Volume 5 — Louisiana Reports

In this case the plaintiff sought to recover of the defendants, jointly and severally, the sum of five hundred dollars, being the price of a slave named Charles, sold by plaintiff to defendants, by public act, on the 15th of May, 1830. The price was made payable in ninety days, in good merchantable ash wood, or in cash, at the option of the vendees, either of which after the expiration of the specified period, the defendants refused to pay. Eastern Dis.

<p>It is a settled rule of practice, that no answer is necessary to ordinary demánds in re-convention.</p> <p>On a reconventional demand, based on the amendment to art. 375, C. P., the going to trial on the merits of the demand, without urging the objection that no answer had been filed, or judgment by default taken, is a waiver of the objection.</p> <p>In a suit between A. and B. in which A. claims certain property, by virtue of certain conveyances which B. alleges to be simulated, the acts, sayings and declarations of C. who made the conveyances to A., are proper evidence.</p> <p>Also, the records of various suits between C. and other persons to which A. was not a party, are admissible in evidence to prove rem ip$amf and so far as they go to show the intentions of the parties as manifested by the pleadings; but the oral testimony taken in such cases is not evidence unless specially offered in the case pending.</p> <p>Certified abstracts from the office of the register of conveyances, made in the usual form of such certificates, are admissible in evidence to prove the inscription of the acts to which they refer.</p> <p>Sales of property made without any intention of the parties to bind themselves, are not contracts. There is a distinction between the contract, and the instrument of writing which may purport to witness it: C. C. 1755.</p> <p>The chapter of the Civil Code, regulating the revocatory action, is not applicable to cases of simulation. In those cases creditors may seize notwithstanding the apparent transfer, and if enjoined may plead and show the simulation on the trial of the injunction.</p> <p>Where the thing sold remains in the possession of the seller, there is reason to presume the sale is simulated; and the parties must adduce proof of the reality of the sale. C. C. 2456.</p> <p>Where it is proved that the mortgage debts have been paid, it is not necessary to make the mortgagees parties to a proceeding for the erasure of the mortgages.</p> <p>Where the judgment enjoined bears the highest rate of conventional interest, no other interest will be allowed upon the dissolution of the injunction.</p> <p>A prayer for general relief does not authorize the annulment of fraudulent sales which are not specially attacked in the pleadings.</p>

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

Eastern Dis. This action was brought to recover one half the salvage which the defendant received for raising the cargo of a brig sunk at the mouth of the Mississippi river. The plaintiff avers, that the steamboat used in raising the brig was worked on joint account of himself and defendant. The latter, in his answer, denies this averment. The cause was tried in the court below, and judgment was rendered for the plaintiff.

<p>APPEAL by defendants from the Fifth District Court of New Orleans. Buchanan, 3.</p> <p>cited, upon subject of dedications of property to public uses, Mathews on Presumptive Evid. 333, 334. Drummer v. Jersey City, 1 Spencer, 8. 27ie Stoic v. Marble, 4 Iredill, 318. Green v. Chelsea, 24 Pick. 71.</p> <p>cited, 3 Bing. 447. 18 L. R. 291-3 A. R. 284. 6 Peters, 435. 10 Peters, 662. 5 L. R. 142.</p>

Eastern Dis. APPEAL FROM THE COURT OP THE PARISH AND CITY OF NEW-ORLEANS. This was an action brought to recover the sum of twelve hundred dollars for work done on, and materials furnished for a house situated in the city of New-Orleans. The defendant pleaded the general denial, payment and prescription. On the trial, the jury gave a verdict in favor of the plaintiffs, and judgment was accordingly rendered.

<p>Under the acts of the 14th of March, 1842, and 5th of April, 1843, the hanks of this State were obliged to receive their own notes in payment.</p> <p>Where a bank transferred a promissory note subsequent to maturity, the holder acquired no greater rights than the bank itself had, and could be compelled to receive in payment the notes of the bank.</p> <p>If a co-defendant paid the debt in specie, such co-defendant could not upon subrogation recover of the other specie, he having the right to pay the debt in depreciated bank bills.</p>

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

Eastern Dis. APPEA.L PROM THE COORT OF THE FIRST DISTRICT. This was an action to recover from the defendant the value of services rendered by the plaintiff in collecting, selling and superintending slaves, to which the defendant opposed the prescription of one or three years. On the trial of the cause the defendant’s counsel prayed the court to charge the jury that the plaintiff’s claim was prescribed by the lapse of one year, according to Art. 3499, of the Civil Code.

<p>A release of the drawer of a note by the holder, without the consent of the endorser, destroys all recourse against the endorser.</p> <p>The endorser who pays a note in ignorance of the fact that the drawer had been released by the holder, and that he was consequently discharged from all liability, can recover back the money so paid.</p>

<p>A judgment of an inferior court upon a question of fact will not be reversed, unless clearly unsupported by tbe evidence.</p> <p>Although a contract be made with one in his own name, if it be afterwards discovered that he acted as agent for another, the principal will be held responsible.</p> <p>Where one of the part owners of a steamer contracted in his own name with a pilot, the other part owners will be liable to the pilot.</p>

<p>A. executed an obligation payable to a married woman in person. Held by the court, that from the form of the obligation, the thorough knowledge which A. had of the husband’s affairs, and by the part he had taken in the attempt to conceal the community property, he was estopped from sotting up the defence that the obligation Was community property, and that he was entitled to off-set the same with debts due to him by the husband. And when he had credited the husband’s account with items which might have been chargable to the wife, he will not be allowed to cancel such credits, and charge them to the wife. Free'niafi V. Savage^ 2 Ann. 269 — affirmed.</p>

<p>Eastern Dis.</p> <p>APPEAL MOM THE COURT OP THE PIRST DISTRICT.</p> <p>This action was brought to obtain possession of three promissory notes, signed by defendants and deposited in bank. The notes had been given for a part of the consideration money of land and buildings sold by plaintiff to defendants. The latter feared they should be disquieted in their possession, and it was agreed the notes in question should remain in the hank until defendants should consent to a transfer of them being made to plaintiff, or until plaintiff should obtain a final judgment establishing the title to the land and buildings.</p> <p>The petition sets forth that plaintiff was the wife of Jean Blanque, deceased; that she brought a large sum as her portion, as appears by their marriage contract; that her said husband dying, she was appointed by the Court of Probates of New-Orleans, as guardian of her minor children by said marriage ; that she renounced the community; that a forced surrender of her deceased husband’s property took place, and syndics were appointed by the creditors with power to compromise with her for her dotal rights; that she received the said land and buildings as part payment of her dotal right; that the minor children, who were made parties, and. to whom a curator ad hoc had been appointed, had no claim whatever on the land and buildings.</p> <p>The answer states, that the sale by the said syndics took place without the advice of a family meeting, and without the authorization of a competent judge; that the plaintiff was then tutrix of the said minors, and purchased the said land and buildings, which she was not permitted by law to do; that the proceedings were coram, non judice the Parish Court having no jurisdiction, or if it had, they are irregular, the minors not having been made parties thereto.</p> <p>The curator ad hoc appeared, and consented that the prayer of plaintiff’s petition be granted. One of the said children having become of age, intervened and stated she had renounced the succession of her father, by act passed since this suit was brought. The curator ad hoc then filed his supplemental answer, sitting forth a similar renunciation on the part of the minors, on the advice of a family meeting.</p> <p>On the trial the cause was dismissed, the judge stating that no cause of action had been shown against the defendants. The plaintiff appealed.</p>

<p>A till of exceptions to the rejection of testimony, which does not set forth the grounds upon which the testimony was rejected, cannot he noticed by the court.</p> <p>A note bearing the same date,- and for the same amount as one mentioned in act of sale» is sufficient evidence to identify it with the act of sale as the consideration, unless it is shown that another note was given. *</p>

<p>Courts of justice are bound to vindicate and maintain the sanctity of their judicial proceedings before they consider the merits of cases.</p> <p>A party will not be- permitted to deny what he has solemnly acknowledged in a judicial proceeding, nor to shift his position at will to a contradictory one in relation to the subject matter of litigation in order to frustrate and defeat the action of the law upon it. Gridley and Whitehead v. Connor, 4 Ann. 416, and Freeman v. Savage, 2 Ann. 269 — affirmed.</p> <p>The surety for the plaintiff in an injunction is a party to the suit, and will not afterwards be permitted to make allegations inconsistent with his position as a party to that suit. And when it is subsequently ascertained that he was the real owner of the execution enjoined,' but which was prosecuted in the name of another person, for his benefit, the judgment will be declared extinguished, and property previously sold under the judgment restored to the original owner.</p>

Eastern Dis. APPEAL PROM THE COURT OP THE FIRST DISTRICT. This action was brought by the payee against the widow and heirs of the drawer of two promissory notes for ten thousand dollars each. The defendants admitting the signature, alleged the notes were given in part payment for a plantation and slaves in the parish of Iberville, sold by the plaintiff, and to which his vendor had never had title.

<p>A bill of exceptions should be presented at the trial, or the point shohldbe then expressly reserved and noted, and after the trial embodied in a bill of exceptions, without unnecessary delay, while the facts are fresh in the memory of both the judge and counsel. A bill of exceptions to a proceeding during a trial which took place the 27th of June, hut which was not presented until the 28th of July following, cannot be considered.</p> <p>The assignment of counsel for the prisoner as soon as the court is informed that he is without counsel, is all that the law requires.</p> <p>The objection that the judge erred in refusing to postpone the trial, to enable the accused to confer with bis counsel to prepare for bis defence, will not be sustained when there was no motion or affidavit for continuance upon that ground. Nor will the absence of these be cured by the circumstance that the facts appear as one of the grounds in a motion for a new trial.</p>

<p>Courts do not notice the revenue laws of foreign countries, and contracts having for their object the violation of those laws may be enforced.</p> <p>Judgments of inferior courts will not be reversed for slight errors, when there has been no attempt made to correct them by motion for new trial or otherwise in the court of the first instance.</p>

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

<p>Easters Dis.</p> <p>APPEAE PROM THE COURT OP THE PARISH AND CITV OF NEW-ORLEANS.</p> <p>This suit was brought to recover certain sums of money deposited™. the bank, and others in the possession of defendant. The defendant was sued as the curator of an absentee. The money claimed had been received upon certain promissory notes, which the absentee had formerly taken as agent of the plaintiff, and while in the employ of the latter.</p> <p>The defendant excepted to the jurisdiction of the court, and then pleaded to the merits.</p> <p>The court sustained the exception, and the plaintiff appealed. The court considered the Probate Court to have no powers but those specially delegated; that the power of deciding on claims against the estates of absentees, is not included in the 924th article of the Code of Practice; and the 14th section of the act of March 25, 1828, entitled u An act further amending certain articles of the Civil Code and of the Code of Practice,” makes no change in the Code of < 7 0 ** Practice'in relation to the estates of absentees.</p> <p>The Court of Probates has jurisdiction in this case. Code of Practice, arts. 935, 963,964. Civil Code, art. 53.</p> <p>The Court of Probates has no jurisdiction of the matter in controversy. Code of Practice, arts. 925,924, act of March 25,1828. The judgment should, therefore, be confirmed.</p>

<p>The surviving husband has, under the act of 25th of March, 1844, the usufruct of the community property during his life, but this does not entitle him to the administration which belongs to the tutor of the minor ohildren. C. C. 1037, 1114.</p>

This was an action to recover damages for an alleged breach of the following contract: “ We, the undersigned, agree to ship with the steamboat Samson, fifty head of horses by the first trip, at fifteen dollars per head, with all the grain in barrels that we may wish to put in, and a reasonable quantity of packed hay: To pay customary freight on any that remains on their arrival at their place of destination,” &c. &c. The plaintiffs, with whom the contract was made, were the…

<p>Where the seller states in an act for the sale of a slave, that she is and has heea, so far as known to him, in good health, and also her parents before her, and the purchaser agrees to run the risk of her health, and the slave dies of consumption, the seller is not bound to return the price, unless he knew atthetime of the sale of the existence of the disease.</p>

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

<p>Where the conduct of the plaintiff has been marked by continued exasperation and violence towards the defendant without any just cause of provocation, the plaintiff cannot obtain a decree of separation from bed and boai-d for defamatory language of the defendant.</p> <p>The evil complained of may cease with the reformation of the plaintiff.</p>

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

Eastern 'Dis. APPEAL PROM THE COURT OP THE FIRST DISTRICT This was an action brought by the payee against the drawers of a promissory note, on which several payments had been made. By the terms of the note, interest accrued at eight per centum, after the specified period for payment. The defendants plead separately. Brown filed a general denial to the plaintiff’s allegations.

<p>An ordinance of tbe municipality, prescribing tbe place for landing masts, spars, &c., on the Canal Carondelet, is not upon its face in conflict with the Constitution, nor illegal; tbe power of regulating tbe public ways, and maintaining order and safety thereon, being in tbe municipality.</p>

<p>Where the defendants had garnisheed the plaintiff in a suit instituted by attachment against a third person, and in answer to the garnishment the plaintiff admitted an indebtedness ; and the defendants insisted upon a stay of judgment until the plaintiff had deposited in court the funds garnisheed in his hands: Held, by tlie court, that these circumstances did not authorize the clogging of the judgment against defendants with any such condition.</p>

Eastern Dis, APPEAL PROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING. This action was brought to obtain a joint interest with the defendant in a judgment rendered in favor of the latter, on a draft or order for four hundred and twenty dollars, payable on demand. The payee of the order being indebted to the drawer, it was agreed between them and the assignee, who is the present defendant, that the plaintiff should retain the one half of the amount.

<p>In a sale of corn for 68 cents per bushel, when prime corn was selling at 75 cents per bushel, the purchaser is not presumed to have inferred from the price paid that the corn was damaged. He paid a sound price for an article of secondary quality; but was entitled to a sound article.</p>

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

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

Eastern Bis. APPEAL PROM THE COURT OP THE FIRST DISTRICT. This action was brought to recover the damages, suffered by the plaintiff, in consequence of the seizure by the defendant, as sheriff, of the plaintiff’s property. It was seized as the property of a third person, the defendant in another suit., The plaintiff, in the other suit, was not made a party defendant with the sheriff, in this.

<p>Where a creditor of a succession who had received no dividend on the tableau and made no opposition, had taken a rule upon the administrator to compel the sale of the property of the estate to pay the debts, such creditor will be considered as one who had made herself known at the time the tableau of distribution was filed, and cannot maintain an action under O. C. arts. 1060, 1061,'and 1176, to compel a creditor who had received a dividend to refund the portion which should have been allowed to the plaintiff on the tableau.</p> <p>The concluding part of art. 1176, O. 0., does not change the rule established by that and the other articles of the code upon the same subject.</p> <p>A dividend on a tableau may be opened if creditors have not been paid and there has been no negligence. But where the omission to prove the debt proceeds from the creditor’s own laches the court will not disturb a distribution.</p>

<p>APPEAL from the Fifth District Court of New Orleans, by J. McDonough, defendant, in rule taken by Roman, syndic of Degruy. Buchanan, J.</p>

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

<p>Where after judgment by default, the defendant comes in and moves to set it aside upon filing what he styles a peremptory exception, he will not be allowed after-wards to contend that his exception was merely a dilatory exception, and that the case was not at issue upon the nferits. The plaintiff may fix the cause for trial, and the judgment obtained is final upon the merits.</p>

<p>Eastern Dis.</p> <p>APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING.</p> <p>This suit has once been before this court on exceptions to certain interrogatories propounded to the plaintiff by the defendant. The cause was remanded, with directions to the court below to overrule the exceptions. Vide 3 La. B.ep. 259.</p> <p>On the second trial, the court considered the plaintiff’s demand established, and that the defendant had failed to prove the allegations in Ms answer, and judgment was rendered accordingly.</p> <p>A new trial was refused, and an appeal was taken by the defendant.</p> <p>1. This case must be governed by the law previous to the new Civil Code; the court a quo erred in receiving parol evidence to prove a disturbance; the plaintiff relies on the grounds set forth in the bill of exceptions, to resist such testimony.</p> <p>2. The sale took place under the old Code, and the defendant has not shown a shadow of disturbance, nor even the danger of one.</p> <p>3. This appeal is only taken for delay; there is no ground for it, the law is clear. Old Civil Code, p. 360, art. 85. Martin 7, O. S. p. 223. 7 JV. S. p. 235. According to these authorities, what necessity is there to call on this tribunal to repeat their decisions?</p>

<p>An appellant may be'relieved where he has been prevented by circumstances beyond his control from filing the record in the appellate court in due time.</p> <p>But when his counsel had made an arrangement with the clerk of the court in the first instance to file all the appeals taken by him, the clerk of that court becomes the agent of the appellant, and his neglect is that of the appellant. C. P. art. 585.</p> <p>And if the record of appeal be not filed in due time, the appeal must be dismissed. O. P. arts. 589, 590, and 883.</p>

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

Eastern Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE OP THE THIRD PRESIDING. This action was brought to enable plaintiff to seize and sell the land of the defendant, in order to pay the expense of public works on the land.

<p>The provision in the ,7th section of the act amending the act for the incorporation of the Consolidated Association of the Planters of Louisiana, approved 19th of February, 1828, declaring “'That the State shall be and'is hereby acknowledged to be a stockholder to the amount of one million of dollars as a bonus," did not make the State liable for contributions and losses of .the bank as ordinary stockholders were.</p> <p>A bonusKs a premium or consideration given to a grantor for what isreceived. It implies an advantage, a benefit given in return for the benefit received, or an inducement to the grantor for conferring that benefit. If the State be made liable as other stockholders, no advantage was given to the State and consequently no bonus. 'But the act expressly gives a bonus to the State.</p> <p>A partnership may be formed, which will be valid between .the parties inter se., where,one of the partners is exempted from losses, provided the exemption be .based upon a fair and just equivalent given to the associates by the partner in whoso fav.or .the exemption is stipulated.</p>

Eastern Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE. OP THE THIRD PRESIDING. This action was brought by the endorsers of a promissory note against the drawers. The defendants deny that the plaintiffs are the owners of the note, and allege indebtedness on the part of the real owner to the defendants. Interrogatories were propounded to the defendants, which, if affirmatively answered, would establish the allegations of the answer.

Easters Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING. This action is brought to obtain a perpetual injunction upon the proceedings on a judgment rendered against the plaintiff.

Eastern Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING. The plaintiff seeks to recover one thousand dollars for his slave, who was drowned while hired by the defendant. The plaintiff alleges the slave was hired on an’ agreement, between the parties, that he should be engaged at the whip saw. During the time he was in the defendant’s service, under this contract, the slave was drowned.

<p>On the recision of a sale, the vendor becomes entitled to interest from the time he delivers or tenders to the vendor the property.</p> <p>sionof ai-aie^thc ¿“Te?8-hedeUvVshort™-thc j»0periVy0.nd01'</p>

Eastern Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING. The plaintiffs claim eight hundred and forty-four dollars and fifty cents, for labor done for the defendant, in pursuance of a written contract between the parties. The plaintiffs also-claim the said sum on a quantum meruit, and also claim a privilege on the sugar house of the plaintiff, for the sum due.

<p>Where a promissory noto is made payable at a particular place, in an action against the-maker, it is not necessary to allege or prove that a demand of payment was made at the place designated in the note, to enable the plaintiff to recover. The want of such demand, if any injury to the defendant has resulted from it, is a matter of defence for the defendant.</p>

Eastern Dis. APPEAL PROM THE COURT OP THE POURTH DISTRICT, THE JUDGE OP THE DISTRICT PRESIDING. This suit was brought to stay proceedings, until further order of the court, under a writ of fieri facias, alleged to have been illegally issued against the plaintiff, and likewise to suspend the sale of the plaintiff’s property, already seized under said writ.

Eastern Dis. APPEAL PROM THE COURT OP THE CITS’ AND PARISH OP NEW-ORLEANS. This action was brought by the Union Bank of Louisiana, to erase the subscriptions of the defendants, from the book of subscription of the bank. Damages were claimed of the defendants, for the injury sustained in consequence of the subscriptions. The charter of the bank provides, that citizens of this state, and owners of land in this state, are the only persons who can subscribe for its stock.

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

APPEAL by defendant from the District Court of the parish of Natchitoches, Olcott, J. This appeal was tried in New Orleans, by consent of parties. Held: that the silence of the administratrix as to her claim of dower, was such a fraud upon the purchasers as to preclude her from after wards setting up such claim against him or his assigns.

Eastern Dis. APPEAL PROM THE COURT OP THE POURTH DISTRICT, THE JUDGE OP THE DISTRICT PRESIDING. The plaintiff sued on a promissory note. The defendant admitted his signature, hut pleaded error, want of consideration, and fraud. On the trial, the defendant attempted to prove various errors of fact in their business transactions previous to the timé the note in question was given.

Eastern Dis. APPEAR PROM THE SECOND DISTRICT, THE JUDGE THEREOF PRESIDING. 1. The matters set forth in plaintiff’s petition, are not sufficient to support an injunction issued against an order of seizure and sale. Code of Practice, 739, 298,299, 300, 301, 302 and 303. Moreau's Digest, vol. 1, 229. sec. 9. Acts of 1828, 160, sec. 25; 150, sec. 2. Code of Practice, 610 and 612. Civil Code, 2205. 2. Pothier on Obligations, 592. Uavard vs. Stone, 5 Martin's Reports, JV.

APPEAL by defendant from the Fifth District Court of New Orleans.

Eastern Dis. APPEAL PROM THE COURT OP THE POURTH DISTRICT, THE JUDGE OP THE THIRD PRESIDING. This action was brought to enjoin the defendants from further proceedings, in a suit against the plaintiffs, in which judgment had been obtained against the latter, a writ offieri facias issued, and their property seized. Louis A. Reboul, the ancester of the plaintiffs, had purchased a tract of land, and had given his mortgage upon it for the payment of the purchase money.

Eastern Dis. APPEAL PROM THE COURT OP THE PARISH AND CITY OP NEW-ORLEANS. 1. The answers were not categorical; all the questions were not answered. Code of Practice, arts. 246, 247, 848 and 349. 2. They could not be amended, as they contained an admission of funds in the garnishees’ hands, and a judicial confession cannot be retracted. JYew Civil Code, art. 2270. 3. The cotton, or its proceeds, was still liable to be attached by the creditors of Webb & Co. 4.

Eastern Dis. APPEAL FROM THE^ COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING.

APPEAL by defendant from the Fourth District Court of New Orleans. Strawbridge, J.. This was an application for a mandamus .upon the relation of JohnL. Lewis, the sheriff of .the parish of Orleans, against the defendant who was keeper of the workhouse of the Municipality No. Two.

Eastern Dis. APPEAL PROM THE COURT OP PROBATES OP THE PARISH OP JEFPERSON. This action was brought to recover, as a privileged debt, the sum of seven hundred and eighty-four dollars and eighteen cents. This sum appears to be due the plaintiff for work done upon a plantation at different times. The object of the suit was to obtain a privilege on the proceeds of the sale of the plantation, which the administrator of the deceased debtor had refused to grant.

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

<p>Eastern Dis.</p> <p>APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE SECOND PRESIDING.</p> <p>The court a quo, did not err in rejecting tbe testimony of applicant’s father, he being an incompetent witness, both from interest and relationship. La. Code, 2260.</p>

Eastern Dis. APPEAL PROM THE COURT OF THE FIRST DISTRICT. 1. Tbe evidence for the defendant, to which exception was taken, was improperly admitted. 2. The allegations of petition as regards the abduction of slaves, and the damages claimed therefor, are made out by proof. 3.

<p>The only issue which a slave who sues for his freedom can make, is that of “Liber vel non.” He has no right to contest the title by which the defendant asserts dominion over him.</p> <p>No one can emancipate a slave before he is thirty years of age. C. C. 185 ; Act 8th of March, 1807; Act 31st of Jauuary, 1837.</p>

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

Eastern Dis. appear from the court of prorates of the city and parish of NEW-ORLEANS. This action was brought to obtain possession of the estate of Philippe Sterlin, deceased. The plaintiff produced a notarial copy of the will, by which the deceased acknowledged him to be his only child, and bequeathed to h im three-fourth? of the property of which the testator should die possessed, and constituted him his legatee, by universal title.

<p>As a general rule the vendor is incompetent on the ground of interest in a suit concerning the vendee's title; but that incompetency may be removed by aproper release. Wherever the release can cover the interest it is sufficient to remove the incompetency of the witness.</p> <p>Evidence of the acknowledgment of the mother is admissible to establish the filiation of the child; and the declarations of the mother, in relation to the maternity of the child, made at a time not suspicions, are admissible in evidence to prove the filiation of the child. C. C. 214.</p>

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

APPEAL by plaintiff from the District Court of the parish of Jefferson, 'Clarke, J. This suit was brought by the plaintiff to recover from the defendant, who was a notary, money and notes deposited with him as the price of a slave which the plaintiff had purchased at a sale made to effect a partition between certain heirs, upon the ground that he had in vain demanded a title from the notary, the heirs not having signed the act; and further, that the slave had since died of a…

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

<p>Whei-e a party uses concealment or remains silent when it was Ms duty to speak, and thereby thinks he has acquired an advantage which he seeks to enforce, he is estopped by the line of conduct he has seen fit to pursue from succeeding in such action.</p> <p>Freeman v. Savage, 2 Ann. 269, affirmed.</p>

Eastern Dis. APPEAL FROM THE COURT OF PROBATES OF THE PARISH AND CITY OF NEW* ORLEANS. The plaintiff brought this suit to enjoin the register of wills, for the parish of New-Orleans, from selling a certain house and lot, and to rescind the order of court given for that purpose. The plaintiff had purchased the house and lot at a sale by the register of wills, and received the certificate of the latter, purporting to give a complete title to the premises.

<p>The testimony of one witness is sufficient to prove that a note which was secured by a mortgage upon the propcrtj of a married woman, which was given by A., was in fact given for the benefit of a firm composed of A. and her husband, and that by the mortgage she was security for her husband, and consequently not legally bound.</p>

<p>The act oí the 4th of May, 1847, establishing an office for the sale of the State lands at Winnsborough, did not auothrize at that office the sale of any lands which had not been previously located by the State.</p> <p>Where the English and French texts of a law differ, the English text must prevail.</p>

<p>Where the case turns on the meaning of certain words, which are not free from doubt, the construction given by the jury and the court below, will be followed.</p> <p>tunif^on* °the Sfn w”rds°wS doubt, the construction given by the jury and the bo followed.</p>

<p>Where sheet iron is stowed in such proximity to salt as to be rusted and injured thereby, the vessel is responsible for the damage.</p>

<p>Proceedings by the city of Lafayette to expropriate property for public use, under the act of 1st of June, 1846, may be discontinued at any time before they are finally acted upon by the court; and the discontinuance of such proceedings, gives no cause of action te the owners of the property, the expropriation of which was contemplated.</p>

APPEAL by plaintiffs from the Third District Court of New Orleans. Kennedy, J. In this case Susan W. Hills, the wife of the defendant, filed a third opposition, claiming the proceeds of his property sold under execution by virtue of her mortgage, for her paraphernal property alienated by him.

Eastern Dis. This suit was brought to rescind a contract by which the plaintiff had released all her claims upon certain slaves. The plaintiff sought also to recover the slaves as the forced and only heir of her deceased daughter. The defendants were the natural children of the plaintiff’s daughter. The defendants pleaded a general denial. The cause was tried and a judgment rendered for the defendant.

Easters Dis. APPEAL FROM THE COURT OF THE FIRST DISTRICT. The plaintiff claims of the defendant the sum of fifteen thousand dollars, for the rents and profits of a certain piece of ground, and for expenses incurred in obtaining possession. The petition shows the plaintiff to be, the owner of the ground. The defendant had illegally taken possession, which was restored by a judgment of the court in a former suit.

<p>Where there is no citation of appeal the appeal must be dismissed.</p>

APPEAL by plaintiff from the Fourth District Court of Now Orleans, Strawbridge, J. The judge of the district court gave the following judgment for the defendant: “ The plaintiff claims the value of a slave who was received in the parish prison, and after a detention of ten days without any commitment was taken ill, and shortly after being delivered to her owner died of the malady which attacked her in prison.

<p>Where a married tornan shows that she had the means under hpr own control to purchaso a certain property, and the property was purchased in her name, the act of sale stating it to have been so purchased by funds inherited by her fromher father, it is not necessary that she should prove the identity of the money paid for the property, in order to prevent the creditors of her husband from subjecting it to the payment of his debts.</p>

<p>A power of attorney authorising an agent to bring and cany on a certain suit, does not give that agent lha power to represent the principal in a suit brought against him for damages for the wrongful issuance of an attachment in the first suit.</p>

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

<p>A case will not be remanded because tbe court of tbe first instance did not pass upon a plea in reconvention, in support of wbicb no evidence bad been introduced, when the omission was not brought to tbe notice of tbe judge before tbe decree became final.</p>

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

Eastern Dis. appeal prom the court op the west district. This cause is now in this court for the second time. When it was first called for trial in the court below, the defendants challenged the jurors on the ground that they were members of the corporation. The court sustained this objection, and the plaintiffs appealed.

<p>The law does not favor repeals by implication. When laws in pari-maleria are to be interpreted, that construction is to be preferred which will give effect to all their provisions. C. C. 17.</p> <p>Article 338 C. C., is not repealed by tlie act of 26tk of March, 1844, allowing the surviving husband or wife the usufruct of the community property; and the surviving husband may take the conmmunity property at its appraised value,-upon complying with the necessary formalities, and giving the requisite security.</p>

<p>Where the report and procés verbal of a surveyor have been admitted in evidence in the lower court without objection, and the surveyor was sworn and gave evidence in the case, and the parties were present at the survey, it is too late to object to the evidence in the Supreme Court, upon the ground that the surveyor had not been duly appointed and sworn under article 837, C. C.</p>

<p>by defendants from the District Court of Iberville, Burke, J.</p>

Eastern Drs. APPEAL PROM THE COURT OP THE FIRST DISTRICT. This suit was brought by a minor, assisted by her natural tutor, to recover two' slaves. The defendant was the syndic of the plaintiff’s natural tutor, who had become insolvent in his own capacity, and as a member of a commercial firm. The tutor, in making his surrender, had placed the slaves in question upon his schedule as part of his estate.

<p>An order of seizure and sale by executory process, cannot issue upon a mortgage unless there be authentic evidence of the acceptance of the -mortgage by the mortgagee. C. C. 1794, 1796, 1803.</p>

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

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

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

Eastern Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING. The plaintiff seeks to recover the amount due upon three promissory notes; of one of whichheis thepayee; of another, the universal heir of the payee; and of the third, the assignee of the payee. The notes had heen given by Gertrude Patín, and her husband, Pierre Abadie. The defendants pleaded the general denial. Judgment was rendered against them.

Burk, J. The plaintiff sued to recover from the defendants, as damages' resulting from the gross fault and act of the defendant Lawes, in killing his, plaintiff’s, slave, the amount of the value of the slave, and other loss suffered by him in consequence of the deprivation of his services or of his value.

<p>Where an attachment was issued upon an affidavit, and the bond given was sufficient in amount for that sum, but was not sufficient to cover interest for several years, which was claimed in a supplemental petition, the attachment was good for the amount claimed in the affidavit, but not for a greater amount.</p>

Eastern Dis. APPEAL PROM THE COURT OP THE PIRST DISTRICT. This was a petitory action, brought for the recovery of a piece of ground containing three thousand one hundred and seventy-six superficial feet and four inches, situated in the city of New-Orleans, between St. Philip and Main streets, and between the river and the front row of houses. The plaintiffs are the vendees of the heirs of Thomas Bertrand, or Beltran.

<p>The proceedings to effect a partition are not evidence against a married woman who wag absent, and not a party to those proceedings.</p> <p>Where real property and slaves are adjudicated to a purchaser at a public sale, and the titles made in the name of that purchaser, parol evidence is not admissible to show simulation in the title, or an agency to make .the purchase for the- benefit of other co-heirs of the purchaser.</p>

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

<p>APPEAL from !the District Court of Point Coupée. Farrar, J. In this case A. Eecoux applied for a monition to confirm the title acquired by him at a constable’s sale.</p>

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

APPEAL by plaintiffs from the District Court of West Baton Rouge, Burk, J. “It was not the duty of the plaintiffs to procure the additional security; and if Frame A. Woods was contented to affix his signature to the notes, in the absence of Erasmus P. Woods, he must abide by the consequences. The syndics could have demanded the names of both; but it was not imperative upon them to do so.

<p>The circumstance that the person making a purchase which is attacked as being simulated and fraudulent, had been the attorney at law of the vendor, does not warrant the court in setting aside the verdict of a jury sustaining the validity of the sale.</p>

<p>Where in a succession sale tlie property is described as containing three lots of four arpents front each, and\ a remaining lot; all of "which are sold, and it turns out upon examination there are but two four arpent lots, the court cannot pass upon the rights of the purchaser of the third lot, and the purchaser of the remainder, without all the purchasers are parties to the suit.</p>

<p>See preceding case.</p>

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

<p>A party cannot appeal from a decree in his own favor appointing him administrator, when its effect could be avoided by a refusal to accept the appointment. .</p> <p>Au appellee who seeks a change of the judgment in his favor, must file an answer to the ap • peal The argument filed by counsel is not such an answer as is required. G. P. 588. Succession of Hilligsberg, 1st Ann. 340, affirmed.</p>

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

APPEAL by Widow L. Rivet and J. H. Rils, opposing claimants against the succession, from the District Court of Iberville. Burk, J. contended: The first question presented in the consideration of this case is, whether the property received in marriage was dotal or paraphernal?

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

contended : 1. The intention of the testator is to be ascertained from the terms of the will alone, if these are positive, clear, and distinct; but, when the will is in the least vague, or doubtful, as to its meaning, his intentions are to be gathered from all the concomitant acts and circumstances derived from other sources. (C. C. 1705, 1708; 7 R. Rep. 427, 428 ; Duranton, vol. 9, Nos. 361, 363 ; 2 Ann. Rep., 581,) and especially from his acts and declarations. 1st Ann.

<p>APPEAL by defendant from the District Court of Madison. Snyder, J.</p>

PPEAL from the District Court of Point Coupeé, Farrar, J. contended: We rely upon the following points: 1st. That the court erred in admitting proof of damages sustained by defendants, either for delay or otherwise, as it was not alleged nor proved that they put plaintiff in mora.

Farrar, J. contended: 1st. Plaintiff contends that his demand was fully made out. 2d. That plaintiff’s motion to strike out defendant’s plea in reconvention should have been sustained. 3d. That the court erred in permitting any testimony to go to the jury in relation to the loss of the boat while in the hands of the sheriff, and to prove the damage consequent upon her loss, as the sheriff had no opportunity of showing that he had discharged his duty in that respect.

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

<p>The articles 3352, 3353, 3354, requiring separate books to be kept by the recorder of mortgages, are directory only.</p> <p>Where there are no other books kept by the recorders of mortgages in the country than a registry of conveyances, in which all mortgages are recorded, this recordation is sufficient. ' But if there be a separate registry of mortgages, all mortgages must be recorded in that book.</p>

<p>Where the sheriff advertises a sale of property between the hours of 10 A. M. and 4 B. M. it is not good cause for an injunction, under the act of 5th March, 1842, fixing the time of making sheriff’s sales, andrequiring them to commence their sales at 11 o’clock; especially when there is no allegation that the sheriff intended commencing the sale at a different hour Rom the one prescribedby the law.</p> <p>To make the public the victim, because the sheriff had omitted to be sworn according to the Constitution, by declaring his acts null, would be repugnant to justice and the well settled' doctrine of the law.</p> <p>The article 126 of the State Constitution applies to the holding of two offices under the State, and not where one of the offices is held under municipal authority.</p> <p>It is the duty of the courts to mulct in exemplary damages those who wantonly abuse the equitable remedy of injunction.</p>

<p>Where the vendee claims property under an act of private sale, which was not recorded until after a seizure by a creditor of the vendor, and the possession at the time of the trial is shown to have been in a third person, between whom and the vendee no privity or connection is shown, it will not be regarded as the possession of the vendee under the act of sale.</p>

<p>An agent cannot take property in payment of a debt due to his principal, without a special authority; and a payment so made, is no bar to the principals right to recover the amount from the debtor.</p>

<p>In estimating the necessities of the wife so as to determine whether she be entitled to the marital portion, the condition of the deceased husband and the habits of life engendered by his fortune must be taken into consideration.</p> <p>The right to claim the marital portion exists as well in those cases where there was no marriage contract as in those in which no dowry is stipulated in the marriage contract. C. C. 2359.</p> <p>The wife is entitled to the mcmitalportion whether the matrimonial domicil was in the State or out of it. The right results from the marriage, no matter where contracted, and the wife takes by inheritance as other heirs.</p> <p>Real estate, upon the death of the owner, must be distributed according to the laws of the country where it is situated.</p>

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

<p>A claim is to be considered as liquidated by an acknowledgment on the part of the debtor of its correctness and a promise to pay it. When a claim thus liquidated is offered in compensation of a promissory note, it is not required that the liquidation should be proved by evidence in writing. C. C. 2205.</p>

<p>Where a party takes out an injunction against a sale under execution, for a clerical error in the publication of the advertisement, and the sheriff re-advertises the sale properly for a more distant day, and the party comes forward and bonds the property, it will be considered as an abandonment of the injunction.</p> <p>The right of a sheriff de facto to perform the duties of his office, cannot be litigated collaterally in a suit between two other persons. Dorsey v. Vaughan, ante p. 155, affirmed.</p>

In this case J. B. Wiggins was garnisheed on a fieri facias.

<p>Where a note is given for future services to he rendered, the non-payment of the note justifies the withholding of those services ; and where the services rendered before the maturity of the note were worth the amount of the note, the party rendering them is entitled to recover that sum in an action on the note.</p>

<p>As a general rule under-tutors are without authority to receive and control the assets of minors; but they have the right to employ counsel, and stipulate the necessary fee ; to institute proceedings against tutors to deprive them of their tutorship and to protect the property of minors from waste.</p> <p>An attorney at law who retains a reasonable amount out of his collections for his fee, can" not be compelled to refund the amount retained.</p>

<p>The purchaser who is apprised of the danger of eviction before the sale, cannot suspend the payment of the price on account of that danger. He has no action until he is evicted. C. O. 3535.</p>

<p>A dormant partner may retire from-a firm, and not be liable for subsequent contracts of his former partners, without giving notice of his withdrawal; provided that the persons affected by bis withdrawal were without knowledge of his having been once in the partnership.</p> <p>Where business is transacted by A and B., under the firm of A. & Co., B. cannot be considered as a dormant partner; and if he retires from the firm is bound to give notice of his retiring, or he will remain liable for the contracts subsequently made in the name of the firm.</p>

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

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

<p>Where property is seized hy the sheriff under one writ, if the sheriff receive a second writ, the first levy is sufficient for both, and the receipt of the second is a constructive levy. If the party suing out the second writ be sued for damages for a wrongful seizure, only such damages can he recovered as were sustained from the detention of the property under the second writ, after it was released from the first seizure.</p>

<p>Where a married woman is sought to be mad; liable for a debt which she alleges was the debt of her husband, to render her liable, it must be shown affirmatively that the debt was for her benefit. Her being separated of property does not throw the burthen of proof on her, nor is she estopped from setting up the defence by her acknowledgment of the indebtedness in an act of mortgage.</p>

Stirling, J. contended: The attention of tire court is first called to a bill of exceptions taken by plaintiff, to the reception of testimony-offered on behalf of the defendants For the reasons in said bill stated, the testimony should have been rejected. It will be perceived, by referring to the pleadings, that the authority of the wife to contract is not denied by the husband.

<p>Unless all tbe parties interested be cited or appear in the appellate court, the appeal will be dismissed.</p>

<p>Where a party receives paper which it was his duty to collect, and places the same for suit in the hands of a competent attorney at law, he will not be responsible for the opinions or directions of the attorney.</p>

contended: In this case there is a motion to dismiss the appeal. The plaintiffs in the action are three married women. The husband of one of them, in his name only, has signed the appeal bond. It is contended by the curator ad hoc, that the bond is insufficient, inasmuch as a married woman cannot bind herself except by her own act and with the authorisation of her husband. Here the husband of one of the plaintiff’s, in his own name, gives the bond.

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

<p>A succession inherited by minors may be administered by tutors, and a tutor may relieve an administrator from the further administration of the estate.</p> <p>Where a person has acted as tutor, and has been recognised as such by the probate judge, and where it is shown that the records of the court are in a state of great confusion and dilapidation, it will be presumed that he was properly qualified although the usual oath and bond cannot be found.</p> <p>Appointments made by decrees of courts of competent jurisdiction cannot be regarded as absolutely void, and attacked collaterally to the detriment of third persons.</p>

This was an action by the holder against the drawers of a note, to which the defendants pleaded payment. The plaintiff introduced the payee, Gory Hood, as a witness upon this issue. The testimony was objected to, and a bill of exceptions taken to its reception, upon the ground of the witness being interested. contended : The petition alleges that the witness assigned the note after it was due. If he did, it was paid, and he stood as the guarantor of the existence of the debt.

from the District Court of East Baton Rouge, Burk, J. contended: It is contended that the amounts paid on Ames’ orders, and the several sums for which receipts were taken, cannot be allowed,… Held: that evidence taken down at the instance of plaintiff, cannot be stricken out upon the cross-examination, on the ground that it contradicted or went to explain a written contract. The motion to strike out came too late; the objection should be made when the testimony is offered.

contended : The defendant was proceeded against by information, for a violation of the act entitled, “ An act to Prevent Gambling,” approved March 19th, 1835. He was convicted upon the first and third counts: the former charging him with keeping and maintaining a certain gaminghouse and banking game; the latter with aidiüg and assisting in keeping and maintaining a certain gaming house and banking game.

<p>Where the answers to interrogatories propounded to a party in a suit on oath, are manifestly evasive, they may be taken as confessed against the party answering.</p> <p>Where the husband holds funds as belonging exclusively to his wife, without any knowledge on the part of the wife of his holding the funds for her, third persons who have a better right to those funds may recover judgment against the husband, but cannot against the wife.</p>

<p>Where a bond in favor of a bank, secured by mortgage, was taken payable at the bank, it is not necessary that there should be authentic evidence of presentment and demand of payment at the bank, to entitle the bank to executory process.</p> <p>The Bank of Louisiana v. Farrar^ 1st Ann. 49, affirmed.</p>

<p>A mere intermeddler with minors’ property is liable for the damages he causes the estate.</p> <p>But if his administration has been beneficial, and bebas fairly accounted, be is not liable.</p> <p>The mode of calculating interest on the capital to a payment, and then deducting the payment on the aggregate of principal and interest until the next payment, however small the payments, or short the intervals between thorn, is not admissible in a tutor’s account.</p> <p>If a tutor invests the minor’s revenues once a year, and only when the surplus exceeds five hundred dollars, he complies with the law.</p> <p>Suits of children against parents are not to he encouraged, unless to redress clear and palpable injustice. There are services which parents render to their children, and which it is presumed they perform, until the contrary appears, that money cannot repay. Eilial duty should restrain the child from exposing the faults of its parents, or worrying them with litigation, unless compelled by extreme necessity.</p>

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

contended : “ The land was entered by Rowley, and in his name, and was paid for by him ; it was, consequently, his property. True, he may have signed a written promise, that upon a partition of the land, he would convey to R. N. Wood and J. B. Moore, the one-half of it, upon their paying the original cost. This article was not signed by either Wood or Moore, and of course, was not binding upon them, unless they chose to avail themselves of it.

<p>Legatees under an universal title are bound for the debts and charges of the succession. C. C. 1604, 1606.</p> <p>Legatees under a particular title are not liable for the debts and charges against a succession, unless made so expressly by the will. C. C. 1379, 1380,1393.</p>

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

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

Curry, J. contended: It is said by defendant, that there is no sufficient allegation of fraud and collusion in plaintiff’s petition. The language of the petition is, “that one James Erwin, who resides in the city of New Orleans, in this State, illegally, and by fraud and collusion, &o., took possession, &c. These are certainly not the averments which a lawyer would make in an ordinary petitory action. The law does not require any such averments.

Strawbridge, J. contended : 1st. A tutor can compromise respecting the rights of the minor, if authorised by the judge on the advice of a family meeting. C. C. 348. 2d. Heirs of age may make partition as they please. The article 1289 C. C., requiring lots to be drawn for by the heirs, is intended to secure the rights of minors.

<p>APPEAL from the District Court of Iberville, Burk, J.</p> <p>contended: The land was purchased during the marriage, and is, consequently, a part of the community, unless the case forms an exception to the rule governing purchases made by either of the spouses during the existence of the marriage. The articles 2314 and 2371 of the Civil Code, and arts. 14, p. 324, and 64, p. 36, Old Code, declare what property shall enter into the community. Art. 2314 C. C. and art. 14 O. C. lays down in general terms that all property acquired during the marriage shall form part of the community, except in certain cases; and no mention is made in the exceptions stated, of any kind of property acquired in any manner by purchase as forming one of them. The language is positive, that all property acquired by either of the spouses, or by both, shall form a part of the community, except such as are therein excepted. In these exceptions we look in vain for property aequhed by purchase. Article 2371 C. C. and ait. 64 O. C. states explicitly that all property purchased during the marriage, whether in the name of one or both of the spouses, shall enter into the community. The Supreme Court has decided repeatedly, that when there is a purchase of property, even with the paraphernal funds of the wife, the purchase shall he held community property, and she only has her legal remedy against her husband, for the restitution of her paraphernal monies. In Brown and Wife v. Cobb et al., 10 L. R. 181, the court sanctioned the doctrine, that in all cases where there is a real sale of property, and a purchase by one of the spouses, the purchase shall be considered community, though the one purchasing be interested in the property, and it be sold to effect a partition. There appears to be but three exceptions to the rule recognised in our law, that all purchases shall inure to the benefit of the community: 1st. When dotal property is sold and the funds re-invested; for this there is a special provision made by law. 2d. When the wife retains the administration of her paraphernal property, and purchases with her own money. 3d. When there is a real giving in payment or exchange for obligations or goods of the wife. Stokes v. Shackleford et al., 12 L. R. 170. 1 L. R. 522. 18 L. R. 361. 19 L. R. 406.</p> <p>But this case does not fall under either of the foregoing exceptions. Here there was a real sale and a real purchase. There was not even a preexisting imperfect title in the husband. The ownership of the front tract did not invest him With any species of title to the back concession, but simply the right to acquire a title, in preference to other persons, if he was in a situation and choose to avail himself of this right. This right did not even exist at the time the marriage gave existence to the community, but was created subsequent thereto. If he did not, or could not purchase the land, as he could have done, had he the ability or the will, he lost the right by not availing himself of it in the manner prescribed by law. Whether willingly or not, it matters not. He, perhaps, might have acquired the land [for the sake of argument] had he purchased with his own funds; but he chose to purchase with the funds of the community, and the benefit of that purchase must result to the benefit of the community. The presumption is, that he intended to purchase for the benefit of the community; his right was exercised for the benefit of the community of which he was the head and master. Stacey v. Hammond.</p> <p>By our law, the husband is the head of the legal partnership, and is bound in law and conscience to administer it for the best interests of both parties. The wife, on the contrary, has no control over it, or interest in its administration, until after its dissolution. This circumstance would seem to impose on the husband, more strenuously than in the case of an ordinary partnership, the obligation of exercising the powers in him vested, for the mutual benefit of both parties. Now, between men dealing as commercial partners or otherwise, neither law nor conscience would sanction the conduct of one who would abstract a portion of the common fund for the purpose of embarking it in a private speculation. If such an act were done, the law would declare the purchase to be for the mutual benefit of both parties, if the article bought were one in which the parties dealt; if not, the other partner would have the option either to take his share in the speculation or not, as he might choose. Land is an objectwhich the husband, as head of the community, may buy and sell for its benefit, and such a transaction would-be perfectly legitimate.</p> <p>In this case the land was-not sold by the husband, as he certainly had the right to do, had he chose. But suppose he had done so, and realised a profit on the transaction, would he individually, or the community, be entitled to the profit? Is it just to allow one to use a common fund in trade for his individual benefit ? Suppose, for a moment, the land had been sold at a sacrifice; on whom would the loss have fallen ? On the community, certainly; for the wife has no power to call the husband to account for his transactions as administrator of the community. He may alienate, transfer, and even give away the property. ’Tis true, he cannot transfer the real property by a gratuitous title, but he can convert it into money, and dispose of that as he pleases. If the sole property of one of the spouses is improved, by the mutual industry or the funds of the community, such improvements and ameliorations as are made by such means, become community property. C. C. arts. 2376 and 2377. Code of 1818, p. 336 and 338, arts. 69 and 70. The back concession is an addition to the front tract, in the nature .of an improvement or amelioration, and within the meaning of the law. So by the rule it must be considered as belonging to the community.</p> <p>The laws of Spain are the source from whence is derived our jurisprudence on the subject of the legal community, and as such, must be looked to for light in cases of doubtful interpretation. By the Spanish law, not only all property purchased during the marriage, but also the young of cattle, and slaves brought in marriage, were held to belong to the community. The rule is, that all produce of the common industry and care was held in common; and the natural produce of these things was considered to proceed as much from the common industry and care as the wages of labor itself. 8 N. S. 197. 11 R. R. 526, and authorities cited.</p> <p>contended: The land in dispute is not community property, because it was purchased by the deceased André Langlois, in his own right, as front owner of a tract of land brought into marriage! Stroud et al. v. Humble et al. 2d Ann. 930, and the authorities therein quoted. This is in accordance With Pothier, Traité de la Communauté, vol. 1, art. 157. He says: “Les acquets de chacun des conjoins par marriage, ne sont conquéts que lorsque le titre ou la cause de leur acquisition, n’a pas précédé le temps de leur communauté; sinon ils sont propres de communauté.” See also Toullier, vol. 12, art. 180. Let us then test this case by the rule laid down by Pothier, and ask where was, in whom rested, the title or cause of the acquisition ? — (le titre ou la cause de 1’acquisition,) it was not in the plaintiff; it was not in the community; it was not in Langlois, as master and chief of the community ; but it was in Langlois in his own right as owner, and on account of his front tract brought into marriage.</p> <p>Reverse the case, and suppose that the plaintiff brought into marriage the front: tract, the purchase of the land in contest should have been made in her name, and it would have become her bien propre.</p> <p>To apply well the above rule of Pothier, it is only necessary to see and examine whether the purchase or acquisition, as prescribed in Louisiana Code, art. 2371, can be made indifferently and indistinctly, in the name of either of the two; if it can, the title or the cause of the acquisition would be in the community, but if it cannot, the title or cause of the acquisition would then be exclusively in one of the two,</p> <p>In the case before the court, it is clear that the plaintiff could not, under the law, purchase from the government any part, however small, of the land in contest, and that she cannot be benefitted by the purchase made by André Langlois.</p>

<p>The]|respective rights of parties claiming land under the preemption law of Congress of 4th of September, 1841, must be determined by the register and receiver of the U. S. land office, subject to an appeal to the treasurer of the United States.</p> <p>The possession of a party under a certificate that he had filed proof of his right to .preemption with the register and receiver of the U. S. land office, is not sufficient to maintain the possessory action against another person who holds a similar certificate of subsequent date, and who is in actual possession of the land.</p>

<p>There is no other mode provided for the service of interrogatorios apon a party not appearing in court by counsel, than the fictitious one of posting. If such service as is required on citations be relied upon, it must be shown that the service upon an absent party was made at the domicil of tlie absentee.</p> <p>In an ex parte proceeding wherein a judgment by default is sought to be confirmed, a decision of the court in tlie first instance, rejecting the evidence because the interrogatories were not properly served upon the defendant, will be sustained.</p>

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

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

<p>Under article 2736 O. C. tlie proprietor has the right to cancel at pleasure the bargain he has made by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the ease may require. This authorises the allowance of the profits the undertaker might have made by completing the work.</p>

contended : The twelve months’ bond contained a mortgage and confession of judgment. This bond was not recorded in the mortgage book until the 15th of March, 1844. Held: “that the release of a debtor is an act of ownership, which a cashier is not authorised to perform under his general administrative powers.” The cashier being without power to grant such release directly, he cannot do it indirectly, by prolonging the term of payment.

Eastern Disl- APPEAL PROM THE COURT OP THE PIRST DISTRICT. The plaintiffs in the present suit are the heirs of Christopher R. Elliott, who died in one thousand eight hundred and eleven, in the city of New-Orleans, leaving a widow and several minor children then residing in the state of South Carolina.

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

Eastern Dis. APPEAL PROM THE COURT OP THE PIRST DISTRICT. This was a petitory action, in which the plaintiffs, as heirs of the Chevalier de Morand, senior, claimed a tract of land situated in the, city of New-Orleans, extending from the road leading to the bayou St. John, along Rampart-street, to the south corner of the public square, where formerly stood fort St. Ferdinand, and running back from this corner fourteen arpents by ten on the north eastern limit, &c. In 1731,…

Tammany, Stirling, S. contended: The property having been acquired during the marriage, one-half of it must still belong to the heirs of the deceased wife; unless they have been legally divested of the title. C. C. articles 2371, 2374 and 2375. Morris v. Covington, 3d Ann. 261.

<p>A stock mortgage in the Clinton and Port Hudson Hail Hoad Company takes precedence' of a mortgage stock loan made under the provisions of the charter Of said company.</p> <p>Where property was sold on twelve months' hond by the sheriff, for less than the amount of a prior mortgage, it was no sale; and the surety on the twelve months’ bond is not bound.</p>

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

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

<p>The consideration of a receipt may be explained by testimony.</p> <p>Where the act of sale of slaves is silent as to the possession, it may be proved by parol.</p>

<p>The sheriff who has made a seizure may proceed to sell, after the return day of the writ has expired, where the failure to sell has not been attributable to the plaintiff.</p>

contended: Plaintiff, in his capacity as administrator of the estate of Tilomas L. Andrews, deceased, sues on the following note : “ Clinton, 7th April, 1842. Six months after date I promise to pay to the order of Burrell Myers, the sum of four hundred and ninety-six dollars and two cents, bearing ten per cent interest from date, for value received; payable at the Branch of the Union Bank of Louisiana, at Clinton.

<p>tíontofPten°S’á timremust nlfidtprasSon’ of property deed under which LposscSob. put</p> <p>enyrhee St’actf of awhoiieand'dís-p'er VmcrX>nm, and the circumstances control a problematical description of quantity.</p> <p>So long as a person occupies a part of his plantation, his civil possession extends over the whole.</p> <p>tract of land so that the balls from the guns of a fort mustpass over it, ;s insufficient to “io”-</p>

contended: The first point is, as to the service made upon the tutor. It is contended, that service should have been made upon him previous to the meeting of the family. The authority recited to sustain this point is 1 N. S. 551. We also call attention to the same authority as having no sort of bearing upon the case at the bar.

Eastern Dis. APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING. This action was brought to enjoin the sheriff and the plaintiff in another suit, from all further proceeding on a fieri facias which had been issued in that suit, and for a decree extinguishing a certain promissory note.

Eastern Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING. This suit was brought for the payment of thirty-seven thousand eight hundred and thirteen dollars, with interest at six per cent, by a seizure and sale of a plantation situated about thirty leagues above the city of New-Orleans, on the right bank of the Mississippi, and fifty-four negroes, in the possession of the defendant.

<p>Upon a question of domicil, the declarations of aparty made in authentic acts are admissible in evidence against him, but he is not concluded by such declarations, and may disprove them in all cases where the domicil is not one of the causes of the contract.</p> <p>In a suit brought by attachment the defendant cannot reconvene and claim damages for the wrongful issuance of the attachment, unless the plaintiff resided in a different parish from that in which the suit is brought.</p>

THE appellee, Binion, prays for a re-hearing, and makes but one point, namely, that the court has erred, in supposing that his reconventional demand was founded on the non-residence of the plaintiff, Davis. If it had been so founded, we admit that the district judge may have injured plaintiff by the decision. But we do not rely on the amended article of the code: 375. The residence or non-residence of Davis was and is wholly immaterial.

Buchanan, J. contended: In this case plaintiff alleges, that defendant, under a promise of marriage, whch he never performed, became the father of her child, Eliza Jane Fitzsimmons, which was born on the 13th December, 1846; and plaintiff prays for such alimony for the support of said child as the age of said child and the pecuniary circumstances of said defendant may justify.

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

cited the following authorities to shotv there was not a sufficient description of the property at the sheriff’s sale. McJDonogh v. Gravier, 9 L. H. McDonogli v. JElam,■ 1 L. R. 492. Carmichael v. Aiken, 13 L. R. 207. McGary v. Dunn, 1 Ann. 339. Ronkendorf v. Taylor's lessee, 4 Peters 362.

Eastern Dis. APPEAL PROM THE COURT OP THE EIGHTH DISTRICT, THE JUDGE OP THE THIRD PRESIDING. This suit was brought by a minor above the age of puberty ? assisted by a curator ad bona and one ad litem. It was a petitory action in which the plaintiff as sole heir of his deceased mother, claimed certain real property situated in the town of Madisonville, and of which the defendent was in possession.

contended : The plaintiff, holding a claim against the Steamer Bride, brought suit to recover it. Lesperance, a part owner residing in the city of New Orleans, was cited in the ordinary form. HadlocJc, Driver and Blood, the other part owners, being nonresidents pf this State, were brought into court by attachment of their interest in the boat.

<p>Eastern Dis.-</p> <p>APPEAL FROM THE PARISH COURT OP THE PARISH ANÜ CITY OP NEW-ORLEANS.</p>

<p>Eastern Dis.</p> <p>APPEAL FROM THE COURT OR THE FIRST DISTRICT.</p>

<p>APPEAL From the First District Court of New Orleans, J. Seghers, p. p.</p>

<p>A sale made in another state of slaves in this, must he registered in this state in the manner required for a sale made here, before it can affect a third party.</p> <p>Asale mado m slaves in this, must be register-ca in this state in tue manner requi-maderero before party“a°otatlüld</p>

<p>Slaps and owners are liable for loss and injary to goods shipped, caused by bad stowage and want of care.</p> <p>Vessels are liable for loss and injury to goods shipped occurring from improper delay in not sailing at the appointed time; but the amount of damage must be shown by evidence.</p>

'Easters Dis. APPEAL PROM THE COURT OP THE POURTH DISTRICT, THE JUDGE OP THE SECOND PRESIDING. 1. The commission was not duly executed; there was no proof that Mr. Boss, who executed it was a magistrate. 2. It is not proved that the post office established by law, nearest the residence of defendant was Desobry’s post office. 3. There is no such office as Desobry’s post office known to the law.

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

Eastern Dis. APPEAL FROM THE COURT OF THE FIRST DISTRICT. 1. But a single witness supports the contract on which the defendant is sued, and he is unsupported by circumstances. 2. It is a contract against which the presumption of law exists. It is opposed by circumstances, and- the testimony of of three witnesses. 3. The District Court erred in excluding evidence from ° the jury, which should have been admitted. 1. The verdict of the jury was correct. 2.

<p>Where the vendor draws a hill upon the vendee’s factor, which is accepted, he .does not thereby lose recourse upon the vendee for the amount of the purchase upon the dishonor of the bill; but in so doing he should not include in the bill amounts due by other vendees; for the vendee,, upon payment, is entitled to the possession of the bill, which ¿ould not he given if other vendees were also entitled to it.</p> <p>If the vendor who has drawn a hill upon vendee’s factor, after acceptance releases the acceptor, he thereby loses all recourse upon the vendee for the amount of the purchase.</p>

Eastern Dm. APPEAL PROM THE COURT OP THE FIRST DISTRICT. 1. The defendant admits his signature. The signature of the endorser, and the date of the transfer, are proved by the witness. 2. The account of the defendant is not proved, and if it was, cannot be allowed, against the plaintiff. 3. The appeal was taken for delay, and the judgment of the District Court ought to be affirmed with ten per cent, damages and costs.

contended : The exception pleaded that the petitioners are held in slavery by the administrator of Read's estate in Mississippi, and that the courts in this State have no jurisdiction to decide on their claim to freedom, has no weight whatever. The right to freedom is a vested personal right which exists and may be asserted wherever the person is, or wherever he goes. See case of Rankin v. Lydia, 2 Marshall’s Rep. 467. Wheeler, Law of Slavery, 389.

contended: The appellants contend, that there is error in the judgment of the court a qua. in not entertaining jurisdiction of this suit, and in dismissing it. The insolvent laws of this State are inoperative, so far as this contract is concerned.

Eastern Dis. APPEAL PROM THE COURT OP THE FIRST DISTRICT. The plaintiffs in tbis action, Mariano Ribas and Roman Colmenero, allege that Jacques Rigand in 1781, obtained from the Spanish government a concession of forty arpents in the Grand island or Barataría, which were located from the eastern extremity of the island.

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

<p>A syndic acquires from an insolvent no greater rights than the insolvent himself possessed; and where the insolvent had surrendered all his interest in certain lots, and the syndic sells iu conformity with that description, the purchaser cannot claim afourthinterest which the insolvent had previously convey ed, although the title had not been recorded in the parish where the property was situated.</p>

E^.TEf” £IS- APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OF NEW-ORLEANS. 1. The judge erred in refusing a new trial, the verdict being clearly contrary to law and evidence. Civil Code, arts. 3496, 2503, 2508. Beck's Med. Jurisp., vol. 1, ps. 350, 361, 375. Broussais sur la Folie ps. 233, 231, S/c. 2. The judge erred in excluding evidence in relation to the capacity of the medical witness, to form a correct opinion. 3.

<p>Where a party has been evicted from the land purchased, he is not bound to pay anote given for the price. But if the eviction be only of a portion of the land, he may be bound ratably for the land of which he was not evicted.</p> <p>Promissory notes are barred by five years prescription. C. C. 3505.</p>

Eastern Dm, APPEAL FROM THE COURT OF THE PARISH AND CITY OF NEW-ORLEANS. 1. The judge erred in refusing to hear testimony on the disparity of price in raising the walls, and that necessary to widen the foundation. 2. Also in refusing: to bear testimony of an architect, as to the price paid for erecting the houses described in plaintiff’s contract, in order to preclude the supposition, that the shed-r00f was contemplated in said contract. 3.

Bernard, Rousseau, J. contended : The judgment of the lower court rendered, was against the plaintiff on two grounds: 1st. That the New York will was revoked by a codicil to the latter will, made in Louisiana. And 2d. That the New York will was null as an olographic will, because not entirely in the hand-writing of the testator. It is admitted, and seen on inspection, that the codicil is not dated.

<p>In the Code of Practice, articles 212 and 314, the words “leave the state” and “remove from the state,” are synonymous, and an affidavit made in accordance with either, is sufficient.</p> <p>plaice °m-tici¿í wo^Xd“ieavetha af“om"reá nymlus“lrand,n™ acco?danc“a with cither is sulB* cient.’</p>

<p>The contractof apprenticeship is not susceptible of alienation, hut is personal; and ceases at the death or insolvency of the master.</p> <p>The contract of apprenticeship is not susceptible of alienation, but is personal and ceases at the death or insolvency of tho master..</p>

contended: This case presents two questions : 1st. Have the governor and Senate the general right of appointment to this class of offices 1… Held: that the act of April 6th, 1843, whicli constituted the Secretary of State and State Treasurer to be a Board of Currency, was not repealed by the Constitution of 1845, but that the same remained in full force and effect, until legislative action should be had, though in some respects conflicting with article 126, which provides,…

Dig. APPEAL PROM THE COURT OP THE PIRST DISTRICT. The defendant and nine others, were the sureties of William Gibbes, late Paymaster of the First Regiment of Infantry, in the army of the United States, on a bond in the penalty of ten thousand dollars.

Eastern Dis. APPEAL PROM THE COURT OP THE POURTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. 1. The mortgage was paid and satisfied. 2. The claim of the heirs was prescribed, and mortgage extinct. 3. Plaintiff was never disturbed in his possession. 4. Plaintiff’s right of action was barred by prescription, and may be taken advantage of in the Supreme Court. Code of Practice, 902, La. Code, 3507, Old Civil Code, Martin’s Reports, 7 JV*. S. 110, 111. Union Cot.

contended: This is an application for a writ of mandamus by the present recorder of the parish of Jefferson, to compel the defendant, who was h’is predecessor in that office,… Held: to be held on the fourth Monday after the last day of the term of court at which the trial has been had, and after at least fifteen days notice by advertisement aforesaid.” The sheriff construed the term of court to mean a monthly term, and directed an ejection to be holden on 28th January, 1850.

<p>Where ninty-three days had elapsed from the issuing of a commission to Matamoras, under which no testimony had been obtained, and no diligence was shown to have been used in endeavoring to obtain it, the party was properly ruled to trial by the jugde a quo.</p> <p>Where 93 days had elapsed from the issuing of a commission to Matamoras, under which no testimony had been obtained, and no diligence was shown to have been used in endeavoring to obtain it, the party was properly ruled to trial by the judge a quo.</p>

Eastern Dis. APPEAL PROM THE PARISH COURT OP THE PARISH AND CITT OP NEW-ORL EANS. This action was brought in 1830, for the recovery of the sum of six thousand nine hundred and sixty dollars, due on an instrument alleged to be a bottomry bond, upon the steamboat Walter Scott, then in the port of New-Orleans.

contended: This is a suit to recover the value of a horse killed on the Shell Road, through the improper conduct of appellants. The petition sets forth two causes of complaint against the bank: first, the violation of the custom of the road in shutting the toll gate at an unusual hour ; an(^ secon(j) ¡n having a bar instead of a gate at the toll gate.

contended: The Merchants’ Bank collected, as agent for the Bank of the United States, the sum of $360 for rent of a store for one yeai-, belonging to the latter. This receipt was not acknowledged or credited in the Mex-chants’ Bank account with the Bank of the United States. The defendant is sole stockholder of the Merchants’ Bank. The assets and papers are in his hands, and amount to a sufficient sum to meet the plaintiffs’ claim which is for $360, the said amount collected.

<p>Where the defendant moves to dissolve an injunction for matters appearing on the face of the record, the court may allow damages under the act of March 25th, 1831. The plaintiff cannot, by submitting to a non-suit,, avoid the damages which are to he regarded as a claim in reconvention.</p>

<p>Where the municipality had agreed with a contractor to make certain banquettes at a fixed price, one-third to be paid by the municipality and the other two-thirds by the front proprietors, and it having been settled by a suit that the front proprietors were liable for only one-third, the municipality will be considered as a warrantor for the remaining third of the price, and held liable for that sum.</p>

<p>The sheriff holds property seized under attachment for the benefit of whom it may concern. If the attaching creditor succeeds in his suit, the rents and profits dyriag the attachment belong to him to the extent of his claim, and he may recover the same in a direct action against the tenant if he has not paid the rents to the sheriff.</p>

<p>Where one joint owner of a plantation agrees with the other to receive a fixed compensation per annum for his interest in the plantation, such an agreement does not constitute a partnership. It is merely a lease of the joint interest.</p>

<p>In an action on a promissory note evidence will not be received in support of a plea in reconvention not necessarily connected with the original demand, or in support of a plea in compensation where the sum is not alleged to have been liquidatsd.</p>

<p>By tlie act of 2'6th of March, 1842, an executor is bound to pay over to tlie Treasurer of the State the amount of the tax imposed on foreign heirs, legatees, ¿te., and will not be discharged from so doing by showing that he has appropriated the money to other purposes. Execution may issue against him on a judgment upon a rule taken against him in behalf of the State Treasurer.</p>

<p>APPEAL from the Fifth District Court of New Orleans, Buchanan, J. C.</p> <p>contended: This suit is brought against the defendant as the endorser of a check, payable to his order, on the Mechanics and Traders’ Bank. The presentment, demand of payment, protest, and notice of the dishonor of the check were proved, not only by the notarial protest and certificate of notice, but by the testimony of the person by whom the demand of payment had been made ; and the notice of the refusal to pay for want of funds was given to the defendant in person. There is no defence whatever in the case, and this appeal cannot have been taken for any other purpose than delay. The judgment of the district court should therefore be affirmed, with ten per cent damages as for a frivolous appeal.</p> <p>contended: This is an action against the drawer and endorser of a bank check. Plaintiff avers presentment, non-payment and notice to the endorser. The endorser pleaded the general issue; and on judgment being rendered against him, he appealed.</p> <p>The first question that arises is: what was the nature of the obligation of the endorser of the check? We urge that he incurred no liability. That bank checks like that sued on are drawn and taken on the supposition that the drawer has funds in bank to meet'them; that the credit is given to the drawer alone; that in receiving such checks, the endorsement is not considered as having any other effect than as an assignment of the check. The endorser is the transferrer of the right which the check gives to receive so much money. He warrants nothing but the existence of that right; not the solvency of the bank nor of the drawer. C. C. articles 2616, 2617. If the endorser be liable in case the check be dishonored on due presentment and notice, such liability must rest on the similarity of checks with bills of exchange. The consideration of this brings us to another question, as to presentment and notice of dishonor.</p> <p>If the endorser is to be held liable by the rules applicable to bills of exchange, those rules must be adhered to throughout the case. The check then was entitled to grace and could be protested only at the expiration of the three days. Brown v. Lusk, 4YergerRep. 210. Marker v. Anderson, 21 Wendell 372, The check sued on is dated October 5th, 1849, and it is alleged was presented and protested for non-payment the same day.</p> <p>We next come to the consideration of the alleged presentment, protest, notice, See. The act of protest and certificate of notice offered in evidence by the plaintiff are clothed with all the forms of law, and if they are what they profess to be, would be conclusive. But they are completely destroyed by the testimony adduced. Two witnesses state that on the 8th or 10th of December, 1849, after the institution of this suit, and two months after the alleged protest, they went to the office of the notary and saw the original act of protest; that it was not then even signed by the notary, and by only one witness. It is admitted that the signatures of the witnesses to the protest and certificate offered in evidence were affixed after the institution of the suit. The demand on which the protest was made, not by the notary, but by his clerk. So we see that there was no protest, notwithstanding the notary’s certificate. To enable the notary to protest, he must make the demand himself, or by his lawful deputy. The demand in this case was not by a deputy, but by a clerk. To be a protest it must be recorded and signed by the notary and witnesses. This was not recorded nor signed at the time it purports to have been made. If there was no protest there could not be any notice of protest. So the case stands precisely as if the notary protest and notice of protest had never been heard of. Acts of 1821, 1827, concerning protests and notice. 17 L. R. 479. 19 L. R. 447. 1 R. R. 66. 6 R. R. 276. 1st Ann. 95. 3d Ann. 121.</p> <p>Now Jet us see what is the evidence of presentment, and notice of non-payment, beyond the protest. Duplantier says he presented the check, that it was not paid, and the next day he gave a written notice of protest to Bayon, but did not tell him the check had been dishonored? He does not even say what the written notice contained. There is no attempt made to show what that notice contained. The endorser was entitled to notice of the presentment and nonpayment. To make the notice good where in case of protest, it must set forth in terms sufficiently clear to inform the party what had been presented, giving the names of the drawer, endorsers, &c. 12 L. R. 467.</p> <p>To recapitulate : 1st. The endorser is only liable as transferrer, and did not guarantee the solvency of the parties to the check. 2d. If the endorser were liable in case of proper presentment and notice of dishonor, he is released in consequence of the check not having been presented on the last day of grace. 3d. There was no demand by the notary, nor lawful deputy. 4th. There was no protest recorded and signed by the notary and witnesses at the time of its date. 5th. There was no description of the instrument protested in the notice given. 6th. The certificate of the notary as to the manner of giving notice was not recorded and signed by the notary and witnesses on the day of its date. 7th. There was no notice given to the endorser of the presentment by the witness Duplantier, and failure to pay.</p>

Eastern Dis. The preceding opinion was delivered at the last May term, and a motion for rehearing was made on the following grounds, by Hennen and Peirce, for appellants. 1. That no judgment can be rendered, to divest Edmond-son of his property, because of a debt due by Tallant, until judgmentbe rendered against Tallant.

contended: Scott and Dunbar were the sureties of Thompson L. King on two notes, one upon each, held by the Commercial Bank of Natchez. The bank sued and obtained judgment both against the principal, King, and the sureties, in 1842, which judgments were paid by the sureties. On the 15th June, 1839, Hunter and T• L. King sold a plantation and slaves in Madison to Augustus King.

Eastern Dis. APPEAL PROM THE COURT OP THE FIRST DISTRICT. This case comes before the court on a second appeal. On the first it was remanded on the ground that the order of appeal had been prematurely granted, the dismissal of the exceptions, from which the appeal had been taken, working no irreparable injury to the defendants. Vide ante, 22.

<p>When a sufficient number of the regular panel of the jury are not present, the court is authorised to direct the sheriff to summon talesmen and proceed with the trial of the case, notwithstanding attachments are out for the absent jurors.</p> <p>Parol evidence is inadmissible to establish a modification of a written agreement, or to establish a subsequent parol agreement inconsistent with the written one.</p>

contended : This is an action for a breach of promise of marriage. The plaintiff alleges, that on or about the month of December, 1.844, and at divers and sundry times, said time in said State of Louisiana,’’ the defendant undertook and faithfully promised to marry plaintiff &c. By an amended petition, allowed by court, the promise was alleged to have been reciprocally made. This amendment was properly allowed.

Eastern Dis. The plaintiff in this suit was the defendant in another, in which judgment had been rendered against him; an appeal staying execution had been taken, and he had subsequently been arrested and imprisoned during one day on an affidavit falsely and maliciously taken, as is alleged, by Kilkenney, as ' the agent of Mrs. Adams, the plaintiff in that suit, and with Kilkenny, the defendants in the present action.

<p>Eastern Dis.</p> <p>APPEAL PROM THE COURT OF THE POURTH DISTRICT, THE JUDGE THEREOF PRESIDING.</p>

Eastern Dis. APPEAL PROM THE COURT OP THE PIRST DISTRICT. The defendant was sued as one of the sureties in a bond to the Parish Judge, by John A. Foote, as principal, curator of tjie plaintiff’s deceased father. It was alleged that the cura-tbr had converted to his own use, five thousand dollars belonging to the estate, and to recover this sum from the surety, this action was brought.

Eastern Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING, This action was brought against the widow of Pierre ° ° .

contended: The defendant was indicted for .embezzlement, under the act of 1844, (page 79 Session Acts,) entitled “An act to secure the collection, safe keeping and disbursement of the revenue of the Stale, and to prevent the embezzlement of the public money.” He was convicted; and having moved in arrest of judgment upon the ground that the indictment was defective, which motion proving unsuccessful, he has appealed to this court.

<p>Eastern Bis.</p> <p>APPLICATION POR A MANDAMUS.</p> <p>Mrs. Widow Rillieux, natural tutrix to her minor children* had sued them, and obtained judgment for sale and partition of a plantation, which they owned in common and undivided, andón which there existed the legal mortgage against her as tutrix of the children* and several conventional mortgages. In order that she might give a clear, unincumbered title, to the purchasers at the public sale ordered, she applied to the judge of the Court of Probates, for the parish of St. John the Baptist, before whom the proceedings had béeU cttndtccfedy for an order to erase and cancel the mortgages. The judge refused to grant this order, and she applied for a mandamus.</p>

McHenry, J. contended: 1st. Prisoner was denied the privilege of consulting with'his counsel in selecting his jury; nothing to urge in defence of that point. State Constitution, ait. 187, art. nxx, 51 Rob., Penal Law. 2d. Whether the State is bound to take initiative in accepting and challenging jurors. Acts Leg. 7th March, 1837. Bacon’s Abridgement, Head Juries, division 10, Challenges by the king.

Eastern Dts. APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OF NEW-OREEANS. , The plaintiff, former mate of the brig Latona, sued the master and owner for his wages from the time he was discharged from the brig at Trieste, until he arrived at the city of New Orleans, where he had been shipped. He also claimed damages, in consequence of the defendant having previously to his discharge, assaulted, beaten, and kept him in irons during ten days.

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

<p>Eastern Dis;</p> <p>APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS,</p> <p>In this action damages were claimed of defendant, acting as the attorney in fact for the lessor, for breach of a lease of a house and lot in Camp-street, in the city of New-Orleans, in refusing to give the plaintiff and lessee possession of the premises at the time fixed in the lease. The defendant pleaded that he acted as the agent of Thomas Mellon, the lessor, to the knowledge of the plaintiff; and afterwards answered, avering the nullity of the lease, on the ground of error, and certain statements of plaintiff, by which defen-' dant had been induced to enter into the contract. The jury found for the plaintiff. The defendant appealed.</p> <p>1. The court below erred in overruling the exception pleaded by defendant, to wit: That he acted as agent, which agency was known to plaintiff; expressed in the act of lease sued on, and stated in plaintiff’s petition, that plantiff was agent.</p> <p>2. Defendant relies on his hills of exceptions.</p> <p>3. There is no evidence of any damages having been sustained by plaintiff.</p>

contended, in reply to defendants counsel: Defendant does not refute plaintiff’s argument to show that prescription was suspended for several years by the non-residence of the defendant. Held: that if a claim by prescription, it still may be offered in compensation. Troplong, loco citato, contends, indeed, that prescription extinguishes as well the natural as the civil obligation. But, of all the commentators on the code, he stands albne of that opinion.

<p>Eastern Dis.</p> <p>APPEAL FROM THE CODRT OF THE FIRST DISTRICT</p>

Eastern Dis. APPEAR PROlit THE' COURT OV THE FIRST' DISTRICT.

<p>An indictment for “breaking and entering a store,” will justify a conviction under a statute against “ breaking and entering a shop."</p> <p>If the statement of the real facts in an indictment or information constitutes a substantial violation of the statute, it is the duty of the court to sustain the indictment or information</p>

<p>Whore the plea of autre fois acquit is set up, and the record shows on its face that the offence plead to was not the same of which the prisoner was before acquitted, the plea may be demurred to, and it is not necessary to submit it to a jury.</p> <p>The objection to any informality in drawing the jury should be made on the first day of the term</p> <p>Such allegations as that the whole proceedings are “informal, illegal and insufficient,” are too general to be noticed by the court.</p>

contended : It is perfectly manifest that there exists no lien nor privilege on this tobacco in favor of Warneken and Kirchhoff. Held: however, in the case of Laughlin v. Ganahl, II '■h* tbe privilege accorded to the vendor subsists only so long as the property sold remains in the possession of the purchaser; that the purchaser, in that instance, had lost the control and possession of it; that he could not have demanded a surrender of it without reimbursing the sums…

Eastern Dis. APPEAL PROM THE COURT OP THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING. The plaintiffs prayed for a sequestration of three slaves, mortgaged for their purchase money, alleging that the vendee has disposed of them to the defendant, in whose possession they now are. The motion to dissolve the order of sequestration was. sustained, and the plaintiffs appealed. 1.

<p>Eastern Dis,</p> <p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p> <p>The defendant’s slaves had stolen from the store of the plaintiff a quantity of dry goods, to recover the value of which this suit was brought.</p> <p>The defendant excepted that the slaves were not named in the petition, and that no previous criminal prosecution had taken place. The judge a quo sustained these exceptions and dismissed the petition. The plaintiff appealed.</p>

<p>The transcript of the record of an appeal, returnable on the first Monday in the term, can not be filed on the second, the court having sat four days in the preceding week.</p> <p>The transcript of the record of an appeal returnable on the first Monday in the term, cannot be filed on the second, the court having sat four days in the preceding week.</p>

Eastern Dis. APPEAL FROM THE COURT OF THE FIRST DISTRICT-. By the tablau of distribution filed in this case by the acting syndic, it appears that after deducting all the costs and expenses attending the suit, there remained in his hands the sum of ten thousand and twenty-three dollars and eighty cents. The claims against the insolvent amounted to forty-fjve thousand six hundred and forty dollars and eighty-one cents.

contended: The plaintiff brought suit in the Fourth District Court of New Orleans against The steamer St. Helena, Captain and Owners, for his services as pilot of the said vessel. He also caused the vessel to be provisionally seized.

<p>The affidavit stands as prima facie evidence to sustain an arrest, but this may be overthrown by proper evidence.</p> <p>Where the intentions of a party are sought to be established, as upon a question of residence, he may show what were his intentions by introducing in evidence his own acts and declations made at a time not suspicious.</p> <p>A debtor under arrest has a right to have the propriety of the arrest speedily determined, and upon a rule.</p>

Eastern Dis. APPEAL FROM THE COURT OF THE FIRST DISTRICT. This was a petitory action to recover two lots of ground, situated in faubourg La Course, in the Parish of New-Orleans, alleged to be in the defendant’s possession. He pleaded the general denial, and that he was not in possession of the lots. No evidence that he was in possession was adduced on the trial. Judgment was rendered for the defendant, from which the plaintiff appealed.

contended: It is, in the opinion of counsel, a well settled principle of law, that agency can be created by implication as well as by express authority. See Story on Agency, p. 51, marginal p. 47 and 56. Cain was permitted to act as the general and unqualified agent of Stewart for that plantation, to buy and to sell, whereby Stewart became bound by the acts of his agent. See Story on Agency, marginal p. 126,133 and 165.

for the testamentary executor, who was appellant. Micou, Ogden and Peirce, for dative testamentary executor and appellee.

<p>Eiájr1fi83?13’</p> <p>APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OP NEW-ORLEANS.</p> <p>This action was brought by the vendor of a lot of land, situated in the city of New-Orleans, sold at public auction, to compel a compliance by the vendee with the terms of the adjudication, or to recover the payment of the purchase money. The defendant admitted the purchase of the lot, but averred he bought under a description in the daily papers of the city, which was erroneous, and therefore he refused to comply with either of the plaintiff’s demands.</p> <p>Judgment was rendered in the court below against the defendant, from which he appealed.</p> <p>I. There is a material difference between the property sold, as advertised by the plaintiff, and that offered to defendant.</p> <p>2. The law is with the defendant. Civil Code, art. 2582 to 2586, inclusive. Ibid. 2470. 6 Martin, JY. S. 337, &c. 8lh lb. 658-9 and 60.</p>

contended: The garnishees failed to pay or deposit in court the amount of their liability to the defendant, as contained in their answers, and decreed against them, by reason whereof, the plaintiff was unable to execute his judgment by corporeal seizure, &c. The plaintiff took a rule against the garnishees to show cause why they should not comply with the j udgment of the court, and in default thereof, that the rule should be rendered absolute, and that the plaintiff recover…

Eastern Dis. APPEAL PROM THE COURT OP THE PIRST DISTRICT. This was an action by the payee of a promissory note against the drawer, who admitted his signature and pleaded payment. The plaintiff afterwards died, and by a supplemental petition, Louise Duvernay, widow Bonaventure Martin, and her son Bonaventure Martin, prayed to be substituted in his place, as his legal representatives.

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

<p>Where, under the act of 3d of April, 1832, for the opening of streets, &c., the owner abandons a lot and claims the assesed value, and the proceedings are afterwards homologated, the property belongs to the corporation, which has a right to take possession of it, and the former owner is a judgment creditor for the value assessed.</p>

<p>Where the charter of a company directs the mode in -which stock in it shall he taken, and stock is issued by the company in contravention of the regulations imposed by the charter to a purchaser who executed his note therefor, when sued on the note he cannot set up as a defence the violation of the charter in the sale to him. If other stockholders do not complain of the sale to him he cannot set up his own wrong in liis defence.</p>

Eastern Djs. APPEAL PROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING. Rierdon claimed, with privilege, tbe sum of six hundred and forty dollars and seventy-six cents, of defendant, for carpenter’s work on the house of the latter, in the parish of Iberville.

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

<p>Eastern Dis</p> <p>APPEAL PROM THE COURT OP THE FIRST DISTRICT.</p> <p>In May, 1831, a quantity of goods were shipped at Philadelphia, on board the ship Chester, of which the defendant was master, to be delivered in New-Orleans to Nichol, Hill & Co., or to their assigns. The plaintiffs received all the goods shipped, conformably to the bill of lading, with the exception of two packages and a box, which, from the evidence, appear to have been mislaid, lost or stolen.</p> <p>The defendant pleaded the general denial, and should it appear that he was indebted to the plaintiffs, he pleaded, in compensation, a specific sum for freight and primage of the merchandize received by the plaintiff.</p> <p>The jury, without retiring, found a verdict for the plaintiffs, and judgment having been rendered thereon, the defendant appealed.</p> <p>1. The evidence shows that the merchandize was delivered on the levee, and that the plaintiff had notice thereof; the judgment of the inferior court ought, therefore, to be reversed.</p> <p>2. The defendant assigns for error apparent on the record, that there is no evidence that the bills of lading sued on, were ever assigned to the plaintiffs by the consignee; judgment, ought, therefore, to be given for the defendant.</p>

<p>If a man stands by and is silent while bis own property is being sold, and suffers another to become the purchaser, he is estopped from disputing the title thus acquired; and his heirs and those claiming under him are likewise estopped.</p>

Eastern Bis. APPEAR PROM THR PARISH COURT POR THE PARISH AND CITY OP NEW-ORLEANS. The plaintiffs claimed three thousand and seventy-two dollars; and forty-eight cents, for merchandize sold and deli* vered to the defendants, who resided out of the state, and cited Bell as garnishee.

J. contended : This suit was instituted against the defendants as joint and several makers of a series of notes in favor of the plaintiff. The notes are dated and payable in the State of Mississippi, and are secured by a deed of trust in that State, and by a mortgage on certain slaves in Louisiana.

<p>E-™-3?IS-</p> <p>APPEAL FROM THE COURT OF THE SECOND DISTRICT, THE JUDGE THEREOF PRESIDING.</p>

Eastern Dis. APPEAL FROM THE CODRT OF THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING. The petition represents the plaintiffs as the children and heirs of Santiago Fletcher, who died in Madrid, in 1801, leaving a plantation situated in the parish of Iberville, a part of which came to the possession of the defendant, and for that part, with its rents and profits, this action was brought.

Eastern Dis. APPEAL PROM THE COURT OP THE FIRST DISTRICT. The plaintiff averred he had sold the defendant one hundred and seventy-eight shares of the stock of the City Bank of New-Orleans, on each share of which had been paid twenty-five dollars, at four dollars and fifty cents advance, on the amount of each share paid, making in the whole, the sum of five thousand two hundred and fifty-one dollars.

Eastern Dis. APPLICATION POR A MANDAMUS. An application to remove this cause from the Parish Court for the city and parish of New-Orleans, to the Court of the United States for the Eastern District of Louisiana, was made by the defendants, alleging that they were citizens of the state of Pennsylvania, and that the plaintiff was a citizen of this state. The affidavit of one of the defendants to these facts, and the necessary bond were annexed to the petition for removal.

<p>Where a notéis made payable in current funds, by the laws of Mississippi judgment can only be rendered for the value of such funds on the maturity of the note, and a case will be remanded to ascertain that value. But under the decisions in Louisiana, ju dgment will be rendered in contracts governed by our laws for the amount of the note.</p>

EasternDis. appeal from the court of the first district. The plaintiffs alleged that the celebration of their marriage took place in New-Orleans, in one thousand eight hundred and three, conformably to the laws of the Province, and the rites of the Catholic church; and that the vicar of the parish Church of St. Louis of New-Orleans, who presided, and is now dead, having omitted at the time, to reduce to writing the act of celebration, he inscribed the act upon the register…

<p>The act of 10th of March, 1845, authorizing- the sale of property for the payment of taxes, was prospective in its character, and did not authorize the summary proceedings therein pro vided for the collection of taxes due in 1844.</p> <p>The possessor in good faith, who is evictedby judgment of a court, is entitled to the increased value given to the property by improvements which he has made.</p>

<p>Where the unconstitutionality or illegality of a tax is not expressly alleged, the Supremo Court has no jurisdiction unless the amount in dispute is over three hundred dollars.</p>

<p>The wife is entitled to one-half of the community property, and where, four years after her death, the husband surrenders his property under the insolvent laws, her heirs may recover from the syndics the share of the community to which she was entitled.</p>

contended: The pleadings put nothing at issue, except the conclusiveness of the expropriation proceedings, in favor of the title asserted by defendant. Held: that the mere lapse of twenty years, unaccompanied by any other presumption, will be held as conclusive proof of agency. Bedford v. Urquhart. 8 L. R. 248. Bourguignon v. Boudousquie, 6 N. S. 153. Belabigarre v. Second Municipality, 3d Ann. 238.

Ekstere Dis. APPEAL FROM THE COURT OF THE FIRST DISTRICT. It is alleged that the defendant, taking advantage of the old age and infirmity of the plaintiff’s ancestor, induced the latter, for three hundred and twenty-four dollars, to sell and give him possession of a lot, in New-Orleans, worth fifteen hundred dollars. The plaintiff prayed to have the property restored, or the balance of its value paid to her.

Eastern Dis. APPEAL PROM THE COURT OP PROBATES OP THE PARISH OF ASCENSION. This suit was commenced by injunction. The plaintiffs denied the jurisdiction of the Court of Probates, which had rendered a judgment against them. They also alleged discovery, since the trial, of evidence of payment of the obligation on which the judgment had been pronounced; and prayed for a perpetual injunction on all further proceedings upon it.

The plaintiffs, residing in Virginia, sued as the brothers and heirs of the late Robert Lewis, who died in August, 1832, leaving an estate in New-Orleans. The defendants were his executor, the legatees, and the attorney representing the absent heirs. This action was brought to set aside the mystic will of the deceased; to compel the executor to render his account, and transfer to the plaintiffs all the effects of the succession in his hands.

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

Stmwbridge, J. This case came up on a rule taken by the creditors of Benjamin Florance, to compel him to make a surrender of the property he had acquired subsequent to his application for the benefit of a surrender of his property. contended : The appellees, creditors of said Florance, having ascertained that he had become a man of wealth, moved the Fourth District Court (as succeeding the late Commercial Court, in which said Florance had made a surrender of property,) for…

contended : The Municipality Number One sues the bank, to recover the taxes due them on the property which they own in the limits of said municipality. The Louisiana State Bank resists, on the ground, that by the 17th section of their charter, (Moreau’s Digest vol. 1, p. 75,) they have forever been exempted from such taxes.

<p>Eastern Dis.</p> <p>APPEAL PROM THE COURT OP THE PXRST DISTRICT.</p>

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

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

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

Eastern Dis. APPEAL PROM THE COURT OF THE FIRST DISTRICT. On the 28th February, 1831, Benoit and Blanchard filed their bilan, and made a cession of their property.

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

<p>Where an ordinance of a police jury, imposing a certain tax for the construction of levees, is preceded by a preamble in which the police jury assert the unlimited right of imposing such taxes, has been approved by the Legislature, and the tax declared legal, this action of the Legislature does not prevent the police jury from levying such other taxes as may be deemed necessary for the above purpose.</p> <p>Where the necessity of a special tax for the construction of levees is alleged to have been produced by the mal-administration of the police jury: This is a question of administration of which the courts cannot taire cognizance.</p> <p>A special tax levied by the police jury for the levees upon the lands of persons in the district, is not unconstitutional because of its not being an ad valorem tax.</p>

Eastern Dis. APPEAL FROM THE COURT OF THE FIRST DISTRICT. In 1822, the late firm of McDonald & Ridgely, trading in the city of Baltimore, of which the plaintiff sues as the surviving partner, consigned a quantity of merchandise to the late firm of W. & D. Flower, of the city of New-Orleans. It is alleged that in this firm the defendant was a dormant partner.

<p>A deed made in Mississippi is regarded in Louisiana as a private instrument in writing, any other receipt for money paid is not conclusive between the parties, but is open to explanation by evidence.</p> <p>The answer of a party to interrogatories on facts and articles may he overthrown by the testimony of two witnesses, or one corroborated by strong circumstantial evidence, or by written proof.</p> <p>The admission of contradictory statements of a witness made to third persons on some former occasion, for the purpose of raising suspicions as to the truth of his testimony, is not allowed, unless the witness whose testimony has thus been sought to be impeached has been first interrogated as to the contradictory statements which are adduced against him. This applies with double force to a party whose answers on oath are sought to be contradicted.</p>

EasternJDis. appeal prom the parish court por the parish and city op new-orleans. This action was commenced by sequestration and attachment of four hundred kegs of lard, by the plaintiff claiming the privilege of vendor. On the day of the purchase, the defendant and vendee consigned the lard to the correspondent, in Havana, of Samuel Comly, living in Philadelphia. It was received and shipped at New-Orleans, by Samuel Thompson.

in reply to argument of defendants’ counsel contended : 1. Held: that the want of appraisement in a marshal’s sale, under execution issued from the Circuit Court of the United States for the District of Louisiana, was fatal to the purchaser.

Eastern Dis. APPEAL PROM THE COURT OP THE POURTH DISTRICT, THE JUDGE OP THE THIRD PRESIDING. This suit was brought on a breach of a written contract entered into in July, 1830, by which the plaintiff, for one thousand dollars, was obligated to complete all the wood work in erecting for the defendant on his plantation a sugar house, of which the latter was bound to furnish the materials without delay, when they were wanted.

Eastern Dis. APPEAL FROM THE COURT OF THE FIRST DISTRICT.- This action was commenced by Stephen Henderson and others, front proprietors of lots in the faubourgs Delor and Saulet, in the upper part of the city of New-Orleans, to prevent the Corporation from proceeding to open and lay out a public street and levee over the borders of their lots, formed by the batture; or if the Corporation be allowed to proceed, that the street and levee be restricted to the necessary limits,…

<p>Where* under art. 656 O. C., in a matter of natural servitude it is not possible to do justice to both parties, recourse should be had to the police jury which under the act of 1813 has ample power.</p> <p>Irrelevant testimony should not be received in evidence.</p>

Eastern Dis. APPEAL FROM THE COURT OF THE FIRST DISTRICT. The insolvent, previously to his failure, had accepted and .paid bills of exchange drawn upon him by the defendant, residing at Nashville. The bills, and the balance of account in the plaintiff’s favor, amounted to three thousand six hundred and forty-six dollars and fifty-one cents, to recover which this suit was brought. A writ of attachment was issued, under which a quantity of merchandise was seized.

<p>In an action against a vessel and owners for tl>e non-delivery of freight, the defendants may, nnder the general issue, introduce testimony to show that the identical goods claimed by the plaintiff' were shipped by another person, who took a bill of lading for them.</p>

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

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

Eastern Djs,- APPEAL PROM THE COURT OF THE FIRST DISTRICT- This action was brought by an heir to recover the succession of her deceased grand-son, in the possession of the defendant. He died a minor, a few days after his father’s death. The defendant was enjoined from selling or disposing of the' property belonging to the succession claimed.

The plaintiff took out a provisional seizure for $195 for rent, due by the defendant, and seized a quantity of gunny bags, in the hands of J. W. Zacharie 4‘ Co., which had been previously removed from the store rented to the defendant. Zacharie Sf Co. bonded the property seized, giving a bond for $750. Subsequently to the execution of this bond, the plaintiff filed a supplemental petition, claiming $695, upon the ground that the defendant had abandoned the premises.

<p>Eastern Dis.</p> <p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p>

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

Eastern DiS. APPEAL prom the court op probates op the parish and city op new* ORLEANS. The widow of Honoré Landreaux, acting in her own name, as having been in community of acquets and gains during her marriage with the deceased, and as tutrix of their minor children, claimed the execution of a contract of sale, made by adjudication at public auction, under the order of the Court of Probates, upon the advice and consent of a family meeting duly homologated.

contended: This action was instituted against the Commissioners of the Geuerid Sinking Fund on an order or warrant drawn by A. JD. Crossman, Mayor, on, and accepted by, .the Treasurer of the Third Municipality, and duly countersigned by the Comptroller of said municipality. Is this obligation, taken by itself, binding on the defendants ?

Eastern Bis. APPEAR from the parish court for the parish and city of new-orleans. Colleton and Adams, the present plaintiffs, brought an action and recovered judgment, in December, 1831, against . McLeary for seven hundred and eighty-one dollars, with interest, for work and labor performed by them for McLeary, on the house of the present defendant, in whose hands that amount had, at the commencement of the suit, been provi-sionaI1y seized.

<p>The article 990 C. P., which requires that property of a succession which is sold to pay debts should bring its appraised value, does not apply to a sale of property on which there is a mortgage for Citizens’ Bank stock. In such case, the sale, if made fairly, will be maintained when adjudicated to the highest bidder.</p>

<p>A party who has been tried and acquitted cannot be again tried for the same offence.</p> <p>The only remedy contemplated in taking a bill of exceptions to the charge of the judge to the jury in criminal cases, is to obtain a new trial, which cannot be granted where the accused has been acquitted, unless the verdict of acquittal was obtained by fraud.</p>

<p>Gutters and drains in the city are intended to carry off the water which falls from rains, or percolates through the ground, and they can be used by manufacturers as drains only when that use does not result in a nuisance.</p>

EAjj£yRf83?PIS' APPEAL FROM THE COURT OF THE FIRST RISTRICT. The plaintiff claimed the rescission of a sale of a square of ground which he had formerly owned, and which, under an execution on a judgment against him in the defendant’s favor, had been adjudicated to the latter.

contended: Stephen Henderson, formerly residing in this city, made, on the 1st of August, 1837, an olographic will, and on the 5th of… Held: in numerous cases, that not only were “ substitutions graduelles” abolished, but fidei commissa to be delivered over immediately, or within a certain period ; dispositions which would unquestionably be good, according to the jurisprudence of France. 5 Clague’s widow v. Clague’s Executors, Vide 13 L. R. 6. 10 L. R- 03. 4 L. R. 506. 3d…

The plaintiff, formerly master of the steam tow boat Porpoise, claimed from the owners the value of his services while on the boat, and those of his slave, and for disbursements made for the boat. The defendants pleaded the general denial, and claimed in reconvention damages for the negligence of the plaintiff, while the Porpoise was towing the ship Helen Mar, for negligently permitting the ship to ground at the English Turn, on the right bank of the Mississippi river.

Easter» Dis. APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OP REW-OREEAITS. This was an action, brought by the vendee of a slave, warranted free from the vices and maladies prescribed by law, to recover the purchase money, on the ground that the slave was at the time of sale, afflicted with chronic diarrhoea. The plaintiff had judgment, and the defendant appealed.

Eastern Dig. APPÍ5AL FROM THE COURT OF THE FIRST DISTRICT. The brig Julia, owned by the plaintiffs, laden and ready for sea, was anchored opposite to the steamboat landing, in the port of New-Orleans. At about eight o’clock in the evening, when her usual lights were hung out, the defendant’s steamboat Volant came in contact with, and so much injured the brig, that she was compelled to unload her cargo and undergo expensive repairs.

EA^*fg3®Is; APPEAL PROM THE COURT OP THE FIRST DISTRICT. This was an action brought upon a valued policy of insurance for the brig Seraphim,which was fired on and destroyed by the forts of Porto Bello, in the Republic of Colombia. The defence of the Company was, that she had on board a quantity of tobacco. This was alleged to be a contraband article, and to have occasioned the destruction of the vessel.

Ea|J0™j83Eis- APPEAL PROM THE COURT OP THE FIRST DISTRICT. The plaintiff alleged that he authorised John Finck, to sell certain lots belonging to him, in the suburb Delor. That the defendant acceded to the proposals of his agent, and made with the latter a written agreement to that effect. The defendant afterwards refused to sign a public act of sale, according to the terms of this agreement, which was tendered to her.

Eastern Bis. APPEAL FROM THE COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. Louis Allard, the lessor of the plaintiff, received from the Orleans Navigation Company, for the annual rent of three thousand one hundred dollars, a verbal lease of the turnpike road along the north western margin of the bayou St. John, from the Metarie road to lake Pontchartrain.

This action was brought by the assignee of a bond for the prison limits of the city of New-Orleans, against the surety. The defendant pleaded a general denial.

Easters Eib. APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING. The plaintiff was the widow of Dorsey P. Swindler, •against whose estate she had recovered a judgment in the Court of Probates, for her dotal and paraphernal property, amounting to four thousand two hundred and eighty-nine dollars and sixteen cents.

Eastern Dis. APPEAL PROM THE COURT OP PROBATES OF THE PARISH AND CITY OP NEW-ORLEANS. On the 22d of March last, on motion of the attorney appointed by the court to represent the absent heirs of Philip Sterlin, deceased, the dative executor was ruled to show cause why the real estate of the deceased, situated in the parish of Jefferson, should not be resold by the Register of Wills.

Eastern Dis. APPEAL PROM THE COURT OP THE FIRST DISTRICT. The defendants had in another suit brought by the plaintiff, obtained a judgment against him for three thousand seven hundred and twenty-three dollars and eighty-three cents, with the condition that the defendants should restore two steam engines to the plaintiff made by him for them, of which one had been destroyed before the rendition of the judgment. Vide 2 La. Reports, 382.

the Fifth District Court of New Orleans, Buchanan, J. The questions involved in this case arose out of the following act of donation: “ Par devant Philippe Pédescianx, notaire… Held: that although the plaintiff’s title was good, yet it was lost by their lying by and permitting other rights to be acquired by mortgage and sheriff’s sale. But in that case, the origin of the mortgagor’s title was from a stranger to the plaintiff. This is still a stronger case for the defence.

Eastern Dis. APPEAR PROM THE COURT OP THE PIRST DISTRICT. This case comes before this court on the third appeal. For a statement of facts, and the proceedings had previous to this appeal, see 2 La. Rep. 39, 4 ii. 13.

<p>The provisions contained in the 2267th and 2269th articles of the Louisiana Code, relate to cases where the lessee is not in fault, and cannot be extended to a case where he violates the contract.</p> <p>An absence of proof of an unnecessary averment in the petition does not defeat the plaintiif’s right of action.</p> <p>Payment by a lessee does not aifect his right to avoid the lease because certain stipulated repairs have not been made on the premises.</p> <p>The provisions 2367ti“an<i2269tk coae,es relatero Sir 'isTot^n bo'extoaded^o °a lates the contract,</p> <p>An absence 0f cessary^avennent cfoest! notpdeS right of action'5s</p> <p>Payment by aies-Ms right to avoid the lease because certain stipulated repairs have not been made on tho premises.</p>

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

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

<p>Where a sale from a natural tutor to a minor child in payment of the -amount due to the minor is annulled, the minor is entitled to interest on the sum from the time it became due, unless it is shown by the adverse party that the fruits received from the property before the sale was annulled were equivalent to interest.</p>

<p>In an action against the drawer of a promisssory note payable to a certain person or to hearer, purchased by the plaintiff at a sheriff’s sale, the defendant cannot inquire into the regularity of the proceedings previous to the issuing of the execution under which the sale took place.</p> <p>In an action against the drawer of a note, he can demand of the plaintiff, if he is not the payee, to show a transfer of the note to him, but this demand is satisfied by evidence which prima facie conveys the right and interest of the payee.</p> <p>If the assignment be voluntary, the transfer in the payee’s hand writing is sufficient; and if forced, it suffices that there is judgment, execution and sale according to law.</p> <p>A sheriff’s sale not made in pursuance of the formalities of the law confers no title on the purchaser.</p> <p>Clases in action may be sold under a writ of fieri facias, and for this purpose the seizure of them is not required.</p> <p>The contract of pledge cannot affect third persons, unless proved by authentic act or an act sous suing privé duly registered at a time not suspicious.</p> <p>missory note pay-a^^^cextam tefeSrSn£ot “I'Xrity‘° ‘of preyiou^to'X cuti™f°ftl under which the sale took place, In an action against the drawer of a pro-</p> <p>gaSs™heCdr°iwer demand0’of a" not1 tiífpayee, to the note to him, kut this demand fc satisfiedby CTi-dence which pn-^“‘right'mdta-of Bl0</p> <p>ment1 bcvoluntary tlio transfer in the payee’s hand writing is sufficient; and if forced it suffices that there is judgment, cution and sale according to law.</p> <p>A sheriff’s sale not made in pursuance of the for-nudities of the law confers no ti-chaser th° pur"</p> <p>chases in action pingoso d(S>r sel-zurc of them is not required.</p> <p>The contract of fect third persons authentic act or an act sous seing print duly regís-not suspicious,</p>

Lea, J. contended : The only ground taken for defence in the district court and in this court, is the exception for want of citation, and to the capacity of the curator ad hoc to defend the suit. The case of Zacharie v. Blandin, 4 L. R. 83, is cited, as in point. The opinion of the district judge, placing cases of attachment and arrest on the same footing, is a sensible and just construction of the law.

<p>The parchase of property by the father in the name of his children, is valid as to all who were not creditors at the time of the purchase.</p>

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

<p>The Court of Probates can alone take cognisance of an action to compel a tutor to render an account.</p> <p>If a deposition contain testimony, founded in part only on the personal of the witness, that part is admissible.</p> <p>The tutor has no power to expend more than the revenue of the minor, knowledge without the advice of a family meeting.</p> <p>The"rcourt of aiomft^ko cogn“ tSneto°compei°á account.rond<5ran</p> <p>If a deposition contain testimony, founded in part on the personal knowledge of the witness, that part is admissible.</p> <p>The tutor has no power to expend more than the revenue of the minor, with» out the advice of a family meeting.</p>

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

<p>Where the defect in an article sold is apparent upon inspection, it affords no ground for an action in warranty. O. C. 2497.</p> <p>The principle that no one ought to enrich himself at the expense of another, is not applicable to a case of the purchase of a defective article where the parties acted in good faith, the price'was not half the value of a good article, and there was no warranty.</p>

<p>A cause will be remanded when the Supreme Court would reverse the judgment of the inferior court, on a charge of fraud, had not a jury found a verdict on that point, in accordance with which that judgment was rendered.</p> <p>mandcdTvheifthe wouidI?ever5Ce°thre ÍSfeSncourft,£ton had^imt found a verdict on that point, in accordance with moat waTrendcr"</p>

<p>Eastern Dis.</p> <p>APPEAL PKOM THE COURT OP THE EIGHTH DISTRICT, THE [JUDGE OP THE FOURTH PRESIDING.</p>

<p>Property transferred by the husband to his wife to replace property of hers which he had sold, may be conveyed by an ordinary contract of sale.</p>

<p>Where the vendee sues to annul a sale, on account of fraud, and to recover back the price, when sued by the vendor upon one of the notes given in payment of the price, he may set up in his defence the pendency of the first suit, which bars the second.</p>

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

<p>Where no authority is shown by an agent for making the oath and signing the bond for the issuing of an attachment, than that he was employed as an attorney at law in another State to bring suit to collect the debt, the attachment will be dismissed.</p>

from the Fourth District Court of New Orleans, Strawbridge, J. contended: Marguerite Lecarpentier, Charles B. Lecarpentier, and Franpis J. Lecarpentier, were co-proprietors of a lot of ground, with the buildings thereon, situate in this city.

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

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

<p>Where a municipality of the city of New Orleans commences proceeding's under the act of 1832, for the opening of streets, &c., and the commissioners warn a proprietor of a lot against continuing improvements which he had begun, and he is thereby delayed and damaged by the loss of rents he would have received had he been permitted to finish his buildings, the municipality is responsible to him for the damage sustained, in case the proceedings for opening the street be discontinued.</p>

<p>A charge of two and one-lialf per cent for accepting a draft is consonant to usage and is legal.</p> <p>A factor cannot charge a commission of two and one-half per cent for advancing, and eight per cent interest on the money advanced. The charge for the commission is usurious.</p> <p>An agreement to pay eight per cent interest on a draft from date if not paid at maturity, is legal and binding on the party promising.</p> <p>Usury forfeits the whole interest.</p> <p>An agreement to extend a draft for a certain time upon usurious interest, does not forfeit the right of recovering the lawful interest which the draft originally drew.</p> <p>Where a planter obtains supplies from a factor,- upon a contract to send the factor his crops for sale, and the'n violates his contract by sending his crops to another person, the factor is entitled to his commissions Upon the value of the crop.</p> <p>A written approval of an account upon which Interest is charged at eight per cent, estops the party from disputing that item; but such an assent does not amount to an agreement to pay interest at the same rate thereafter.</p> <p>Novation is not to be presumed.</p>

<p>To sever lands from the public domain, their specific boundaries must be so designated by survey, or otherwise, as to enable the court to ascertain them.</p> <p>Lands in Louisiana not severed from the public domain under the Spanish Government, may be held by an adverse title, derived from the United States.</p>

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

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

<p>The Commercial Bank suspended specie payments in the year 1843, and resumed in 1844. A party who had caused notes of the hank to be protested on the suspension of the bank, can recover the interest imposed by the charter as a penalty for suspension only during the time of the suspension.</p> <p>A statute must be construed with reference to its object; and if this be inconsistent with the precise words of the statute, the latter must yield to the controlling influence of the will of the Legislature resulting from the whole.</p>

<p>Where an administrator has been dismissed, under the act of 13th March, 1837, he cannot .take a suspensive appeal from the order of dismissal, although he may from such part of the judgment as condemns him in pecuniary damages. C. P. 1059.</p> <p>Where a general rale of practice has been established by the Code of Practice, it applies to cases which may arise under statutes enacted subsequent to that code, unless the statute repeals the rule prescribed.</p> <p>Where an appeal has been granted, in determining whether it be suspensive or not it is the duty of the court so to construe it (if susceptible of such a construction,) as not to involve an attempt by the judge in granting it to violate the law.</p>

contended: This action is founded on article 2294 of the Civil Code, which declares : “ Every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it.” The damages allowed by the jury are extremely moderate, and not by any means commensurate with the extent of the injury inflicted by the wanton and reckless conduct of defendant, in seizing their property without any other reason than a mere suspicion that this particular…

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

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

Lea, J. contended: This is an appeal by the defendant from a judgment against him for a slave named Sam, and for the value of the services of the slave from the time of judicial demand. The following authorities show that such an action can be maintained. C. P. 148,151. Also art. 7. 12 L. R. 415. 16 L. R, 414. 8 N. S. 621. 6 N. S. 674. C. C. 495, 3416. Roumage v Blalrier, 11 R. R. 107. Reynolds v. Swain, 13 L. R. 198. Campbell v. Armstrong, 1 N. S. 574.

<p>The object of pleading is notice to the opposite party; and when the defendant is apprized by the proceedings and evidence, that the plaintiff relies upon prescription to establish his right to a slave, which he alleges had been feloniously taken from him, the defendant cannot object that the plea of prescription has not been specially pleaded.</p>

<p>The rale that one partner cannot, without an express authorization, alienate the real property of the firm, does not apply where the partner who has signed the act of alienation, or his heirs, seek tp recover it back.</p> <p>The receiving, by a partner, of a part or the whole of the proceeds ,of property .alienated without authority by another co-partner, is a ratification pf the sale.</p> <p>The acceptance of a release of a deljt is by law presumed.</p>

<p>Under the Constitution and laws of the State, the appointment of a notary is for four years, and the person appointed has the right to hold the office for that term.</p>

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

<p>A debt may be seized on execution by notice served upon tlie debtor; and in the same manner a thing not susceptible of corporeal tradition may be seized by seizure in the bands of the keeper thereof, if the instrument evidencing the debt or light be not negotiable.</p> <p>By the charter of the Mechanics and Traders’ Bank, all transfers of stock are to be made upon the books of the bank. The certificates of stock are not, therefore, negotiable; and a seizure on execution of stock, by notice to the officers of the bank is valid, and defeats a subsequent transfer of the stock.</p>

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

<p>An election of directors of a bank will not be set aside because the commissioners received votes without proper evidence, when it is subsequently shown that the votes so received were legal votes.</p> <p>Persons who hold stock as trustees are legal voters in an election for directors.</p> <p>The prohibition against aliens being directors of a bank, contained in the act of the 5th February, 1842, does not apply to the Carrollton Railroad Company, that corporation having surrendered its banking privileges.</p>

<p>The taking of a portion of the premises leased, for the oonstrnotion of a levee,- entitles the' tenant to a reduction of the rent.</p>

<p>A factor is not allowed to charge two and a half per cent for a cash advance and eight per cent interest.</p> <p>A planter who orders supplies to he shipped to him hy a factor, without ordering them to he insured, must bear their loss, unless he can show that it was customary for factors to insure goods so shipped.</p> <p>A factor who receives a promissory note in settlement of a debt due to him, will not he allowed to charge a commission for endorsing the same. But if the note had been negociated for the drawer’s benefit through the factor’s credit, a commission would be allowed for the endorsement.</p>

<p>Where a mother and son verbally contract a partnership for planting, and they live together a long time until the death of the mother, it will not be presunjed that they kept regular books of account, nor will the son or his heirs be he,Id liable for npt leaving done so.</p>

<p>An inventory is not such an instrument as may not be contradicted by parol proof, even where the party who seeks to contradict it was present at the taking of the inventory, and signed it as one of the witnesses. The notary who took the inventory is also a competent witness to prove that notes included therein had been previously paid.</p>

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

<p>A judgment which has been annulled for the want of citation does not interrupt prescription.</p>

Martin, Voorhies, J. contended : The plaintiffs demand the nullity of the last will of Marie F. Roy, deceased, upon the ground that the… Held: that “unless a clause in a will necessarily presents a substitution, and can be understood in no other manner, it will be sustained.” Such is the jurisprudence of France: Toullier, vol. 5, No. 44, says: “L’esprit général de laloi, celui de la jurisprudence des cours royales et de la cour de cassation, est de n’annuler une disposition…

Mary. Overton, J. cited, to show that errors in a location might be corrected, 8 N. S. 653; 6 Wheaton 605. That the court could not revise the decision of the commissioners annulling an entry, 2d Ann. 299 ; Courtney v. Perkins, ante p. 216. To sustain the affidavit for the injunction, 1 R. R. 317. Splane and Brent, for defendant, cited, to show that the plaintiff acquired no title until his locations were approved, 11 L. R. 5S9.

<p>Where a redhibitory vice appears in a slave within three days after a sale, the presumption that it existed before does not apply to vices of character, such as being a runaway.</p> <p>The legal presumption, that where a vice has made its appearance in a slave within a certain time, it existed before, maybe rebutted by testimony. The only legal presumptions which cannot thus be rebutted, are those which annul certain acts or refuse a judicial action.</p>

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

Landiy, Overton, J. contended: The only question is, as to the right of the plaintiffs to sue before a final liquidation and settlement of the estate.

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

<p>The formalities prescribed by art. 1571 C. C. for nuncupative testaments must be strictly complied with, and although the notary’s certificate states that the legal formalities were observed, this may be contradicted by parol proof.</p>

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

Voorhies, J. The judge of the district court decided as follows: “ Thomas E. Bowles was formerly appointed executor under the will of Alien J. Key, deceased, whose succession was opened in the month of March, 1844. A judicial sale of all the property of the succession was made on terms of credit during the executorship of Bowles. Previous to the maturity of the last term Bowles died without having rendered any account of his administration.

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

<p>Where the plaintiff in execution appoints an appraiser of the property to be sold under it, this amounts to a waiver on his part of any error in the advertisement The role that the formalities in forced alienations are to be strictly observed, is intended rather for the benefit of the defendant and purchaser.</p>

Mary, Vomhies, J. made the following points: 1. An obligation without a cause, or with a false or unlawful cause, can have no effect. C. C. 1887. And the cause is illicit when it is forbidden bylaw. C. C. 1889. Consequently, the agreement or transaction bas.ed upon such a cause is void. C. C. 2026. 2. Individuals cannot, by their conventions, derogate from the force of laws, and whatever is done in contravention of a prohibitory law is void. C. C. 11 and 12. 3.

<p>APPEAL from the District Court of St. Landiy, Overton, J. This was an action brought against the sheriff for the misappropriation of the proceeds of the sale of the plaintiff’s property made on two executions. The property did not sell for enough to pay the two executions. The sheriff applied a portion of the proceeds to the payment of a prior judicial mortgage.</p>

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

Mary, Voorhies, J. submitted the following points and authorities : 1. The right of way or passage formed part of the object of the sale; it was the duty of Lid-dell to furnish the passage before he could bring suit for the recovery of the price. C. C. 1907, 2450, 2451, 2452, 2455, 2458 and 2459. 2. There was an active violation of this contract on the part oí Liddell, by putting up a barn and fence on the place where the passage was given. C. C. 2926, 11 L. R. 289. 3.

<p>The principle that a party is not permitted to contradict by parol proof a notarial act of sale, docs not apply to a married woman who seeks to set aside an act purporting to be an act of sale, opon the ground that it was in fact a disguised donation to her husband.</p>

<p>Tho commissioners of an election who act in good faith under an act of the Legislature prescribing the mode of conducting elections, are not responsible in damages for rejecting a vote under that act, although the law upon subsequent investigation before the courts should be pronounced unconstitutional.</p> <p>The oath prescribed by the 12th section of the act of March, 1846, to be administered to a voter whose vote is challenged, is not unconstitutional; and the vote of one who cannot take that part of the oath relating to duels ought to be rejected.</p>

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

<p>A wife who has obtained a separation of property from her husband, is entitled to a mortgage for her paraphernal property only on the real estate of the husband.</p> <p>Improvements on the public lands are not real estate.</p> <p>The wife is entitled to a mortgage upon her husband’s real estate for her paraphernal property from the time it was received by him.</p>

A married woman who has given a mortgage upon her paraphernal property to secure advances which, in the act, she acknowledges to have inured to her benefit, is not thereby estopped from showing that the advances were not for her benefit, and that she is not bound by the act of mortgage. APPEAL from the District Court of St. Mary, Voorhies, J.

<p>In an action by the vendee against the -vendor of a steamboat for damages occasioned by the bursting of a boiler, the plaintiff must prove that the boiler was defective at the time of the sale, to be entitled to recover.</p>

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

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

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

<p>The speculative opinions of physicians derived from a post mortem examination are not, by themselves, full proof of the length of time during which a redhibitory disease existed in a slave before his death.</p>

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

<p>A married woman who has not renounced the community is presumed to he a partner in the community, and is not permitted to apply the partnership assets to her individual claims, to the prejudice of the creditors Of the community.</p>

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

<p>Where a family meeting convened after the second marriage of the mother of minor children, recommend her as tutrix, it is for the court and not the family meeting to prescribe the security to be given.</p> <p>The mother shoald be trusted with the tutorship of her children if it be possible.</p> <p>A woman who marides a second time without the consent of a family meeting, loses all ‘ right to the natural tutorship of her children.</p>

<p>A special authorization is not necessary to enable a tutor to bring suit against the former tutor of minor children, for a settlement of the account of that tutor’s administration.</p> <p>The regularity of a tutor’s appointment cannot be inquired into on an injunction taken out against an execution on a judgment obtained by him.</p> <p>An injunction cannot be taken out against an execution upon grounds of which the party was apprised before the judgment was rendered.</p> <p>A widow who has had the community property held in common between her and her deceased husband adjudicated to her at its appraised value, becomes indebted to her minor children for their respective shares, and cannot refuse to gay the amount to their tutor, upon the ground that she is entitled to the usufruct of the community property under the act of 25th of March, 1844.</p>

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

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

<p>A married woman is incompetent to enter into a contract with her husband, by which she receives, in payment of a judgment due to her for her paraphernal property, an assignment of a store and book accounts, obligating herself to pay the purchase money due, and to continue the business of the store in her husband’s name, through him as her agent.</p>

<p>A confirmation by act of Congress is a title upon which the claimant can maintain a petitory action.</p>

<p>Where the record of appeal is complete, with the exception of the evidence which had been lost, so that the clerk could not send it up with the record, and the loss is in no manner attributable to the appellant, the cause will he remanded.</p>

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

Landry, Overton, J, contended : The defence set up by defendant, that he was forbidden by the laws of the United States from carrying and delivering letters on board his boat, cannot avail him, because, 1st, it was not such a package as is usually sent by mail.' 2d. Because having promised to deliver the package, he was bound to do it, for he knew that the business wag committed to him with that expectation.

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

<p>Where the wife claims property acquired after the marriage as her separate property, and does not show her right to acquire separate property, it will be presumed that the property belongs to the community.</p>

<p>A wife may acquire separate property by the bond fide investment of her paraphernaj funds of which the husband had not the administration; so property purchased by the husband with his separate funds, under circumstances manifesting a clear intention to purchase it for his separate account, may be regarded as his separate property.</p> <p>As a general rule, property purchased by either husband or wife during the existence of the community belongs to the community; and if the price be paid out of the separate funds of either, that one becomes a creditor of the community for the amount.</p> <p>Children born of slaves which are separate property do not enter into the community of' acquests.</p> <p>When slaves are purchased by a husband in a State where they are personal property, with the intention of bringing them to Louisiana, where he and his wife are domiciliated, their respective rights must be decided by the laws of Louisiana.</p>

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

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

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

<p>"Where a steamboat loses a portion of her cargo in consequence of being snagged, the loss is considered as one falling within the perils of the river, and the vessel is not liable.</p>

Farrar, J. 1. The heirs of Alexander Grimball, being all majors (but one) could accept the sucession either expressly or tacitly. La. Code 878, 983. They could not dispute their acceptance, Ibid. 1003; and bound themselves for the debts of the succession. Ibid. 1006. They must be considered as heirs until they renounce. Ibid. 1007,1008, 1029, 1030. The order of administration. Ibid. 1035, 1039. The moment acceptance is made the law gave them the estate.

<p>A compromise cannot be annulled on account of lesion. C. C. 3045.</p> <p>A party cannot get a new trial, upon the ground of newly discovered evidence which would prove a fact not alleged by him in his pleadings, and of which he must have been aware before the trial.</p>

<p>Tbe increase of animals inure to tbe benefit of tbe community of acquests.</p> <p>The conversion of property which renders a widow liable for tbe debts of tbe community, must be fraudulent and done with tbe view of appropriating to her own use property which she knew belonged to tbe estate of her deceased husband.</p> <p>This conversion must have also occurred prior to her renunciation of tbe community to render her liable for tbe debts of tbe community; if done after the renunciation she incurs no greater penalties than other persons would who had done tbe same things.</p>

<p>A wife may receive a conveyance of property to her from her husband in payment of dotal and paraphernal funds for which he is liable to her. O. O. 2421.</p> <p>The wife when judicially attacked must be aided by her husband, or the proceedings are not obligatory upon her.</p> <p>Mortgages must be reinscribed within ten years, or parties who have in the me antimé acquired rights upon the property mortgaged will be protected against the mortgage; and the pendency of an hypothecary action to subject the property to the mortgage, does not exempt the mortgage from the necessity of reinscription.</p>

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

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

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

<p>Although a deputy sheriff cannot buy property at a sale made by himself, there is no law which prohibits him from buying at a sale made by the sheriff.</p> <p>It is sufficient if a party claiming under a sheriff’s sale shows a substantial compliance with the requisites of the law in making the sale ; and what is necessarily or reasonably to be inferred from the sheriff’s return may be presumed until the contrary is shown.</p> <p>Where the defendant in execution points out property to be seized on execution, a notice of seizure is unnecessary, and the three days notice before advertising is waived.</p> <p>If a sheriff’s return shows that property was sold, “ after having the same appraised,” it will be presumed there was a legal appraisement, unless the contrary be proved.</p> <p>The act of 8th of March, 1841, directing sheriffs to advertise their sales in a newspaper, if any were published in the parish, superseded the acts requiring the advertisements to be posted at two other public places in the parish, besides at the court-house.</p> <p>The act of 10th of March, 1834, declares that the fact of the sale being made, is prima facie evidence that the sheriff made the required advertisements.</p>

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

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

<p>A factor, under the act of 33d of March, 1843, amending C. C. 3184, has a privilege upon the crop of a planter for supplies furnished to him; and this privilege takes precedence of a seizure by a creditor on an execution.</p> <p>ünder the prayer for general relief a judgment may be rendered alio wing a privilege upon property which was claimed by the plaintiff' as owner, if evidence to establish the privilege has been introduced without objection.</p>

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

<p>Where a married mom an bring» a suit and obtains a judgment without the authorization of her husband, and the defendant appeals, she cannot have the appeal dismissed because her husband was not cited with her to answer the appeal. In such a case, the cause will be remanded to enable the wife to obtain the authorization of her husband to institute the suit.</p>

<p>Where a person buys a promissory note sold under execution, he acquires no greater rights than the judgment debtor possessed, and is subjected to every equitable defence which-the drawer of the note had against the judgment debtor.</p> <p>Where a credit has been placed on a note in the handwriting of the drawer, it will he presumed to have been placed there with the holder’s assent, unless the contrary be shown</p>

contended : This action was instituted by an out by plaintiff, restraining the defendant Bry, and the sheriff, from proceeding in the sale of certain property seized under an execution issued in the case of Bry, Executor, v. William H. I-Ianna, to wit, a horse, saddle and bridle, and a judgment rendered in the Twelfth District Court of Ouachita, in favor of plaintiff Hanna and Abel T. Nonvood v. Bry and Wife.

<p>Where the parties to a sale of land have agreed in writing upon the price and terms of sale and the description of the land sold, it will be regarded not as an agreement to sell, but as a sale, although there may he a stipulation that the vendor is to make a formal title. If the vendee desires a formal title he must demand it, and until he does so, cannot object to the payment of the price upon the ground that the vendor has not tendered him a formal title. C. C. 2131, 2437.</p>

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

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

<p>A corporation is responsible for exercising, through its officers, in an unskillful and improper manner, powers vested in it by its charter.</p>

contended: This was an action brought by the plaintiffs against the defendants to compel the defendants, by mandamus, to meet with the plaintiffs to fix the… Held: both by an individual and a municipal corporation. C. C. arts. 419, 420, 423, 424, 438. 2d Ann. 919. 2. The grant, in the act of 1839, gave the town the exclusive property in the ferry; which title was perfected by use, and by expending the revenues on the streets, and the Legislature lost all power over it. 3.

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

<p>Where the records of a court have been destroyed by fire, a rule against the clerk, of the court to show cause why the case should not be placed on the docket to be proceeded with, is not the proper remedy. The proceedings should be taken contradictorily with the opposing party to the suit.</p>

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

<p>To render a certified copy of a deed admissible in evidence under the act of Congress of 1804, it is not necessary that the attesting officer should certify that the instrument so certified would be admissible in the State in which the certificate is given.</p> <p>It is not necessary to make one who has not been cited, and who is a mere nominal party to the suit, a party to the appeal.</p>

<p>APPEAL from the District Court of Morehouse.</p>

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

<p>An execution cannot be enjoined on grounds of which the party was cognizant before judgment was rendered against him.</p>

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

<p>The prescription of one year provided for by art. 3499, C. C., applies only to the wages of workmen, laborers and servants who are employed by the day or by the month, and not to claims for the value of the work done by the job, and for materials furnished for the work.</p>

<p>It is not of the essence of mandate that it he gratuitous. The right of an agent to receive compensation may bo inferred from the nature of the services, without any proof of an express agreement to that effect.</p> <p>Where a party is hound to execute titles to land upon the payment of the price, he is entiled to a judgment for the price without previously tendering a title.</p>

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

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

<p>Where both parties claim title to land from a common author, the only question which can be inquired into is, in which of the parties is the title of their author vested.</p> <p>A claim to land founded upon a judicial sale duly recorded, will defeat a claim foundedupon a prior judicial sale which was not recorded.</p>

<p>An assignment made in good faith according to the laws of another State, in favor of creditors domiciliated in that State, by a party also domiciliated there, will be enforced on the property of the debtor in Louisiana which has been actually transferred to the assignee; provided no injury arises therefrom to our own citizens, and not otherwise.</p> <p>A defendant in possession, under a just title for a valuable consideration, may avail himself of any radical defect in the title of his adversaiy.</p>

This case arose from an opposition filed by the tutrix of the minor children to a tableau filed by the administrator allowing a claim in favor of Kohn, Daron, Sf Co.

<p>Parol evidence is inadmissible to explain tbe intention of a written instrument, where the language of the instrument is intelligible.</p> <p>Even where there is an exclusion of warranty in a deed of sale of land, the seller is responsible in case of .the eviction of the purchaser, unless he was aware at the time of the purchase of the danger of eviction, and took the property at his risk and peril. C. C. 2481.</p> <p>Where a suit for eviction is still pending against the purchaser in possession of land, the seller may recover the price upon giving security to indemnify the purchaser.</p>

<p>Whez*e a note is signed by the mark of the drawer, he not being able to write, proof of the handwriting of the subscribing witness, and that he is dead, is sufficient evidence upon which to confirm a judgment by default,</p>

<p>Where the sheriff's return does not mention that service of citation was made in the parish of which he is sheriff, it will be presumed that the service was made in that parish, unless the contrary be proved. It will also be presumed that he Imew the person on whom he returns that he made service.</p> <p>Sureties are not entitled to the benefit of the discussion of the principal's property, unless they have furnished a sufficient sum to carry the discussion into effect.</p>

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

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

<p>A widow may be appointed administratrix of her deceased husband.</p> <p>An administratrix may maintain a possessory action for property which had been in the possession of the deceased.</p> <p>The plaintiff in a possessory action may recover the value of the hire of the slaves during the pendency of the suit.</p>

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

<p>The emancipation effected by the marriage of a minor does not qualify her to receive the appointment of administratrix. Paring minority she cannot bind herself for an amount exceeding her income.</p>

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

<p>Testimony by the plaintiff’s attorney that he presented the account to defendant who did not object to the correctness of the account, but stated he intended to beep the plaintiff out of the bill as long as he could, does not amount to an acknowledgment of the correctness of the account.</p>

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

<p>Where an Insurance Company seeks to avoid liability for a loss, upon the ground that the lost merchandise was included in the policy by mistake, the mistake must be made out by the clearest evidence.</p> <p>Where an Insurance Company accepts a risk, by merely writing on the application “ Taken at three per cent premium,” the company will be held to the same liability as if a formal policy had been executed*</p>

<p>An action will lie by a free person against one wlio claimed that person as a slave, for damages incurred daring the pendency of the sail for freedom; and an admission that the defendant had acted in good faith, is no defence against an action for damages incurred subsequent to the institution of the suit for freedom.</p>

<p>As a general rule, the right of a partner to bind the firm by new contracts ceases with the dissolution of the partnership; but where a liquidating partner has borrowed money to pay tlje debts of the firm, the partnership is liable so far as the evidence shows the money was used for the benefit of the firm.'</p>

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

Buchanan, J. made the following points: That the law of this case is to be found in 13 Peter’s U. S. Rep. 181, Stokes v. Saltonstall. The facts presented by the record make known great negligence on the part of the defendants.

<p>The court will not heed the opinion of port wardens as 'to the ('cause of damage, when all the facts are in evidence upon which that opimon'was founded.</p> <p>Where a vessel is sued for damage done to goods in transportation, the burthen of proof is on the defendant, (after the damage is proved,) -to show it did not happen on board the vessel.</p>

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

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

<p>Where the executor has filed a final account, which is opposed by one of the heirs on a claim he holds against the succession, the opposition should not be dismissed upon the ground that the opposing heir should resort to an ordinary suit against the other heirs. It is a succession case to which the parties are not entitled to a trial by jury.</p>

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

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

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

<p>A judgment in favor of heirs against their mother who was also their tutrix, is only prima facie evidence of her indebtedness to them, and does not bind her creditors if they can show the amount was not due.</p> <p>A mother who is tutrix of her children does not owe interest on their shares, when the same is less than the value of the support and education of the children.</p>

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

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

<p>The lessor’s privilege extends to the horses and carts kept by the lessee on the leased premises.</p>

<p>Under the act of 13th of March, 1837, the functions of a syndic do not cease until the estate is finally wound up; and the homologation of a tableau filed by the syndic does not operate his discharge so long as there are funds which are not distributed. Whether or not there be such funds in the hands of the syndic, is a matter to'be determined from the evidence.</p>

<p>Where obligations are made payable in Amsterdam in guilders, and the obligor fails to meet those obligations, tbe holder, -who is compelled to exercise his recourse upon the obligor in this State, is entitled to recover the value of guilders in our money.</p> <p>Where an obligation is made payable at a particular place, and the obligor is proved not to have provided the funds at the place to pay it, the holder is dispensed from presenting it at that place.</p> <p>A holder of a class of obligations who has acquiesced in discharging a portion of them lor a sum less than they really call for, is not thereby precluded from demanding the full amount due on the remainder.</p>

<p>At the period of history when it was usual to surround cities with walls and fortifications, to prevent their uses as defences from being interfered with, it was customary to leave an open space outside of the walls, which was not allowed to be granted as private property. This custom was observed in the founding of the city of New Orleans.</p> <p>The decisions of the Spanish Governors of Louisiana upon questions of title, as they were vested with judicial as well as executive powers, were final judgments which sustained the plea of res judicata.</p>

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

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

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

<p>The sale ty executory pro'cess of the property of a succession before any one wás authorized to represent the succession, is null.</p> <p>Tn executory proceedings notice of the seizure must be served upon the debtor. C. P. 654, 735, 745.</p>

<p>The rale by which partial payments are to be credited is, to calculate interest on the debt to the date of the partial payment, and deduct the payment from the aggregate sum, allowing the balance to bear the stipulated interest. This rule applies only when the payment exceeds the interest due.</p>

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

<p>The courts ¡bwe the power of appointing receivers to liquidate the affairs of insolvent c.or- - porations, if there be no other person provided by law to effect such liquidation, whenever it is necessary, in order to preserve the interests of all parties concerned.</p> <p>Where an insolvent hank was in course of liquidation under the laws of the State, and the term of the office of liquidator expired without there being any legal provision for the appointment of another, the court properly appointed a receiver.</p> <p>The receiver of an insolvent bank may sue all the stockholders for contributions of stock before the tribunal in which the bank is in liquidation, although some of them may reside in different parishes.</p>

<p>The purchaser cauuofc refuse to pay the price upon the ground of an apprehended eviction, when a bond of indemnity is tendered him in conformity with G. G. 2535.</p> <p>Where the wife claims property as paraphernal, which was purchased in her name during the existence of the community, she may show the fact, although the notarial act of purchase is silent upon the subject.</p> <p>Property purchased by the wife in her own right and name, and paid for out of her paternal inheritance, is paraphernal property.. It is not changed to community property by the circumstance that the heirs, in oi*der to affect a partition, agreed to a sale of all the property, each one being allowed to substitute notes for their purchases at the sale, with the understanding that those notes were to be deducted from the share coming to the heir.</p> <p>A person against whom the sheriff holds two executions to satisfy which he cannot find property, is not a sufficient surety on an appeal bond. The fact that he is named as surety in the order of appeal, does not prevent the other party from objecting to him.</p>

<p>Prisoners arrested for larceny are bailable under the Constitution during the pendency of their examination for commitment by the magistrate.</p> <p>Bail bonds taken by the committing magistrate for the appearance of a prisoner during the examination for commitment, if forfeited, may be collected by an ordinary suit in the district court. The summary process provided by law on forfeited bail bonds is not applicable to such a case.</p>

<p>Where an appeal was not filed when made returnable, and no application was seasonably made for further time, the appeal will be dismissed.</p>

<p>from the Fourth Justice Court of the parish of Orleans, A, Derbes, J.</p>

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

<p>Where the deputy of a notary has made the demand and served the notice of protest, it does not disqualify him from being a competent witness to the act of protest.</p> <p>The reason for the law requiring two witnesses to notarial acts was to create a check npon notaries so as to prevent their ante-dating their acts.</p>

<p>Where the claim of one as a creditor is denied, he has no right under the act of 13th of March, 1837, to have a judgment against an administrator for damages for not having deposited the funds of the succession in bank, and cannot disturb the administration in which those who are interested have acquiesced.</p>

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

<p>The act of the 1st of June, 1846, providing for the trial of causes in which a district judge shall be recused by the district judge of an adjoining district, is not unconstitutional.</p> <p>The Supreme Court is bound to exercise every power incident to its appellate jurisdiction, or which may be necessary to enable it to exercise that jurisdiction ,• and for this purpose pjay award writs of man&amus to judges of the district courts to prevent the right of appeal being defeated.</p> <p>Thp question whether the Legislative branch of the Government has or has not transcended its powers, is the highest and most important act which the judiciary can be called upon to perform ; and no law ought to be held unconstitutional, and consequently void, unless its opposition to the Constitution be clear and free from doubt.</p>

<p>A party has no privilege upon a steamboat for tlie premium of insurance, where the policy shows the premium has been paid.</p> <p>Where the funds arising from a sale by the sheriff of a steamboat are to be distributed, a party who has not an interest in the fund arising from an attachment, or a privilege, or a judgment, has no right to interfere in the distribution.</p>

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

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