public of the county in which the lands, tenements, and hereditaments, or some part thereof, are situated, and unless a certificate of such acknowledgment or proof, written upon said instrument, and signed by the officer before whom it was made, be lodged with the clerk of the county court of the proper county, to be there recorded in the same manner as other deeds of real or personal estate arc required by law to be acknowledged or proved. A marriage settlement, not duly acknowledged or proved, and recorded, is not void merely as to creditors having liens on the property to be affected, but is void as to all creditors whosoever.</p> <p>On a question arising under the laws of another State, in which the english common law, so far as adapted to our constitutions and consistent with our form of government, and not repealed or modified by statute, is in force, and where the principles of the english equity jurisprudence also prevail, and where the courts are authorized to look to english authorities in equity for rules of decision on questions turning on the principles of equity, the courts of this State will be bound to notice any thing applicable in principle, which it finds laid down in approved works.</p> <p>In those States in which the common law prevails, a general lien on land resulting from a judgment, constitutes, per se, no property or right in the land itself. It confers only a right to levy on the land, to the exclusion of other adverse interests subsequent in date to the judgment, and can only be made effectual by a levy.,</p> <p>A deed, executed in a State where the english common law prevails, conveying property to a trustee, for the benefit of creditors of the grantor, though fraudulent and void as to creditors, is sufficient to divest the legal title of the grantor, and conclusive against . him. And where the. property so conveyed in trust for the creditors, is subsequently conveyed by the grantor to a trastee as a marriage settlement, it can only confer on the intended wife, or on her trustee for her benefit, the right to have a conveyance made to her of the property when the prior deed shall have been satisfied or otherwise discharged. It creates in her favor a lien in equity only, of no validity against a creditor until actual notice, or the filing of a bill asserting such lien, which is constructive notice; and where a judgment creditor, who, by reason of the conveyances in trust for the creditors, has but a lien in equity upon the property conveyed, instead of a legal lien, files his bill in equity before any acual or constructive notice of the deed of marriage settlement, his right to subject the property to his debt will take precedence of that of the wife. As the judgment creditor would prevail in Mississippi over the wife, by reason of his earlier assertion of his equitable claim by a bill in equity, the husband cannot, by subsequently removing slaves, who formed a portion of the property to this State, create a right of priority in her favor.</p>

<p>In an action for a partition of land all the parties in interest must be joined; and it devolves on the plaintiff, on an issue made by one of the defendants, to show that the proper parties are before tlie court. C. C. 1252. C. P. 1024.</p>

<p>In an action fordamages for the destruction of plaintiff’s carriage, caused-by the neglect and imprudence of the driver of an omnibus alleged to belong to defendants, the latter may, under the general issue, offer proof that the omnibus had been leased by tbem to a third ' person at the time of the accident. The liability of defendants depending, not upon the ownership of the omnibus, but on the fact that the damage was done by their servant, it is no objection to such evidence that it is inconsistent with the denial of ownership of the omnibus in their plea of general denial.</p>

<p>Receipts of receivers of public moneys of the United States for the price of public lands, are sufficient evidence of title from the government to form the basis of a petitory action, in which the property itself may be recovered. Per Curiam : Lands held nnder such instruments enter into the domain of private property, and as such are subject to contracts, and, when there is no reservation by Congress, are liable to taxation.</p> <p>A patent from the United States is conclusive evidence of the divestiture of the fee in the land, which remained in the United States notwithstanding the sale made by its officers and the receipt of the price; but it does not affect any right to the land which may have existed under contracts between the patentee and third persons. The patent, to whomsoever issued, inures to the benefit of him to whom the patentee is hound to convey the legal title.</p> <p>A patent for public lands fraudulently obtained, or illegally issued, is void.</p> <p>A purchaser at a probate sale, of lands held by the deceased under an act of sale from an assignee of the receipts given by the receiver of public moneys for the original price of the land made sous seing privé and never registered, who has been for several years in actual notorious possession under a recorded title, cannot he affected by one claiming under a subsequent purchase of the land from the party by whom the price was paid to the government, and to whom the patent had been issued. The last purchaser, being the assignee ■of the party by whom the receipts had been previously assigned, cannot take advantage of the defect of registry and is bound by the act sous seing privé. C. C.2417, 3522, § 5. Per Curiam: A purchaser will he charged with notice who buys, in the face of a notorious adverse possession, under a recorded title, for several years, from one who holds merely the legal title_the patent, which inures to the benefit of the equitable owner, without possession or apparent ownership.</p> <p>Although acts under private signature do not of themselves prove the date of their execution against third persons, their date may he established by other evidence besides the actual proof of the time of their execution. Any circumstances which renders_the ante-dating ¡the act impossible will give effect to its date.</p>

<p>Where a plaintiff; in an action on a note given to him in pledge, admits, by a supplemental answer, defendant’s right to pay the debt in the notes of a particular bank, and avers his readiness to receive them, but defendantmakes no tender, and answers denying any cause of action against him, and plaintiff, in another supplemental petition subsequently filed, avers that he has become the absolute owner of the notes by purchase at a judicial sale, and withdraws his consent to receive payment in the notes of the bank, defendant cannot require that judgment should be rendered payable in the notes of the bank.</p> <p>Where.an act of mortgage does not contain the pact de non alienando, and the property is in possession of a third person, no judgment can he rendered for its seizure and sale in an action against the mortgagor alone.</p>

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

<p>Though there be no proof that a judgment, rendered against the principal and surety in a bond taken by one of the recorders of the city of New Orleans for the appearance of the principal to answer a charge of assault and battery, was ever notified to the parties, it cannot be set aside, under the provisions of the stat. of 11 March, 1837, after the lapse of ten days from the date of an offer made, with the assent of the principal, by the surety, in court, to surrender his principal, and of an application by the surety for the cancelling of the mortgage resulting from the recording of the judgment in the mortgage office.</p>

<p>An appeal will not be dismissed on the ground of the record’s not containing certain evidence' adduced on the trial, where the defect was supplied, before the argument of the case, by an. authentic copy of the document which was wanting, under an agreement in the court below that a copy should be furnished. The irregularity resulted from the plaintiff’s consent, and it would be unjust to permit Mm to derive any advantage from a state of tilings he was instrumental in producing.</p> <p>A confession of judgment, in an action on a partnership debt, made, after the dissolution of the partnership, by one of the members, is binding only on himself.</p> <p>Where the principals in a bond are bound in solido, a judgment regularly obtained against either will be binding on their surety.</p> <p>A judgment confessed by an insolvent after a cossio bonornm made and accepted, cannot affect the property ceded, which, from the time of the cession, was vested in the creditors; nor will such a judgment in favor of the vendor of moveables, who had sequestered them before the cession, confessed, after the cession, by the insolvent, who had released the property on abond before 1ns cession, be binding on the surety in the sequestration bond.</p>

<p>A commission directed to E. JR. Clyde, but executed and returned by Robert J. Clyde, as commissioner, will be admissible, where the attorney by whom the commission was taken out makes oath that he is well acquainted with Robert J. Clyde, that he was the person intended to be made the commissioner, that he caused the name of A. R. Clyde to be inserted in the commission by mistake, and that there is no other person of the name of Clyde- in the town to which tlie commission was directed.</p> <p>The designation of a commissioner to take testimony by the initials only of his first and second names, though his sirname be in foil, is irregular; and should be objected to by the opposite party before adding his cross-interrogatories.</p>

<p>.The ordinance of the Council of the First Municipality, of 16 February, 1846, imposing a fine on persons selling groceries in certain market-houses of that municipality, is neither illegal nor unconstitutional.</p>

<p>A third opponent cannot arrest the sale of the property in dispute, nor claim damages against the sheriff for executing the judgment, unless he obtain an injunction, and give security* C. P- 399.</p> <p>Where the principal demand has been tried, no further proceedings can be had on the inter* vention. The intervenor must be held to have abandoned that remedy.</p>

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

<p>A provisional seizure may be dissolved summarily by a rule to show cause, where the apprehensions of the plaintiff, which led to the seizure, is clearly proved to be Unfounded.</p>

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

from the Fourth District Court of New Orleans, Strawbridge, J. cited 11 La. 408. 15 Vesey jr.. 331. 13 La. 126. 8 La. 14. 16 Peters, 14. 2 An. 196, 249.

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

<p>A judgment obtained against a natural tutrix, ascertaining the amount due by her to her minor children, is not evidence against the defendant in an action to enforce the tacit mortgage of the minors against their tutrix on property in the hands of an assignee of one, who acquired by purchase at a judicial sale of the effects of the community formerly existing between the mother and the father of the minors, made before the date of the judgment.</p> <p>Art. 2428 C. C., which declares that property -claimed in an action cannot he alienated, pending the action, to the prejudice of the plaintiff,does not apply to one whopurchases real estate pending an action against the owner to recover a balance alleged to be due by him as tutor, the action being not for the land itself but for a sum of money. And one who claims to exercise a mortgage on the property for the debt so ascertained to be due to the minors, must produce other evidence than the judgment to establish the debt, the judgment being as to the purchaser res inte?' alios.</p> <p>A sale under execution of “all the rights, claims, demands and interest which the heirs of A. have upon their mother and natural tutrix, on account of their inheritance from &c.,” is void for vagueness and insufficiency in the description of the thing sold. The nature of the rights, interest, claims and demands should have been so statéd as to give bidders a clue to their value. Art. 647 C. P. does not dispense with a proper description of the rights and credits seized.</p> <p>As against himself and those he represents, a man’s actions and representations will he presumed to correspond with the truth. They are in all cases evidence of the fact; and where a party has induced another to act on the faith of such representations, and where he cannot show the contrary without a breach of good faith and common honesty, such representations are usually absolutely conclusive.</p>

<p>It is not necessary to serve on fee defendant copies of acts or documents annexed to fee petition, though fee petition itself states that they form part of it. C. P. 175.</p>

from the Fourth District Court of New Orleans, Strawbridge., J. contended that the act of 1848 does not revive or amend that óf 1847 ; but provides’ Tor the appointment of an officer ! after the term ’of office under the first act had expired. The stat. of 1848’is within the concluding clause of’art. 1’20 of the constitution. Larue, forthé defendant.

from the Fourth District Court of New Orleans, Strawbridge, L cited 11 Mart. 636. 1 Pick. 342. Dunlap’s Paley on Agency, 26, 27, and cases cited: The judgment of the court (King, J. absent,) was pronounced by

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

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

<p>The transfer of the title to a promissory note is not restricted to the form of an endorsement» It may be assigned by a separate instrument; and the assignee may sue in his own name.</p> <p>Where a note described in a notarial act of assignment corresponds in date, amount, parties, rate of interest, maturity, and in all other respects with the note sued on, with the single exception that the note described in the notarial act is stated therein to be secured by mortgage while the note held by plaintiff is not paraphed, the Want of a paraph will not be considered inconsistent with the identity of the notes.</p> <p>Article 3347 G. C. which directs that “ every notary before whom an act shall have been made* by which notes to order have been given for the payment of a debt bearing a privilege or mortgage, shall attest each of the notes by putting his name on them, mentioning the daté of the actfrom which the privilege or mortgage is derived, under the penalty of damages,” is merely directory to the notary. Th & paraph is not essential to the existence of the mortgage; the identity of the note may be established by evidence aliunde. The correspondence of date, amount, parties, rate of interest, and maturity, coupled with the possession of the note, raises a presumption of identity, throwing upon the defendant the burden of showing the existence of another note of like description made by himself, the mortgagor referred to in the act of assignment.</p>

APPEAL, by the defendant, from a judgment of'tlie District Court of Jefferson, Clarice, J., maintaining1’an' injunction taken out against an order of seizure illegally issued.

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

<p>An order, by which a- rule taken against a sheriff by the plaintiff in an action is' made absosolute,- holding the sheriff to be personally liable to fee plaintiff for any judgment thstl may be rendered therein, in the same maimer as certain sureties, taken by him in a bond on which property was released, would have b,een liable, had they been found good and sufficient's not a final judgment, nor one from which an appeal canbe taken by the sheriff.</p>

<p>Art. 1987 C. C. is repealed by art. 647 C. P., so far as they are inconsistent with each other.</p> <p>The word office, in arts. 1987 C. C. and 647 C. P., means a public office. The commissioners appointed under the stat. of 14 March, 1842, providing for the liquidation of banks, are not public officers.</p> <p>An amount due to a commissioner, appointed to liquidate a bank under the stat. of 14 March, 1842, for arrears of salary, will be extinguished by compensation, where the hank was a judgment creditor of the commissioner for an equal amount.</p>

<p>Tlie decision in Bertoli v. Citizens’ Bank, 1 An. 119, that no sale, whether judicial, forced ojj voluntary, of property mortgaged to the Citizens’ B auk, can in any manner affect the rights ¡secured to that institution by the 24th section of its charter, applies to the esse of a sale made without the consent of the bank and lor a sum insufficient to satisfy their claim.</p>

<p>from the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>cited The Jerusalem, 2 Gallison, 347. The Aurora, 1 Wheaton, 96. 3 Kent, 132,169. C. C. 3204. Parish v. Crawford, Strange’s Rep. 1251.</p> <p>relied on C. C. 2156, 2157. Grant v. Fiol, 17 La. 160. Agricultural Bank v. Barque Jane, 19 La. 9. Hill v. Phcenix Co., 2 Rob. 36. Hyde v. Calver, ante p. 9. Harper v. A new Brig, 1 Gilpin, 536. Abbott on Shipping, (ed. 1846), pp. 200, 202.</p>

<p>On an appeal fr&m a judgment in favor of two or more parties, a bond made payable to oné of the appellees txetaV\ will be good. The expression “etal .” must he considered as referring to all the other appellees*, and the bond will he available to all of them.</p> <p>Where one Of two appellees has not been cited, the judgment cannot he totiché'd, so far as hé is concerned; but the omission is no obstacle to the consideration of the case as to theparfcy cited, where the interests of the two are separate, and susceptible of being separately de1 termined.</p> <p>Where the vendor of a tract of land having one arpent and three-quarters front, received five-sevenths of the price in cash, and# for the balance, took a note of the purchaser, identified with the act of sale by tbe paraph of the notary, the act reciting that, “pour assurer le paiement dn ditbilletá son échéance, ainsi que de tous frails et inléréts, hypothéque spéciale esfc réservé seulement sur trois quarts d’ arpent du cote d'en haut de la dite propriety l’acquéreur s'obligeant dene les point aliéner, on liypothéquer, au préjudice des presentes,” the vendor’s privilege notbeing necessarily inconsistent with this clause, will be considered as retained upon the whole tract; nor can the enforcement of the mortgage, by an order of seizure snd sale, opérate as an implied renunciation df the privilege.</p> <p>The renunciation ot the vendor's privilege must be express; or result by cogent implication* A mere doubt Will not suffice to deprive a party of what the law presumes in his favon</p> <p>A mortgage and privilege may co-exist on the same thing. They are distinct rights, not exclusive of each other.</p> <p>Where a note is made payable two years after date, but the maker, on its face, “reserves to himself the right to postpone payment for five years,” and the latter makes no tender of payment at the end of two years; nor subsequently, hé mustbe considered as having availed himself of the reservation; and prescription will not begin to run against the payee until the expiration of the term of five years.</p> <p>Where the testimony as to a judicial sale is conflicting, it will he insufficient to destroy the legal presumption that the sherriif did his duty.</p> <p>An agreement made by the sheriff with a purchasei’, subsequently td the adjudication at a judicial sale; that the price should remain in the hands of the sheriff until a good and satisfactory title was given; and; in default thereof; that he Would return it, cannot invalidate the adjudication.</p>

<p>from the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>relied on the case of the Long Island pp. pp. jPeziis, lor the defendants, cited Angelí and Ames on Corporations, p, 267-, SO], 466. Brantv, Louisiana State Bank, 8 Mart. 310. Smith’s Mercantile Law, p. 83. C. C. 424. Noe v. Taylor, 13 La. 249.</p>

from the First District Court of New Orleans, McHenry, J. relied on art. 2294, C. C. To maintain this action, plaintiffs must establish: 1st. That they have been evicted, from land sold to them, by the defendants, or by those' whose title defendants are bound to warrant. C. C. 2476, 2478, 2493, 2494, 2495. Murray v. Bacon, 7 Mart. N. S. 272. Kempv. Kemp, 2 La. 244. Bessy v. Pintado, 3 La. 490. Keene v. Ciarle, 8 La. 117.

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

<p>"Where an order of seizure and sale, issued for the amount of a noto secured by mortgage and containing tho pact da non alienando, is enjoined by a third person, alleging himself to be the owner of the pu-operty mortgaged by a purchase since tho date of the mortgage, who after a judgment rendered against Mm in tho first instance, protracts tho litigation by repeated appeals, such third person cannot avail himself cf the time which elapsed while tho plaintiff was thus judicially restrained from prosecuting his action, as part of the period necessary to extinguish the note by prescription. Par Cilriam: One who, under tho pretence of rights which have been adjudged to be unfounded, unlawfully uses the process of a court to restrain another in the prosecution of a right, cannot avail himself of the delay, which his own wrong has occasioned, to defeat that right.</p> <p>One to whom a note belonging to a succession has been transferred, by the Curator, irregularly, and to the detriment of the creditors or heirs of tho deceased, will ho considered as a trustee for them, but his possession of the note, as holder, will enable him to sue, for the purpose of arresting prescription.</p>

<p>Where a.mprtgago contains the pact.cie non alienando, one, who subsequently purchases the. property from the mortgagor, cannot claim to he in any better condition than his vendor, nor can he plead any exception which the latter could not. Any alienation in violation of the pact da non alienando is null, as to the creditor.</p> <p>Where a creditor, whoso claim is secured by mortgage, may proceed against the same person by a personal action or by executory proceedings, the institution of proceedings viá execuliva will interrupt the prescription running against the personal action -, and this interrupt iion is continuous, preserving the personal action while the excutory proceedings are being prosecuted; and vice versa. And wliore the mortgage contains the pact denon alienando, a purchaser from the mortgagor, subsequent to the mortgage, will he considered as standing in the place of the mortgagor, and as subject to the same liabilities.</p>

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

<p>APPEAL from the decision of a justice of the peace in New Orleans. Thd appellant resisted payment of the tax on the grounds: 1st. That it was illegal and unconstitutional. 2d. That having obtained a license as a confectioner, hU could not be Subjected to another tax for retailing'soda-Water, or any other article in the line of his business.</p> <p>cited Const: art. 127.</p>

<p>from the Second District Court of New Orleans, Canon, X</p> <p>cited C. C. 1074, 2381, Bui. & Cur. Dig. *810. Chabot, des Successions, vol. 2 p. 108. Diet, du Droit Civil, vol. 6, p. 56; 'arts. 28, 29, 35, 38. Ibid. vol. 2, p. 225, arts. 563 to 573.</p>

<p>Where a debtor is insolvent to the knowledge of his creditor, who receives from lnm\ in payment of an 'antecedent debt, goods upon which he has no privilege as vendor, the preference is an illegal one. O. 0.1965 to 1989.</p>

<p>from the Second District Court of NTew Orleans, Canonr J.</p>

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

<p>from a of a Justice of the Peace in New Orleans:</p>

<p>a PPEAL from the Second District Court of New Orleans, Buchanan, J. prS" -£*. siding.</p>

<p>Where certain stockholders of a bank, who had been appointed commissioners, of an election for directors, and whose duty it was to ascertain the legality of any disputed votes, receive certain votes though objected to when offered, and sign, on tho day of election, a certificate from which it appears that certain individuals obtained the plurality of votes necessary to an election, they will not be allowed to urge, in an action to annul the election, that any portion of the votes so received by them were not given according to law, nor that they were given by persons not bona fide owners of the shares on which they voted. Per Cwriam: Though, under our legislation, any stockholder has aright to enquire, by iiq'iio wm-ranto the election of those who assume to administer tho corporation of which he is a member, a stockholder may have so acted as to render himself incompetent or disqualified to become a relator. Where the wrong complained of was the result of his own misconduct or neglect, or he has acquiesced or concurred in it, he will notbe listened to. And although a corporator will not be permitted to impeach a title conferred by an election over whichhe presided, or the legality of the votes which hehimself, as commissioner, received, nor to contest an election, in whichhe has concurred; yet, if one should concur in an election in ignorance of some fact malting it invalid, and should afterwards show the objection, and that it has come to his knowledge since the election, he should be heard, consent, inducedby error, not being bindingin the eye of the law. Without undertaking to say to what extent these principles! apply to municipal corporations, we have no hesitation in recognizing their application to private corporations.</p>

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

<p>Whatever may be the right of a party to appeal at once from a refusal to set asirle a sequestrátion by which his property is actually detained in legal custody; it cannot be extended to the case of one who lias been restored to possession by giving bond. It cannot be said that the judgment works, or may work, an irreparable injury, which is the test by which to determine whether an appeal will lie from an interlocutory judgment before a trial on the merits.</p>

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

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

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

<p>from the District Court of St. Bernard, Rousseau, J.</p>

<p>The payee of a bill of exchange drawn abroad, payable and ptotested here, cannot recover ■ damages against the acceptor.</p> <p>In r.n action, by tlie payees, on a bill endorsed by themselves, and afterwards by a third person, in blank, it is unnecessary to state such endorsements in the petition, or, in tile absence of any evidence to impugn the title of the plaintiffs, to prove them on the trial.</p>

<p>Where interrogatories are propounded to a plaintiff, in answer to one of which he states that defendant is indebted to him in the amount sued for in an action against him as drawer of a bill of exchange, it will be unnecessary to make any further proof of his claim until the answer is rebutted by sufficient evidence.</p> <p>Aii .agent, in possession of a bill endorsed in blank, may maintain an action on it in bis own name. The fact that the bill belonged to a third person is unimportant, except to enable the defendant to oppose any equitable defence against the hue owner.</p> <p>"Where a court of the first instance is not required to pronounce on an exception of lis pendens, before going to trial on the merits, it will be considered as waived.</p>

<p>^ mofc®n to dismiss,, on the ground that the transcript was not Sled iu. titae,.is not required to bo made within tliroo days after the filing of the record.</p>

<p>j PPEAL from the Fourth District Court of New Orleans, Strawbridge, J. -ti-</p>

<p>Where in an action by a police jury, in which the tax-payers of the parish are the real parties in interest, the plaintiffs have not made out their case, hut there is reason to believe they can do so if another trial be allowed, the case will be remanded for further proceedings.</p>

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

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

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

<p>Notice to a person, before his appointment as agent, will not be binding on the principal.</p> <p>Tlie Code, while it requires notice to a debtor of the transfer of a debt, has not prescribed any particular form in which it must be given. C. C. 2613. Nor will any misdescription, even as to the amount of fhe debt, vitiate the-notice, where, from the rest of the description and the circumstances of the case, the error could not have misled the party notified.</p> <p>The mere institution of an action,by the creditors of one who had made, a cess'io bononum under thestat. of 1817, and who had since acquired other property, to compel anew- surrender, does not render the insolvent incapable, from the commencement of such action, of alienating his property in favor of a bond Jide purchaser. Under that statue, such newly acquired property cannot be considered as thenceforth in the custody of the law. Until a judicial investigation has been had and a decree pronounced, the further liability of the insolvent is a matter on pais. Any other construction would defeat the policy of the statute.</p> <p>Every one, not prohibited by law, may buy or self.</p>

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

<p>Tho right of the commissioner of the general land office of the United Statas to vacate illegal entries of the public lands, prior to the issuing of a patent, has been repeatedly recognized, and can no longer be questioned.</p> <p>Where an act of Congress making a donation of public lands toa State, directs the secretary of the treasury of the United States to make the location of these lands, and a resolution of the legislature of the State authorizes the governor to ask for their location, and provides for the contingency of the authority being conferred on him to make the selection, a selection of the lands hy the governor, and the acquiescence of the government of the United States in a location made in accordance therewith, will be legal. Per Cur: The power of the secretary of the treasury to delegate the authority to designate the lands for location, cannot be doubted.</p>

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

<p>After a cessio honorum by an insolvent, an action to annul a contract made by liim in fraud of bis creditors cannot be maintained by any creditor individually. It must be instituted by the representative of the creditors. Aliler, when there has been no cession. C. 0.190, 1965. Stats. 25 March, 1808; 20 Feb. 1817.</p>

<p>from the District Court of St. John the Baptist, Nicholls, J.</p>

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

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

<p>from the Second District Court of Ne y Orleans, Canon, J. A.</p>

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

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

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

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

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

<p>Where a prisoner, on being brought to the bar, declares that he is ready for trial, and accepts the jurors summoned to pass upon the charges preferred against him, he cannot afterwards object that a copy of the indictment was not served upon him.</p>

<p>No appeal will lie from a judgment, sentencing one prosecuted under the stat. of 2d April, 1832, for selling intoxicating liquors to a slave without the consent of his master, to forfeit any license held by him, and to be forever deprived of the right of holding such a license in future, and condemning him to pay afine of three hundred dollars and the costs of prosecution, or to remain in jail until such fine and costs, and jail fees are paid, for a term not exceeding six months. Par Cur: Tho fine is not sufficient to give jurisdiction *, the forfeiture gives no jurisdiction of itself, nor can it aid tho deficiency of the fine in that respect; and the costs, being matters of course, can have no such effect.</p>

<p>Where, in a bond executed for the release of property attached, three persons are named as principals, but the bond is signed by but one of the principals and a surety, the latter will not be bound, in the absence of evidence to destroy the presumption that he expected the three persons named as principals to be bound as such, or to show that he would have any recourse against them, if he paid the amount.</p>

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

<p>Where the report made by a sworn surveyor, appointed by the court having cognizance of an action of boundary, is defective, and the plan annexed to it is not in conformity with the titles, the report should be rejected and a new survey ordered. C. C. 837. The surveyor is but an expert, and his operations are always under the control of the court. The defectiveness of the report is no ground for non-suiting the plaintiff.</p>

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

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

4 PPEAL from the District Court of Ascension,.Nicholls, J. 1A. The questions for solution are: First. Can a surviving widow, or.the heirs of the deceased, claim from an administrator any portion of the community property, or of the revenues derived therefrom while the same is under administration, until all the debts and charges thereof are paid, and the same is fully liquidated ? Second.

<p>By the common law, as with us, powers of attorney are subject to strict interpretation; and the authority is never extended beyond that which is given in terms, or which is necessary and proper for carrying the authority so given into full effect. Language, however general, when used in connection with a particular subject matter, is presumed to be used in relation to that matter, and must he construed and limited accordingly.</p> <p>A general power to buy property for the principal, or to make any contracts and do any other acts whatever which he could if personally present, by the common law, as well as by our law, must he construed to apply only to buying or contracting in connection with his ordinary business, and will not authorize the making of any contracts of an extraordinary character.</p> <p>A power of attorney executed by a single woman, so far as it confers powers beyond the administration of a plantation belonging to her, with the management of which the agent was charged, will be revoked by her subsequent marriage.</p> <p>Advances for the principal, made to one who had acted as an agent, but subsequently to the termination of his agency, cannot be recovered from the principal, unless shown to have inured to his benefit.</p>

<p>Whore the right of parties who represent a corporation is not contested in the court below, it cannot he examined on appeal.</p> <p>Where a mortgage is not re-inscribed on the books of the register of mortgages -within ten years from the date of the first inscription, the inscription will cease to have effect.</p>

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

<p>The act of Congress of 19 August, 1841, establishing an uniform system of bankruptcy, does not require that an appellant should file, after the decree declaring him a bankrupt, a separate petition for a discharge, under the penalty of nullity of the subsequent action of the court, as against creditors. A prayer for a discharge, in the original petition of the bankrupt, is sufficient. Sec. 4.</p> <p>A plea that defendant had been discharged from his debts, under the stat. of 1841, as a bankrupt, will not be affected by the fact that no order appears in the transcript from the bankrupfe court,-designating the Lime and place at which tlie creditors were required to appear, nor the newspapers in which the publication of notice was to be made. Per Curiam : The act requires that the newspapers shall be designated by the court, but not that the designation shall be made by a formal order of record in the case. It might have been made-by a general order applicable to all bankrupt notices.</p> <p>Where the judgment of a court, sitting in bankruptcy, declares that the notices-required by the statv of 1841 were published in proper form, such publication must be assumed to bo, true, by another court called upon to question collaterally the validity of the decree.</p> <p>Sec. 4'of the stat. of 19 August, 1841, which gives the right of personal notice to a creditor whose residence is known,- does not require a formal judicial process, and a return of service by the marshal; the service might have been by letter. The modo-of service was a matter to be prescribed by the court, in its discretion.</p> <p>Though a transcript of the proceedings under the bankrupt act of 184-1,. offered in. evidence by one who sets-up her discharge under the statute in defence to- an action,, does not show personal service on a creditor entitled to it under the act,, the decree discharging him will' nofbe declared-null on that account.</p> <p>A-promise to-pay a debt, from-which the party had been discharged as- a bankrupt, must be-express, distinct, and unequivocal. The intention of the bankrupt to bind himself, must be clear.</p> <p>A plea that certain notes sued upon,, having been executed before the bankruptcy of the. party, were secured by a deed of trust of real estate, and that plaintiff had received payment'by purchasing the property and paying lor it with the notes,, is not inconsistent with a plea by defendant of his discharge as a bankrupt.</p> <p>©n an application for a new trial, on the ground of newly discovered evidence, itmust clearly appear, not only that the discovery has been made since the trial, but that the party “-had. used every effort and diligence in his power” to procure the necessary testimony previously. C. P. 561.</p>

<p>Where a defendant admits Ms liaMlity for apart of a claim, and pays that portion into court, for which plaintiffs take judgment, reserving tlieir right to the balance, which is loss than the amount necessary to authorize an appeal, the defendant cannot appeal from a judgment against him for the balance.</p> <p>Whenever the constitutionality or legality of a tax imposed by a municipal corporation is in question, an appeal will lie without reference to the amount in dispute; but where tho contest is as to the application and execution of an ordinance imposing such a tax, or the liability of an individual to pay it, the right to an appeal depends on the amount in dispute.</p> <p>See. 10 of the ordinance of the general council of New Orleans, approved by tho mayor on the 16th December, 1S46, establishing an uniform rate of taxes, on hawkers, merchants &c., does not authorize the imposition on each partner in a banking house, or firm, making the purchase and sale of bills of exchange its principal business, of the whole amount of the tax, without regard to Ms residence in the State. The tax is imposed on the business, and not upon the individual members of the firm, unless they are permanent residents, or sojourners within the State. The authority of the general council to enact that ordinance depends exclusively on the stat. of 12 January, 1842; and the power of the State itself to lay taxes only extends to persons and property within its jurisdiction.</p>

<p>An agent is a competent witness against liis principal, in regard to tlie business of his agency.</p> <p>One who purchases a bill of exchange from an agent, duly authorized to draw upon his principal, on shipment to the latter of produce purchased for him, has nothing to do with the limitations fixed by the principal as to the price of the produce, unless proved to have been aware of them.</p> <p>Where an agent is authorized to ship to his principal, and to draw on him, “with bill of lading attached,” it is unimportant that the bill of lading be not materially attached or fastened to the bill of exchange. It is sufficient that the bill of exchange be drawn on the shipment, and that the bill of lading be delivered with it to the purchaser of the bill.</p>

from the District Court of Pointe Coupee, Farrar, J. contended, 1. That the first mortgage was not legally renewed by the second, the latter not containing any description whatever of the property mentioned in the former, as required by arts. 3273, 3274 C. C. See also Ells v. Sims, 2 Annual 251. Duranton, page 427, no. 369 to 372 C. C. 3333. Shepherd v. Orleans Cotton Press, 2 An. 100. Ibid pp. 520, 768, 799. 2.

from the District Court of Lafourche Interior, Burke, J. The court being equally divided, the judgment of the lower court, under art. 68 of the constitution, is affirmed.

<p>APPEAL from the Fifth District Court of New Orleans, Buchanan, J. In this case, on motion of the counsel for Barrow, it was ordered that the sheriff' retain in his hands the proceeds of the sale of certain slaves made under execution, until the further order of court; and that the plaintiffs show cause why said Barrow, as assignee of Tulane, should not be paid, in preference to the plaintiffs, the balance due on the judgment against Conner in favor of Tulane, and assigned by the latter. The court below discharged the rule.</p> <p>The judges being equally divided in «opinion, the judgment of the lower court is .affirmed, under art. 68 of the constitution.</p>

<p>An action against the maker of a promissory note will be prescribed by five years from its maturity, though the maker reside during that time in another State, where the holder was aware of the place of his residence.</p> <p>An endorsement of a partial payment made on a promissory note, where there was no evidence to show in whose writing it was, nor when it was madé, will not interrupt prescription.</p>

<p>The power of removing certain municipal officers for negligence or malfeasance, and of declaring their offices vacant and ordering a new election, conferred upon the City Council of 'Lafayette by sec. 11 of the stat. of 29 April, 1846, to be exercised “ by a vote of two thirds of that body,” must be construed as meaning two thirds of that body as legally constituted by the presence of a quorum, and not two thirds of the whole number of members composing the council.</p>

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

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

<p>A suspensive appeal will not lie from an order discharging a prisoner under a habeas corpus, although the imprisonment grew out of proceedings in a civil action.</p> <p>[King, J. and Slidell, J. dissenting.]</p>

the Parish Court of New Orleans, Maurian, J. for a rehearing. It is admitted as a general principle that, where one of several things sold together is tainted with a redhibitory defect, the sale should be rescinded for the whole, if it appear that the vendee would not have bought the others without it. llut, in Louisiana, that principle has been narrowed down by ait. 2518 of the Civil Code, to the only case where the things sold together are matched (appareillés).

<p>the First District Court of New J.</p> <p>cited Chitty C. L. 252. Archbold C. P. (5 ed.) pp. 7-2, 73. Moody’s Crown Cases, 236. 12 Wendell, 429. 8 lb. 210,, 211.</p> <p>relied on 2 Hawkins, 331. 1 Blackford’s Rep. 391, 431.</p>

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

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

<p>The jurisdiction of the Supreme Court being limited by the constitution, in criminal oases, to questions of law alone, no appeal will lie from an order of the judge of the first instance, overruling an application for a new trial made on the ground of newly discovered evidence, where the application was refused by the judge because he did not believe the affidavit of the prisoner. Per Curiam: We cannot review, in criminal cases, the acts of a judge of the first instance, resting in his discretion. There is nothing in the stat. of 1846, providing for the mode of bringing criminal cases before,this court, which affects the question under consideration. It depends upon the constitution alone.</p>

<p>Where a municipal corporation ratifies the tortious acts of its agents, it will be liable therefor, although those acts were not done by the authority of the city government.</p> <p>The general rule in regard to the allowance of damages under our law is that established by art. 2294 C. C., by which the reparation must he equal to the injury. An exception is made to this rule by art. 1928 C. C. in relation to damages resulting from offences, quasioifences, and quasi-contracts, which declares that in such cases much discretion must be left to the judge or jury; hut this discretionis notunlimited, and,in this respect, our jurisprudence differs from that oi England.</p>

<p>Parol evidence is admissible to show the nature and extent • of premises leased by an act sous seingpivé> when, from the indefinite language of the written instrument, it is necessary, to ascertain the intention of the parties.</p> <p>Where the intention of the parties is doubtful, the manner in which a contract has been executed by one with the assent of the other, will determine the construction to he put upon it.</p> <p>Antecedent conversations respecting a contract which the parties subsequently embody in a written instrument, are inadmissible, where fraud is not charged.</p>

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

from the First District Court of New Orleans, McHenry, J- 1.- At common law there was no such thing as larceny of banknotes, bills of exchange, and promissory notes. See Archbold’s C. P. p. 208, and the authorities there cited. 2d. The punishment? for stealing bank notes, and monied obligations generally, is provided for by the act of 1805. B. & C. 243, sec. 10. 3. The name of the injured party is sot out in the information, with sufficient certainty.

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

<p>If a creditor of one who has made a cessio borwnim, who had proved a claim at the time-of the first distribution of the effects of the insolvent, and received a dividend out of the fends then in the hands of the syndic, is not debarred thereby from proving, on a subsequent distribution, another and a distinct claim existing at the time of the failure, itc follows, as a consequence, that new grounds- of opposition may be set up against a claim allowed on a previous tableau, whenever a new fund comes into the hands of the syndicfor distribution.</p>

<p>in a contest between the creditors of an insolvent succession, the notes or obligations of the insolvent are not conclusive proof ot the debt of which they are evidence. They must be supported by such additional proof as will satisfy the judge of the fairness and justness of the claims.</p>

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

<p>Where an agent, authorized to purchase grain for his principal, contracts with a third person to take “ all the grain he could deliver within a certain time,” the contract will not be binding on the principal. Per Cw! The agent undertook to bind his principal for the purchase of grain, but the other party did not bind himself to sell any. Principals may make what contracts they choose; but the power to make a contract of this sort cannot be deduced from any general authority.</p>

<p>An entry, and payment of the price, of a portion of the public landa subject to entryrdoes noir divesvjt the title of the United States; the title is not divested until a patent has been issued. The purchaser acquires only an equitable title, subject to the discretion of Congress ; but such a title is sufficient to sustain a petitory action.</p> <p>The payment of the price of public lands of the United States, entered without warrant of law, can in no manner affect the rights of the government. No equitable title vests in the purchaser, whose only claim is for the return of the money paid by him.</p> <p>The constitution of the United States vests in Congress the exclusive power to dispose of,- and make all needful rules and regulations in relation to, the public lands. The State courts have no authority to interfere with the primary disposal of the soil. That power rests exclusively with the general government, which has from the beginning acted upon it by legislation, through boards of commissioners, receivers, and registers, under the final supervision of the secretary of the treasury; and the decisions of that officer, made within the juris* diction vested in him, cannot be reviewed by us.</p> <p>The sale of a thing belonging to another is null.</p> <p>The rightful owner of receipts, given by the the receiver of public monies, for the price of public lands sold without warrant of law in the Greenburg land district in this State,» must be considered as the person meant by the word “ grantee ” in sec. 1 of the act of’ Congress of the 29th August, 1842, providing for the refunding, undeT certain circumstances, of money paid for public lands in that district; nor will a sale, by authentic act duly recorded, of the lands, which does not transfer the receipts, or make any mention of them, nor the execution of an act under private signature, purporting tobe a transfer of the lands to a person with whose money the transferrer acknowledges in the act that he purchased them, amount to such a transfer of the receipts as will entitle the vendee or the furnisher of money to claim the amount of the receipts from the treasury. Per Cur: In the transfer of debts to a third person, the delivery takes place between the transferrer and the transferree, by the giving of the title. C. 0. 2612. The titles in this case are the receipts; and by “ grantee” the act of 1842 means the owner of them.</p> <p>Without an assignment, or proof oí actual delivery, the possession of the receipts given by a receiver of public moneys for the price of public lands, will give the holder no better title to them than he would have to a promissory note payable to the order of the purchaser of the lands, held by him without endorsement or proof of transfer and delivery. Art. 2612 C C. supposes that when the title is not transferable by delivery, and does not bear upon its face evidence of the lawful possession of the holder, proof of the delivery must be made.</p>

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

[froin the District Court of St, Tammany. Penn, J. on the question of the prescription of ten years, contended: That there is no evidence in the record of the acceptance of the succession of Henry Badon by his heirs, and that therefore it must be considered a vacant succession, and that prescription runs against vacant successions. “ A succession is called vacant when no one claims it, or when all the known heirs to it have renounced it.” Civil Code, art. 1088.

<p>from the Third District Court of New Orleans, Strawbridge, L, presiding.</p> <p>The judges being equally divided in opinión on some of the points in this case, the judgment of the lower court was, on these points, affirmed, under article 68 of the constitution.</p>

<p>Section 2 of tlie statute of 10 March, 1845, conferring a privilege on the several parishes of the State for taxes imposed on property in their respective limits, extends to taxes imposed by the General Council of New Orleans.</p>

<p>The fact that a judge of the Supreme Court was absent from the bench at the time of the argument of a'case, will not disqualify him from taldng a part in its decision.</p>

<p>from tie District Court of St. Maty, Voorhies, J.</p>

<p>A confirmation, by commissioners appointed to ascertain the rights of persons to lands, of a claim for a specified number of acres between certain boundaries, being a complete grant from the United States, cannot be affected by any errors committed by officers of the government, in surveying and locating the claim.</p>

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

<p>from the District Court of St. Martin, Voorhies, J.</p> <p>The endorser was dead, and the notaiy knew it, since he served the notice at the domicil of the executor. Why then did he not address the notice to the executor himself, instead of addressing it to a dead man ? The general rule is that, if the party be dead, notice should be given to his executor or administrator. Chitty on Bids, pp. 242 and 222. Notice should be addressed to the executor or administrator, and not to the deceased, when, as in this case, the holder of the note knows the name of such executor or administrator.</p> <p>But, it will be said that, the notice was served at the domicil of the executor. It is true, the certificate says so; but is that sufficient to indicate that the executor got it ? Served at the domicil! With whom was it left ? and in what manner was it served? For aught that appears, it may have been handed over to a slave, and that would be bad. It may have been thrown in the yard, and there left, or picked up by a servant, or by a stranger. There is nothing certain as to the question whether it reached the executor, and the certificate should shew, at least, such facts as would enable the court to conclude that the party entitled to notice, must have received it in due time. Why was not the notary, or his witnesses, who accompanied him, called to prove the manner in which the service had been made at the domicil of the executors ? Why did the plaintiff limit his evidence as to such service, to what is recited in the certificate ? Undoubtedly because said service was defective, and would have been shewn to be so. I am aware that, in divers cases, the Supreme Court has decided that, a notice left with a clerk in a store, or with a partner in the counting-room of a commercial house, or with a white servant in the endorser's house, or put on the counter in the endorser's 'stpre, or with a student in a lawyer's office, was sufficient ; but those cases are quite different from this. The manner in which the notice was served presented to the mind a fact, from which it was properly presumed that the notice x-eached the party. It has been also decided that, a notice left with a slave, is bad, 9 La., 334; and that a notice, stated in the notai-y’s certificate to have beep sent by an expx'ess, without naming him, is insufficient. JDuralde v, Guidry, 5 N. S. 6§. The word domicil, as we undei'stand it imder our laws, is too loose, for the pui-pose intended. It does not mean only the house in which the party lives, but according to the 42d article of the Civil .Code, “ the domicil of each citizen is in the parish whex-ein his principal establishment is selected.” The word domicil is clearly insufficient to indicate where the notice was left.</p>

<p>Where there is sufficient time between the date and the return day of a citation, the fact that the return day was not during any regular term of. the court, is immaterial.</p>

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

<p>Simulation, ais between the parties to an authentic act, cannont be proved by parol.</p>

<p>The appeal must be dismissed, where the certificate of the clerk merely states that,- “ the record contains all the papers on file in the snit.” C. P., 896.</p>

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

<p>A promise to pay a debt due by a deceased husband, made by the wife subsequently to his death, when the marital authority had ceased, is binding on the wife.</p>

<p>from the District Gourt of St. Landry; Overton, J.</p>

<p>Where a cessio bonorum has been accepted by the court and the creditors, and a syndic? been appointed and qualified, all the property and rights of property of the insolvent are vested in his creditors, represented by the syndic as their trustee. Stats. 20 Feb. 1817; 29 March, 1826.</p> <p>All the rights of an insolvent vest in his syndic, whether placed on his schedule or not-</p> <p>The rights vested in the creditors by a cessio bonorum are unaffected by subsequent proceedings of the insolvent, in causing himself to be declared a bankrupt, under the act of Congress of 19 August, 1841. Per Cur: Nothing passes to the assignee of the bankrupt, but the residuary interest of the insolvent after the full administration of the insolvent estate, and the entire fulfilment of the trust thereby created in favor of the creditors</p> <p>The appointment of an administrator, regularly made, will not be rendered void by the subsequent discovery of a testament; nor does the authority of the administrator cease from the moment of the probate and order of execution of the will. His capacity to prosecute an existing suit will not cease, even after the executor named in the will has been duly qualified,- where the latter, after praying for an inventory, takes no?further steps in the administration, and does nothing whatever to indicate that he-takes any interest in the prosecution of an action in which the interests of the succession are seriously involved.</p> <p>The capacity to exercise the office of administrator, does not cease, ipso facto, by the bankruptcy of the individual. It may be a ground for his removal; but, of itself, does not impair his official authority.</p> <p>The exception of res judicata must be specially pleaded.</p> <p>Where a partner charged with the settlement of the partnership employs an agent to act for the benefit and in the business of the partnership, and the latter, even by the express direction of that partner, applies the money of the partnership in his hands to the pay-a ment of the individual debts of that partner, or otherwise to his use, he violates his duty as the agent of the partnership!, and will be liable to to creditors. Had he delivered the money to the liquidating partner, he would not he answerable for its subsequent appropri ation by the latter to his own use.</p> <p>An attorney at law should not be held to a less onerous responsibility than an attorney in fact; and he will be bound ter pay interest on any sum remaining in his hands, from the day he becomes a defaulter by delaying to pay it over. C. C. 2984.</p> <p>Attorneys and counsellors at law practising in partnership are equally responsible to their clients for money collected and not paid over, thougn one of them may have had no par ticipation in that particular transaction.</p>

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

<p>The fact tliafc a witness is a son-in-law of the party by whom he was offered, is an objection to his credibility, but not to his admissibility.</p> <p>Simulation in written acts; when alleged by third persons or forced heirs, may be proved by parol.</p> <p>A copy of a writing, not authenticated by the proper officer, is inadmissible, not being the best evidence in the poiyer of the party offering it.</p> <p>Where the witnesses to an act of partition sous seing privé, containing donations to the children of'the party by whom it was made, are dead, and their signatures are proved, no objection can be made to tba admissibility of the act in evidence, on the ground that it was not authentic.</p> <p>A mother, co-defondant with her son, may he interrogated on facts and articles ; hut her answers are not evidence against the son. They can only affect the parly by whom they were made.</p> <p>The action of forced heirs, in which the sale from a parent to his children is attached as containing a disguised donation, is not derived from the ancestor, but from the law. So far as their ligitime is concerned they are not heirs, hut creditors.</p>

<p>The certificate of the clerk of a district court that, a transcript contains all the proceedings had, documents filed, and evidence adduced on the trial of a case in which a judgment had been rendered by a court of probates, but in which an appeal was allowed by the district judge after the court of probates had ceased to exist, where the clerk evidently had no other means of ascertaining the facts in relation to which he certifies than by an inspection of the .original record, in which neither the certificate of the probate judge nor of liis clerk that the record contains all the evidence, nor any list of the documents produced, are to be found, is insufficient, and the case must be remanded. C. P. 1042.</p>

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

<p>Where the judgment enjoined bears interest at ten per cent a yeaiy the court/ on dissolving the injunction/ cannot increase the interest. Whatever else it may be proper to allow, 1 must be in the form of damages.</p>

<p>Decision in State v. George, 8 Hob. 535, as to wl>en the formation of an opinion as to the guilt of a prisoner will disqualify a juror, affirmed.</p> <p>It being material, in the interest of justice, that the motives and prejudices, as well as the means of knowledge, of a witness, should be laid before a jury,-great latitude is allowed in his cross-examination. But this latitude is necessarily, to a certain extent, confided to the discretion of the judge of the first instance.</p> <p>To enable an appellate court to determine whether a decision, of the judge of the first instance be within the legal discretion vested in him, all the facts material to the decision musi appear fi'om the bill of exceptions.</p> <p>A jury will not be authorised to infer the existence of any bias or prejudice on the part of a witness against a prisoner, from the fact that the witness, though not an officer of the peace, and without any warrant, and not summoned by any officer to aid in arresting the' prisoner, had taken great pains to do so.</p>

<p>The delegation by which a debtor gives to his creditor another debtor, who obliges himself towards such creditor, does not operate a novation, unjess the creditor has expressly'declared his intention to discharge the debtor by whom the delegation was made. The acceptance by the creditor of such a stipulation pour autrui will not authorize the inference that he intended to discharge the original debtor. O. 0. 2188.</p> <p>Where the notes secured by a mortgage have all matured before the sale under an order of seizure and sale, and are of like nature and dignity, they must be paid proportionally out of the fund.</p> <p>Prescription as to the original debtor is not interrupted by an hypothecary proceeding against the mortgaged property in the hands of a third person; nor will it be interrupted by a partial payment made through the judicial sale produced by such hypothecary proceedings.</p> <p>A debtor who makes a payment is considered'as interrupting the prescription running in his favor, because there is an implied acknowledgement of the creditor’s right. But 220 such acknowledgment'can be inferred from a payment made, not by the debtor, but without his knowledge or participation, and through a judicial proceeding to which he was not a party.</p>

<p>Defendants who had, with others, signed a letter addressed to a judge of probates, stating that those who signed the letter would become the sureties of a third person, in ease he should be appointed administrator of a particular succession, cannot be held liable as sureties, though such third person was appointed administrator, where a bond was taken for the discharge of his duties, signed by other persons, and not by the defendants.</p>

<p>Where there has been a settlement of partnership affairs to a certain date, and one partner executes his note in favor of the other for an amount due to the latter, he Cannot require a final settlement of the partnership before paying the note thus given.</p> <p>Where a party binds himself to the holder of a note to pay the amount in case he cannot get it out of the maker, the return of the sheriff on a fi.fa. against the maker, “that having made diligent search and enquiry, and no property being found in this parish, it is returned nulla bona," will not suffice to authorize a judgment against the surety. Per Cur : The law malees it the duty of the sheriff to call upon the defendant to point out property, and, in ease he is unsuccessful, to call upon the plaintiff to do the same thing. Here no such request was made from either, and, non constat., that the judgment would not have been paid if a demand had been made of the defendant.</p>

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

<p>EEHEARING as-to the sureties on the injunction bond. See first part of. this case, 3 An. 593.</p>

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

<p>Where a' bond entered into by a prisoner and his sureties, under the stat. of 11 March, 1837, s. 1, lor the appearance of the principal at a term of court, does not describe the offence committed, nor that for which the party is hound to answer, the condition being merely for his appearance at a term of court and remaining there until discharged, no judgment can be rendered against the parties to the bond.</p>

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

<p>f.iom the District Court of Ouachita, Copley, J.</p>

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

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

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

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

<p>Where interrogatories propounded by a plaintiff to a garnishee do not disclose the amount of plaintiff’s judgment,- and it is not shown to have been otherwise notified to the garnishee, judgment cannot be rendered against him,- on his failure to answer, for the amount of plaintiff's judgment.</p> <p>Where a plaintiff, by whom interrogatories had been propounded to a garnishee, after a Written motion to have them taken for confessed, goes to trial upon the merits, without requiring the action of the court upon his motion, and permits the garnishee to offer his answers in evidence, without excepting to their being received, the answers must be con sidered as uncontradicted, and judgmeut may be rendered in accordance therewith.</p>

<p>Where a resident of another State, who dies here without having: acquired a domicil, leaves a testament executed in tlie State in which he resided, the effect of such testament upon slaves and moveables in his possession in this State at the time of bis death, must depend upon the jurisprudence of the State in which the testament was executed.</p>

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

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

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

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

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

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

<p>Tt is not necessary that a petition of appeal should contain an express prayer that the appellee be cited, where there is but one antagonist party to be brought before the appellate court. Per Cur: We do not say that cases may not occur where it might be necessary to point out, to the ministerial officers, the respective persons whose citation the appellant may desire. Arts. 573, 581 must be construed with reference to the liberal spirit of the stat. of 20 March, 1839; and, in doing so, even if the point be doubtful, the appellant is entitled to the benefit of the doubt.</p> <p>Per Cur: Under the peculiar circumstances of the case of Selby v. Gibson, 3 An. 319, the motion to dismiss was properly sustained; but we are not satisfied with all the points which are there ruled, nor were they all indispensable to the decision of the motion.</p> <p>An appeal will not be dismissed, where the bond, though insufficient for a suspensive, is large enough for a devolutive, appeal.</p> <p>Though the petition for an injunction to stay an order of seizure and sale merely state that, remittances to a certain amount were made to the mortgagee which should have been credited upon the note to secure the payment of which the mortgage was executed, without mentioning the dates, manner, and amounts of the respective remittances, yet if no exception be taken to the generality of the petition, and issue be joined on the plaintiff’s averments, defendants cannot afterwards object to its. generality.</p> <p>Where a party to an action resides out of the parish in which the court is held, his adversary cannot compel him to bring his commercial books into court; but he may be ordered to produce, under oath, a sworn copy of a particular account. It is not necessary that interrogatories should he propounded to the party from whom the copy is required. Interrogatories may be propounded, and the part}' required to annex to his answers copies of the accounts; but this is not the only mode of getting at the contents of an adversary’s hooks.</p>

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

<p>from tlip District Court of Ouachita, Copley, J.</p>

<p>An agent is a competent witness for his principal; his relation to the latter being merely a matter to he considered in estimating his credibility.</p> <p>Whether a conviction and sentence for felony in another State of the Union will, or will not, render a witness incompetent -in the courts of this State, it is clear that any such disability will be removed by a pardon, where the disability was not annexed to the conviction of the crime by the express words of a statute.</p> <p>Parol evidence is admissible to prove the consideration of a due bill, silent as to the consideration. The evidence cannot he considered as contr adicting the terms of the written instrument.</p>

<p>Where the United States have recognized the claim of one of two persons pretending to be settlers on the public lands and have issued a patent to Mm, the courts of this State have no power, in the absence of any equities or evidence taking the case oat of the general rule, to revise their decision.</p>

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

<p>Wlioro a witness, incompetent on account of interest, is admitted without objection, and testifies in favor of that interest, his interest in the event of the suit can only affect his credibility.</p> <p>A tutrix cannot, without being specially authorized, execute a note in the name of her pupil, which will bo binding on the latter.</p> <p>Where a creditor writes at the foot of an account, “ Received payment by note,” it is a novation of the debt.</p>

<p>A donation of slaves, and their increase, for the sole use and benefit of the donee daring her natural life, and at her death to tlie heirs of her body forever; but, in the event of her dying without issue of her body and of her husband's surviving her, the husband to enjoy during his natural life all the use and benefit arising from the labor of the slaves and their increase, and, at his death, the slaves and their increase to revert to the heirs of the body of the donor,-and to be their’s forever,-creates a substitution, and is void.</p> <p>The facts alleged in an application for a new trial on the ground of the discovery of new and material evidence since the trial, must be supported by an affidavit. C. P. 561.</p> <p>An intervention will not be allowed, Where its reception must retard the decision of the principal action.</p>

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

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

<p>The domicil of a person is in the parish in which lie has his habitual residence. O. C. 42. The expression, “if a defendant reside alternately in different parishes,” in art. 166 0. P. does not mean the passing of a certain portion oí'the day ih one parish, and the residue in another, but the dwelling certain portions of the time in one parish and certain portions in another, as in the case oí winter and summer residences in different parishes.</p>

<p>Where the owners of merchandize consigned to an agent for sale, in answering a letter containing an account of the sales, writes with fall information of all the circumstances under which it was made, that V The sale leaves us a very serious loss, but we suppose you acted for the best; we should have preferred holding .on to selling at sue!) low figures,” it amounts to a ratification and approval of the sale.</p>

<p>from tbe Fifth District Court of New Orleans, Buchanan, J.</p> <p>cited Baine ■v. Wilson, 18 La. 64. Edmonson v. Mississippi and Alabama Railroad Company, 13 La. 285. Starkie on Evidence, vol. 3, p. 1252.</p>

<p>from the District Court of St. Charles, Nicholls, J.</p>

<p>Decisions in Gardere v Murray j 5 Mart. N. S. 244, that, if a judgment be signed before’the proper time, the party against whom it is rendered may move for a new trial as though the judgmenthadnot been signed, but if, instead of doing so, he appeals, that he will be thereby precluded from urging that the appeal was not final—affirmed.</p> <p>An appellant, who had been allowed by the judgment appealed from but a dividend- on his claim out of the funds for distribution, who contends that the judgment was rendered without evidence, in his absence, and by consent of the other parties, cannot require an amendment of the judgment so as to allow him the whole amount of his claim out of the fund for distribution, on the ground that the other parties, by allowing him a dividend on his claim, recognized its ambunt. Per Our: The appellant has no right to divide the consent of the other litigants, which was intended by them to facilitate the disposition of the fund in court, and made in a spirit of compromise.</p>

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

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

<p>Where a vessel, in consequence of un'seaworthiness existing at tlie commencement of the voyage, and not from any perils of the sea or accident, is compelled to put into an intermediate port for repairs, where she is kept a much longer time than necessary to prepare her for the completion of her voyage, the owners will be responsible to the freighters for any damage resulting from the delay in the delivery of freight, occasioned by her unseaworthiness and unnecessary detention.</p> <p>Where a vessel is compelled to put into an intermediate port for repairs, it is the duty of the master to cause the repairs to be made without any unnecessary delay, in order to prosecute his voyage to tho -port of destination. If he wait for orders from the owners of the vessel, the latter will be responsible to the freighters for any damage resulting from the delay.</p> <p>Whatever care and diligence may have been shown in preparing a vessel for her voyage, and in rendering her staunch and strong, yet if, in fact, she was not so, the owners will be responsible for any damage resulting therefrom to the owners of freight, when not shown to have "been caused by stress of weather or accident.</p> <p>Where a vessel is compelled to put into an intermediate port for repairs, the burden of proving seaworthiness at the commencement of the voyage is on the owners of the vessel.</p> <p>The value of merchandize at the port of destination is the .basis of valuation in contracts of affreightment.</p> <p>A earner is bound not only to transport goods entrusted to him safely, but to do so witbin a reasonable time; and he is bound to account for their value such as it may be at the expiration of that time. Neither the acceptance of the goods, nor the subsequent disposal of them, by private sale, by the owner, will he a bar to the action. The ascertaining of the damage sustained by the owner is a matter resting on the ordinary rules of evidence.</p> <p>A court lias no authority to make any allowance as a fee to an expert, to be taxed among the costs of the suit. Const, art. 71.</p>

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

<p>The rights of the spouses are governed by the law of the place in which it was their intention at the time of their marriage to establish their domicil, and which they subsequently adopted within a reasonable time.</p> <p>A tacit mortgage attaches in favor of the wife, on the property of the husband, for the price of paraphernal property sold by the latter, from the date of the receipt of the price by the latter; but no such mortgage exists in favor of the wife’s hens for the price of paraphernal property alienated by the husband after her death. C. C. 2367, 2380.</p>

<p>Where the legatees named in a testament die before the testator, and there are no debts' to pay, the appointment of an executor becomes inoperative. The appointment of an* executor is a mandate, which, under our law, is limited to the execution of the legacies contained in the will, and to the payment of the debts, and the powers which it gives are to he strictly construed.</p> <p>The appointment of an executor with the origin of the succession, is not a substantial testamentary disposition, independent of any other.</p> <p>The seizin of an executor is a fiction of law, which does not interfere with the legal possession of the heir.</p> <p>The admission of a will to probate, and the order given for its execution, are mere preliminary proceedings, necessary to the administration of the succession; hut they do not amount to a judgment binding on those not parties thereto.</p>

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

<p>’Where, by the .terms of a building contract, the price is payable in seven instalments, and the proprietor accepts an order drawn upon him by the undertaker in these words: “ accepted) payable according to agreement with the builder, on the last payment I have to make to himaccording to contract,” and, the undertaker afterreceivingthe firstrnstalment, and a second payment in advance, abandons the work, the person in whose favor the order was made cannot reoover its amount from the proprietor, who had nothing more to pay to the undertaker.</p>

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

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

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

<p>A sale of tlie moveables of a succession made by an administrator, under an order of court for the payment of debts, though far less than their appraised value, will not render the administrator liable ior the difference between that value and the price at which they were adjudicated, where the evidence shows that they were sold for their full value, and that the succession sustained no injury thereby.</p> <p>Decision in the case of Macariy’s Succession, 3 An. 517, as to the fees of counsel and the character of the evidence by which courts should be governed in deciding on such claims, —affirmed.</p> <p>Where an administration instead of being beneficial, has been injurious, to a succession, the administrator will not be allowed commissions.</p> <p>An administrator who renders an account is bound to prove the items of his account by evidence, and may be held to strict proof of them by the parties interested, without a formal opposition on their part.</p>

<p>Where a garnishee is interrogated by a plaintiff as to the time when a note, which had been in the garnishee’s possession, was delivered to a third person, and the fact is important to the plaintiff, inasmuch as the note, if in possession of the garnishee at the time of service of the interrogatories upon him, would be subject to plaintiff’s seizure, a failure of the garnishee to state iu his answers the date of the delivery will be considered as a confession that he had the note in his possession when the process was served upon</p>

<p>from tlie Fourth District Court of New Orleans, Strawbridge, L</p>

<p>for a Mandamus to Burle, Judge of the District Court of West Baton</p>