Volume 4 — Robinson's Louisiana Reports

This was an action for damages for a breach of covenant by the defendant, which covenant was contained in a lease to him by the plaintiffs. In 1855 the plaintiffs leased to him certain premises on Eeade street in the city of Eew York, for a term of twenty-one years.

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

<p>Appeal from the Court of Pointe Coupée, Cooley, J.</p>

<p>Appeal from the District Court of Livingston, Jones, J.</p>

The defendant presented his petition to this court, duly verified, setting forth that an action had been brought against him by the plaintiffs, for the breach of a contract, for the sale hy him to them of certain United States demand notes ; that the complaint alleged that before the time of jjerformance arrived, the defendant made a further agreement with the plaintiffs to pay them a certain sum in cash, and a further sum whenever he should be able to pay the same; and that…

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

This action was brought to recover the price of a quantity of hay sold by the plaintiffs to the defendants. The complaint alleged a sale and delivery of 1179 bales of good hay, and 30 bales of clover. The answer admitted the sale and delivery of 122 bales of hay, and 14 bales of clover, the price of which was admitted to be due to the plaintiffs. But denied every other allegation in the complaint. The action was tried before Justice Garvin and a jury.

<p>Diligent enquiry for the maker of a note and for his domicil, without effect, will excuse the want of a formal demand of payment.</p> <p>By endorsing a note, joint in their favor, the payees, each of whom can claim only a portion of its amount equal to that of the others, transfer only their respective interests in it; and, on the failure of the maker to pay, each will be liable to the holder to the extent of such interest only. C. C. 2079.</p>

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

<p>Appeal from the District Court of St. Tammany, Jones, J.</p>

<p>Appeal from the Court of Probates of Ascension, Duffel, J.</p>

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

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

<p>In an action for the price of certain timber, defendant having alleged that he purchased it from a third person who had it in possession, plaintiff offered the evidence of a witness, taken under a commission, who deposed, that, being entrusted with the timber by plaintiff, he had, without authority, delivered it to the person from whom defendant obtained it. The admission of the evidence was opposed on the ground that the witness, who was the agent of the plaintiff, had a direct interest in the result, as he would be responsible to the latter, in the event of his losing the suit, in consequence of having exceeded his authority. Held, that the evidence was admissible.</p>

This was an action by the endorsee, against the maker of a prormissory note, for four hundred dollars, payable in “ all the month of March, 1840.” Admitting his signature to the note, the defendant denied generally the other allegations in the petition.

<p>Appeal by the plaintiff from a judgment of the District Court of Ascension, Deblieux, J., dissolving an injunction obtained by him.</p>

<p>This action was brought to recover the possession of a plot of ground in the city of Hew York.</p> <p>The plaintiff proved a judgment recovered in the mayor’s court of said city, in. favor of one Moóre, against William J. Stewart, docketed April 16, 1821. She also read in evidence a certificate of the sheriff of Hew York of the sale of the right, title and interest of Stewart in certain premises therein described. The certificate recited that' by a writof/?er¿ facias, upon the said judgment he sold, &c.</p> <p>The execution was not produced, or otherwise proved than by the recital in the sheriff’s certificate. The plaintiff also proved a deed from the sheriff of Hew York to Abel T. Anderson, dated March 6, 1823, reciting the aforesaid writ of fieri facias, and conveying the premises. The only part of the description in the deed which is material is as follows: “ Thence northerly along the said road 144 feet to Stewart street; thence along the southerly side of Stewart street westterly 260 feet.” The plaintiff claimed under this deed.</p> <p>The action was tried before Mr. Justice Monell and a jury. It was proved that, Stewart street or lane was on the north side of Stewart’s property, commencing at the Bloomingdale road,- and running westerly past the Chatham property. It was partly fenced and was sometimes closed with gates or bars, but at the Sixth avenue Avas always open. It was from fifty to sixty feet wide. The plaintiff claimed title to half of Stewart street, under the description in the sheriff’.s deed.</p> <p>At the close of the plaintiff’s evidence the defendant moved for a dismissal of the complaint on the grounds : first, that there was no proof of any execution upon the judgment; and second, that the plaintiff had failed to show title to the premises in question. The motion was granted, and the plaintiff excepted.</p> <p>Judgment was suspended, and the exceptions directed to be heard in the first instance at the general term.</p>

<p>Article 1265 of the Civil Code, which provides that “ any co-hoir of age, at the sale of the hereditary effects, can become a purchaser to the amount of the portion owing to him from the succession, and is not obliged to pay the surplus of the purchase money over the portion coming to him, until this portion has been definitively fixed by a partition,” does not apply to the case of a husband who resists the payment of a note executed by him, in the hands of the administrator of the succession of the payee, on the ground that his wife is an heir of the deceased.</p>

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

<p>Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, in an action for an assault and battery. The jury rendered a verdict in favor of the plaintiff, for $1500.</p> <p>This was an action for an- assault and battery. The defense consisted of a general denial; The evidence, on the trial, was conflicting, both as to the character and extent of the assault. The defendant’s counsel claimed for him, that at the request of the plaintiff’s mother he went to the house occupied by the plaintiff, her husband and her mother, for the purpose of removing the plaintiff’s mother, who was infirm, therefrom, at her request, and that the plaintiff resisting such removal, he used no more force than was sufficient to effect such removal. The plaintiff’s evidence shows two assaults, one down stairs and another up stairs, but both at the time of and connected with the removal of the mother. The evidence was conflicting also as to whether the amount of force used was more than sufficient to effect the removal or not. The plaintiff’s counsel claimed further, that her mother was imbecile, and incapable of any intelligent operation of mind, and, therefore, incapable of making any request, or giving any direction, that would justify the defendant in removing her from the care and custody of the plaintiff, without her assent, as she was the natural guardian of her mother. There was evidence to that effect. There was also evidence to the effect, that the plaintiff’s mother, at the time of the removal, showed no indications of imbecility; that the defendant undertook her removal at her request, believing her to be fully capable of making such request, and of forming a sound judgment as to its necessity; and that in undertaking her removal he acted from motives of humanity, and for the good and welfare of the plaintiff’s mother. The removal was effected. Shortly after the removal, the plaintiff’s mother executed to the defendant a deed of certain property, and also made a will. The contents of neither of which appeared in evidence, they not having been admitted on the trial. The will- was excluded by the presiding judge, and the deed was not offered. The consideration of such deed, however, appeared in an inquisition finding the plaintiff’s mother'to be of unsound mind, a part of which consideration' was, “ a decent support and maintenance during natural life."</p> <p>The presiding judge, after charging the jury substantially that if they found that the plaintiff’s mother was, at the time of the removal, of unsound mind so as to be incapable of taking care of herself and incapable of forming and expressing a wish, the defendant had shown no justification. But if they found that she was of sound mind, capable of forming and expressing a wish, and capable of taking care of herself, the defendant had a right, in a quiet, proper way, to assist her in removing, and in so doing to use such force as might be necessary to prevent any person who should seek to impede such removal from •effecting his or her object; but if he used more force than was necessary to overcome any obstacle to such removal, that would be an assault, for which he would be liable. He further charged that if the jury, under such instructions, should find a technical assault, they should, in estimating the damages, consider the hnimus, or motive, of the defendant. On the subject of such animus, he charged as follows: “If the defendant believed honestly that the old lady was treated badly; that she was starved and uncomfortable ; and that she desired to remove, that should go in mitigation of damages ; that is to say, if he acted honestly and properly, although from a mistaken motive, he ought not to be punished as he would be if he had willfully perpetrated the injury from wrong motives.’’ That the jury were to “ consider, also, whether he designed to remove her for improper motives. * * A short time after the removal he procured a deed to be executed to him by her, conveying to him certain property, and a short time thereafter a will, which * conveyed to him her property absolutely, without any trust, so that he might dispose of it as he saw fit, after deducting the payment of her funeral expenses and debts ; the balance she” gave '“to him absolutely,” ‘feeling,’ as she says, ‘ that he would’ make good and honorable use of the same for the benefit of ‘ her and her heirs after her frail body was ‘ mouldering in the earth.’ That is not a trust—it is simply an expression of confidence in him. That the jury were to see whether, when the removal was effected, he designed to have these papers executed, and from improper motives; whether his motives were good and charitable, would be for them to consider.”</p> <p>To as much of the charge as related to the will, the defendant excepted.</p> <p>The jury rendered a verdict of $1500 against the defendant, when judgment was entered, from which judgment the defendant appealed.</p>

<p>Since the act of 20th March, 1839, (sect 19,) amending the Code of Practice, no appeal will be dismissed on the ground that the transcript was not filed on the return day, where such transcript was filed before the motion to dismiss.</p> <p>A sheriff must, at his peril, avoid seizing under execution property not belonging to the defendant. It is not enough that he should presume, even on strong grounds, that it belongs to the latter ; he must know it.</p> <p>One whose property is illegally seized under an execution against another person, is not bound, on being informed thereof, to give any notice to the sheriff. He may, at once, seek relief by suit; unless, to avoid costs, he choose to make an amicable demand. And where the property has been sold by the sheriff, he will be entitled to recover, not the price at which it was sold, but its real value at the time.</p> <p>In an action by a third person, against the sheriff and the plaintiffs in execution, for the value of property belonging to such third person, illegally seized and sold, and the proceeds of which had been applied in satisfaction of the execution, it will be no defence on the part of such plaintiffs that they did not authorize the seizure. They are bound to indemnify those who have been injured by the party employed to make the amount of their execution. Qui sentit commodum, debel senlire et omis.</p>

<p>Application for a mandamus to' the Judge of the Court of Probates of New Orleans, Bermudez, J.</p>

<p>The action was to recover upon a promissory note made By one of the defendants, the payment of which was guarantied by the other defendants.</p> <p>The defense set up was that in October, 1860, the plaintiff recovered a judgment against the defendant Levi Folsom, from which he appealed to the general term, giving an undertaking to stay execution, signed by the other defendants, as sureties. Subsequently, Folsom having real estate upon which the judgment was a lien, which he had an opportunity to convey, and was desirous to convey, in order to discharge that lien, made an agreement with the plaintiff’s attorney to compromise the suit, by paying the costs, and giving the note of said Folsom for the balance of such judgment, payable in two years, indorsed or guarantied by the other defendants, upon the agreement of the plaintiff that the appeal should be dismissed, and that the plaintiff should execute and deliver to such defendant a satisfaction piece of said judgment, and discharge the same of record. That the defendant carried out the agreement, by paying the costs and delivering the note, bút the plaintiff did not execute the satisfaction piece, or discharge the judgment of record.</p> <p>Upon a former trial of the action, the referee found as facts; “ that the note was given and indorsed upon the consideration of the discontinuance of a former action by the plaintiff against the defendant Levi Eolsom, the payment of costs therein, and an agreement to execute and deliver a satifaction piece of a judgment obtained in such action ; that such satisfaction piece was never executed until the 29th of May, 1863, and that the present action was commenced on or about the 5th day of December, 1862.” The referee thereupon dismissed the complaint. Upon appeal to the general term, the judgment was reversed, and a new trial ordered. (See 2 Bob. 138.)</p> <p>The only witness examined on the second trial, not examined on the first trial, was T. B. Barnaby, whose testimony related only to the agreement for the settlement, and did not vary it. No other evidence was given on the second trial not given on the first trial.</p> <p>Upon the same evidence, therefore, the same referee found' the following facts :</p> <p>“ That a bargain and contract was made, by and between the defendant, Levi Folsom, and the plaintiff herein, through his attorney, for the settlement of such action, and the demand made herein, on the following terms : That the costs of the action should be paid by the said defendant, not comprising, however, the costs of the appeal. ■ That the defendant should give a promissory note, payable in two years, secured by the guaranty of two persons, the other defendants herein, for the sum of $ 197.40, the balance of such judgment. That the appeal taken should be dismissed, without costs. And that a satisfaction of such judgment should be executed, and delivered to the said defendant. That, in pursuance of such bargain and contract, the costs of the above action were paid to the plaintiff’s attorney, and the promissory note, sued upon in this action, was placed in his possession ; that the plaintiff’s attorney executed and delivered a consent for the dismissal of the action, or of the appeal, without costs ; that the said note has never been in the hands of the plaintiff, but has been retained by the said attorney, and that the satisfaction piece of such judgment was never, delivered, nor proffered for delivery, until after the commencement of this action, and was executed on the 29 th day of May, in the year 1863.”</p> <p>Upon these findings, the referee again dismissed the complaint.</p> <p>The plaintiff excepted to such report, and appealed from the judgment.</p>

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

<p>Appeal by intervenors, on whose claims no judgment had been pronounced, from a judgment overruling an exception to answering taken by defendant on the ground of the want of proper parties, and ordering a judgment by default to be entered against him. Held, that the intervention not having been acted upon, and no final judgment having been rendered against the defendant, the appeal must be dismissed.</p>

<p>Application for a prohibition to the Judge of the Commercial Court of New Orleans, Watts, J.</p>

<p>This action is brought by the plaintiffs to recover damages for the destruction, during the riot of July, 1863, of certain property belonging to him.</p> <p>The plaintiff alleges, that the destruction in question occurred in consequence of such riot. It appears that on the night of July 13,1863, a fire broke out in the premises adjoining the plaintiff’s, which spreading into the plaintiff’s premises occasioned the destruction complained of.</p> <p>There was no direct evidence that the premises were set on fire by any mob, or tumultuous or riotous assemblage. The plaintiff seeks to maintain his action by circumstantial evidence. After the plaintiff had rested, the defendants moved for a nonsuit, which was granted ; and exceptions taken. The court ordered the exceptions to be heard' at the general term, in the first instance.</p>

<p>Appeal from the District Court of Ascension, Cooley, J., presiding.</p>

<p>An obligation to pay a certain sum on a particular day, to be discharged by the delivery of a slave of a certain value, is an alternative obligation, from which the debtor may exonerate himself by delivering either of the two things; but he cannot force the creditor to receive a part of one, and a part of the other. So where the creditor has the election, he cannot take a part of the things to be paid or delivered.</p>

The defendants were properly allowed to sever in their defence. Code of Practice, art. 570. 5 Mart. N. S. 87. The District Court had no authority to enjoin process issued from a Parish Court. Code of Practice, arts. 617, 629, 395, 397. Oger v. Daunoy, 7 Mart. N. S. 658.

<p>Decision in case of Thompson y. Schlatre, 13 La. 115, affirmed.</p> <p>Where the proclamation of the President, offering a portion of the public lands of the United States for sale, is produced together with patents to a purchaser at such sale, the court will not look beyond them to ascertain whether the lands had been regularly surveyed.</p>

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

The petitioners, a corporation established by law, under the title of “ The congregation of the Roman Catholic Church of Pointe Coupée,” represent: • that in the beginning of 1834, the Reverend Jean Martin was appointed curate of the parish of Pointe Coupée, by the Roman Catholic bishop of New Orleans: that at a meeting of the church-wardens, who were the administrators of the affairs of the corporation, it was resolved, on the 1st July, 1834, to allow the defendant an…

This was an action by Celina Johnson, the wife, separated a mensa et thoro, of Henry A. Johnson, to enforce a legal mortgage for the restitution of paraphernal property, on a slave alienated by the latter a short time before the judgment of separation.

<p>1. The finding of a referee, upon conflicting evidence, on a question of fact, is conclusive, and cannot be disturbed.</p> <p>2. Where, in consequence of the extent and nature of a business, a large number of clerks are employed therein, and from necessity the duties assigned to a particular clerk, to be discharged by him, devolves upon another-, any act done by the latter, if within the general scope of his employment as a clerk, will be the act of the principal.</p> <p>3. Where parties who, dealing with an express company, have a right, from the general mode of conducting the company’s business, to rely upon the authority of one of its clerks to make a general contract to forward goods, they have a right also to infer that such authority includes a power to contract to forward in a particular way.</p> <p>4. Parties, who undertake, for a compensation, to forward goods, by a carrier, other than themselves, are only forwarders, and not carriers, of such goods, and assume only the. responsibility of a bailee for hire.</p> <p>5. If, however, they agree to forward goods by a particular steamer, and not only fail to do so, but instead thereof send them by a different steamer, which is lost on her passage, with the goods on board, they are liable to the owners for the loss of such goods.</p> <p>6. Where the evidence of the contents and value of cases containing goods while being transported, though slight, has satisfied a referee, the court will hold it to be sufficient.</p> <p>7. The receipt, by shippers of goods, of the amount of insurance upon an open policy, on a part of the goods, for part of the loss, does not prejudice their claims against the forwarders, for the residue'.</p> <p>8. Nor will the receipt of such insurance money be deemed a satisfaction by the shippers of a shipment of the goods by a different steamer from that agreed upon.</p> <p>9. Although goods included in a forwarding contract are held by the shippers on consignment, to be sold on commission, the forwarders are liable for a. breach of the contract in respect to such goods, to the shippers.</p>

<p>A statement in the protest of a notary, that a demand of payment had been made of the maker of a note, and payment refused, is sufficient proof of an amicable demand.</p>

<p>Decision in the case of Kittridge v. Breauil, 2 Robinson, 40, affirmed.</p> <p>It is not necessary to the validity of a purchase of public lands from the government of the United States, under the laws relating to back-lands, that the lands purchased should be described by the township, range, and section.</p> <p>The title of a purchaser from the United States of a portion of the public domain, will not be affected by the omission of the Register of the Land Office to mark the sale on the township plat in his office, or by a subsequent sale of the same lands, through error, to another.</p> <p>Where one entitled by law to a preference in the purchase of a particular piece of the public lands of the United States, in the exercise of his right, pays the price and receives from the proper officer a receipt for the same,with a certificate that he is entitled to purchase the land, the sale will be complete, though the evidence of it may not have been made out in the prescribed form.</p> <p>The act of Congress of 5th May, 1830, authorizing the Registers of the Land Offices in Louisiana to receive entries of lands in certain cases, was passed for the relief of a class of persons who had paid to a Receiver the price of the lands they intended to purchase, but had not presented their receipts to the Register for his certificate, until too late to exercise their rights. It is inapplicable to cases where the application to purchase had been made to the Register, who admitted the applicant’s right.</p> <p>In a contest between parties claiming lands sold by the United States, the courts of this state, whose powers are not limited by any distinction between law and equity, will look to the facts of the case, and do justice between the parties, though a patent may have been issued to one of them. The principle is well settled in the jurisprudence of this State, and in that of the courts of the United States,' that an equitable right, originating before the date of the patent, whether founded on an earlier entry or otherwise, may be inquired into.</p> <p>The acts of Congress conferring pre-emption rights on the settlers on the public lands, vest a legal title in the purchaser as soon as the purchase is made and the price paid ; and the United States cannot take back the land nor sell it to another.</p> <p>A sale of a portion of the public lands of the United States, made in pursuance of an act of Congress conferring authority for that purpose on the Register and Receiver of Public Moneys, will divest the government of its title.</p> <p>One who obtains a patent from the United States for a portion of the public lands, by suppressing a part of the facts of the case, will not be permitted to benefit himself thereby. The patent will enure to the benefit of the party entitled to recover the land.</p>

This was a rule on the Judge of the Court of Probates of New Orleans, Bermudez, J., to show cause why a mandamus should not be issued, commanding him- to grant an order convening a family meeting.

<p>Rule to show cause why a mandamus should not be issued to the judge of the Parish Court of New Orleans.</p>

<p>This was an action upon a promissory note at three months, for the sum of $249.97, made by the defendant and dated March 26, 1860. The defendant, in his answer and upon the trial, denied his indebtedness to the plaintiff upon the note, and averred that the plaintiff was not the lawful owner and holder thereof; and that after the note in question was given it was torn in two parts and thrown upon the floor and a four months’ note for the same amount substituted therefor, with an indorser ; that the intention of the parties was to destroy the note in question, and that the four months’ note was after-wards paid by the defendant, at maturity. The plaintiff had a verdict for the amount of the note and interest, upon which judgment was entered against the defendant, from which he appealed. Other facts are stated in the opinion of the court.</p>

<p>Decision in the case of Fisher and another v. Vose, 3 Robinson, 457, affirmed.</p> <p>An application, under the act of Congress of 19th August, 1841, to be declared a bankrupt, made by the insolvent, will have the effect of arresting all proceedings against him, until a decree is rendered by the court sitting in bankruptcy.</p> <p>One who has applied to be declared a bankrupt, under the act of Congress of 19th of August, 1841, must remain in that situation until he is so declared, or his applica- ' tion is rejected. He has no right to dispose of his property, in any way, while such application is pending. He is bound to preserve it for the common benefit of all his creditors, and may exercise such power over it as may be necessary for that purpose. In a case of involuntary bankruptcy the rule may be different.</p> <p>Plaintiff having made a surrender of his property under the insolvent laws of the State, subsequently applied to the District Court of the United States'to be declared &■ bankrupt under the act of Congress of 1841. Previous to the latter application, his wife, who had obtained a judgment against him, had levied a ft. fa. on a claim belonging to the insolvent, alleged to have formed a part of the property given up to his creditors, at the time of his surrender under the insolvent laws of the State. The syndic appointed under the State laws, having taken a rule upon plaintiff to show cause why he should not deliver to him the certificate of the claim, and neither the assignee under the act of Congress, nor the wife of the insolvent having been made parties : Held, that the case must'be remanded that the question which of the creditors are entitled to claim, may be decided contradictorily with the assignee, and the wife.</p>

m This action was brought upon a contract made between Chase, the plaintiff, and one Robert Hogan, dated September 18, 1856, by which Hogan agreed to sell, and the. plaintiff to purchase, a certain lot of land for $5000, and the plaintiff agreed to erect on said lot a house, which should be fully completed before May 1, 1857.

<p>Appeal from the District Court of Pointe Coupee, Nicholls, J.</p>

<p>Appeal from the Court of Probates of Iberville, Dutton, J.</p>

<p>Appeal from the District Court of Iberville, Dutton, X, presiding.</p>

<p>This was an action to recover damages for the sale of certain goods, the property of the plaintiff under an execution. The defendants were the sheriff, (Kelly,) who sold the goods under an execution, and the plaintiffs in the execution, (Ketch-um and others.)</p> <p>The action was tried in December, 1863, before Justice Bobertson, without a jury, who found the following facts, viz:</p> <p>That, on the 5th day of February, 1861, and at the several times hereinafter mentioned, George Carroll, Edwin B. Carroll, and Benjamin F. Mead, were partners, doing business at the city of New York, and also at Louisville, in the state of Kentucky, under the firm name of Carroll & Mead. At that time, and at the time of the proceedings hereinafter mentioned, the said George Carroll and Benjamin F. Mead were nonresidents of this state, and the said Edwin B. Carroll was a resident of this state. The said firm owned a stock of merchandise, of the.value of $73,903.94, a part of which stock was contained in premises No. 392 Broadway, in the city of New York, occupied by the firm for the transaction of business. On the said 5th day of February, 1861, the said Edwin E. Carroll and Benjamin F. Mead were absent from this state; and so much of the said merchandise as was in the city of New York was in the custody and charge of the said George Carroll. On the day last mentioned, the said firm was indebted to the firm of Ketchum, Son & Co., (consisting of Morris Ketchnm, Thomas Belknap, Jr., and Franklin M. Ketchum, three of the defendants in this cause,) in the sum of $1,640.16, which indebtedness arose upon a promissory note of said firm of Carroll & Mead for the sum last mentioned, bearing date the first day of May, eighteen hundred and sixty, and payable nine months after the date thereof. On the said 5th day of February, 1861, the said Ketchum,' Son & Co., by the due personal service on said George Carroll, within the city of New York, of a summons and complaint, wherein all the members of the firm of Carroll & Mead were included as defendants, commenced an action in this court to recover the amount of said note. That the said Edwin E. Carroll appeared and answered in .said action before the recovery of judgment therein, but the said Benjamin F. Mead did not appear in said action, nor was the process therein served upon him. At the several times herein mentioned, the said firm of Carroll & Mead was insolvent and unable to pay its debts. After- the aforesaid service of process in the said action, on the said George Carroll, and on the 6th day of February, 1861, the members of the said firm of Ketchum, Son & Co. procured to be issued out of this court in their said action a warrant of attachment to the defendant John Kelly, sheriff, against the property of the said George Carroll, Edwin E. Carroll, and Benjamin F. Mead, which warrant was issued and procured upon the ground that the said Carrolls and the said Mead were non-residents of this state.</p> <p>Said warrant of attachment recited that the same was issued in an action in which process had been served within the city of New York on the said George Carroll, and that-the said action was brought and was pending against the said George Carroll, Edwin R. Carroll, and Benjamin E. Mead, as joint debtors, to recover the amount of the indebtedness mentioned in the said warrant.</p> <p>On March 16, 1861, the said attachment was duly vacated and set aside as against the defendant Edwin R. Carroll, on his motion for that purpose, solely on the ground that at the time of the issuing of the said attachment, he, the said Edwin R. Carroll, was a resident of this state. Afterwards, and on the same 16th day of March, 1861, judgment was rendered in said actions in which said attachment was issued, in favor of the plaintiffs therein, against all the defendants therein, as joint debtors, for the sum of $1,652.75, and thereupon execution was issued upon the said judgment to the said sheriff. On the 6th day of February, 1861, before the said attachment was vacated as against said Edwin R. Carroll, and before the recovery of said judgment, the sheriff had levied upon and attached, under and by virtue of said attachment, certain goods of the said firm of Carroll & Mead, being a part of the stock of merchandise mentioned in the third finding, and a schedule of which goods is annexed to the complaint, of which the value on the day last mentioned was the sum of $3,088.44. After such levy, the said George Carroll, on February 7th, 1861, executed in the name of the firm of Carroll & Mead, and delivered to the plaintiff in this cause, a written instrument, bearing date on that day, purporting that the said. Carroll & Mead sold to the plaintiff in this cause, the goods ■and stock in trade of said Carroll and Mead, for the price of $73,903.94, which was the value thereof on that day, and had received in payment therefor promissory notes of the plaintiff, amounting in all to the sum last mentioned, (dated February 7th, 1861,) twelve of which, for two thousand dollars each, were made payable twelve months after date ; ten others, each for the like sum, were payable fifteen months after date; thirteen others, each for the like sum, were payable eighteen months after date ; one for $975.46, and another for $2,928.48, were payable fifteen months after date. The notes last herein above described, were in fact made and delivered by the plaintiff, and received by said George Carroll, as one of the firm of Carroll & Mead, and by him transferred on behalf of such firm to various creditors of Carroll & Mead (other than the said firm of Ketchum, Son & Co.,) on account of the demands of such creditors respectively against said Carroll & Mead. The said bill of sale or transfer to the plaintiff, was made with knowledge by the plaintiff of the existence of said warrant of attachment, and the said George Carroll, in the name of the said firm of Carroll &. Mead, agreed with said plaintiff to contest said attachment, and to deduct from the said notes received by him, such amount, (if any,) as the New York stock might be liable for under said attachment. The said George Carroll informed the said Edwin R. Carroll and Benjamin F. Mead of the said bill of sale and agreement by letter, and the said Edwin R. Carroll, by a. communication in writing, dated March 18, 1861, and the said Benjamin F. Mead, by a similar communication, dated March 13, 1861, severally addressed to and received by the said George Carroll, approved of and ratified the said bill of sale and agreement, which information was given within a reasonable time after the making of such bill of sale, and such communications were sent and received in a reasonable time after such communication was given. The said bill of sale was made with the intent and for the purpose of enabling the said George Carroll to obtain the notes which were the proceeds thereof, and appropriate the same among the creditors of said firm, according to his discretion. Upon the recovery of judgment as aforesaid, in the said action, the.plaintiffs therein, Ketchum, Son & Co., issued an execution on.such judgment to the defendant Kelly, as sheriff as aforesaid, against the joint property of the defendants therein, and the several property of the defendants, Edwin R. Carroll and George Carroll. Under said execution, the said sheriff proceeded to sell- the whole of the said goods so attached by him as aforesaid, the value whereof, .at the time of such attachment and of such sale, was the sum of $3088.44, the said Ketchum, Son & Co. indemnifying him for making such sale, and without regard to any claim of the' plaintiff, next hereinafter mentioned, to an interest in the said goods, and that such sale was of the goods absolutely, without specifying the same to be of the right, title and interest of George Carroll and Benjamin F. Mead therein. Before such sale was actually made, the plaintiff notified the said sheriff that he, the plaintiff, claimed to be the .owner of the said goods so attached. Notwithstanding the said notice, the said sheriff proceeded to make such sale, and sold said goods so attached absolutely, in different parcels, to many different persons, and delivered the said goods to the respective purchasers thereof, and that it was impossible for the plaintiffs to follow the said goods. The gross proceeds of the sale were $1767.42. No evidence was given of the presence of any of the firm of Ketchum, Son & Co. at such sale, or any direction by them to the said sheriff to sell the goods in parcels.</p> <p>The said justice’s conclusions of law, were :</p> <p>1. That the defendants,' Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jr., were entitled to judgment, dismissing the complaint as against them, with costs.</p> <p>2. That by the making and delivery of the said bill of sale to the plaintiff, and the making and delivery by him of his said notes, and the subsequent assent of said Edwin E. Carroll and Benjamin F. Mead, the plaintiff in this cause acquired a title as against the defendants “ to an undivided third of the goods attached as aforesaid theretofore belonging to said Edwin E. Carroll, subject, however, to a lien thereon under or by virtue of the said warrant of attachment, if any, to the extent of the amount, if any, which the said George Carroll or Benjamin F. Mead had, either personally or by agent, prior to issuing of the said warrant, individually paid beyond two thirds, (being their proportionate part,) of the debts of their said firm, which had been paid before that time.”</p> <p>3. That the plaintiff was entitled to recover of the defendant, John Kelly, a sum equal to one third of what the said attached goods were worth on February 7, 1861, being the sum of $1029.48 ; and in addition to the said last mentioned sum, a further sum equal to two thirds of the excess (if any) above the value of said goods when sold to the plaintiff, being $73,903.94 of any sums paid by said Edwin E. Carroll before February '6, 4861, individually, on account of debts of his said firm to the extent of $2058.97, being two thirds of the value of such attached goods, subject, however, to the deduction of an amount equal to the excess, if any, above two thirds (being the share of the said George Carroll and Benjamin F. Mead) of any sums paid before February 6, 1861, by the said George Carroll and Benjamin F. Mead, individually, on account of the debts of their said firm.</p> <p>4. That in order to fix the amount, if any, which the plaintiff was entitled to recover, and in order to ascertain and inform the court of the amount of the respective interests, liens, or shares of the said George Carroll, Edwin B.‘ Carroll, and Benjamin F. Mead, of, upon, and in said attached goods on February 6, 1861, it was necessary that an account should be taken of all sums paid by said George Carroll, Edwin E. Carroll, and Benjamin F. Mead, respectively, prior to February 6, 1861, out of their respective individual estates on account of any debts' of their said firm, and that a reference be had for the purpose of taking such an account.</p> <p>5. That if upon taking such an account, it should appear that prior to February 6,1861, the said Edwin E. Carroll paid individually, on account of any debts of his said firm, any sum exceeding $73,903.94, being the value of said goods at the time of the sale thereof to the plaintiff, so much of such excess as should exceed one third of all debts of said firm paid by the partners therein indidvidually prior to February 6,1861, should be added to the said sum of $1029.48, so as to determine the amount of such recovery of the plaintiff in this cause ; but if on such accounting it should appear that said Mead and George Carroll had, together, individually, prior to said February 6, 1861, paid more than two thirds of all the debts of said firm which had been paid by the said general partners therein out of their separate estates prior to that day, then such excess above such two thirds should be deducted from the said sum of $1029.48, and only the residue of such sum should be and constitute the plaintiff’s recovery herein.</p> <p>6. That neither the said plaintiff.nor the said Kelly was entitled to recover any costs in this cause up to the time of such reference, and that the costs of such reference should abide the event thereof, that is to say, if it should appear on such reference that the amount which the plaintiff was entitled to recover exceeded the said sum of $1029.48, the plaintiff would’ be entitled to recover the costs of such reference; otherwise, the defendant, Kelly, would be entitled to recover the costs of such reference. The justice accordingly adjudged as follows :</p> <p>First. That the complaint herein .be dismissed- against the defendants, Morris Ketchum, Franklin M. Ketchum, and Thomas Belknap, jr. and that they recover against the plaintiff their costs, to be adjusted.</p> <p>Second. That in case it should appear upon the report of the referee hereinafter mentioned, that any sum of money is due, or ought to be paid by the defendant Kelly to the plaintiff, upon taking the account hereinafter mentioned, then that the plaintiff recover against said defendant such amount.</p> <p>Third. That if it should appear, by such report, that the amount so found due to said plaintiff exceeds the sum of $1029.48, then that the plaintiff recover his costs on said reference to be adjusted.</p> <p>Fourth. That if it should appear, by such report, that nó sum of money was due by the defendant Kelly to the plaintiff, the said defendant recover against the plaintiff his costs of said reference to be adjusted.</p> <p>Fifth.' That it be referred to the Hon. Murray Hoffman, to ascertain and report the amount paid prior, to the 6th of February, 1861, by George Carroll, Edwin B. Carroll, and Benjamin F. Mead, members of the firm of Carroll & Mead, and each of them jointly and . separately, on account of debts due by said firm to any person or persons; and in case he should find that the amount so paid by the said George Carroll and Benjamin F. Mead exceeds two thirds of the whole of the amount so paid, then to ascertain and report the amopnt of such excess ; and also the difference between such amount and the sum of one thousand and twenty-nine dollars and forty-eight cents ; and in case he should report that the amount so paid by the said George Carroll and Benjamin F. Mead does not exceed such two thirds, then to report that there is due to the plaintiff from the defendant Kelly, such last mentioned sum of $1029.48 : or, if he finds that it does, then to report that there is due to the plaintiff from the defendant only the difference so found by him between such last mentioned and such excess ; and in case he should find that the sums so paid before the 6 th of February, 1861, by the said Edwin R. Carroll, exceed one third of the whole amount so paid on account of such liabilities, then to ascertain and report the amount of such excess ; and if such excess exceeds the sum of $70,000, then to ascertain and report the amount of such last excess ; and in case it equal or fall short of the sum of $2058.97, then to report that such sum is also due from the defendant Kelly to the plaintiff, and to ascertain and report the aggregate of such sum, and of the sum of $1029.48, and to report that the same is due to the plaintiff; but in case he should find that there was no excess of payment by Edwin R. Carroll beyond one third of the debts so paid by all the members of said firm, or that the same does not exceed the sum of $70,000, and that the amount paid by the said George Carroll and Benjamin F. Mead, beyond two thirds of all the debts so paid, equalled or exceeded the sum of $1029.48, then to report that there is nothing due from the defendant Kelly to the plaintiff.</p> <p>It was stipulated, agreed and admitted, as matter of fact, that on or prior to the 6th day of February, 1861, neither Edwin R. Carroll had, nor had George Carroll and Benjamin F. Mead, together or, severally, paid any sums whatever on account of partnership debts of the firm of Carroll & Mead, and that all of such debts which had been paid before that time had been paid out of the partnership property of Carroll & Mead, and that neither of said partners, jointly or severally, had paid more than his .several or their joint share of any partnership debt or debts; and that such stipulation should stand as a substitue for apd have the same force and effect as a report of a referee upon the matters directed to be referred by the above order and decision of the court.</p> <p>The decision of the said justice, and the stipulation above mentioned, having been filed, judgment was entered thereon, by which it was ordered and adjudged that as against the defendants, Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jun. the complaint of the plaintiff be, and it was thereby, dismissed, and that the said Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jun. do recover against the plaintiff the sum of $110.69 for their costs in this action. And it was further ordered and adjudged that there was due to the plaintiff, by reason of the matters stated in said findings and stipulation, from the defendant, John Kelly, the sum of $1029.48, with interest thereon from the 7th day of February, 1861, making in all the sum of $1185.61, and that the plaintiff do recover from the said defendant, John Kelly, the last mentioned sum, without costs.</p> <p>The defendant, John Kelly, appealed to the general term, from so much of said judgment as adjudged that there was due to the plaintiff the sum of $1029.48, with interest thereon, and from so much of said judgment as adjudged that the plaintiff recover of the said defendant the sum in said judgment mentioned. . The plaintiff appealed from the judgment, and from every part thereof, “ and particularly from the part of said judgment which adjudged that there was due to the plaintiff from the defendant, John Kelly, only the sum of $1029.44, and interest, instead of the sum of $3088.32, and interest, as claimed in the complaint; and from that part of said judgment which dismissed the complaint of the plaintiff as against the defendants, Morris Ketchum, Franklin M." Ketchum and Thomas Belknap, jun. and adjudged to them the sum of $110.69 costs, and from the judgment which does not, but should, give costs to the plaintiff against the defendants.”</p>

<p>Appeal from the District Court of Ascension, Deblieux, J.</p>

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

<p>The provision of art. 2976 of the Civil Code that “ the attorney is answerable for the person substituted by him to manage in his stead, if the procuration do not empower him to substitute,” implies that he is not answerable if it did so empower him ; and the power is implied whenever the principal Knew that the mandatary would be obliged to act by a substitute.</p> <p>Bills of exchange and promissory notes are generally placed with a bank for collection, with a notary for protest, and with an attorney to be put in suit. In such cases where the bank, the notary, or the attorney is omni exceptions major, an agent who may have received the note for collection, will not be responsible for their neglect or misconduct.</p>

<p>The purchaser at a sheriff’s sale cannot refuse to pay the price he has bid, on the ground that there existed mortgages on the property of an older date than that under which he purchased, or that the legal formalities have not been complied with, unless he has been disturbed in his possession, or has just reason to apprehend that he will be. C. P. 710,</p>

<p>Property purchased with the paraphernal' .funds of the wife¡ only becomes her separate property while she keeps the adrninistratfan of her separate estate, and when the title is taken in her own name, either as a purchase with the funds which she administers herself, or as a dalion m ‘paye'meút made to her by the debtor of a separate and paraphernal debt.</p> <p>Property purchased during marriage in the name of the husband and wife, though paid for in whole or in part by the funds of the wife, will belong to the community of acquets, but subject to a charge, in her favor, for the amount by which the community may have been thereby benefited ; and she will have, as in the case of her paraphernal funds having been used by the husband for his individua! benefit, a mortgage on all his property for the reimbursement thereof. C. C, 236 <\</p> <p>A wife cannot bind herself in solido with her husband, for a debt contracte d during the marriage, on account of the community. C. C. 2412.</p> <p>An assignment by the husband of a paraphernal debt due to the wife, in payment for property purchased in the name of the community, will be valid, where, by tl]je contract of marriage, the administration of her paraphernal property is entrusted to him; but he will be responsible to her for the reimbursement of its amount. d\ 0. 2367. \</p>

<p>Appeal from the District Court of Iberville, Deblieux, J.</p> <p>Two suits, commenced by the plaintiffs against Slack, were consolidated in the lower court, and judgment rendered therein “in favor of the plaintiffs, for $14.73 damages, as the difference between the value of the land composing the back tract, or second concession of lots Nos. 26, 27 and 28, and the price paid therefor to the United.States by the defendant,” and for the possession “of the one half arpent front, with a depth of forty, in possession of the defendant, and shown to be a part of lot No. 26.” The re-conventional demand of the defendant was dismissed, on the ground that the question involved in it was res judicata. The defendant appealed.</p>

The petitioner, Narcisse Landry, represents, that on the Í8th of December, 1835, one James Anderson purchased, at the probate sale of the succession of Louis Marceilin Comes, a certain lot in the town of Donaldsonville ; that Anderson having failed to comply with the terms of sale, the property was ordered by the Court of Probates to be resold for cash, when, on the 18th of April, 1839, he, Landry, became the purchaser; that subsequently, on the 11th of May, 1841, Anderson…

<p>This action was brought on a special written agreement, given below, to recover certain annual subscriptions therein mentioned. In 1857, the firm of James Henderson & Co. composed of James Henderson and the plaintiffs, carried on the business entitled a “ Protective Trade and Collecting Agency.” One branch of this business was to obtain information concerning persons and impart such information to the subscribers to the agency. The firm had a book prepared, containing a list of names up to the 1st October, 1858.' It had a form of an agreement prepared, which was as follows ;</p> <p>“We, the undersigued subscribers to James Henderson & Co.’s Protective Tradfe and Collecting Agency, hereby acknowledge having received from said Henderson & Co. for our exclusive use, a book containing a list of names up to October 1, 1858, and it is expressly agreed between the undersigned subscribers and said Henderson •& Co. that the information contained in said book, and all information received from said agenpy, shall be held as strictly confidential, and that said book shall be returned whenever our subscription terminates, and no subscription shall be considered terminated until this said book is returned to Henderson & Co.”</p> <p>The defendant, Guilin, had signed this form of agreement on ifovember 30, 1858. The plaintiff’s testimony is to -the effect that the hook mentioned in this agreement was delivered to the defendant. This is contradicted by the defendant’s testimony.</p> <p>The defendant, at various times between November 30,1858, and November 20,1860, obtained from the agency information concerning the responsibility of various parties. Another book was published by the agency about February 1, 1860, which was given to the defendant sometime in 1860, and. retained by him until May, 1864. The first book has never been returned to James Henderson & Co.</p> <p>There was evidence on behalf of the defendant to the effect ■ that the defendant never used either of the books, or sent to the agency for information after November, 1860, and that in the latter part of 1860, or 1861, the defendant notified James Henderson that he did not wish to continue his subscription. The yearly subscription was $30. This action was brought on the foregoing agreement, to. recover for six years’ subscription, from November 30, 1858, to November 30,1864, less the amount of the first year’s subscription ($30.)</p> <p>The plaintiff, by his complaint and proof, made title to the claim through assignments, in the words and figures following :</p> <p>“For value received, we hereby sell, assign and- transfer all our interest in the foregoing books, and all subscriptions due and to become due therefor, to J ohn H. Scott.</p> <p>March 10th, 1862. Jas. Hendebson & Co.”</p> <p>2d. An assignment as follows :</p> <p>“ For value received, I hereby sell, assign and transfer all my right, title and interest, in and to the foregoing books, and to all subscriptions due and to become due thereon, to Phebe A. Henderson and John H. Lockwoood.</p> <p>March 10th, 1862. J ohn H. Scott.”</p> <p>And proof that after March 10, 1862, the firm of James Henderson & Co. was composed of the plaintiff and Mrs.-Phebe A. Henderson, and the business was carried on by those two persons under that firm name. James Henderson directed and managed the business for his wife Phebe A. as her agent, without her taking any active part in the business, or giving any personal attention to it.</p> <p>3d. A bill as follows :</p> <p>“ Mr. James B. Guilin to James Henderson & Co. Dr. To six years’ subscription from Nov. 30th, 1858, to November,</p> <p>30th, 1864, at $30 per annum,......$180 00</p> <p>Cr. By cash on account,......... 30 00</p> <p>Indorsed as follows : $150 0Ó</p> <p>For value received, I hereby sell, assign and transfer all my interest in and to the within claim to John H. Lockwood.</p> <p>Dated New York, May, 1864. P. A. Henderson.”</p> <p>, Phebe A. Henderson, during all this time, was the wife of James Henderson, who stood by and saw her sign and deliver the last above assignment, without objecting.</p> <p>The answer puts in issue the plaintiff’s title, and sets up as affirmative defenses, that the subscription was but for a single year ; that Henderson & Co. had broken the contract on their part, in that they had failed and refused to give information when demanded; that in -consequence of such breach the defendant had notified the firm that he desired to discontinue his subscription; that Henderson & Co. never had any plan or system for obtaining information, and that this pretended business was a mere fraudulent scheme to obtain money.</p> <p>There was evidence tending to support these affirmative defenses, except the last one; and there was also evidence tending to disprove them.</p> <p>Upon the closing of the testimony on both-sides, the defendant’s counsel moved to dismiss the case, on the ground, among others, that it appearing that Phebe A. Henderson was a married woman, and the subject of the action not appearing to be part of any separate estate of hers, or to result from, or to be necessary to any trade or business carried on by her separately, an assignment by her, of her interest in the claim, to the plaintiff, without the assent or authority of her thusband, was invalid.</p> <p>The motion was granted, and the complaint dismissed. An exception was taken, and the exception was ordered to be heard first at a general term.</p>

<p>Appeal from the District Court of the First District, Buchanan J.</p> <p>On behalf of the plaintiff, the case was submitted without argument.</p>

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

<p>1. An opening in the sidewalk in a public street, communicating with a cellar or vault underneath, for whatever purpose used, made without proper authority, is, whether covered or uncovered, a public nuisance. Being so, the persons</p> <p>. who made, and those who continue, it are.liable for all injuries to individuals resulting from the street being rendered thereby less safe for its appropriate us.e, without regard to negligence on the part of such individuals.</p> <p>2. Those making or continuing a public nuisance in a highway are bound at their peril to keep such highway as safe as it would have been if the nuisan.ce were not there. Neither want of notice of the condition of the nuisance, nor the fact that they had entered into no obligation with any one to repair, will relieve them from responsibility.</p> <p>3. A person occupying premises adjoining-a sidewalk, in which there is an opening commonly used by the occupants of such premises, is liable for injuries resulting to another by falling through such opening, although at the time of the casualty, such opening was in the same condition, in every respect, that it was when the defendant entered into the occupancy of such premises, and the usual cover of it was fastened down over it, in the way in which arrangements were originally made for fastening it, and by the terms of the lease to him his lessor was bound to do all repairs to such premises,</p> <p>4. If such action be brought against a person to whom the lessor has transferred his title and assigned the lease, after it was made, while such premises are occupied by the tenants of the latter; the defendant will be liable for injuries resulting from an opening in the sidewalk used with such premises, although he may not originally have constructed it, if he continue it, and although such opening be provided with a proper cover fastened from below and controlled by the occupants of the premises, and the casualty occurred by reason of the negligence of such tenants.</p> <p>6. The enjoyment of what is a nuisance by a person having the right to use it, constitutes a continuance of it by him. The acquisition of the residuary interest in a term of years in premises to which a nuisance is attached, and the assignment of the right to the rents of such premises, under a sub-lease, by which tenants occupy such premises, renders the person acquiring such interest and light a continuer of such nuisance; upon the grounds, both that he receives rents therefor, and by becoming assignee of the reversion of a term of years in the premises, to which such nuisance is attached, although not on them, he acquires control over it, and is bound to abate it. (Robertson, Ch. J. dissenting.)</p> <p>6. The liability for personal injury occasioned by a nuisance which is continued by several persons, is joint as well as several, and one action may be brought against all of them together.</p> <p>7. It seetiis an action will lie against the continuers of a nuisance, without previous notice to discontinue it.</p> <p>8. Although the purchasers of premises upon which a nuisance exists, or of a right to rent paid for the use of such nuisance, may be responsible for any injury resulting from it, as a continuer of it, yet. the purchaser of premises, or of a right to rent therefor, where a nuisance exists adjoining the premises, is not liable for injury from such nuisance, unless it has become an appurtenance of the premises bought by him, and rent has been reserved for it as such. (Ter Robertson, Ch. J.)</p> <p>9. What would otherwise be a nuisance in or on a public highway, may become a legal easement therein, by grant or prescription, subject to the obligation of using it with due care, so as not permanently to interfere with the use of the highway, or cause injury to travelers upon it; and in such case, the owner of -the easement is only liable for Want of due care, and is not an insurer against injury to others by its use. (Ter Robertson, Ch. J.)</p> <p>10. In the absence of evidence that an easement in a piece of land which is a highway has been continually used as an appurtenance to adjoining premises, or has by grant been created appurtenant thereto, the mere use of such easement occasionally by the occupants of such adjoining premises, does not render the purchaser of the reversion of such premises, and of the right of rent thereto under a lease to such occupant, which does not specially demise such easement, liable for injury to a traveler on such highway by the apparatus designed for using such easement. {Per Robertson, Oh. J.)</p> <p>11. Dior can such purchaser be made liable in an action for damages by a nuisance where the complaint describes it as being on certain premises when it was on adjoining premises. {Per Robertson, Oh. J.)</p>

<p>Where one who certifies the transcript of a judgment from another state, styles himself in the body of the certificate, the clerk of the court, and signs it as such, all of which is attested by the seal of the court and the certificate of the Chief Justice or Presiding Magistrate, no further evidence will he necessary to establish his official capacity.</p> <p>Where the laws of another state which should govern the case, are not in evidence, our own must prevail,</p> <p>In joint actions all the debtors must be sued, and must remain in court till the end of the suit; and the judgment must be against each for his virile portion.</p>

<p>Where the funds of an insolvent estate have remained on deposit in a Bank, in which they were placed by the syndic in pursuance of law, any loss resulting from the depreciation of the notes of the bank, must be.borne by the creditors ; but where the funds so deposited were withdrawn by the syndic, without any order of court, when the notes of the bank were at par, and were re-deposited when depreciated, he will be made to account to the creditors for the value of the notes at par. He should have left the funds on deposit, until ordered to pay them out. Act of 13 March, 1837.</p>

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

The defendants, who were sued on their promissory note for $989,88, with costs of protest, and interest at five per cent, from its maturity, alleged a failure of consideration as to a part of the note, and represented “ that they tendered to plaintiff about, or at the maturity of said note, the sum of $539,88, being all that in justice they were bound to pay, but that the said plaintiff refused to accept the same.” On motion of the counsel for the plaintiff, judgment was…

<p>Where the record from its incompleteness will not enable the appellate court to examine the case on its merits, and no assignment of errors has been filed within ten days after bringing up the record, as required by art. 897 of the Code of Practice, the appeal must be dismissed.</p>

<p>Minor heirs, who have not .accepted, must be considered (saving their right to accept at a future time,) as strangers to the succession.</p> <p>Under the provision of the Code of 1808, book 3, title 1. art. 74, which declares that “ until the acceptance or renunciation, the inheritance is considered as a fictitious being, representing in every respect the deceased, who was the owner of the estate,” prescription ran against a vacant succession, although minors were interested.</p> <p>A change in the law by which prescription was allowed to run, under certain circumstances, against minors, will not deprive one interested in pleading it, of the benefit of the time elapsed before the repeal of the old law. The time so elapsed may be added to that since the majority of the party, to make out the necessary period of prescription.</p>

<p>1. Assuming that an insurance company can make a contract of insurance without a writing, and that the president or secretary are duly authorized to make one, any agreement, to be binding on the company, as such, must at least have all the elements of such a contract.</p> <p>2. There are at least five ingredients necessary, in a contract of insurance, viz. the subject matter; the risks insured against; the amount insured; the duration of the risk, and the premium- of insurance; and a contract deficient in any of these is incomplete. • ■</p> <p>8. A promise to insure, which wants those elements of a contract which consist of the risks insured against, and the duration of the insurance, is too vague and indefinite to be binding.</p>

<p>A new trial may be prayed for after three judicial days have elapsed since the judgment was pronounced, provided it has not been signed. 0. P. 546. 548.</p> <p>Decision in Chandler et al. v. Barker, 13 La. 316, overruled.</p> <p>The interrogatories to be propounded to a witness, under a commission, were served on defendants’ counsel, who declined to add any cross-interrogatories, but reserved the right of having legal notice of the time of taking the answers of the witness. Notice was not given to defendants’ counsel; but the commissioner certified that he gave timely notice to the defendants, without showing hovy it was given, or upon whom it was served. Held, that defendants having an attorney on record, who had reserved the right of notice, such notice should have been given to him, that he might be present at the taking of the testimony, and that the deposition was inadmissible. C. P.434.</p> <p>Parol evidence is inadmissible to prove a sale of real estate.</p> <p>Evidence not produced on the trial below, cannot be brought before the Supreme Court on appeal.</p>

<p>Appeal from a judgment of nonsuit in the District Court of East Baton Rouge, Johnson, J.</p>

<p>Appeal from the District Court of West Feliciana, Weems, J. presiding.</p>

<p>1. The apparent withdrawal of a member of a solvent firm therefrom, and his nominal sale of his interest in its assets to a new firm of the same name, composed of the remaining partners, will not relieve such retiring member from liability for the debts of the new firm, where he secretly retains his interest in the partnership, and shares in its profits, and is only to claim such transaction as a sale, in case of the insolvency of the new firm. An assignment by the latter, for the benefit of their creditors, preferring such retiring partner for the amount of the supposed price of such sale, would be void for preferring the claim of a partner and a fictitious debt. Per .Tones, J.</p> <p>2. The acceptances of a new firm, given in payment of the interest of a retiring partner in a previous firm of the same name, in the assets of the latter, sold bona fide to the former, constitute a valid legal claim against such new firm, and may be legally preferred by them afterwards in an asssignmept for the benefit of their creditors, notwithstanding such new firm is composed of the remaining members of the old firm only.</p> <p>3. So held in the case of a dissolution of a limited partnership which had been formed in 1858, and the formation of a new general partnership under the same name by the general partners of the former, in 1861, when such new firm bought of the special partner his interest in the assets of the firm for the same amount as the capital contributed by him to such first partnership, and gave him the acceptances of the .new firm therefor, and in sixteen months afterwards, executed an assignment for the benefit of their creditors, preferring such acceptances,</p> <p>4. Held also that such assignment was not void as against creditors of the new firm, because such purchase was made of, and notes given to, the special partner in 1861, in the expectation that such new firm would ultimately fail, and with the understanding that in such case, such acceptances should be preferred in an assignment, by such new firm, of their assets.</p> <p>6. Held also that although the ultimate failure of such new firm might be expected by both parties at the time of giving such acceptances, as inevitable, an agreement to postpone such failure by the use of the money and assistance of the credit of the retiring partner in the business of the new firm, until the debts of the first firm were paid, was not in itself fraudulent as to any one. Nor would the mere payment or security of the debt due to the retiring partner be fraudulent as to the creditors of such new. firm, notwithstanding such expectation.</p> <p>6. Held, further, that even assuming such arrangement to have been a fraud upon those who trusted the new firm, it was not the kind of fraud which made an assignment void under the statute against fraudulent transfers of property.</p> <p>7. The mere omission of a debt from a schedule of creditors annexed to an assignment for the benefit of creditors will not vitiate the assignment per se, especially where the debt is included in a general description,</p>

<p>Where one not a party to a bill or note, pots his name upon it, he will be presumed to have done so as surety.</p> <p>Where a receipt signed on the execution of a note, recites that it is made in renewal of another in the possession of the payees, which is to be returned by them, or, in default thereof, that the note last executed is to be null, payment of the latter can. not be required until the obligors are put in possession of the first note. It is a condition precedent, upon which the right of recovery depends.</p> <p>Where a party’s right to recover depends on an act to be done by him, he must show an actual tender and refusal, or that every thing has been done by him, which could be done, to give effect to the contract.</p>

This case brought from the Court of Probates of East Feliciana, was tried before Butler, J., sitting under the act of 27 February, 1841, ch. 32, in the District Court of that parish, for the trial of certain cases in which the Judges of the District and Parish Courts had recused themselves or been recused; and the defendants are appellants from his judgment.

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p>

<p>Appeal from the Court of Probates of East Baton Rouge, Tessier, J.</p>

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p>

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

<p>1. A contract for the sale of a certain number of Buenos Ayres dry hides " to arrive by vessel, or vessels, within 'sixty days from date,” is not confined to those arriving by the vendor’s vessels, only, but includes any hides of the kind described arriving Within the time limited, by any vessels.</p> <p>2. And the purchaser, upon proving that hides of the description and number specified had arrived in vessels from Buenos Ayres, within the sixty days, and were for sale in open market in New York, is entitled to recover damages for a breach of the agreement,</p>

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

<p>Under a fieri fados against the principal and surety on a twelve months bond, executed for the price of property sold under execution, the sheriff may seize and sell the property of the principal, or of the surety, or of both, to the amount of the debt and costs. C. P. T19, 720.</p>

<p>1. The maker of a contract, in the form of a promissory note, by which he agreed to pay to an insurance company a certain sum of money, or such assessments on the same as the trustees of such company should find it necessary to make to pay their losses, according to the terms of his subscription to a guaranty fund of such company, by which the subscribers to such fund agreed to contribute thereto'for the indemnity of persons insured by such company, as a security, in addition to expected profits, by their promissory notes, to be held by the company for the sole purpose of paying losses, and be resorted to for any deficiency by a pro rata assessment, is liable to such company for the amount of such note; where it was authorized by its charter to receive notes and other securities in advance for premiums of persons intending to receive its policies, and negotiate the same only for the purpose of paying claims against it, and the persons giving such notes or securities were, by another statute, entitled to receive six per cent thereon, in addition to any other profits ; and the maker of such note had received profits thereon, and been credited with the interest on it, for premiums, all other funds of the company having been exhausted, and the company became insolvent.</p> <p>2. Even if such note had not, by its terms and that of the agreement for the guaranty fund, been one strictly answering the description of those mentioned in the charter, it sufficiently approached their nature, and being, upon sufficient consideration by the mutual obligation of the parties to such agreement, wss so far a part of a valid agreement to carry out the purposes of the incorporation of such company, as to entitle it as trustee for all who should contract with it on the 'faith of such fund, to sue in its own name, and recover the amount due on such note; in order to pay its losses.</p> <p>3. There is no substantial difference between such a note and those authorized by the charter. The power of negotiating the notes was equivalent to that of calling upon the makers for payment, and was merely an indirect mode of doing the same thing.</p>

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

<p>It is not necessary in an action on a lost title, that the petition shall state such loss. Where the affidavit of the plaintiff of the loss of the instrument sued on, has been read without objection, parol evidence may be admitted to prove its contents.</p>

<p>Appeal from the District Court of St. James, Deblieux, J,</p>

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

<p>In an action to recover a sum paid out by the bankers of the plaintiff on a check alleged by the latter to have been forged, the testimony of a witness, taken under commission declaring that he forged the check, will be admissible; the objection resulting fr¿m his confession, going to his credit, rather than to his competency. Even a verdict of guilty, not followed by judgment, is not sufficient to establish the infamy of the witness, and render him incompetent.</p> <p>A banker who pays a forged check, must support the loss.</p>

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

<p>Appeal from the. District Court of East Baton Rouge, Tessier, J. presiding.</p>

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

<p>This action was brought to recover, the price of a quantity of tobacco delivered by the plaintiff to the defendant, a commission merchant, for sale. The complaint alleged, that the tobacco, which consisted of 3812 pounds first and 957 second quality, Connecticut and leaf 'tobacco, was delivered under an express agreement with the defendant, that he should sell the same for the highest market price, and should make extraordinary efforts to sell the same for the highest price, and for which efforts he should receive five, per cent of the proceeds, which was two and a half per cent above the usual commissions. That the market value was at least fifty cents per pound for first quality, and at least twenty cents per pound for second quality. That the defendant, in violation of his agreement, and with intent to cheat and defraud the plaintiff, sold, or pretended to have sold, the tobacco on the day it was received by him, at fourteen cents a pound, and refused to account for any sum beyond fourteen cents per pound.</p> <p>The answer denied that the tobacco was first and second quality, and averred that it was of greatly inferior quality and of a kind known as “ fillers and binders,” and that the same was sold at the highest market price.</p> <p>The action was tried before Justice Jones, and a jury. There was no exception to the charge, and only one exception to the admission or rejection of evidence, which was abandoned on the argument of the appeal.</p> <p>The jury found a verdict for the plaintiff, and judgment was entered thereon. A motion for a new trial on the minutes of the court was. denied, and the defendant appealed from the judgment and order.</p>

<p>The validity of a judgment ordering the execution of a will, cannot be inquired into collaterally. ‘ ’</p> <p>A bequest of whatever may remain after the payment of debts to a sister of the testa* tor, for the purpose of educating her ohildren, and subsisting her and them, with power to her to make such other disposition of the property to their use and benefit as circumstances may require ; and providing that his brother shall participate in such property, to a certain extent, should he consider himself in equal need with his sister’s family, is not a substitution or a fidei cammissum. Per Cwr. The testator does not leave the property to his sister to preserve it for, and surrender it at any time to her children. She has the entire control of it, to maintain herself and children, to educate them, and to do whatever she may think their interest requires. She may expend it all for such purposes.</p> <p>A substitution is never presumed. Unless the will cannot be understood otherwise it will be maintained.</p> <p>ITo acquire by the prescription of ten years, it is not enough to show a title translative of property, accompanied by possession for ten or twenty years. Good faith is essential, and must have existed at the commencement of the possession. Code of 1808, p. 488, art 72. Such good faith does not consist in the belief only, that the person whose rights are acquired was the real owner of the property. This is indispensable to constitute good faith on the part of the purchaser ; but, even where it exists, there may be bad faith in the latter, as where a deputy sheriff purchases property sold by himself under a fieri facias. He knows the vices of his title ; and does not, according to art. 495 of the Civil Code, possess as owner by virtue of an act sufficient in terms to transfer the property, of the defects of which he was ignorant.</p> <p>A purchaso by a deputy sheriff of property sold by himself under a fieri facias, is absolutely null.</p> <p>Where a title is absolutely null, it cannot be the basis of prescription. Miter, as te relative nullities. If those in whose favor they are established do not complain, prescription may be acquired under a title containing such relative nullities.</p> <p>The prescription of five years, established by the act of 10 March, 1834, applies only to informalities in the manner of advertising and making public sales.</p>

<p>This was an action for damages arising from the death of the husband of the plaintiff, of whose estate she had been appointed administratrix, which death the plaintiff alleges was caused by the negligence of the defendants and their servants in permitting a railway car belonging to them to prostrate the intestate and pass over his body. He was killed on land claimed to belong to the defendants and not to he part of any public highway. •' The latter generally used such land as a freight depot; cars were brought into it by a side railway track, and were loaded and unloaded upon it; and remained stationary there until drawn off. At the time of the decedent’s death, eight or more cars were standing at rest in such depot, on such side track. The cars generally entered the depot on such side track from Twelfth street, which was to the northward. The decedent, at the time of the accident, stood outside of the rails of such track, at the end of the southernmost car, to the west of it, leaning against it. There was no evidence of the cause or object of his being there, except one witness from his pantaloons being open thought he might have been there obeying a call of nature. Some cars which had been previously drawn by horses, but from which the latter had been disengaged, continued their motion upon such side track, struck the northernmost of the stationary cars, moved them forwards either together or in succession, against each other, until the last one struck the decedent and prostrated him. Two of its wheels then passed over and killed him. The decedent, when he was struck, could not, from where he stood, see the train coming in, although he might have done so had he been two or three, steps to the eastward. Nor could he be seen by the brakeman on the cars as they came into the depot.</p> <p>On the trial the complaint was dismissed, and the exceptions were directed to be heard in the first-instance at the general term. Motions were made by the plaintiff for judgment; and by the defendants for a new trial.</p>

<p>As a general rule no one will be presumed to have paid what he was not bound for ; and where he reclaims an amount so paid, the burden of proving that he was neither legally nor morally bound therefor, will be on him.</p> <p>A contract or payment made for the purpose of avoiding litigation, cannot be rescinded for error of law. C. C. 1840.</p>

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

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

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

The action was brought to recover damages for the non-delivery of a quantity of paper. The referee found, as matter of fact: First.

<p>On a rule against the sureties on a bail bond, (taken under the act of 28 March, 1840, supplementary to another act approved on the same day,) conditioned that the principa! shall not depart from the state for the term of three months without leave of court; or, in case of such departure without leave, that the sureties shall pay the amount for which definitive judgment may be rendered, the plaintiff must show that the principal has left the state within the three months in violation of the bond, or he cannot recover.</p>

<p>1. Under the 3d section of the statute of frauds, (2 M. S. 150,) a note or memorandum of the sale of goods of the value of $50 or more, signed by the seller only, is not binding upon him, where not signed by the buyers, and no part of</p> <p>• the property is accepted or received, and no part of the purchase money is paid. (Decision in Justice v. Jang, 2 Mob. M. 333, applied and sanctioned.)</p> <p>2. The intention of the statute was, that if the contract was in writing, both parties should subscribe it p if no contract in writing, that one party should deliver, and the other not only accept, but receive, a part of the property sold; or that the buyer should pay, and the seller receive, some part of the purchase money, to make the contract effectual between the parties.</p>

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

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

<p>1. Statutes of limitation affect only the remedy, not the right, and except as defenses in actions against the person, only create a presumption of payment of a money demand, and may be rebutted like any other evidence thereof.</p> <p>2. So held in an action for the conversion of stocks pledged to secure a loan, begun more than six years after such loan became due, wherein it was admitted that it had not been paid in fact.</p>

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

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

Rule to show cause why a mandamus should not be issued to the Judge of the Commercial Court of New Orleans, directing him to proceed with the trial of the case of Heath v. Bein and Husband.

<p>This was an action to recover the amount due on a promissory note, made hy the defendants, for $510.70, payable at the bank of the plaintiffs on the 7th of April, 1863. The plaintiffs claimed that, by mistake, they had entered it on their books as a note for $210.70 ; that the defendants came to the bank and paid $210.70, and got the note before the mistake was discovered; and,.when their attention was called to it, insisted that they had paid the full amount of the note; that the defendants, to shield themselves, mutilated the note, by tearing off the figures from the margin, and returned it to the bank in that condition, to show that no mistake could have occurred.</p> <p>The complaint alleged that the defendants had, at no time, paid upon the said note to the plaintiffs, or to any person on their behalf, or for their use, any greater or other sum than said sum of $210.70 ; that there is now actually owing and unpaid, from the defendants to the plaintiffs, upon the said note the sum of $300, and that the said plaintiffs have, since the said 7th day of April, 1863, demanded the same of the said defendants, who refused to pay the same. Whereupon the plaintiffs demanded judgment against the defendants for the said sum of $300, with interest and costs.</p> <p>The defendants, by their answer, denied the allegations of the complaint, and alleged that, on or about the 7th day of April, 1863, they paid to the plaintiffs the sum of $510.70, in full payment of the note mentioned in the complaint.</p> <p>The action was tried before Justice Babboub and a jury. The plaintiffs’ evidence showed that when the note came to the plaintiffs, the figures on the margin were either $210.70, or so written as to be readily taken for them. It was first entered on the collection register of the defendants, by calling off from the figures on the margin as $210.70.</p> <p>A notice or ticket, sent to the defendants, of the note falling due, was made out, by a clerk in the bank, from the figures on the margin of the note, and left at the defendants’ place of business by an express, on a list of notes to be paid on the 7th of April, made up by the receiving teller to guide him. The figures on the note were entered as $210.70; the note was paid according to the list, and the cash entries of the defendants’ books balanced according to it. One of the defendants, (Claus Smith,) when he came to pay the note, handed back the ticket that had been sent tó the defendants, in which the note was designated as a note of $210.70. The ticket agreeing with the figures on the margin of the note, the latter was surrendered without examination. After the error was discovered, the defendants, when called upon, first said that the' note was destroyed, but finally brought it to the bank in a • mutilated condition, with the names of the makers, and the figures on the margin torn off.</p> <p>One of the defendants was examined as a witness, and testified positively that he called at the bank and called for T. C. & 0. Smith’s note for $510.70, and handed the money to the teller, who counted it, asked him how much money there was, stamped the note, and gave it to the defendant; and that he, the defendant, tore off the figures from the note, so that nobody could claim it.</p> <p>At the close of the testimony the defendants’ counsel requested the court to charge the jury that the evidence, on the part of the defendants, was direct, affirmative, and positive proof of the payment of the whole amount of the note, whilst that on behalf of the plaintiff was not of that character, but was merely circumstantial and inconclusive, and what might be termed weak, inferential evidence, and that, if they believed the witnesses of the defendants to be credible witnesses, they were bound to render a verdict for the defendants; but the court refused so to decide or to charge, to which refusal' the defendants’ counsel excepted. The jury thereupon found a verdict for the plaintiffs for $340.19.</p> <p>The defendants moved for a new trial, which was denied, and they appealed from the judgment, and from such order.</p>

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

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

<p>A consignee with power to sell, has an insurable interest; and if the consignor after-wards assent, he will be responsible for the premium, and be entitled to- the benefit of the policy.</p> <p>Where a vessel insured from New Orleans to Vera Cruz, on her way through Lake Borgne, touches at the Bay of St. Louis for the purpose of procuring a pilot to conduct her through Pass Christian, it will not be a deviation.</p>

<p>The action was brought to recover damages for injuries sustained by the plaintiff, by the falling of a rock, on October 13, 1858, under the following circumstances: The plaintiff was part owner of a canal boat, and on the occasion when the injury happened, he, with others, was on board the canal boat, on the Delaware and Hudson canal, en route from Port Ewen to Hawley. At the time the rock fell, the boat was lying on the berme side of the canal, about fifty or sixty yards below Butler’s lock. Whilst lying there, a piece of the rock bordering on the canal became detached, and fell, striking the plaintiff, and severely injuring him. The boat was at this time lying on the berme side, pursuant to the regulations of the company, and the order given by one of its employees. The complaint alleges that the defendant owned or had the control of the canal, lock, and the banks or sides thereof, and that the rock became detached and fell, through the negligence and carelessness of the defendants, their agents and servants.</p> <p>The answer admits that the defendants were and are a corporation, and have their principal office in the city of New York, and that they were and are the owners of the canal, but denies all the other allegations in the complaint. The only proof tending to show negligence on the part of the defendants was that in 1846 rock was blasted by the company in the neighborhood of Butler’s lock, about four or five boat lengths below the rock; that many holes were left in the rock by blasting. There was evidence that after a rain a great many loose stones would come down; that there were different points where stones frequently fell; and that on one occasion a large stone fell at a point above Butler’s lock, but there is no evidence that any rock ever before fell at this point. The defendants moved for a dismissal of the complaint, on the ground that there was no proof of negligence on the part of the defendants ; the motion was granted; the plaintiff excepted; and the exception was ordered to be heard in the first instance before the general term.</p>

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

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

This action was brought to recover upon a promissory note set out in the original complaint and alleged to be in the plaintiff’s possession, as follows: “ $1000. Hew York, July 1, 1856. Ten months after date, I promise to pay to the order of Jeremiah S. Lane, one thousand dollars, for value received, with interest from date. Anthony P. Salter.

The plaintiff alleges in his petition : that in the year 1832, he purchased from Mary Luzenberg, then the wife of one Fort, now married to the defendant Charles A. Luzenberg, a lot of ground in the city of New Orleans, from a part of which he was subsequently evicted by a judgment of the Circuit Court of the United States, for the Ninth Circuit and Eastern District of Louisiana in a suit instituted against him by Edward Livingston.

<p>1. In an assignment by the plaintiff, as patentee, of a right to a coffee cleaning and polishing machine, of the exclusive right of using such machine in certain districts, it was declared to be granted upon certain conditions, one of which was the payment, by the defendants, (who were the assignees,) of certain sums, as a toll upon every bag of merchantable coffee, or “ shimmings,” which should pass through the process conducted by such machine, and a monthly account by them of such bags so submitted; but, on a failure by the defendants to perform, such agreement, such assignment was to be void, and a certain sum, ($5000,) recited to be already paid by them, forfeited. Another of ' the conditions was, that such sum was to be refunded out of the earnings of such machinery, whenever the plaintiff’s, share thereof exceeded a certain sum, ($2000.)' A third of such conditions was, that the assignor’s interest should “ be kept inviolate, by keeping in active operation the machinery therein contemplated and used by ” the assignees, (the defendants,) so that it might <cbe made available and productive, and payable as therein before provided for.” And the last of such conditions was, not to sell any patent rights without the plaintiff’s consent. Such conditions, and their performance, were made, in such assignment, the consideration for it.</p> <p>Held, that no express covenant was contained in such agreement of the defendants to work the machine specified therein, or use the process therein referred to at all, nor could any be implied from its terms, a forfeiture of the right being the sanction attached to, and the only consequence provided for, any neglect to comply with its provisions; notwithstanding it contained a provision that the defendants might commute the sum to be paid for its benefits, when they availed themselves of it, for a gross sum, ($15,000.)</p> <p>2, Where the plaintiff’s claim rests wholly on a written instrument, which cannot be varied by parol evidence, and is not sustained by it, a judgment of reversal of a recovery upon it, on appeal should be absolute.</p>

<p>Appeal from the' Court of Probates of New Orleans, Bermu* dez, J.</p>

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

<p>This action was brought to recover damages for injury to a cargo of wheat on board of a vessel on the Erie canal, in the year 1860, caused by the negligence of the defendants in their transportation of it as common carriers from Oswego to New York. The plaintiffs claimed such damages by a title derived from the consignees of such cargo, (Messrs. L. Roberts & Co.) and acquired before the commencement of this action. The plaintiffs insured such cargo on its voyage, under an open policy. The defendants gave a bill of lading for its delivery absolutely to' the consignee in the same condition as when shipped, “ damage or deficiency in quantity to be deducted from the charges.” The cargo was damaged by water near a place called Fort Plain. An agent of the defendants (Stout) immediately informed the consignees of the injury. An agent of the latter (Higgins) forthwith notified the plaintiffs thereof. The cashier and general agent of the defendants (Clapp) also telegraphed, shortly after, to an agent of the plaintiffs (Cary) to “take, charge of the cargo on account of whom it might concern.” Such agent (Cary) after removing the cargo from the boat, during the same year, sold the damaged portion, (1781$£ bushels,) with the approbation of an agent of the defendants (Chase) and in the following spring transhipped the residue by another vessel (the Northamptonshire) to Hew York, where it. was received by the consignees. They, by their agent (Eequa) gave a receipt for such grain on the 9th of May, 1861, to the defendants’ agent (Stout) in the following words and figures :</p> <p>“Eeceived, Hew York, May 9th, 1861, from the Western Transportation Company, per boat Northamptonshire, in good order, as marked in the margin, subject to the terms and conditions of the notice of the arrival of this property from said company, herewith served, fifty-seven hundred and twenty bushels of wheat, less seventeen hundred and eighty-one sixteen sixtieths bushels received by consignees at Fort Plain from boat Lyman Dennison.”</p> <p>On the back of such receipt, when signed, were the following words and figures:</p> <p>Fr’t from Oswego, 3,938fjj- bu. C. B. ..... $590 81 87 81 457 60 13 96 Advance charges, 457 Days interest on $457.60, 1149 38</p> <p>Towing, . ............. $8 00</p> <p>1557 38</p> <p>Less for general average,......... 50 00</p> <p>$1107 38</p> <p>56ff bush, short $1.30,......... 72 85</p> <p>• $1034 53</p> <p>On the 20th of May following, the plaintiffs, after receiving the proceeds of the sales of the damaged grain, paid the consignees the full amount of their loss, ($2600,) and the latter thereupon executed a written assignment to the former of all their claims upon the. master of the vessel, by which such grain was shipped, or any other person, for damages thereto.</p> <p>The complaint alleges the shipment of the grain in question ; the undertaking to the consignees by the master of the vessel in which it was shipped, as agent of the defendants, to transport it safely ; and the injury by their negligence on its voyage. Also the assignment by the consignees of all their claims, for such damage, before the commencement of this action. The answer takes issue upon all the allegations in the complaint, except so far as the same are admitted therein. It then alleges that certain advances made by the shipper were to be refunded in case the vessel by which such grain was shipped was frozen in the canal so as to be unable to perform her voyage. That the vessel was compelled to suspend the prosecution of her voyage by such freezing, of which notice was given to such consignees. That thereupon the consignees and the plaintiffs took possession of such wheat, and received and stored it at the place of detention. Also that the damage to such cargo was caused by drawing off the water of the canal by the state officers having charge thereof. Also that before the assignment to the plaintiffs, of the claim in suit, the damage and injury to such cargo was agreed upon, adjusted and settled between the defendants and "the consignees, which included the cause of action set out in the complaint.</p> <p>All the issues in the action were referred to a referee to hear and determiné. Ho evidence was given on the trial before such referee of the cause of damage to the cargo in question.'</p> <p>On such trial the defendants’ agent, Stout, testified in substance, that he made a settlement with Eequa, the agent of the consignees, L. Eoberts & Co. Its figures were on the back of the receipt, which was that before mentioned, (dated May 9, 1861.) They were a statement of the settlement in' full. While making such settlement, the matter of the transfer of a portion of the cargo of the Lyman Dennison to the vessel by which it was finally brought to New York (the Northamptonshire) was talked over. A claim was made for a deficiency of fifty-six bushels : also for damage to the cargo in addition to the sum of $50, mentioned in such statement, which was allowed. Other claims were made which he refused. On being cross-examined, .he stated that he then knew that part of the cargo of the L. Dennison was not there to deliver, and first that he did not, and then that he did, know that it had been sold or damaged and taken out and sold; that they talked about the part not delivered, but he couldn’t say what it was, as it was four years previously. Mr. Eequa1 claimed for the full amount of the difference between what was delivered and the amount in the bill of lading, and no other claim was referred to. The witness had no figures before him of the damage at Fort Plain. The item in the bill “ less for general average,” was what he called the damage. He could not tell how they got at the figures. The clerk of the consignees (Eequa) testified that he signed the receipt; the business was done between Stout and himself, but he did not recollect that any thing was- said or done about the damaged part of the cargo, or any discussion of the claim. He thought it was not embraced. He also testified it was customary to make a deduction in such cases. He did not know why. An adjuster of losses (Higgins) testified that “ there was always made a deduction of $50 from the freight bill on cargoes of grain * * irrespective of the extent of the damage or amount of loss it was “ generally deducted by the consignee out of the freight in the regular course of business.”</p> <p>On the trial the witness, Requa, testified that he paid a certain sum ($257.38) which was the balance due according to the settlement and took a receipt. A blank form of a policy of insurance purporting to be made by the plaintiffs but not signed by any person, without any statement in it, of any property, amount or subject insured, any voyage, duration of the risk, or premium, was introduced in evidence and its admission excepted to by the defendants, but no motion was made to strike. it out. It contained a provision that there was to be no abandonment of the subject insured, and another that “ should any loss or damage under that policy be occasioned by any other vessel, person or persons, in such manner that” the latter “ should be liable therefor, then all claims for such loss or damage should be assigned to the company for their benefit, in proportion to the amount of such loss sustained by them.”</p> <p>The referee made a report whereby he found as facts ; the shipment of the cargo, its damage by water, its abandonment to the plaintiffs, the taking possession of it by them, the sale by them of the damaged wheat; the reshipment of the residue to New York, the receipt thereof by the consignees, the assignment by such consignees of their claim for damages in consideration of the payment by the plaintiffs to them of their loss ($2461.98) and a settlement three days afterwards by the defendants with such consignees for freight and charges, the former receiving and giving a receipt for the balance due, in which an allowance was made for a certain number of bushels (56-iVo) short delivered. He also stated therein, as matter of law, “that by reason of” the abandonment of the goods to the insurers, their payment of the loss on their policy and “ by virtue of” the assignment to them, they were subrogated to all the rights of the consignees on the bill of lading, and that the circumstances of the case constituted notice to the defendants of the intervening rights of the plaintiffs as insurers of the property injured, and their settlement with the consignees “ was without effect on the previously agreed rights of the plaintiffs, and did not adjust or settle any part of the claim made in this action and that the plaintiffs were entitled to recover against the defendants the amount of such liquidated damages, with interest.</p> <p>Exceptions were taken to such findings by the defendants, and they appealed from the judgment; which appeal was now heard.</p>

A statement of facts made out before the appeal, but ten months after judgment, is in season. Union Bank v. Williams et al. 16 La. 237. There is no proof on record of Galpin’s bankruptcy, or of his being in failing circumstances. His declining to pay the first draft is no proof of the fact, and he justly refused or neglected to pay the others, as the plaintiff had withdrawn, by sequestration, the very funds on which Galpin’s acceptances were based.

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

<p>Appeal.from the District Court of the First District, Bucket-nan, J.</p>

<p>The act of 12th March, 1838, creating the office of Collector of State taxes on landed property, slaves, and vehicles foi the parish of Orleans, contemplates and provides that a collector ofState taxes for that parish shall be appointed every year, for the special purpose of collecting the taxes due on the assessment roll, made for and during the year of his appointment, without any reference to the collection of the balance of the taxes remaining due for the preceding year. The bond required relates exclusively to the assessment made during the year of the appointment. And under the act of 28th February, 1840, amending that of 12th March, 1838, though another person may have been appointed collector for the next year, the collector of the preceding year is authorized, and bound to retain the assessment roll and receipts for taxes uncollected at the end of his year, and to proceed with the collection of such taxes until, according to the terms of his contract with the State, he shall have collected and accounted for all the State taxes for the year for which he was appointed. The appointment of a new collector does not destroy the commission of his predecessor.</p>

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p>

This action was brought to recover commissions on the sale or exchange of a stock of hardware. The plaintiff alleged an agreement by the defendant to pay him five per cent. The defendant denied the services, and alleged that he had paid the plaintiff $400, in full of all claims.

<p>Where the -endorser of a note has died, notice of protest must be sent to his legal representatives. A notice addressed to the deceased by name, will be bad. And plaintiffs must show that a certain degree of diligence was used to ascertain the executor, administrator, or heirs and representatives of the deceased.</p> <p>Where, in an action against the drawer and endorsers of a promissory note, plaintiffs, after obtaining judgment and execution against the former, order a stay of execution without the assent of the endorsers the latter will be discharged.</p>

<p>Appeal from the Court of Probates of West Baton Rouge, Favrot, J.</p>

<p>Appeal from the Court of .Probates of West Baton Rouge, Favrot, J.</p> <p>The pleadings and evidence in this case are accurately re-cited in the opinion delivered by</p> <p>Morphy, J. The petitioner represents that he is the dative tutor of Francis Hacket, junr., one of the two children of Francis Hacket, born of his marriage with Maria Adams, both deceased ; that before his appointment, Francis Hacket, junr. had had two tutors in succession, to wit, his mother Maria, and, after her death, James Hacket, her second husband; that he has also been appointed tutor to the three minor children left by the late James Hacket; and that he is now desirous of tendering to Francis Hacket, his late ward, now of full age, an account in his double capacity as his tutor, and as tutor of the minor heirs of James Hacket. Annexed to the petition is a statement or account, showing in favor of Francis Hacket, junr. a balance of $2254 13. The petition concludes by praying, that the administration of the former tutors as well as his own, may be approved, and that he may be discharged from his trust. Francis Hacket filed an answer or opposition stating in substance, that the account does not contain a correct statement of his rights ; that instead of the sum allowed him, he is legally and justly entitled, as one of the heirs of the late Francis Hacket, to $11,7(51 25. The answer avers, that a tract of land of four hundred and ten superficial arpens, which was the separate property of the respondent’s father, acquired before his marriage with Maria Adams, was erroneousjy included in an inventory taken on the 1st February, 1832, of the community which had existed between his mother and her second husband James Hacket: that this land was sold by Francis Hacket, on the 16th of July, 1817, to one Michael Adams, for the sum of'$7000, but continued to remain in the possession of the former and his heirs, until the 21st of June, 1824, when said Michael Adams, by an authentic act, executed a sale of the premises to Maria Hacket and James Hacket, apparently for the sum of $7,500 in cash, but that in truth nothing was paid in cash by the mother of respondent, or her second husband, to the said Michael Adams, whose sole and only object in making a reconveyance of the property was to reinvest the heirs of Francis Hacket with the title to the same, and to free himself from the payment of a note of $6000 which he had given for the land, and which he appeared by the inventory, taken after Hacket’s death, to owe to his estate : that notwithstanding the aforesaid sale and re-sale, the land in question has never ceased to belong to Francis Hacket and his heirs ; and that any attempt on the part of James Hacket, or of the petitioner, as the tutor of his heirs, to make said land community property of the second marriage, by reason of the re-sale executed by Michael Adams on the 21st of June, 1824, is a fraud on the rights of the respondent and his sister Elvira. The answer further sets forth, that on the death of Maria Hacket in 1832, the said tract of land, together with the slaves Betsey, and her children, Arthemise and Lise, which were also the separate property of Francis Hacket, and the slaves Barney, Mehaly, and Jane, which belonged to the first community between Francis Hacket and Maria Adams, were erroneonsly and unlawfully adjudicated, at the price of appraisement, to James Hacket, as property common between him and his three children, and at his death were sold, in 1839, as belonging to the succession, at the instance of the petitioner the tutor of his minor heirs. That the rights of the respondent, and his sister Elvira, to all the separate property of their father, and to one half of the community property between their father and mother, were not in any wise affected by the family proceedings had in 1832, and that so far as the same were intended to apply to the property of their father, and to vest any title thereto in James Hacket, they are absolutely null and void. The answer further avers that, the property which rightfully belonged to Francis Hacket, and which descended to his two heirs, was sold, in 1839, for $23,522 50, one-half of which sum the respondent is entitled to claim, as he is willing to ratify the sale thus made by the petitioner, who has received the proceeds of the said sale as tutor of the heirs of James Hacket. The answer concludes with a prayer that the account filed may be rejected, and that the respondent do recover of the petitioner the sum of $11,761 25, with interest from the 1st of February, 1832.</p> <p>The issue being thus joined, Elvira Hacket intervened, and adopting as a part of her petition, the answer of her brother Francis Hacket, she represents that she has a right to intervene and demand a legal settlement of her father’s estate, which would entitle her to claim and recover of the petitioner the like sum of $11,761 25, subject to a credit of such sums as she has already received from him. She further shows, that on the 1st of May, 1839, James Hutchiss presented her a statement, showing that as one of the heirs of Francis Hacket, she was entitled to receive, in principal, only $2176,27 ; that implicitly relying upon her former tutor’s averment, in his account, that her rights were shown' to be such, as he represented them, by the archives of the Court of Probates, she was misled and. deceived as to her real rights, and unadvisedly signed the account acknowledging its correctness ; that afterwards, to wit, on the 13th June, 1839, she was persuaded and induced by said Hutchiss to appear before a notary, and, on receiving from him the aforesaid amount, to give him an acquittance and release, all of which was done in entire ignorance of her rights as heir of Francis Hacket, and without any knowledge of the fraud practised by James Hacket to divest her and her brother of their legitimate rights; that the said Hutchiss well knew, when he induced her to approve his account, that it was not and could not be supported by the archives of the Court of Probates ; that under such circumstances the acknowledgment she signed, and the discharge she granted, should not prejudice her rights, and preclude her from recovering what she is legally entitled to. Under these pleadings the parties went to trial, whereupon the Court of Probates rejected the accounts now and formerly rendered, and decreed that the tutor, James Hutchiss, should pay to the intervenor, and to the respondent, $9,033 04 cents each, after deducting therefrom the sums respectively received by each. The tutor has appealed.</p> <p>The right of Elvira Hacket to intervene in this case, must be tested by articles 389, 390, of the Code of Practice. Art. 389 declares that, “ An intervention or interpleader is a demand by which a third person requires to be permitted to become a party in a suit between other persons, either by joining the plaintiff in claiming the same thing, or something connected with it, or by uniting with the defendant in resisting the claims of the plaintiff.” Art. 390 provides that, “ In order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit.” Here, the intervenor does not join the tutor, nor the opponent; nor does she oppose both, as permitted by sect. 10 of the act of 7th April, 1826, amending the Code of Practice. Hep demand is separate and independent. She claims $11,761,25 for herself; the opponent demands other $ 11,761,25 for himself. She neither claims the same thing, nor any thin'g connected with the object demanded by the opponent. The issue in the case between the original parties is, whether Hutchiss shall pay to Francis Hacket, the opponent, $11,761,25, instead of the sum stated to be due in his account. The intervenor comes in and alleges that another account, rendered by Hutchiss to her, was erroneous and should be so declared, and that she also should recover from Hutchiss $11,761,25 instead of the sum allowed her by the account already rendered. This intervention raises a new and distinct issue — that is, whether the account formerly rendered to her should be annulled, and a different sum paid to her. The decision of the issue between the original parties could in no manner affect her rights ; and she cannot, .consequently, sustain her intervention. 7 Mart. N. S. 196. She has no interest in the $11,761,25 claimed by the opponent; and an interpleader cannot change the issue. 5 Mart. N. S. 501.</p> <p>The court below erroneously admitted the testimony of Adams to contradict the written acts of sale by Francis Hacket to Adams in 1817, and by Adams to James Hacket in 1824. Its tendency is to destroy those acts ; to divest James Hacket and his wife and their heirs, and to vest the estate in the heirs of Francis Hacket. Its admission is in violation of two settled principles ; it is the admission of parol evidence, first, against the contents of a written act; and secondly, to prove -title to real property. Civil Code, arts. 2255, 2256. 12 Mart. 418. The opponent and inter* venor claim as heirs of Francis Hacket, and they are like himself, bound by the act signed by him. Civil Code, art. 2233. Between the parties, nothing but a counter letter can be received to contradict a written act. 19 La. 409. The sale by Adams to James Hacket and wife, in 1824, for cash, vested in the purchasers and their heirs, a complete title to the property. 10 La. 181. The object of Adams’ testimony is to divest this title.</p> <p>The wife of James Hacket, the mother of the opponent and intervenor, having died in 1832, leaving children by her two husbands, an inventory of all the property was made, the price of which is now claimed by the opponent and intervenor. All this property was adjudicated, at its appraised value, to James Hacket, the surviving husband, under the advice of a family meeting, and a decree of the Court of Probates. James Hacket having subsequently died, the property was again appraised, and sold as belonging to her succession. The opponent and intervenor now attempt to ratify the last of these two sales, and to claim the price. This they have no right to do. Suppose that there had been several more of these sales, could they ratify any one at their choice ?</p>

<p>Where the fact of a partnership is clearly shown, and that the bills of exchange sued on were drawn for the purpose of carrying on the business contemplated by the parties, plaintiffs will not be required to show, that they knew of the existence of the partnership when they took the bills.</p> <p>Where for a limited period, and in relation to a particular branch of commerce, defendants were to buy and sell on joint account, and to participate in the profits, they become, as to third persons, partners in relation to that trade.</p> <p>There are cases in which the parties, though not partners inter se, will be held liable as such towards third persons.</p>

<p>This is an appeal from a judgment entered upon the report of a referee, in favor of the plaintiffs, against the defendant.</p> <p>The complaint alleged, that on the 31st of January, 18615 L. H. Mattison owed the plaintiffs $1625 for goods, when it was agreed between the plaintiffs and the defendant, that the plaintiffs would sell the said demand to the defendant and release Mattison from all liability to the plaintiffs thereon, and the defendant Would furnish and deliver to the plaintiffs, silver plated goods, consisting of plated' forks and spoons, of " a value and at a price agreed upon, per dozen, equal to the indebtedness ; said goods to he delivered in February and March, 1861; that said debt was sold and Mattison released and discharged from liability to the plaintiffs thereon ; that Mattison assented to the arrangement, and promised to pay the debt to the defendant, that goods to the amount of $1235.97 were delivered on said agreement, between the first of March and the first of July, 1861; no other goods were delivered ; demand has been frequently made for the balance of the goods, but the defendant neglected and refused to comply with the demand and deliver said goods; that goods amounting to $440 remained due, &c.</p> <p>The answer denied all the allegations contained in the complaint, except that it admitted the defendant did deliver to the plaintiffs, goods to the amount of $1235.97 to apply upon the alleged debt due from Mattison to the plaintiffs. The defendant further alleged therein that he did deliver to and for the plaintiffs more than sufficient in amount and value to pay the debt of Mattison, and denies that $440 is due the plaintiffs. It was shown, upon the trial, and the evidence establishes, that on the 31st of January, 1861, the plaintiffs had a debt against Mattison of about $1500, which they were desirous of securing, and were pressing him for payment; that Mattison was unable to meet the demand at once, and for the purpose of securing its payment to the satisfaction of the plaintiffs, he procured the defendant to assume and agree with Mattison and his father to assume his (Mattison’s) debt to the plaintiffs, for $1000 in cash, to be paid by the father to the defendant, and the notes of Mattison for the balance, which notes and money the defendant afterwards, received in full. In pursuance of this understanding between the defendants, Mattison and his father, and for this consideration, the defendant agreed with the plaintiffs, through Wilcox, the agent, to furnish and deliver to the plaintiffs, in the months of February and March, certain plated ware at a price agreed on, to settle and purchase the debt held against L. H. Mattison. The plaintiffs agreed to “ give up ” their claim against L. H. Mattison to the defendant, as soon as he delivered to the plaintiff the amount in the wares as per agreement. These two agreements were in writing, and dated on the same day. Mattison was released by the company from all liability to them, so far as such a paper not under seal could do so. The quantity of goods delivered to the plaintiffs, under this arrangement, amounted to $1225.19. Mattison, as was agreed with the defendant, was to receive from him and ship for him the goods to the plaintiffs. A demand was made for the balance of the goods, and the defendant neglected to deliver the remainder, whereupon this action was brought to recover their ■ value, and the referee to whom the issues were referred, gave judgment for the plaintiffs therefor.</p>

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

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

<p>In the absence of proof to the contrary, it will be presumed that the judgment of an inferior court was rendered on the necessary evidence ; but where the record itself shows that a judgment by default could not have been rendered on such evidence as the law requires to make it final, the case will be remanded.</p> <p>Where on an appeal from a judgment by default confirmed below, the clerk certifies the record as containing a true copy of all the documents on file and proceedings had, but does not show that any other document, which may have been produced, was not filed, and it appears from the transcript that without producing another document the judgment could not have been legally confirmed, the judgment must be set aside. Per Curiam. If no other document was produced, the evidence was insufficient; if produced, it was the plaintiff’s duty to have placed it on file. C. P. 585.</p> <p>Where by the consent of counsel, an order has been entered, remanding the record for the purpose of being perfected, coupled with an agreement that the whole case shall be submitted on written arguments, within a certain time, the appellee will be considered as having renounced any right to move for a dismissal of the appeal on the ground of want of citation.</p>

<p>1. The release of mortgaged premises from the lien of a mortgage, upon the ground of its payment, will not be enforced in an action brought by a grantee of the mortgagor against the assignee of the mortgagee, without evidence either of payments made expressly on account of the bond, to secure which such mortgage was given, or on account of the indebtedness of the mortgagor to the mortgagee generally, in such manner as by the rules of law governing appropriation of payments would render them first applicable to the extinguishment of such bond; or of some other agreement, express or implied, between the mortgagor and mortgagee to apply some indebtedness of the latter to the former, for the purpose of such satisfaction or some right of the grantees of such premises, as assignees of such indebtedness, to set it off against the claim of the mortgagee when seeking to enforce such mortgage against the land.</p> <p>2. In the absence of such an agreement or payments, the mere co-existence of mutual, debts would not extinguish either of them, or compel either party to elect to sue upon his claim, or avail himself of it as a set-off. The necessity of such election in the case of actions brought in some inferior courts, created by statute, does not exist in any other case.</p> <p>3. In the absence of any direct evidence of any express agreement between a mortgagor and mortgagees for the application of some indebtedness of the latter to the former, in satisfaction of the mortgage, the delivery by the mortgagor to the mortgagee, of foul- new obligations, payable with interest, for every six months' interest accrued on, the bond, to secure which such mortgage was given, dated on the day it became due, and a release by the mortgagees of part of the mortgaged premises from the lien of such mortgage, with a recital in the instrument of release that such mortgage should remain a lien on the residue of the premises, if unexplained, are conclusive evidence that both parties considered such mortgage unsatisfied, aind kept its lien alive at the time of giving such release and obligation.</p> <p>4. Where a mortgagor and mortgagee had general dealings and accounts together for a series of years, the delivery by the former of Ms promissory note, in satisfaction of a balance found due by Mm on a statement of such accounts in one year, and the payment by Mm in cash in the following year of another balance found due on a second statement of accounts, followed by the delivery of the bond and mortgage in question in the third year, in settlement of a balance found due on a like statement, is strong evidence of such a course of dealing between the parties as to show an agreement to take the specific balances for which such specific obligations were given, out of the general accounts of the parties, until all dealings between them had ceased.</p> <p>6. The rendition of accounts between parties having mutual dealings, and the absence of objections, has always been considered prima fame, and in some cases' conclusive, evidence of their correctness, tw Robeetson, Ch. J.</p>

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

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

<p>Where a wife has obtained against her husband, a judgment for the separation of property, and ascertaining the amount of her dotal and paraphernal rights, the creditors of the latter may still require her to prove her claims contradictorily with them, whenever they have reason to suspect that the separation has been made with a view to defraud them ; but they must put her on her guard by alleging fraud and collusion. Where no such allegation is made, she will not be bound to prove her claims aliunde, nor can the correctness of the judgment, or the sufficiency of the evidence upon which it was rendered be inquired into.</p> <p>To secure a debt due to mortgagee, twelve lots of ground were mortgaged by the same act, but separately and specially, each lot as security for a fixed part of the debt ; and the wife of the mortgagor renounced all her rights, actions, privileges, and mortgages on them. An order of seizure and sale having been obtained, lot No. 1. sold for more than the part of the debt for which it was mortgaged, while all the others sold for less than the sums for which they were, mortgaged. In a contest between the wife and mortgagee : Held, that the wife must be considered as having renounced her rights only to the extent of the mortgage on each lot; and that the surplus realized by the sale of lot No. 1., cannot be claimed by the mortgagee, but must be applied to the satisfaction of the rights of the wife, after deducting its proportion of the costs of the sales, calculated according to the price it brought.</p> <p>The decision in Doubrere v. Grittier’s Syndic, 2 Mart. N. S. 171, that an act sons seign privé will have effect against third persons from its date, if possession accompanied or followed its execution, was made under the Code of 1808, and is inconsistent with the provisions of art. 2417 of the present Civil Code.</p> <p>A wife who has renounced the community of acquets, must be regarded as a third person in relation to sales of community property made during the marriage ; and every thing done during the marriage in relation to the sale or alienation of property, must be viewed as done by the husband alone.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>cited the case of Allen v. Arnouil, 1 Robinson, 399, as decisive of this case.</p>

This was an action against the defendant, a resident of the parish of Concordia, and a stockholder in the Union Bank, for a balance due on a stock note executed by him, payable at the banking house of the plaintiffs in New Orleans. The defendant excepted to the jurisdiction of the court, on the ground that the petition showed that he was a resident of the parish of Concordia, and contained no allegation of any fact which could give jurisdiction to the court.

<p>This is an appeal from a judgment, and an order denying a motion for a new trial. The action was brought to recover damages for losses and injuries sustained by reason of the falling of a stack of ovens upon the plaintiff’s house, on the night of the 10th of Hovember, 1862. It was claimed that the ovens were put up by the defendant in a careless, negligent, unskillful, unworkmanlike and insecure manner, whereby the structure fell and caused the damage.</p> <p>It was not denied by the defendant that the ovens fell, and did the plaintiff an injury, but the amount thereof, and negligence, or want of skill in building, was denied. Upon the trial it appeared in evidence, on the part of the plaintiff, that on the day of the injury, and for some time previous thereto, the defendant was the owner of the lot Ho. 58 Rutgers street in the city of Hew York, upon which he was and had been erecting a stack of ovens, four stories high, not entirely completed. The ovens fell upon the house of the plaintiff, injuring and destroying his property, doing him great personal injury, and killing one of his children. There was evidence that the ovens, walls, arches and. ties were constructed under the eye and personal inspection of the defendant. It was in proof that the arches were not high enough ; that if, in addition to the ties which ran but one way, they had been put in both ways, the structure would not have fallen. And there was other evidence upon the question of negligence and want of skill in the construction of the building by the defendant which justified the court in denying the motion to dismiss the complaint.</p> <p>Evidence was also given by and for the defendant, and the case was submitted to the jury under a charge from the court without exception thereto by either party, who found a verdict of $200 for the plaintiff, upon which judgment was entered.</p>

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

The petitioners allege, that in January, 1842, they applied to the defendants for a loan of notes of the Bank of the United States to the amount of $14,000 ; that as those notes were then worth in the current bank notes of New Orleans about seventy-two cents on the dollar, they deposited in the hands of the defendants $10,080 in New Orleans notes ; that it was agreed between the parties that defendants should return the sum deposited with them, when requested, at any time…

This was an action to recover damages for injuries to a horse and wagon of the plaintiffs, injured by being struck by a train of cars of the defendants, while on their railway.

This appeal was from a judgment for the plaintiffs for $60.20 of damages, and $381.10 of costs, entered on the report of a referee. The action was brought to recover the balance unpaid of the sum of $19,886.34, claimed to have been due from the defendant to the plaintiffs on the 12th day of September, 1857, for moneys collected by the defendant as attorney of the plaintiffs.

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

<p>The act of 18th March, 1818, creating the offices of Surveyor General and Parish Surveyor, contains nothing indicating an intention to prevent any municipal corporation within a parish, from appointing their own surveyors, or making it the duty of owners of property to employ the surveyors appointed by the State, and no other; and arts. 828, 829 of the Civil Code mainly relate to cases of dispute between adjoining proprietors as to the boundaries between their lands. Although the formalities prescribed by these articles are required to be fulfilled by a sworn officer of the State, for the purpose of fixing permanently the limits of property, it does not follow that a surveyor appointed by a municipal corporation, or any other not commissioned by the State, cannot be employed by a proprietor desirous of having his land surveyed and its limits ascertained; but such survey and fixing of limits, will not have the same binding effect upon his neighbor, as if made by the Parish Surveyor, nor will the prods verbal prove itself, or obtain full faith in the courts of this State.</p>

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

This succession consisted of moveables, which were, at the opening of the succession, in the house leased by the opponent, Louis Joseph Pecquet, to the deceased. ¿Pecquet has apppealed from the judgment of the Probate Court placing his privileged claim next after “ the funeral and law charges.”

<p>When a partnetship has been once formed, no third person éan be subsequently admitted into the firm, without the concurrence of all the original members. One attempted to be admitted otherwise, becomes only the partner of him who attempts to admit him.</p> <p>The publication in a newspaper by a third person, that he is a member of a commercial partnership, cannot be considered as an act emanating from any of the partners and giving credit to such person, unless knowledge of the publication be brought home to the partner sought to be charged. To render the latter responsible for the acts of such third person, it must be proved that credit was given to the partner, and that he tacitly acquiesced therein. Nor will the payment by the firm of acceptances by such third person made in their name, prove any thing against such partner, where it is shown that he Was absent from the place of business of the firm until after its dissolution.</p>

<p>Action by the executor for the price of one-third of a certain lot purchased by defendant, at the probate sale of the property of the deceased ; the petition alleging, that the lot belonged jointly and equally to the deceased, the defendant, and a third person, though the title was in the name qf defendant; and, that it was sold at the sale of the succession by consent of all parties. Answer, that though it appeared by a counter-letter, that he, defendant, owned only one-third ; that he purchased from the deceased, and was to sell the same, and account to the deceased and the third joint proprietor, each for one-third, yet that a fourth party had been a joint owner with the deceased; that he, defendant, had endorsed notes to enable the deceased to purchase the interest of such fourth party, which he, defendant, had, after renewal, to pay, owing to the insolvency of the deceased; and that the title to the whole lot was made to him by deceased, to secure him against his endorsement, and the counter-letter executed by him, in consequence. Plaintiff having produced, under a rule taken on him, the original notes drawn by the deceased and endorsed by defendant, the books of the deceased, and other memoranda in his possession relative to the sale, a counter-letter between the deceased and the fourth party, showing the interest of the latter, and their accounts with each other ; defendant offered them in evidence to sustain the allegations of his answer. Plaintiff objected to their being received, on the ground that the notes were not mentioned in the counter-letter signed by defendant. Per curiam: Though the counter-letter does not speak of the notes, or of the interest of such fourth party, evidence is admissible to prove such interest, when it consists of other written documents in the possession of the deceased. Such documents do not contradict the counter-letter, but show another contract connected with the first, in relation to the same transaction, in which all were partners. Nor can the evidence be excluded on the ground that the defendant, sued as a purchaser at the sale of the succession, cannot plead in compensation, a debt due to him by the deceased. It is clearly not a question of compensation in the ordinary sense of the word.</p>

<p>1. A re-argument of a cause will not be ordered, merely upon the grounds that the court overlooked authorities tending to establish the right of lessors to recover the full amount of an assessment as damages for non-payment of it by the lessee, according to a covenant by him contained in the lease, and also erred in supposing that it could not decree a specific performance of such covenant, under the particular form of the pleadings in the case.</p> <p>2. Upon a covenant by a lessee to pay assessments upon the demised premises, the lessor, until he has paid an assessment, or otherwise sustained damage by the ¿On-payment thereof by the lessee, cannot recover at law more than nominal damages.</p> <p>3. In such a case, where the lessor has not paid the assessment, a court of equity has not jurisdiction to compel a specific performance of the lessee’s covenant, by directing him to pay such assessment to the municipal officers, it seems.</p>

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

<p>No appeal will lie to the Supreme Court from any decision of the Presiding Judge of the City Court of New Orleans, in a case originally instituted before an Associate Judge of that court.</p>

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

moved to dismiss this appeal on the ground that the certificate of the Clerk of the court below, showed that the testimony of a witness examined on the trial had not been reduced to writing, and could not be included in the record ; there being no statement of facts, bill of exceptions or assignment of errors.

Plaintiffs purchased from the defendant a number of coils of bale rope, a part of which proving to be of an inferior quality, or materially damaged, they… Held: that every sale of packed cotton is, by usage, a sale by sample, and per se a warranty, and the rule caveat emptor does not apply. to show that the lower court erred in rejecting evidence of the custom, cited, Civil Code, arts. 1897, 1958, 1959, 196.1. 16 Duranton, No. 529. Journal du Palais, vol. 20, p, 954.

<p>Appeal by the plaintiff from a judgment entered on the report of a referee, dismissing the complaint, with costs.</p> <p>The complaint set out as a cause of action a promise by the defendants to pay his assignor (Mr. Griffith) one half of their ¡irofits in buying and selling certain articles of merchandise (spices.) It alleged the consideration to have been an agreement by Griffith, to furnish them with what information he might obtain “respecting the probable action of the United States congress” in regard to duties on spices, and “ advise them respecting the probable future condition of the market resulting therefrom.” It demanded as relief an accounting for such profits, claiming that such agreement was one for a co-partnership.</p> <p>The answer put in issue the making of such agreement or any similar one, except as thereinafter stated. It admitted the making of a conditional promise by them to pay Griffith three eighths of the profits of their dealings in spices, “if certain representations previously made by him were true.” Those representations were that, at the time of making them (February 17,1864,) he (Griffith) had “positive knowledge that the committee of ways and means of the house of representatives of the United States was considering a bill imposing duties upon goods imported into the United States and had adopted a rate of duties to be imposed upon imported spices ;” and also of “ what that rate was; and that it was very large. That he was the only party outside of such committee, who possessed such knowledge.” And again, “ That he positively knew that such committee had agreed to recommend to the house of representatives the passage of a law fixing the duties or taxes upon imported spices ” at certain rates on each article, which he enumerated. It further alleged that before making such promise, Griffith proposed to the defendants to impart such, his, knowledge to them, if they would agree to give him “ as a compensation to him for imparting such Icnowledge to them ” one half of the net profits they should make upon certain spices which he named, purchased by them “after receiving such knowledge and before such committee should report and its action otherwise become public.” And that the defendants, in answer to such proposal, requested him to state “what duties such committee proposed to put upon spices, and assented to entering into some arrangement” with him upon the subject of such proposed enhancement, if duties upon spices “ made it an object." Upon which he made the statement before mentioned, of the amount of the several duties. Such answer also averred that the payment of such net profits was “ a compensation to him for imparting his said knowledge to the defendants.”</p> <p>The answer further alleged that the defendants - entered into such agreement, believing such statements, and representations of Griffith to be true, and upon the faith thereof. That the information so given by him, and all such statements and representations were untrue at the time he made them ; and he knew the same to be untrue at that time, and made the same fraudulently to procure money from the defendants. It also negatived the statements' contained in such representations, and stated some facts inconsistent with their truth.</p> <p>The case was tried by a referee, who found as facts : That the representations stated in the defendants’ answer, were made by Griffith as therein set forth. That the defendants, believing such representations to be true, and upon the faith thereof, made the agreement with Griffith set out in their answer. That thereupon the defendants purchased the spices mentioned in the complaint. That all the statements and representations so made by Griffith were untrue, and Griffith had no reason to believe the same to be true. That such committee had not agreed, and Griffith had not been informed, that it had agreed to recommend the passage of a law, fixing the duties upon imported spices at the rates stated hy Griffith. That long after such representations and after such purchase, such committee adopted a rate of duties a great deal lower than the rate stated by Griffith. The referee further found that the defendants did not enter into a co-partnership agreement with Griffith, of the tenor or to the effect alleged in the complaint.</p> <p>Upon the facts so found, the referee decided that the agreement made between Griffith and the defendants was void, by reason of the defendants having been induced to enter into it by and through the aforesaid false and fraudulent statements and representations of Griffith, and he dismissed the complaint, with costs.</p>

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

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

<p>A certificate from the Judge of an inferior court, from which an appeal has been taken, will be received at anytime to show error in the original certificate appended by him to the transcript of the record ; and, on a proper showing, the clerk of the lower court may also be allowed to amend his certificate.</p>

<p>The exception that a suit is premature, is a dilatory one, which must be pleaded in limine litis. It is too late after a judgment by default.</p>

<p>Appeal from the Parish Court of New Orleans, Maurian, J,</p> <p>The attorney in fact, Tricou, had no authorty to receive notice of protest. Montillet v, Duncan, 11 Mart. 534. Louisiana State Bank v. Ellery, 4 Ib. N. S. 87.</p>

<p>Plaintiff having paid A. the amount of a judgment, for which he had become liable, as surety of B. on an appeal bond, obtained in February, 1842, a judgment subrogating him to all the rights of A.; who, in December, 1840, had recovered judgment against defendant, as surety of B., on a bail bond executed at the beginning of the original suit, sued to revoke a sale made by defendant in December, 1840, as fraudulent; H-M, that the prescription of one year, established by art. 1989 of the Civil Code, must bar any action against defendant, by A.; that plaintiff, being subrogated to A.’s rights, can have no greater rights than he had ; that the judgment of subrogation, of February, 1842, is not one rendered against the defendant, within the meaning of art. 19S9; and that the prescription did not commence to run from its date, but from that of the judgment of A. against the defendant, obtained in December, 1840.</p>

<p>Jio appeal will lie, under ordinary circumstances, in favor of the syndic of the creditors of aji insolvent, from an order to produce his bank book.</p>

<p>A testamentary executor, to whom the deceased bequeathed a certain sum as a recompense for services rendered by him, and as an evidence of the friendship of the testator, and who has accepted the bequest, cannot claim any commission for his services, unless the testator formally expressed his intention that such legacy should be over and above the commissions, 0, 0. 1679. Nor where, after the expiration of his term as executor, he has continued to act as administrator in the settlement of the estate, can he charge any commission in the latter capacity. His legacy stands in lieu of all commissions, in the administration of the estate.</p> <p>One who has accepted a remunerative legacy, will be bound by the acceptance. If he considered himself entitled to claim a larger sum for his services, he should have renounced the legacy, and have claimed as a creditor.</p>

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

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

<p>1. A mere entry in a book, by the clerk of the brokers of a vendor, by whom a sale of choses in action has been made, of such sale, although assented to verbally by the buyers as correct, is not a sufficient reduction of the contract to writing, or written memorandum,' or note thereof signed by the parties, within the statute of frauds,</p> <p>2. The necessity of having a contract for the sale of shares of stock reduced to writing, within the statute of frauds, is not dispensed with by the statute which provides that no such contract shall be void or voidable by reason of a want of consideration, or the pon-payment of a consideration, or the non-possession or ownership by the vendor, at the time of making such contract of the certificate or other evidence of such shares. (IV. T. Sess. Laws, 1858, oh. 134,)</p>

This was an action claiming the immediate delivery in it of sixteen bales of hops, alleged to be the property of the plaintiff, and wrongfully detained by the defendant. Such merchandise came into the defendant’s possession as the agent of the plaintiff for the sale thereof, and was the residue of one hundred bales originally delivered to him for that purpose.

<p>Receipts signed by a third person in his own name, and not shown to be connected in any way with the defendants^ are inadmissible in evidence against them-.</p>

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

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

<p>Art. 996 of the Code of Practice which provides, that when an estate “ is in the possession of heirs, either present, or represented in the State, though all or some of them be minors, actions for debts due from such successions shall be brought before the ordinary tribunals, either against the heirs themselves, if they be of age, or against their curators if they be under age or interdicted,” applies to estates accepted absolutely, or to those which, after having been administered by a curator, testamentary executor, &c., have come into the possession of the heirs. If the heirs be all of age, and accept unconditionally, they are immediately put in possession of all the property, and are suable before the 'ordinary tribunals for their virile portion of the debts, as if contracted by themselves. If some are minors, the succession cannot be accepted by, nor for them, but with the benefit of inventory. When thus accepted, it cannot be administered partially, but the whole estate must be placed under the management of an administrator, and no part comes legally into the possession of the heirs as such, until the administration is terminated, or a partition is legally made among the heirs. Until such administration or partition, the estate must be administered under the authority of the Court of Probates, in which it was opened, and all claims for money against it must, under arts. 924, § 13, and 933 of the Code of Practice, be presented there for settlement. C. C. 1002, 1040, 1051. C. P. 992. Act 25th March, 1828, ch. 83, $ 13.</p> <p>A claim for a sum of money against a succession, should not be engrafted on a proceeding, the object of which is to call upon the heirs to declare whether they accept or refuse the estate. Where, under such a proceeding, the heirs of full age fail to answer whether they accent or renounce, they may be declared unconditional heirs, and liable to be sued as such. C. C. 1029. But as to minors, no judgment of any hind can be rendered against them. They can, under no circumstances, be considered as having accepted absolutely; (O. C. 346 ;) but must be regarded as heirs of age, accepting with the benefit of inventory. The succession should have been put under administration, as provided by art. 1040 of the Civil Code.</p>

<p>Plaintiff cannot contradict by parol evidence, an act of mortgage on which he sues ; or prove anything beyond it.</p> <p>Where notes secured by mortgage, delivered by the maker, have come again into his hands before maturity, the debt evidenced by them is extinguished by confusion. C. 0. 2214. By re-issuing such notes, he may bind himself, but cannot revive the obligations of the other parties, nor the mortgage securing them, which being only an accessary to the debt between the maker and the payee, was extinguished with it. C. C. 3252, 3374.</p>

<p>Where a vendor allows the things on which he has a privilege, to be sold confusedly with a mass of other things belonging to his vendee, without making his claim, the privilege will be lost. C. C. 319ñ.</p>

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

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

Two appeals were brought up by the defendants in this case; the one taken from an interlocutory order, and the other from the final judgment of the Parish Court of New Orleans, Maurian, J.

<p>It appeared from a copy of a lease offered in evidence, that changes had been made m the original instrument, which were indicated in the margin, but not signed by the parties. Held, that until all parties had approved of the proposed changes, the contract was not valid, and consequently inadmissible.</p>

<p>Plaintiff leased from defendant an hotel, “ with all the appurtenances, and all the household furniture and fixtures belonging to the same.” The hotel was supplied with gas fixtures ; but on application to the Gas Company, they refused to permit the introduction of any gas, on the ground that an amount was still due for gas supplied to a former tenant for which defendant was responsible, and that, according to their rules, no gas eoulclfbe'supplied to the building until the arrears were paid. Defendant having refused to pay the whole amount claimed by the company, a suit was pending to recover it. Per Curiam. The lease entitled plaintiff to call on the Company for gas, on offering to pay for it; but nothing shows that defendant bound himself that such supply should be furnished. If the gas was improperly refused, plaintiff’s remedy was against the company. The defendant caused him no injury by exercising his right of resisting a claim which he deemed illegal.</p> <p>The omission of a lessor to make the necessary repairs to the premises, will not, where the rent is sufficient to enable the tenant to make them, authorize the rescission of the lease, or a suit for damages. Under art. 2664 of the Civil Code, the lessee may, on the refusal or neglect of the lessor, himself cause them to be made, and deduct the cost from the rent due, on proving that the repairs were indispensable, and the price paid by him just and reasonable.</p>

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

. This was an action for money ($7700) alleged to have been paid by the plaintiffs for the defendant, and at his request. In the complaint, which set out such expenditure, the defendant was credited with a certain sum ($1000) paid, and a certain other sum ($5980.50) alleged therein to have been received by them on the sale by them of certain shares of stock (Milwaukie and Prairie du Chien Railway common stock) taken by them as security for the repayment of such advance.

<p>Art. 2456 of the Civil Code, which declares that, “ where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and, with respect to third persons, the parties must produce proof, that they are acting in good faith, and establish the reality of the sale,” recognizes the validity of the sales of moveables against third persons, where the seller retains possession by a precarious title. To give effect to this article, and to the provisions of arts. 1917 and 2243 of the same Code, the cases put in art. 2456, must be considered as exceptions to the rule laid down in arts. 1917 and 2243.</p>

<p>Where, in an action to rescind a sale, on the ground that it was made with the view of giving a preference to certain creditors of the vendor, who is stated to be insolvent, the petition does not allege that the purchasers knew that their vendor was insolvent, and that the latter had not property sufficient to pay the debt of the petitioner ; the sale cannot be avoided.</p> <p>Art. 1982 of the Civil Code is applicable exclusively to a particular class of cases, in which the only alleged ground of nullity is an undue preference given to one of the creditors of an insolvent; while art. 1989 applies to all other contracts by which Creditors are injured.</p>

The contract between Conger and the defendants, as established by the bill of lading, was a stipulation pour autrui. Civil Code, arts. 1884, 1896. 4 Mart. N. S. 668. 5 La. 316.

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

<p>Where the evidence is so contradictory, that the Court cannot determine to whom the property in dispute belongs, the plaintiff must be nonsuited.</p>

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

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p>

<p>1. Upon the trial of a cause by the court without a jury, the proper place for inserting the findings of the court upon matters pertinent to the issues, but not contained in its “ decision,” is in the “ case " prepared for hearing the appeal.</p> <p>2. It is not error for the court to omit to state in its decision under the 267th section of the Code of Procedure even facts material to the issue, any more than for a jury to do so in its verdict; the presumption of law being that its findings on such facts are favorable to the successful party, as every thing necessary to sustain a verdict will be intended.</p> <p>3. Under the 268th section of the Code, giving an appellant a right to have inserted in his “ case ” a brief specification of the facts found by the court, and its conclusions of law thereon, he has a right to require any pertinent facts to be passed upon by the court in the settlement of such case, and his redress, if any, for a refusal, must be by appeal from such settlement.</p> <p>4. Until after a “ decision ” by the court, it cannot be known what facts it may consider material to state, and no exception can be taken to an omission to find upon any previously requested to be found, or a refusal to find others, since neither party is then present in court for the purpose of taking such exception when the decision is made.</p> <p>6. The 268th section of the Code alone provides for taking exceptions after the decision is made, and they must be written and filed, not taken orally.</p> <p>6. An objection, taken on the trial of an action, once begun that it should have been tried by a jury, should be overruled. After the trial has commenced is not a proper time for determining whether there should be a jury trial, when there are several issues, some of which are clearly triable without a jury. If a party wishes to secure his right of trial of any of the issues by a jury, he should make his application before hand, so that, such right may be separately passed upon, before the trial. If he waits until the trial is entered upon, before applying for a jury trial, this will be a waiver.</p> <p>7. The lawful character of the results of an occupation, trade or mechanical art, or the care with which it is carried on, will not prevent a right of action by those whose enjoyment of life and property is disturbed by the mode or means of conducting such occupation, trade or mechanical art.</p> <p>8. The right of jarring a neighbor’s house by the motion of a steam engine upon one’s own premises, cannot depend at all upon the utility and lawfulness of the purpose for which such motion is employed, or of its final results. The intermediate injury, before such results are obtained, wrought upon anothers’ property or enjoyment of life makes such employment unlawful.</p> <p>9. A nuisance may consist in the application of steam as a motive power to an engine already upon the defendant’s own premises, and using the same for sawing and- cutting stone and marble by means of machinery, thereby producing a vibration and shaking of the plaintiff’s buildings and injury thereto, and causing an offensive noise, interfering with the quiet use of such buildings, alarming the tenants and diminishing the rent.</p> <p>10. An injunction may be granted, in such a case, notwithstanding the plaintiff has a remedy, as respects future injuries, by an action for damages.</p> <p>11. Although certain occupations, trades or manufactures may become a nuisance in a populous city, which would not be so in the country, or among a scattered population, there is no principle which outlaws premises on which a nuisance exists, so as to prevent their owner from being protected against nuisances on other premises.</p> <p>12. The only damages, besides those for an injury to his buildings, which the plaintiff is entitled to recover, in an action against an adjoining owner for a nuisance upon the premises of the latter, are those for a depreciation of the rent and loss of tsnants.caused by such nuisance, previous to the commencement of the action.</p> <p>13. Where, in such an action, there is enough evidence of loss of rent, &e. to have authorized the court at special term to. render a conditional judgment for damages to be assessed by a referee, but it omitted to do so, the appellate court under its general power to modify a judgment or order, in any respect mentioned in the notice of appeal, as well as to reverse or affirm it, may do what the special term might and should have done, viz: send the matter to a referee, to assess the plaintiff’s damages, and modify the judgment so as to render it conditional, for the damages assessed, upon the confirmation qf the referee’s report.</p>

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

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

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

<p>A sequestration can be issued only in cases in which it is expressly allowed by law.</p> <p>Plaintiffs in an action to annul a sale of land made by their debtor to a third person as in fraud of their rights, having no lien or privilege upon the property, cannot cause it to be sequestered, pending the action, on the ground that they are apprehensive that the purchaser will sell or incumber it for the purpose of defrauding them and the other creditors of the vendor ; nor could they, were the land still in possession of their debtor. C. P. 375. Acts of 7 April, 1826, sect. 9, and 20 March, 1839, sect. 6.</p>

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

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

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

<p>No right of action cap accrue froip a verbal disposition ijiortis causa.. C. C, 1563, 1569.</p> <p>The exceptions made by arts. 244, 245, and 246 of the third title of the third book of the Code of 1808, to the rule laid down in art. 243 of the same title and book, as to the proof of contracts which may be appraised in money, exceeding five hunfired dollars ip víijue, are virtually repealed by the Civil Code of 1825. O. C. 2257.</p>

Appeal by the plaintiffs, from a judgment entered upon the report of a referee. The action was bought by the plaintiffs, as carriers, against the defendants, as consignors, for freight upon a cargo of oats; also to recover damages for the detention of the vessel.

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

<p>Proceedings under an order of seizure and sale, cannot be arrested by a rule to show cause. Art. 739, et seq., of the Code of Practice, point ou't the mode in which opposition to executory process may be made by the defendant in it; and arts. 396, et seq.) of the same Code, and other laws, the means by which third persons may protect their rights.</p>

This case presents two questions : I. Does an agreement to pay usurious interest produce a natural obligation ? IT. Held: that the defendant’s objection to the usurious interest could not be listened to. The court say : “ It was decided in the case of Perrilliat v. Pencil, that money paid on an usurious contract, could not be recovered back.” So that the first question can no longer be considered as an open one.

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

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

This was an action upon a policy of insurance, issued by the defendants to the plaintiff, bearing date June 10, 1861, by which they insured .the stock of ready-made clothing and materials of the plaintiff, in the store known as Nos. 84, 86 and 88 Fulton street, and 47 and 49 Gold street, New York, for one year, against loss and damage by fire, to the amount of $2500. On the 21st of March, 1862, a fire occurred in said store, and damages were sustained to a large amount.

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

<p>Where the holders of a note, the payment of which the makers guarantied by the pledge of another note secured by mortgage, do any act by which the mortgage is destroyed, the endorsers of the first note will be released, they having a right to be subrogated to the mortgage. C. C. 3030.</p>

<p>Art. 2256 of the Civil Code, which forbids the introduction of evidence against, or beyond what is contained in public acts, does not apply to contracts made in frandem legis. A party may show by parol the real nature of such contracts.</p> <p>A wife, who has mortgaged her paraphernal property to secure the payment of a loan, which was received by her husband, and did not enure to her benefit, though appearing alone in the contract, as having borrowed the amount with the authorization of her husband, may show by parol the real character of the transaction, and exonerate herself.</p> <p>Under no circumstances can a wife become surety for her husband. The form of the contract will be disregarded. Those who treat with married women, must see that the obligations they contract turn to their advantage.</p>

This was an action brought to recover in damages the price of certain merchandise sold by the plaintiffs to one Emil Kanter between February and October, in the year 1860, upon the faith of certain representations, made by the defendant to them, which they alleged were false and known to him to be so.

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

<p>Appeal kos,< ¡.bo Commo>* ;d Covurt of New Orleans, Watts, J.</p>

<p>1. A payment, by a debtor, made and received by the express terms of the writ- , ten acknowledgement of it, “ in full of all demands,” operates as a direct repudiation and denial of any further liability, and cannot .operate to take the residue of a demand out of the statute of limitations.</p> <p>55. The failure of the creditor to observe the contents of a receipt signed by him, and his protest against receiving a payment in full of all demands, are immaterial, after he has been informed that such payment is upon that condition only, and the receipt in consequence is presented to him to sign. The agreement so entered into cannot be explained away by parol evidence, merely because it accompanies and is contained in an acknowledgment of the receipt of the money.</p> <p>3. The question of the operation of the acceptance of a payment of a less sum in satisfaction of a larger demand as a discharge, is entirely different from that of its effect in taking the residue of such demand out of the operation of the statute of limitations.</p> <p>4. Although the application of money paid generally may be made by the creditor, to which of several claims he pleases, when not made by the debtor, or, if not made by either, is made to those which first accrue, such application is not made upon the ground that it is most beneficial to the creditor. The application recognized by law, as made by the debtor, need not be made in express terms; it may be inferred from circumstances.</p> <p>5. No stronger case for the implication of a direction by a debtor first to apply money paid by him to that part of his indebtedness which accrued last, can well be imagined, than when his earlier indebtedness is barred, either by the statute of limitations or otherwise, and such payment is expressly made and received in full of all demands. IPer Robertson, Oh. J.</p> <p>6. Such application is most favorable to the debtor, and to suppose an intent by him to make a different one, would be to infer his voluntary retention of a liability, in the face of his making such payment solely on the faith of a waiver by the creditor, of any other claim. Per Robertson, Ch. J.</p> <p>7. A claim to apply the rule of law, which disregards a parol agreement to accept a sum less than what is due, in satisfaction of such greater demand, is-not so meritorious as to require the application, by presumption of law, of a general payment to be made in such a manner, as to enable the party making such agreement to escape its performance under that rule.</p> <p>8. A stale claim, revived nearly six years after an agreement to receive a certain sum in full of all demands, does not merit much favor, in regard to the claims to which a payment made on general account is to be applied; particularly against a municipal body, one of whose financial agents, who made such payment, is dead. Per Robertson, Ch. J.</p> <p>9. Neither the authority given by the legislature to a municipal corporation to raise a specified sum to pay the amount due to individual creditors, nor their actual collection of that sum by taxation, can convert them into private trustees or agents of such creditors, and make them liable for money had and received; since they collect and disburse it as public agents. Whatever remedy the creditors may .have, to obtain such sum, under such statute and collection, by mandamus or other process, it is not by an action.</p> <p>10. Neither the promises of the financial officer of a city to pay a demand, nor the report of the financial committee <jf the common council, in favor of payment, made preparatory to collecting* the tax levy, are such an admission in writing as to bind the city, so as to take the case out of the statute of limitations.</p>

Appeals from orders made at special term, denying motions for a new trial. The action was to recover damages for injury to the plaintiffs’ property by water. They occupied, as tenants, the first floor of the building on the north west corner of Broad wav and Worth street, in the city of New York. The upper parts of said building were occupied as officés, one of said parts, being upon the second floor, was occupied by George Gifford, as a law office.

On the 8th of Eovember, 1855, the defendant made two promissory notes, each for five hundred dollars, payable respectively in six and twelve months after date, to his own order. The complaint alleged that, through successive indorsements, the notes were transferred to the plaintiffs ; that they were not paid ; and that after both had matured, and on or about the 11th of February, 1857, the plaintiffs commenced an action upon the six months note.

This action was 'brought by the original plaintiff therein, (O. N. Jenkins,) now deceased, against the defendant (Wheeler) to recover the aggregate amount of a certain monthly-compensation ($150) agreed by the defendant by a covenant under his seal to be paid by him to the plaintiff for taking charge of a vessel, (the bark Peytona,) on a voyage from New York to Australia and back as her master, according to the •instructions then given to him by a third person, (Mr.…

<p>1. An action against two defendants, upon a joint and several contract as joint, cannot be made an action upon it as several, unless one of the defendants is stricken from the record as a party, or has a defense personal to himself. A several appeal by one defendant will not divide the action into two.</p> <p>2. Under the Code, any one or more co-plaintiffs or co-defendants may appeal alone, without notice to any one but the opposite party and the clerk; and such appeal by one will not prevent the other from appealing.</p> <p>3. Although one of several joint defendants, may waive any defense made by him, he cannot waive that of his co-defendant; the plaintiff -has, therefore, a right to insist that the issues in the action shall be tried as against both together.</p> <p>4. In case of joint defendants, until one of them is wholly out of the action as a defendant, and all the issues against him are disposed of, any judgment in favor of either party is irregular. Until then he has a right to appear at every trial of the issues.</p> <p>5. If one of two defendants is entirely out of the action as such, his co-defendant has no right to avail himself of any enforced navment by the former, of the amount recovered by. a judgment subsequently reversed, unless the party so paying has done something to give his co-defendant that right and waive restitution.</p>

<p>Appeal from a judgment dismissing the complaint, entered at the trial, and from an order denying a motion for a new trial.</p>

Motion by the respondent to modify an order of this court, made at a general term, directing a judgment to be reversed, and awarding a new trial, 'with costs to abide the event.

<p>In this case the controversy is in regard to a trade-mark on match boxes. The plaintiff obtained an injunction pending the suit against the defendant, and after the injunction was served the defendant changed his trade-mark materially, and continued his business with the new label.</p> <p>The plaintiff believing, notwithstanding the change, that the use of the new label was an infringement on his mark, moved the court to punish for contempt. The motion was denied at special term, by Robertson, Oh. J. and from that denial this appeal is taken.</p> <p>The following ooinion was given at special term:</p> <p>Robertson, Oh. J. The only practical principle in relation to the law of what is called trade marks, apparently settled in the case of Partridge v. Menck, (2 Sandf. Ch. 622; S. C. 2 Barb. Ch. 101; 1 How. App. Cas. 547,) is that upon which the leading opinion in the court of last resort places its decision, which is, that the possessor of a trade mark, which contains a misrepresentation calculated to impose on the community, is entitled to no protection. The same principle was subsequently applied by this court in the case of Fetridge v. Wells, (4 Abb. Pr. 144.) The learned chancellor and vice-chancellor, in the first case referred .to, decided by ocular inspection that there, was a perceptible difference between the labels in controversy, which was enough to put purchasers on their guard, and one opinion in the Court of Appeals held nearly the same language with a very slight distinction as to the degree of the differences. Such a difference, it is evident, must be in all cases a question of fact, unless it is so palpable as not to be susceptible of being overlooked on the most casual glance. It is much more easy, of course, in any case to recognize a difference, however minute, after it is pointed out, than to discover it by the ordinary inspection bestowed by purchasers. It would hardly be a fair test of a counterfeit that, after its errors or deviations from the original were known, it could not be mistaken for it. ' The proper question should be, not differences, but points of resemblance ; not the utmost vigilance of purchasers, but ordinary observation. The value of the goods to be sold, and the intelligence of the persons dealing in and consuming them, besides other circumstances, are also to be taken into account in determining the adaptability of a simulated trade-mark to deceive purchasers. It is eminently, therefore, a question of fact, to be submitted to the practical experience of a jury, whether, in a particular case, a resemblance was likely to deceive the community. There is no article of more general consumption, less value, or more frequently bought by ignorant or careless purchasers, than friction matches—none, perhaps, where their degrees of excellence are more widely apart. In such a case, the general appearance of whatever is adopted as a trade-mark must control; because it is the unwary, and not the wary, who are to be protected, as most likely to be taken in by its counterfeit.</p> <p>The simulation in this case consists in the use of the same words with similar devices to those employed by the plaintiffs Other words, it is true, are also employed, marking a distinction if observed ; but they are not so prominent and striking as to control or modify the general impression produced by the general appearance. In the cases of Coffeen v. Brunton, (4 McLean, 517,) and the Amoskeag Manufacturing Company v. Spear, (2 Sandf. 599,) the names of two labels were entirely different, yet the defendant was enjoined from using similar labels. In the latter case, the chief justice (Duer) thought that mere change of words should have ho effect, not only because, from their position, they “ might escape the attention of the purchaser,” but even if seen and read might not alter the impression “the general resemblance of the matches was calculated to produce.” And in the former, Judge McLean makes such resemblance of the language in the body of the label and printed directions for the use of the article, as to make it appear to be the same, the test of the wrong done. With the exception of the place of manufacture and the manufacturers’ names in this case, the distinctive printed words are small, not noticeable, except by close scrutiny, and not apt to be remembered, unless carefully conned over, or committed to memory. Whereas, the lozenge shaped borders or frames enclosing the words “ Parlor Match,” as well as the design or strip subdivided into compartments, on which the word “ State ” is printed in both, very nearly resemble each other, and can only be distinguished by minute comparison. The word “ Diamond ” is also printed on both, in large type. The most striking features in both being, then, the words “ Parlor Match,” enclosed within the lozenge before mentioned^ the word “ State,” the design or strip on which it is printed, and the word “ Diamond ” in large type, they most readily impress themselves on the minds of, and are remembered by casual purchasers.</p> <p>There is hardly sufficient affirmative evidence before me to rehut the evidence of the defendant, as to the use of the words “ Parlor Match,” to designate matches having no sulphur, prior to the plaintiffs’ employment of them. But even if there was, they seem to indicate sufficiently the quality or place of using the matches, instead of their origin, to bring them within the rule laid down in Corwin v. Daly, (7 Bosw. 222,) and cases cited therein, and therefore not proper subjects to have their use prohibited.</p> <p>Besides any inferences to be drawn from the appearance of the labels, there is positive testimony of the attempted resemblance being successful in deceiving; some persons—a circumstance taken into consideration in the Amoskeag Manuf. Co. v. Spear, (ubi sup.) in determining an adaptability to that purpose. The use of the word “ Diamond,” or “ Diamond State,” seems to have been adopted first by the plaintiffs as part of a trade-mark, and, as they do not indicate any' thing respecting the quality or use of the article, are entitled to he retained for their exclusive use.</p> <p>The patent taken out by the' author of the design of the label in this case, whereof the plaintiffs are assignees, cannot affect the jurisdiction of this court to protect their right to use such design to designate the wares sold by them, against the use by others of similar designs to designate wares sold by the latter. If they had actually bdught their labels from the plaintiffs, such purchase would give them no authority to employ them to pass off their matches as those of the plaintiffs. A patented design may be adopted as a trade-mark by consent of the patentee, and thereby its use by others for the same purpose prevented. There is no rule, however, which makes the test of the infringement of such rights the same in both cases. The defendants may be liable in both the federal and state courts ; in the former for imitating the design, in the latter for passing off, by means of such design, spurious wares as being the plaintiffs’, and the cause of. action would clearly clearly not he the same.</p> <p>The injunction must, therefore, be continued against the employment by the defendants of the words “Parlor.Match,” inclosed in a lozenge shaped frame or design, similar to that in the label of the plaintiffs, in any label used by them in the sale of matches ; and also of the word “ Diamond,” or the words “ Diamond State,” in any label used to designate such matches, and of any strip or border on their labels similar to that on which such word “ State ” is printed in the labels of the plaintiffs ; and from selling any matches with labels having such prohibited insignia of ownership thereon. The costs of motion, fixed at ten dollars, are to abide the event of the action.</p>

The action was in the nature of a creditors’ suit. It was brought by the plaintiff, a judgment creditor of the defendant Erazee, after the return of an execution unsatisfied, to have the property of Frazee applied to the payment of such judgment; and to that end to set aside a chattel mortgage executed by said Frazee to his co-defendant Ellen M. Robbins, alleged to have been made to hinder, delay and defraud the creditors of Frazee; and for the appointment of a receiver, &c.…

Appeal by the defendant, in an action for a divorce a vinculo, from an order made at a special term, denying a motion ' to vacate the order settling the issues on the original pleadings, on the ground that those issues were improperly framed within the decision of this court, reported 3 Rob. 719.

<p>1. An order to show cause within less than eight days, cannot, properly, be made, unless the papers upon which the same is founded show some reason for shortening the regular and usual time for notices.</p> <p>2. But where the affidavits, on which an order to show cause was granted, proved that the plaintiff not only threatened to take possession of premises claimed by the defendant, but had actually begun to dispossess him, and was continuing to disturb and annoy him in such possession; Held that this was an injury which the defendant was entitled to stop, if ever, at once, by means of an injunction. And that the reason for making the order returnable in less than eight days was therefore sufficiently apparent upon the moving papers.</p> <p>3. Since the adoption of the Code of Procedure, the courts of this state have no authority to grant affirmatively an injunction to a defendant, although they may perhaps make it a condition to relief granted to the plaintiff. The Code confers all the powers possessed by courts, to award an injunction as remedial relief during the pendency of a suit; and confines the granting of such an injunction to a plaintiff, and does not extend to a defendant.</p>

<p>In this case a motion was made at special term, to strike out the defendant’s answer, as sham. The motion was granted, and an order entered, wherein it was ordered that the answer of the defendant be stricken out as false and sham, and that judgment be rendered for the plaintiff. Judgment was accordingly entered, reciting that the answer of the defendant had been stricken out as false and sham, and ordering judgment for the plaintiffs for $3046.85.</p> <p>The defendant appealed from the judgment. Eo appeal was taken from the. order striking out the answer.</p>

These were two motions, made together, on behalf of the defendant, one for leave to renew a former motion made on his behalf to set aside a judgment obtained by the plaintiff against him in this court, and an affirmance of such judgment by the Court of Appeals made the judgment of this court,- and for general relief, and if such leave should he granted, the other was to set aside such judgments or obtain other relief.

<p>Demurrer to complaint.</p>

<p>A motion for a new trial cannot be made after judgment entered absolutely. But the motion may be made by leave of the court, when a sufficient excuse is offered fpr not making it before judgment; and if necessary, the court can convert the absolute judgment into one to stand merely as security.</p>

<p>Where there is an incongruity between the summons and the complaint, served at the same time, the former containing a notice that in default of an answer the plaintiff will take judgment for a specified sum mentioned in the complaint, whereas the latter is for a tort, the proper remedy to rectify such a variance is a motion to set aside the complaint, and not a motion to set aside the summons.</p>

<p>The present was a motion for a supersedeas, for the failure of the plaintiff to charge a defendant in execution against his person in proper time. Upon the order of arrest in the action the defendant gave hail; an execution against his person, which was issued after the return of an execution against his property unsatisfied, was returned in April, 1865, not found. Upon the commencement of an action against his bail, an order was made in this month, upon an application in August last, exonerating them upon the payment of the costs of the motion and of the action up to the time of his surrender to the sheriff, and directing the discontinuance of such action upon payment of such costs. All of such costs were not paid until the 15th of November, instant. In July last, the defendant was surrendered by his bail and gave new bail for the jail limits, and no execution has since issued against his person.</p>

This was an action to enforce a covenant by and between the several owners of different adjoining pieces of land butting on Madison avenue, in the city of New York, in regard to abstaining, in a particular mode, from the use of such land, or part thereof.

<p>Motion for an order of arrest, under section 179, subdivision 4 of the Code.</p>

This action having been commenced, by the service of a summons upon some of the defendants, including the defendant Edward B. Ketchum, the plaintiff, upon an affidavit of such fact, and also of the materiality of, and necessity for, the testimony of the defendant Edward B. Ketchum, to be taken before the trial, procured an order that the plaintiff be allowed to examine said defendant as a witness in the action, on two days’ notice to him and the other adverse parties.

<p>1. The delivery at one time, of a quantity of. merchandise sold, but not furnished under or in pursuance of, any express agreement, creates a contract by implication; and a right of action accrues to the vendors immediately on-the delivery of the merchandise. The statute of limitations, therefore, begins to run from that time.</p> <p>2. An acknowledgment, to take a case out of the statute of limitations, must contain an unqualified admission of the debt and show a willingness to pay it. It must be such that an action could be sustained upon it, though the original contract alone constituted the cause of action.</p>

<p>1. A trial by jury is not waived by the mere failure of one of the parties to appear on the trial, under section 266 of the Code, subd. 1.</p> <p>2. That section provides for a waiver-, which does not enforce a right, but implies a.voluntary relinquishment of one, and by all the parties, not by any one alone, unless the other seeks to avail himself of it. Neither party is bound to accept any apparent waiver by the other, by his failing to appear on the trial.</p>

<p>1. The court has such entire control over its calendar, and right to regulate the order of trying causes, that it may order a second action between two parties, to be placed on the calendar, next to a prior action for a similar cause, between the same parties, and that they may both be tried before the same judge at the same term.</p> <p>2. But it will not control the discretion of the justice before whom the same may be triable, as to deciding which shall be first tried, or whether either shall be postponed.</p>

<p>Appeal from a judgment, and an order denying a motion for a new trial.</p> <p>The action was to recover the sum of $300, being three months’ rent of a store on Nassau street in the city of New York. The complaint alleged the making of a lease to the defendant Matthew O’Farrell for the joint benefit and occupancy of him and the defendant Daniel O’Farrell, who were copartners in trade. That the premises were occupied by the firm until December, 1857, when they made a general assignment of all their partnership property to the defendants Henry O’Farrell and William C. Higgins. That thereupon the assignees and assignors occupied the premises until the end of the term.' The three months’ rent fell due during such joint occupancy.</p> <p>The defendants answered jointly, admitting all the allegations in the complaint, except the amount of rent claimed to be due, and set up by way of a defense and counter-claim, that during such occupancy the plaintiff erected an oven furnace, or bakery under the store occupied by the defendants, filling said store with smoke and steam, and injuring their goods, and claimed to recover six thousand dollars as damages. The plaintiff replied to the counter-claim, denying each allegation thereof.</p> <p>The case was tried before Justice McCunn and a jury. The defendants gave some evidence tending to show that during their occupancy of the store, an oven was erected in the basement, by the tenant thereof, the plaintiff being there while it was being done. That the smoke and soot coming from the basement damaged the defendants’ goods, some forty and others fifty and sixty per cent. Two of the defendants, who were examined as witnesses, estimated the damage at from six thousand to six thousand five hundred dollars.</p> <p>The defendants offered to prove the items of their damage, and also the nature and extent of the damage done to their goods. This evidence was excluded by the justice, and the defendants excepted.</p> <p>The justice charged the jury that the defendants had the right to set up the counter-claim as a defense, and he charged them that the plaintiff was sufficiently identified with the premises to make him responsible, and it was for the jury to say what damage was done. He then stated to the jury, “ On the question of damages, the only evidence is that of the two O’Farrells. Ayres has not contradicted it, and the .rule of law is, that when a witness swears to a fact and is not contradicted, it must have weight with the court and jury. So that as to the question of damages, the testimony in the case fixes it beyond peradventure. It is therefore for you to say whether the plaintiff shall have a verdict or the defendants shall have one.” The jury gave the plaintiff a verdict.</p> <p>A motion for a new trial was made and denied at special term, and thereupon judgment was entered. The defendants appealed from the judgment and order.</p>

<p>This action was brought to recover the value of goods shipped for the plaintiff by the defendants, in the fall of 1852, from New York to a consignee (Cantwell) at Harper’s Ferry, Virginia.</p> <p>The complaint alleges that before the arrival of the goods at their destination the consignee had left the place, and the defendants were directed to forward the goods from thence to Washington, to the same consignee. That the defendants neglected so to forward the goods, and so negligently acted in the premises that the goods were lost and destroyed. Upon the trial before the referee it appeared that a portion of the goods arrived at Sandy Hook, a place about a mile' from Harper’s Ferry, on the opposite side of the river, and shortly after the consignee demanded the goods there of the agent of the defendants, who refused to deliver them. The referee reported in favor of the plaintiff for the value at Harper’s Ferry, of the goods so demanded, with interest. Judgment was entered on the report accordingly, with costs. From this judgment the defendants appealed. The direction, notice and neglect of the defendants to forward the goods to Washington, as alleged in the complaint, was not proved.</p>

The action was brought by Charles, George and George W. Goodyear and Henry Durand, against Edwin A. Brooks and ten other defendants, to foreclose two chattel mortgages, given by the defendant Brooks to the plaintiffs, to secure the payment of a sum of money claimed to be due to the plaintiffs, a part of it from Brooks, and a part of it from the ■ firm of Church & Brooks. A judgment for a deficiency was only asked for against Church & Brooks.

This was an action under the Code, (in the nature of a suit in equity,) to recover the plaintiff’s dower in twelve lots of' land and a dwelling house at Harlem, conveyed by her husband in his life time to the defendant, and occupied by the alienee at all times thereafter. The complaint alleged these facts, and that the plaintiff had demanded her dower, and the défendant refused to assign it to her.

This was an action to recover damages for a breach hy. the defendants of their covenants contained in a sealed agreement to build, furnish, and with certain exceptions fit for use, three steamers according to a plan and specifications alleged in such agreement to be thereto annexed. The only act to be done by the plaintiff, according to such agreement, was the payment of the price of such vessels in installments at certain stages of the work, as it advanced.