Volume 5 — Robinson's Louisiana Reports

' This was an action to recover damages for the non-delivery by the defendants of- certain bills of exchange sold by them to the plaintiffs. After alleging the co-partnership of the plaintiffs and of the defendants, the complaint set out a sale by the latter to the former of the bills of exchange in question, deliverable at the option of the seller, on or before a specified day, (July 31, 1864,) which happened to be a Sunday.

<p>One who pays a draft which has been fraudulently raised to a larger amount, must bear the loss of the difference between the amount so paid, and that for which the draft was given.</p>

<p>As a general rule, Courts of Probate have exclusive jurisdiction of all claims for money against successions, administered by executors, curators, &c. (C. P. art. 924, § 13); and when a defendant dies during the pendency of a suit against him for a sum of money, the jurisdiction of the ordinary tribunals ceases, and the case must be transferred to the Probate Court of the parish where the succession is opened, to be there proceeded in. The object of the law is to bring before the Probate Court all the claims which, being subject to classification, are to be paid by the administrators under the control and supervision of that court. But the law does not extend to cases where the claim against the succession is set up by reconvention or compensation, or in which the parties have instituted separate actions against each other, which have been subsequently, consolidated. In such cases, the jurisdiction of the ordinary tribunals will be maintained, where the original action was within their jurisdiction. The actions are indivisible, and must be tried together in the same court.</p>

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

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

<p>The State can only take a succession where there is no one entitled to the inheritance, or where it is not claimed by any one having a right thereto. O. C. 477, 911, 917, 923. Such was the case under the Code of 1808, and under the Spanish laws.</p> <p>Natural brothers and sisters will inherit from each other, where their father and mother died before the child from whom the estate descends. O. C. 917. Article 923 of the Civil Code does not exclude the idea of natural brothers and sisters being entitled to inherit. It must be construed with reference to the preceding articles. Arts. 923 and 917 must be regarded as one continuous act of legislation in pari •materia.</p> <p>Where a party has been put in possession of a succession, as testamentary heir, by a decree of the Court of Probates, that court is divested of all control over the estate; and one who claims the property as the heir at law of the deceased, must proceed before the courts of ordinary jurisdiction. Nor is it requisite, before instituting such revendicatory action, that the claimant should be recognized as heir by the Probate Court; this is only required while the succession continues under the supervision of the court by which the executor, administrator, or curator was appointed.</p>

<p>One who has been employed by the partners in liquidation oí the affairs of a commercial partnership, cannot claim a commission on the value of goods divided in kind among the partners; but he is entitled to a compensation proportioned to the trouble to which he was subjected in making such division.</p>

<p>Action for compensation for services rendered as attorney ih fact for defendants, in recovering the amount of a succession. Plaintiff had previously presented his claim in the form of an opposition to the account filed by the executor, to the Court of Probates before which the succession was opened, and judgment had been rendered against him, exception of res judicata being pleaded, founded on this judgment: Held, that the exception should.be overruled. Per Curiam. The Court of Probates has jurisdiction of claims against the estates of persons deceased ; but the plaintiff’s was against the defendants, for services rendered after the death of their ancestor.</p>

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

<p>Where the vendor remains in possession of the thing sold, it will be presumed that the sale was simulated ; and, with respect to third persons, the parties must prove that they are acting in good faith, and establish the reality of the sale. O. C. 2456.</p>

<p>"Where one claims, as the heir of his mother, against a third person in possession, property which belonged to the community of acquets existing between his parents, he must show that his father had such a title, at the dissolution of the community, as would have enabled him, iu hie own right and as tutor of his son, to, maintain a petitory action for the property; for if any contrapts or engagements were entered into by the father, during the existence of the community, which were binding on him, showing that his apparent title was not a real one, whether evidenced by private writings shown to exist, and proved by extrinsic evidence to have a real date, or by authentic acts, they must have been binding on the community, and descended to the heir of the wife as a necessary burden upon his inheritance, estopping him from disturbing a title derived from the community.</p> <p>■ othjng in the laws of this State prohibits a party from holding jti his own name lands belonging to another, subject to the order qf the latter. Such an arrangement has no analogy to the fidei-(omryms# abolished by the Civil Code. By the latter, the trustee is hound to retain for, and deliver to a third person, the thing confided ta him, which is placed beyond the control of the person creating the trust.</p> <p>Neither the wife, por her heirs, are third persons as to the husband, in relation to acts done by him as the head of the community, Domestic papers admissible against the husband, are so against the wife, or her heirs.</p>

The plaintiffs, judgment creditors of Addison Brothers, (composed of Joseph and Samuel D. Addison,) brought this action to set aside certain conveyances and transfers of property, made by Samuel D. Addison, as being fraudulent and void as to creditors. The complaint alleged the recovery of two judgments against Samuel D. Addison, as survivor of Addison Brothers, in June and July, 1861, upon an indebtedness accruing prior to July, 1860.

Rule by the assignee of Zabriskie on Rosenda, and the Sheriff of the District Court of the First District, to show cause why a writ of prohibition should not be directed to them, restraining any further proceedings under an order from the District Court of the First District, for the seizure and sale of certain property of the bankrupt, which had been mortgaged to Rosenda, but was subsequently placed on the list of property surrendered by the bankrupt.

This was an action brought in December, 1865, to recover damages arising from the public representation by the defendant, at a theatre in the city of New York, of a dramatic composition or play, whereof the plaintiff claimed to be the proprietor.

<p>Where two persons purchase jointly, each an uridivid'ed half bf certain property, and give their notes endorsed by each other for the price, mortgaging the whole property to secure the payment of the whole price, on the sale of either half, the proceeds must be distributed proportionably among the holders of the different notes. The holder of the notes made by the purchaser whose half was sold, cannot claim the whole proceeds of his half of the property.</p>

<p>Appeal from the Court of Probates of New Orleans, Bermudez, J.</p> <p>relied on arts. 1619 and 1676 of the Civil Code, and the case of Young v. Chancy, 3 La. 464.</p>

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

Rule on the plaintiff to show cause why he should not be restrained from proceeding under an execution, issued by the Commercial Court, Watts, J. cited the Code of Practice, art. 573. 6 Mart. N. S. 598. 8 lb. 393. 6 La. 228. 10 lb. 271.

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

<p>The president and directors of a bank have no au thoiity, Vvithout the consent of the stockholders, to confess a forfeiture of the charter. But where, ih their answer to an application on the part of the State for such forfeiture, they do not deny the grounds of forfeiture set forth in the petition, they must be taken to be true, and a forfeiture decreed accordingly.</p>

<p>¥hd purchaser of bank stock, ivhieh, according to tho usage of the bank, could only be transferred to him bn his compliance with certain forms, cannot annul the sale, where he has failed to put the vendor in default, after placing himself in a condi* tion to receive the transfer by complying with the tegulations of the bank.</p>

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

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

<p>Solidarity must be stipulated expressly. It cannot be presumed. jC. C. 2088. So of surety-ship. Ib. 3008.</p> <p>Defendants purchased jointly oertain lots of ground, giving their separate notes, payable at different periods, each for one-third of the price. The act of sale declared, that they were interested in the purchase in the same proportion; and provided “that to secure the payment of the aforesaid notes, the purchasers hereby mortgage the herein described property.” Two of the purchasers having paid their notes, plaintiff obtained an order of seizure aud sale, against the whole property, for the amount of the remaining note. Held, that the obligations of the purchasers, though m the same act, are as separate and distinct as if made by different contracts at different times, each purchaser being only bound for his third of the price ; and that the notes of each were intended to be secured by a mortgage on his portion only of the property.</p>

<p>1. An action will not lie by the purchaser of a horse for the difference between the price paid by him and its market value, together with the expenses of its keep, upon the ground of fraud in the sale, where the only fraud charged was the concealment of a disease of the animal, by an omission to disclose it at the time of the sale, although known to the vendor, and there was no attempt to rescind the contract by an offer to return the animal, and no notice given to the defendant of a resale of it by the purchaser.</p> <p>2. No averment of fraud is necessary when the action is founded on a warranty.</p> <p>8. The sufficiency of a pleading, in form and substance, is to be determined by the rules prescribed therefor by the Code of Procedure. (§ 640.)</p> <p>4. The omission of a defendant to move to make definite and certain, or strike out irrelevant or redundant matter, in a complaint, is an admission that he fully understands, for the purpose of his defense, the nature of the charge against him, and is prepared to meet it. Nor is any thing contained in the complaint to be rejected as irrelevant or redundant, provided it relates, and is material to, some cause of action.</p> <p>5. If there be two causes of action aimed at in the complaint, their junction in one action, if improper, can only be objected to by demurrer. So that although an action on a warranty and for a false representation on the sale of the same chattels, cannot be joined if objected to, yet that does not prevent parties from assenting, by not objecting, to try both in one action.</p> <p>6. Where the complaint alleges a warranty, a sale on the faith of it, the existence of a defect warranted against, and damages thereby, these allegations complete a cause, of action on which the plaintiff is entitled to recover; unless in his complaint he rejects such warranty and its obligations as a contract, and limits the introduction of it to its use as a mere instrument of deception.</p> <p>7. Allegations of fraud, in a complaint, when not essential to enable a plaintiff to recover, may be disregarded.</p> <p>8. If. the question, whether words used by a vendor on a sale of a chattel were intended and understood as a warranty, be one of fact for a jury, proof of prior knowledge by the vendor, of a latent defect in the chattel sold, a previous attempt to cure it, and a failure to communicate such facts to the buyer, with a view to induce him to purchase, if the attempt be successful, and the purchaser buys believing the chattel to be perfect, may be relevant on such question of fact. Per Robertson, Ch. J. •</p> <p>9. The allegation of giving a warranty on a sale of chattels in order to deceive the plaintiff, who was the vendee, is not necessary to any cause of action. The fact of making such a contract renders a reliance upon it, wholly independent of any question of good faith. <</p> <p>11. The- omission in a complaint of an allegation of an offer to return property bought on the discovery of a defect in it, which is essential in an action for fraud, tends to establish that such was not the kind of cause of action intended where a warranty is also alleged; for the Code requires that when the effect of a pleading is to be determined, it shall be liberally construed with a view to substantial justice between the parties.</p> <p>12. Where a buyer has had no opportunity or means to discover the nonconformity of an article sold to representations of facts affecting its value or utility, which the seller may be presumed to know, and such representations are made by the seller during the negotiation for sale, unqualifiedly, and no act, declaration or occurrence concurs therewith to show that they were expressions of mere opinion, it would seem that the law construes them to be a warranty.</p> <p>13. Where, in the course of a negotiation by the plaintiff for the purchase of a horse from the defendant, the plaintiff had no means of detecting an existing defect in the animal upon mere inspection, or except after a thorough trial and testing of its qualities, but offered to give a certain price, on condition that the horse was sound, and the defendant unqualifiedly declared him to be sound, and received the price thus offered; Held that this was sufficient to establish a warranty, or, at least, to have gone to the jury as evidence of one. (Barbour, J. dissented.)</p>

<p>The vendor may be bound in warranty, at least for the restitution of the price, though there be no stipulation to that effect, unless, being aware of the danger, the vendee purchased at his own risk. C. C. 2481.</p> <p>The act of 13th March, 1837, ch. 94, relative to the roads, and levees, in front of the property of non-residents in the parish of Plaquemines, providing a summary mode of disposing of the property of absent proprietors, the proceedings under it should he closely scrutinized.</p>

<p>The powers conferred on the Supreme Court, enable it to supervise the legal opinions and judgments of the inferior Judges. They do not extend to the correction of any intemperate language in which they may be expressed, or to the personal deportment of the Judges, while presiding in their respective courts.</p> <p>A Judge has no right, in the capacity of clerk to the jury, even at their request, to draw up a verdict for them. He may instruct them as to the form of their verdict. (C. P. 515, 528;) but it is the duty of the foreman to prepare it. Ib. 524. The Judge may tell them, that it is in their power to find either a general, or a special verdict, but it is for them to determine which they will find. Ib. 519, 521, 524.</p> <p>In a charge to the jury, the Judge must limit himself to giving them a knowledge of the law applicable to the case, abstaining from saying any thing about the facts, or even recapitulating them in such a way as to exercise any influence on their decision. Nor ought he to state his own conclusions from the evidence.</p> <p>An action to recover a drawback due on certain articles subject to an import duty, and for the value of merchandize detained from the plaintiff, is not an action for the recovery of damages for an offence or quasi-offence, in the meaning of the third section of the act of 14th March, 1839, ch. 17, establishing the Commercial Court of New Orleans ; but is within the jurisdiction of that court. C. C. 2294 to 2304.</p> <p>The 4th section of the act establishing the Commercial Court of New Orleans, so far as it attempts to authorize the Supreme Court to decide on cases in the first instance, and to determine matters not! decided on in the inferior court, is unconstitutional. The Supreme Court cannot decide on the merits of a case which has not been acted on by the lower court.</p>

<p>The prescription of one year established by art. 2474 of the Civil Code, relates only to actions for a supplement of price on the part of the seller, or for a diminution of price or the cancelling of the contract by the buyer, where there is room for an increase, or reduction of price, from excess or deficiency of measure. This prescription is an exception to that of five years, under art. 3507 of the same code, in relation to contracts in general. It runs against minors from the day of the sale, while that created by art. 3507 in relation to other contracts, commences only from their majority.</p> <p>Where, by the terms of a sale, the vendor undertakes to procure a certificate from the Recorder of Mortgages showing that no incumbrances exist on the property, before the vendee is to be required to pay, the court will not order the price to be paid, even into court, before the production of such a-certificate, though it should be proved that the incumbrances might be paid off out of the price. To do so, would be to alter the contract.</p> <p>Defendant sold plaintiff property, the price to be paid as soon as certain mortgages thereon should be cancelled. The mortgages not being removed, the latter notified the former that unless they were cancelled, within a given time, he would sue to annu 1 the contract, but made no offer (offre labiale) to pay the price. Held, that the vendee was not legally put in default — O. O. 1907 ; and that as no time was mentioned in the contract within which the mortgages were to be cancelled, the putting of the vendee in default, was an indispensable pre-reqnisite to the rescission of the contract on the ground of his failure to comply with his obligation to cancel them. Ib. 1906.</p>

<p>Offers to perform one’s part of a contract are, according to the jurisprudence of France, either labial or real. The latter correspond to our tender, which, when followed by a consignment, amounts to payment. An offer may be made without a tender.</p> <p>An offer by the plaintiff to perform his part of the obligation, is an indispensable preliminary to an action for the rescission of a commutative contract.</p>

<p>Appeal from a judgment entered at a trial term, dismissing the complaint, with costs.</p> <p>The plaintiff's cause of action is stated in his complaint in these terms: “ The plaintiff complaining shows that the defendants, on or about the 13th September, 1865, won at gaming of the plaintiff, the sum of eight hundred and sixty-one dollars, whereby the defendants became indebted to the plaintiff in the aforesaid sum, and the plaintiff immediately thereafter demanded the said sum of the defendants. And the plaintiff alleges that an action accrued to him to recover said sum, with interest, according to the provisions of the statute against betting and gaming; wherefore the plaintiff demands judgment against the defendants for the sum of eight hundred and sixty-one dollars, with interest from the 13th September, 1865.”</p> <p>The defendants, in their answer, deny each and every allegation and averment of the complaint.</p> <p>The justice, before whom the action was tried, dismissed the complaint, delivering the following opinion:</p>

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

<p>Where a contract is made for another, subject to his ratification, he will be presumed to have ratified it, unless, on being informed thereof, he immediately repudiates it.</p> <p>Where a clerk, employed at a fixed salary, for a year, is discharged, without sufficient cause, before the expiration of his'Aime, he will be entitled to recover the whole amount which would be due at the end of his term.</p>

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

<p>Whore the petition of a married woman alleges, that she is authorized by her husband to sue, proof of authorization will only be required when specially denied in limine litis.</p> <p>Art. 986 of the Code of Practice, does not apply to a liquidated claim secured by a special mortgage. . A mortgage creditor is not bound to bring a suit against the succession, before calling on the curator or administrator for the payment of the debt. A simple order from the Probate Judge is sufficient.</p> <p>Mortgage creditors of a succession, though it Be insolvent, are ntit bound to wait; they may require the sale of the mortgaged property to be made for cash, provided its appraised value be, obtained; and their wish must always prevail, in this respect, over that of the other creditors. ,C. C. 1163, 1663. C. P. 990, 991, 992, 995.</p> <p>Where a Probate Judge orders the sale of mortgaged property to be made for cash, it is not necessary that he should insert in the order the condition imposed by law, that its appraised value be obtained. The law itself fixes the amount the property must bring, when the sale is for cash ; and unless the appraised value be obtained there can be no adjudication.</p> <p>A legatee' of mortgaged property cannot require to he proceeded against as a third possessor, where it is not shown that she his been put in possession of the property.</p> <p>No part of the property or funds of a succession should be applied to the discharge of legacies, until the creditors are satisfied.</p> <p>Where the act of mortgage shows that a note secured by it was endorsed when the act was executed, and the note, with the endorsement on it, was delivered to the mortgagor by the mortgagee, the signature of the endorser need not he proved.</p> <p>A rule to show cause requires no other citation than the notification of the rule. The party against whom it is taken is bound to answer it, within the time fixed,, and no judgment by default is necessary to render it absolute, which may be done on the day fixed for its trial.</p> <p>A rule in tho Court of Probates on an executrix, to show cause why mortgaged property should not be sold for cash, taken by the mortgagor, is a summary case, the trial of which is provided for by arts. 1034, 1035 of the Code of Practice.</p>

<p>Exceptions directed to be heard,-in the first instance, at the general term.</p> <p>The plaintiffs, a religious corporation created under the laws of this state, sued the defendant to recover the sum of $524. The complaint alleged that in April, 1859, the defendant was elected treasurer of the Church of the Redeemer, and accepted the office, and continued to act as such treasurer until April, 1860. That during the time he so acted as treasurer he received, among other moneys, the sum of $524, donated and collected for the Sunday school of said church, and belonging to the plaintiffs, which sum was duly demanded and payment refused.</p> <p>The answer denied that the sum of money mentioned in the complaint, as donated to or collected for the Sunday school of said church, belonged to the plaintiffs.</p> <p>The action was tried before Justice Jones by a jury. The plaintiffs proved that, at a meeting of the teachers of the Sunday school connected with the Church of the Redeemer, a scheme was proposed, by which a certain sum of money was to be raised for a building for Sunday school purposes, at which meeting an amount of money was raised and paid to the defendant. A subscription paper was put in evidence, headed: “ Subscriptions and donations to the Sunday school building fund of the Church of the Redeemer,” upon which subscriptions and donations were written, amounting to $514. This sum was paid to the defendant, who, at the time of the payment, was the treasurer of the church. Some evidence was given tending to show an offer of the defendant to give security for the payment of the moneys in his hands, but to whom the security was to have been given, did not clearly appear, the plaintiffs’ witness merely saying he “ understood to the church.” It further appeared that the defendant’s accounts, as treasurer of the church, were examined by a committee of the church, and a balance of $19.50 paid to his successor.</p> <p>The defendant testified that, at the meeting, and afterward, it was expressly mentioned and understood, that the moneys collected for a Sunday school building should have no connection whatever with the church moneys, and that he was afterward instructed by vote to keep the moneys totally distinct from the church moneys, as they were for another purpose. The rector of the church testified that neither the vestry of the church, nor the corporation, was connected with the enterprise in any way.</p> <p>A circular was also produced, stating the objects to be attained, namely, “ the erection of a parish school house, including a small free chapel for missionary services.” The rector further testified that the defendant was treasurer of the fund, and was appointed at a meeting of persons favorable to the enterprise, at the commencement of it.</p> <p>At-the close of the evidence the court directed the jury to render a verdict for the defendant, on the ground that the money in question did not belong to the plaintiffs.</p> <p>The plaintiffs excepted, and the exception was sent to -the genera] term, to be there heard.</p>

<p>An obligation with an unlawful cause, can have no effect. The cause is unlawful when forbidden by law, contra bonos mores, or contrary to public order. C. C. 1887, 1889.</p> <p>Any contract or agreement between an insolvent and one of his creditors, the effect of which is to secure to the 'latter an undue preference over the other creditors, or to procure for hitñ a renewed claim upon the future property of the debtor, in consequence of which agreement, the preferred creditor’s opposition is withdrawn, is illegal and fraudulent, and cannot be enforced. ! It matters not as to the nature of the opposition, if its withdrawal be the consideration or cause for which the preference is given. Thus, an agreement in consideration of the withdrawal of an opposition to the sufficiency of' the security offered by an insolvent, who had been appointed syndic of his own creditors, though the opposition was made after the insolvent had obtained his discharge, of the benefit of which he could not be deprived by any subsequent opposition, is illegal and void. It is sufficient that an undue advantage is derived from it by one of the creditors. The object of the law is, that the rights of all the creditors should remain in the state they were in, at the time of the insolvency ; that no change should take place so as to favor any ; and that the effects surrendered, and the property subsequently acquired, should be equally divided between the insolvent’s former and subsequent creditors, according to the nature, rank, and origin of their respective claims at the time of the surrender, or of the contracting of the subsequent debts.</p> <p>Money paid to a creditor, in pursuance of an illegal agreement with an insolvent, who had been appointed the syndic of his own creditors, to secure the payment of the creditor's claim, in consideration of his withdrawing an opposition to the sufficiency of the security offered by the syndic, cannot be'recovered back, either by the debtor, or by an assignee of his property, under a bankrupt law, suing for the benefit of the creditors, or by a security, who may have paid the amount so reclaimed. Though the cause of the agreement was unlawful, it originated in a natural obligation, on which no action could be founded, but which sufficed to prevent the recovery of the money back, when once paid. C. C. 2281, 2282.</p>

This was an action to recover the amount of damage by fire to merchandise in a warehouse in New York, either the property of the plaintiffs, or held by them in trust or on commission, or not delivered by them, although sold.

<p>Where a witness states, that he does not know the general character and standing of a person offered as a witness, he cannot be asked whether he would believe the latter on oath. The reason of the rule is, that no one is supposed to be always ready to explain particular actions suddenly objected against, but every one is presumed always to have within reach evidence of general good character and demeanor.</p> <p>Where one seeks to discredit a witness, the proper question is, whether from his knowledge of the general character and standing of the witness, the person interrogated would believe him on oath.</p>

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

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>This was an action to recover $398 11, with interest, the price of certain goods, for which the defendants are alleged to have become responsible. The defendants pleaded payment, and produced a receipt in full of all demands, signed by the’plaintiif. The only question presented by this case was, as to the admissibility of parol evidence to contradict the receipt.</p> <p>The decisions .of this court, prior to the enactment of our present Civil Code, were very strong against the admission of parol proof to vary, enlarge, or contradict a written agreement, even with regard to personal property. Since the adoption of the present Civil Code the doctrine has been modified, and the rules of the common law apply to the interpretation of all agreements, except where a special provision of the Code interferes. Commencing with the case reported in 8 Mart. N. S. 541, where the Court says — “ the act is a private, not a public act; the prohibition in our code against the reception of evidence against, or beyond what is contained in a written instrument, applies particularly to those which relate to real estate, &c.” —and following all the cases down to 1 Robinson, we find none where the strict doctrine of inadmissibility is applied to contracts relating to personal property. The case in 19 La. 409, relates altogether, on this point, to real estate. The code of 1808 contains no article similar to art. 1940 of the present Civil Code, which declares, in the fourth division, that “ all the articles of this section, (on the interpretation’of contracts,) contain rules established by law for discovering the intent, when either the words of the agreement are ambiguous, or circumstances render it doubtful. They apply equally as well to verbal as to written contracts.”</p> <p>The court erred in admitting parol evidence to contradict the terms of the receipt. Adams v. Gay, 5 Mart. N. S. 549. Chew v. Chinn, 7 Ib. N. S. 53 i. Clamagaran v. Sacerdotte, 8 Ib. N. S. 533.</p>

<p>The act of 25 March, 1840, chap. 80, amending the acts previously in force relativo to the transportation of slaves out of the State, against the will of their owners, is one of great severity, and must be strictly construed.</p> <p>The presumption created by the first section of that act does not exist, where a runaway slave, concealed on board of a Vessel, is discovered by the captain, and not by the owner of the slave, and the former pursues the course pointed odt. by la\V for restoring the slave to his owner, and the latter actually recovers possession of him.</p> <p>Where a slave, concealed on board a vessel, Is carried away and lost to the owner, the master and owners of the vessel will be responsible for his value, though he was received on board by a person employed On the vessel, contrary to the orders, and without the knowledge of the master and owners thereof. The latter are an' swerable for the damage occasioned by the acts of those they employ, and cannot excuse themselves on the plea, that they were done contrary to their orders, and without their knowledge. C. C. 2299.</p>

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

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

<p>Where in an action commenced by attachment against an absentee, the Sheriff’s return on the attachment merely shows, that he attached all the property belonging to the defendant in the hands of the garnishee, and no interrogatories are propounded to, nor other proceedings had against the latter, but the suit is carried on • contradictorily, with an attorney appointed by the conrt to represent the defendant, he will not be considered as in court, and the suit will be dismissed.</p>

<p>Defendants had each obtained, separately, judgment for $100, with interest and costs, against the Bank of the United States, and had levied separate executions on different lots of ground. Plaintiffs having taken a rule on them, to show cause why they should not be restrained from all farther proceedings for the reasons stated, the rule was made absolute, and defendants appealed. Held¡ that no appeal will lie, each judgment being for less than three hundred dollars.</p>

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

The petitioner in this case alleged;, that the defendants are indebted to him in the sum of $500, with interest, for this, that the petitioner is the holder and owner of certain promissory notes, for various sums, payable on demand, drawn and endorsed by the duly authorized officers of the Municipality No. Two of the city of New Orleans, to wit: S. H. Turner, Jr., and Thomas Sloo, Jr., as Treasurer, and John Calhoun, as Comptroller, all said notes being dated at New Orleans…

<p>This was an action brought to recover the value of certain Prussian thalers, claimed in the complaint to have been lent by the plaintiff on the 7th of July, 1863, to the defendant, in the city of New York, and alleged therein to be worth $5250. The-answer denied every allegation in the' complaint, and set up, as a defense, a general release, under seal, executed by the plaintiff to the defendant, of" which a copy was annexed.</p> <p>The issues of fact therein were tried before Justice Bar- . bour and a jury, in November, 1866. On the trial the plaintiff, being examined as a witness on her own behalf, testified that she had two names, (Schmidt and Herfurth.) That she arrived in this country on the 24th of June, 1863, and on the following- 7th of July lent the defendant one hundred Prussian treasury notes for fifty thalers each, of which he returned 2500 thalers on the 7th of March, 1864. Nobody else was present at the loan, and no receipt or voucher was taken therefor. She demanded back the sum lent in March, April and May, 1864.</p> <p>The plaintiff’s signature to an instrument in the German language was proved, of which a translation- was annexed, to the answer, and is as follows:</p> <p>“ All whom it may concern, know by these presents, that I, the undersigned, Henrietta Schmidt, of the city of New York, have received of Emil Herfurth, of the same place, the sum of two thousand five hundred dollar’s, money of the United States, by cash, at the date hereof; and hereby expressly and formally acknowledge the receipt of said sum, and release him from the payment of the same.</p> <p>Further, I declare for myself, my heirs, executors, and administrators, that, in consideration of the said sum of two thousand five hundred dollars, I have formally, irrevocably, and forever, released and discharged, and hereby do release and discharge formally, irrevocably, and forever, the said Emil Herfurth, his heirs, executors and administrators, of and from all obligations, agreements, contracts, covenants, and promises of every kind concerning any act or object, or originating from any cause whatsoever, and which he may have incurred to me.</p> <p>And I therefore renounce, irrevocably, formally, and forever, for myself as well as my heirs, my executors and administrators, all rights, demands and claims which I had, have, or may have against said Emil Herfurth, and which arose or originated, or may have arisen or originated out of any agreement, act, promise, or affair or relation existing between me and said Emil Herfurth, and all the causes of ' action and consequences resulting therefrom, from the beginning of the world to the present day.</p> <p>I further renounce the fulfillment of any promise which was ever made by the said Emil Herfurth, to enter with me into marital relations, and hereby expressly renounce it in all due form, and bind myself never to commence any suit for that purpose against the said Emil Herfurth, or to appear against him as plaintiff in any court of justice or tribunal, in any country or state, by reason of any relation that may have existed between me and him, or to make any one else appear for me.</p> <p>I hereby further declare, expressly, that the foregoing document is an absolute and final answer, and full and final bar against all suits against the said Emil Herfurth, and it shall be so considered by every court, court of justice and tribunal.</p> <p>In witness whereof, I have subscribed this document with my own hand, and affixed a seal to it, on the 7th day of March, 1864.</p> <p>Henrietta Schmidt, [seal.] Signed, sealed and delivered in the presence of</p> <p>J. P. Legare.”</p> <p>This instrument was in the hand writing of a former counsel for the plaintiff, (S. Hirsch, Esq.) and the signature and death of the subscribing witness to it, (Legare,) were proved.</p> <p>The plaintiff called on such counsel, (Hirsch,) on the Saturday (March 5) before the day on which such instrument was signed, (Monday, March 7, 1864.) She was introduced to him by a friend, to whom she had told her trouble, to wit, that the defendant was about to leave her. She was then seven months advanced in pregnancy, and living with the defendant. Such counsel called on the defendant, in consequence of such application of the plaintiff, and stated to him the-object of the claim, on her part, as being a breach of promise of marriage. He went, in company with the plaintiff, to the defendant’s office, and there quitted her, in order to. speak to him. After some conversation between the two, she approached, and her counsel communicated to her a proposition which the defendant had made, to pay her $2500 in satisfaction of this breach of promise claim. Some question then arose as to the ¿ustody of the child with which the plaintiff was then supposed to be pregnant, and she claimed it under all circumstances. Finally the defendant expressed his willingness that she should have it until the child was seven years old. A paper, previously drawn by the defendant’s counsel, (Mr. Stemler,) in English, was then handed to the plaintiff’s „ counsel, and he was requested, by both parties, to draw it in German. He also drew up a paper in German, which the defendant signed at his store, and it was given to the plaintiff, either on that Saturday or on the following Monday, when the release was executed. Her counsel read it to her, (as he thought.)' The following is a translation of it.</p> <p>“I, the undersigned, Emil Herfurth, of the-city of New York, in consideration of a general release, executed this day to me by Henrietta Schmidt, and in consideration of the sum of one dollar, duly paid to me by said Henrietta Schmidt, the receipt whereof is hereby acknowledged, hereby agree to maintain and take care of the child with which the said Henrietta Schmidt is now pregnant, if the same shall be born alive, and live until it has reached the age of seven years.</p> <p>Done at said city of New York, and confirmed by my signature and seal, this 7th day of March, 1864.</p> <p>Emil Hereurth. [l. s.] ,</p> <p>Witness: P. J. Legare.”</p> <p>At such interview no other claim was mentioned as existing between the parties, except the breach of promise and the child..' Hothing was said about any remaining 2500 thalers. The plaintiff’s counsel drew the release ‘ ultimately executed, partly from the paper prepared by the defendant’s counsel, and partly from instructions given by both parties in each other’s presence, according to what he understood to be' their understanding, and he was paid for drawing it by the plaintiff’.</p> <p>The plaintiff testified that she took such agreement as to the child, merely because it was given to her, but did not know its contents, or for what it was given, and never read it, because she was continually sick. The evening before the release was executed, the defendant told her to sign the paper the next day and he would give her one half of the 5000 thalers, and two months after, he would give her the other half, and that such paper was a mere receipt for the money. The evening previous to that (being Saturday) he had taken her to his counsel (Mr. Stemler) and wanted her to sign the paper drawn by the latter, which she had refused. She believed what the defendant told her, that the release signed by her “ contained ” a receipt for 2500 thalers of the money she had given him. She only saw the upper half of the last page of .such release, when she signed it, but no time was given her to see what was in it. Her counsel said he was in a great hurry'to go to court; told her to sign it, it was all good, and the defendant would advise her of the contents. The defendant had often asked her before, if she was satisfied that he should separate himself from her, if he gave her back that money. He said nothing in presence of her counsel. The plaintiff asked her counsel to read such release to her, but he said it was too long; the defendant had brought him a paper which was very long, and he had not time, and the defendant would advise her of it. Ho one told her what the paper contained. The defendant had told the plaintiff that he would treat her badly if she did not sign that paper; that he would leave her and cheat her; that he would maltreat her, until she signed it. She signed it to prevent the plaintiff from leaving her. He tormented her day and night, and she was in a very distracted state, and did not know what she was doing.</p> <p>The defendant testified that he read to the plaintiff, the day before she signed the release, the paper drawn by his counsel (Stemler) for him, before he gave it to her counsel, (Hirsch,) which was not contradicted.</p> <p>The defendant ceased to live with the plaintiff after the execution of the two before mentioned instruments, but not quite two months afterward returned to live with her again. She then asked him where the paper was, which she had signed. He said he had burned it; that it was a scandal to cany with him. After that, she asked him for the other 2500 thalers, and he said he had no money, and could not give her any. There was no evidence that he subsequently promised to pay any thing. This action was begun in July, 1865.</p> <p>The parties had known each other about twelve years, the acquaintance having commenced in Germany. The defendant came to this country in January, 1863, the plain- • tiff accompanying him part of the way in a railway carriage from Leipsic to Magdeburg. She. was then a widow. She arrived in this country on the 24th of June, 1863. Before July following, she called on the defendant at his place of business, became his mistress shortly after, and continued so until March, 1864, when the release in question was executed, and the parties separated.</p> <p>The learned judge, before whom the cause was tried, instructed the jury to disregard the release as applicable to any portion of the claim, if they found that “ it was signed by the plaintiff without knowing what it was, and under the supposition that she was receipting for 2500 thalers upon'a return pro tanto of the loan she had made; that she supposed she was simply signing a receipt for the money.” He also informed them that the plaintiff had said “ she frequently requested the defendant to pay the remaining 2500 thalers of the loan, in March, April and May, and he promised to pay it, * * after the execution of the release. If they believed her, it would, “ probably, satisfy them that neither of the parties considered the release as embracing the lent money.”</p> <p>Various exceptions were taken on behalf of the defendant, to the admission and exclusion of evidence. Under such exceptions the following questions to the plaintiff were excluded:</p> <p>Did you commence a suit against the defendant in January, 1865, for breach of promise of marriage? Did you commence a suit in January, 1865, for 2500 thalers ? Did you commence a suit in July, 1865, for 5250 thalers ? Are you the wife of the defendant ?</p> <p>Under such exceptions, the following questions were admitted :</p> <p>Did you visit the plaintiff in her bed-room ? Did you live with her in Broome street ?</p> <p>Under like exception a complaint in an action in which the plaintiff swore she was married to the defendant, and the complaint in the present action, after the counsel for the defendant had begun to sum up, were excluded.</p> <p>Two witnesses gave evidence, under like exception, of the value of a Prussian thaler in July, 1863, in United States currency, (Stalknecht and Ternow.) The first testified that he was in Europe at that time; that he had bought bills of exchange in Prussian thalers, but couldn’t tell precisely their value in July, 1863, in American currency; it depended on the value of gold; and he testified to the value of gold from knowledge of it obtained by reading American newspapers abroad. The other (Ternow) testified he was a soldier in the United States army in July, 1863, but was a broker at the time of the trial. But he also was permitted to testify as to such value under like exception.</p> <p>No evidence was given of the value of the Prussian thaler in March, 1864. .</p> <p>The j ary found a verdict for the plaintiff for nearly §3000 (§2966.99.)</p> <p>A motion was made for a new trial founded on the judge’s minutes, and such new trial was denied. An appeal was taken from the order denying such new trial, as well as from the judgment, a case containing exceptions having been made.</p> <p>Both appeals were heard together. •</p>

<p>Appeal by the inlervenor, from a judgment of the'Commercial Court-of New Orleans, Watts, J.</p>

<p>Bills of exception should be signed by the Judge, before signing the judgment.</p> <p>All agreements between parties or counsel, derogating.fromthe rules of practice fixed by law, must be entered on the minutes of the court, or reduced to writing and filed ’ in the record, or they will not be noticed.</p>

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

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

<p>The party interested in establishing that a rule of an inferior court has been violated, must show its existence by the record.</p> <p>Where a party has filed cross-interrogatories, without having required his adversary to state the names or residence of the witnesses whom he proposed to examine under a commission, or what he expected to prove by them, it will be too late” at the time of the trial, to object to the admission of the testimony for the want of such statement.</p> <p>The decision in Evans et at. v. Gray et at., (12 Mart. 475,) requiring the affidavit to obtaip a commission to take testimony, to state the names of the witnesses to be examined, was made when no rule of court existed on the subject, and was before the promulgation of the Code of Practice, which made a change in the law on this subject, by declaring, art. 424, that such testimony “ shall be taken pursuant to the rules of the respective courts.”</p> <p>Where a cause has been tried by a jury, and no motion was made for a new trial, it must be an extreme ease to induce the remanding of it.</p>

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

The petition filed in this case, on the 8th of May, 1837, alleges : That the defendant is justly indebted to the petitioner, in the sum of $1277 28, for merchandize sold and delivered, which, though long since due and demanded, the defendant refuses to pay ; that $1202 28 of that sum, is due for goods delivered to defendant, to be sold by him “ for account of the petitioner,” the profits to be divided between them, but that defendant “ took said goods on his own…

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

<p>To recover of the owners of a steamer, as common carriers, the value of property lost or destroyed by them, it is sufficient to allege that the defendants undertook as carriers to convey the property for hire, and failed to do so. Any specification of the acts, or neglect which occasioned the loss, may be regarded as surplusage, and can furnish no ground for excepting to the petition as uniting distinct causes of action— a cause ex contractu, with one ex delicto.</p> <p>Where it appears from the return of the Commissioner, that a witness whose deposition was taken by him, was cross-examined by a member of the bar, not the counsel of record of the party, it will be presumed that he had authority to appear, either from the client, or his counsel of record, unless his authority be denied on oath.</p> <p>The return of ‘‘ not found” on a subpeena for a witness, and proof that he resides out of the State, will authorize the admission of his testimony taken under a commission.</p> <p>The owners of a steamer employed in carrying freight and passengers for hire, are responsible as partners and common carriers, in solido, for any loss of property confided to them, occasioned by want of care or skill in those in charge of the boat.</p>

<p>Damages cannot be assessed without the intervention of a jury. Art. 313, of the Code of Practice, which requires, when damages are to be assessed in confirming a judgment by default, that a jury shall be summoned to find them, as if the defendant had answered, and that the judgment shall be in conformity with their verdict, is not repealed by the 17th section of the act of 10 February, 1841, chap. 16, which provides, that the prayer for a trial by jury in*any case before the District, Parish, or Commercial Courts of New Orleans, shall be disregarded, and the case tried by a jury, unless the party shall have advanced the compensation allowed to the jurors, in those courts, on filing his petition or answer praying for such trial.</p>

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

<p>Appeal froth the Commertíidl Court of N'ew Orleans; Watts j J:</p>

<p>The plaintiff leased to Laura A. Shepherd, by lease dated April 29, 1862, certain premises at Clifton, Staten Island, for the term of one year from the last day of April, 1862, at the yearly rent of $1000, payable quarterly. The defendants signed and delivered to the plaintiff an instrument as follows: -</p> <p>“In consideration of the letting of the premises before mentioned to the aforesaid Laura A. Shepherd, we do hereby covenant and agree to and with the party of the first part, before named, or his legal representatives,, that if default shall at any time be made by the said Laura A. Shepherd, the party of the second part, in the payment of the rent and performance of the covenants before contained on her part to be paid and performed, that we will well and truly pay the sum of $800 of the said rent, or any arrears thereof that may remain due, to the party of the first part, to that ' extent and no more.”</p> <p>On the 14th of March, 1863, the plaintiff again leased to Shepherd the same premises for the term of one year from the 1st of May, 1863, at the yearly rent of $1100, payable quarterly, The defendants again signed and delivered to the plaintiff an instrument as follows:</p> <p>“In consideration of the letting of the premises above mentioned to the above named Laura A. Shepherd, we do hereby covenant and agree to and with the party of the first part, above named, or his legal representatives, that if default shall at any time be made by the said Laura A. Shepherd in the payment of the rent and performance of the covenants above contained, on her part to be paid and performed, that we will well and truly pay $900, or any arrears thereof that remain due, unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part.”</p> <p>Shepherd paid three quarters of the rent, amounting to $825. On the 1st of May, 1864, a quarter’s rent, amounting to $275, became due and payable, to recover which the action was brought against the defendants upon the instrument executed by them.</p> <p>The defendants set up in their answer that when the first lease and guaranty were signed, it was agreed between the defendants and the plaintiff that the defendants would become sureties to the extent of the yearly rent or sum of $800, so that they should1 be and become only liable for any deficiency or arrears of rent, upon the basis of such yearly rent of $800; and that their obligation was not to extend beyond the amount of any such arrears or deficiency. That when the second lease and guaranty were signed, it was agreed that the defendants would again become sureties to the extent of the yearly rent or sum of $900; so that, as while between Shepherd and the plaintiff, she was liable to pay the yearly rent of $1100, as between the defendants and the plaintiff, they were to be liable only upon the yearly rent of $900; their liability being limited to making good any deficiency or arrears of said yearly sum of $900; and that they were in no event to be called on to pay any greater sum than the difference between such sum as Shepherd should pay and the sum of $900. That, thereupon, they signed the guaranty which they supposed truly set forth the said agreement; and they aver that so far as said instrument differs or varies from or is inconsistent with the agreement, the same was executed by them under a mistake of facts, and was procured by the plaintiff to be executed by them under such mistake; and that, in so far as said instrument differs or varies from the said agreement, it does not truly set forth the agreement, and should be reformed by the court so as to express the said agreement. The defendants denied any liability to the plaintiff.</p> <p>The action was tried before Justice Garvin and a jury.</p> <p>The defendants were allowed to prove, against the plaintiff’s objection, conversations between themselves and the plaintiff’s agent, tending or designed to prove the agreement set forth in the answer. And the declarations of the agent were proved to the effect, that the plaintiff had agreed to accept security for a rent of $800, taking the risk of Mrs. Shepherd for $200, for the first year; that the rent was $1000; hut if the defendants would become security in a rent of $800, the plaintiff would rent the premises; that they asked the agent what the guaranty meant, and he said if the defendants would hold themselves liable to the amount of $800, the plaintiff would take the risk of the other $200 from Mrs.. Shepherd. The defendants were allowed further to prove, against the plaintiff’s objection, that on the last year Mrs. Shepherd called on the defendants, with the plaintiff’s agent, saying the rent was increased $100, and wishing them to become security to the amount of a rent of $900, adding $100 to the year previous, which • they agreed to do on the same conditions; that the plaintiff’s agent told them the conditions were precisely the same as the year before, except there was $100 in addition to the rent, and that the plaintiff would require them to become responsible to add $100 to their liability. The plaintiff’s objection's to all the evidence were overruled, and she excepted.</p> <p>It was proved by Wyman, one of the defendants, that he read the instrument before signing; Whitney, the other defendant, said that he was in doubt whether he did so.</p> <p>The justice charged the jury, that the construction of the surety clause in the first lease, as matter of law, was, that the defendants were liable up to the amount of $800, and no more; when that sum was paid, either by the tenant or by them, no matter how much rent might remain due to the plaintiff afterwards, the defendants were not liable for any further sum. It was submitted to the jury to say whether the defendants read and understood the last paper; they were instructed that if the defendants relied entirely upon the verbal arrangement made between themselves and the plaintiff’s agent, and did not read the paper sufficiently to see that it varied from .the former contract, and supposed it expressed the same thing, then they would be liable for $87.75 only. That if the parties mutually understood what was put down on the paper, and took the printed form and signed it, inserting $900 instead of $800, without considering what its effect would be, believing the contract to be the same in terms as the first one, then the contract should be made to conform to the first one.</p> <p>Several requests t® charge were made, substantially the converse of what was charged, which were refused.</p> <p>The plaintiff duly excepted to the charge and refusal. He also objected to any evidence in support of the answer, on the ground that it did not constitute a defense. The objection was overruled, and the plaintiff excepted. The jury gave the plaintiff a verdict for $87.75. The plaintiff moved for new trial on the judge’s minutes, which was denied, and then appealed from the order.</p>

<p>To succeed in a redhibitory action, the purchaser must havg taken such care of tty thing sold, as might be expected from a prudent father of a family.</p> <p>Action to rescind the sale, and recover the price of a slave alleged to be affected with a redhibitory disease. On the trial it was proved, that the slave was sent by plaintiff to a hospital about fifteen months after the institution of the suit, in a dying condition, where she expired six or seven days after. There was no evidence, that she had ever been attended by a physician. Held, that it is not enough to show the existence of the disease, at the time of the sale ; that to enable the plaintiff to recover, it should have been shown, that the slave had received proper medical treatment.</p>

<p>The thirty seventh section of the Act of 1 April, 1833, incorporating the Commercial Bank of New Orleans, which exempts its capital from the payment of any tax imposed by the State, or any parish, or body politic under its authority, does not exempt from such taxation, slaves, or other real property held by the bank. Nothing is exempted but the three millions of dollars furnished by the stockholders for its operations. „</p>

moved to dimisS this appeal, the record containing fio statement of fa'cts, bill of exceptions, or assignment of errors, and it appearing from the certificate of the clerk that all the evidence was not transcribed; citing Field v. Sibley; 2 La. 496; The certificate stated, that the record, “ contains a transcript of all the proceedings, as well as of all the documents filed, and all the testimony adduced on the trial, exeept document No. 1, which is not to be found among the…

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

Appeal by the defendants, from a judgment of the Commercial Court of New Orleans, Watts, J., in favor of the plaintiff, for the amount claimed by him.

With regard to the plea of his discharge, as a bankrupt, filed by the defendant, its object is answered by the waiver of any personal judgment against him. The only question is, whether the property should have been ordered to be sold, without making the assignee of John S. Walton or of S. C. Ogden, or the representatives or heirs of G. B. Ogden, parties to the suit. The plaintiff contends, that there was no necessity for making them parties.

<p>Appeal from a judgment entered upon the report of a referee. The plaintiff alleged, in his complaint, that on or about the 1st of May, 1862, at the city of New York, he employed the defendants, (then and still co-partners, under the firm of “ Christie & Stow,”) as claim agents and brokers, to collect from the United States government certain bills for the plaintiff) amounting to a certain sum, ($2146,) which he delivered to them, as such co-partners, and claim agents and brokers, and they undertook to collect the amount of said bills from said United States, and to pay the proceeds over to the plaintiff". That on or about the 18th day of July, 1862, the defendants did collect and receive from said United States government the amount of said bills, and received, as proceeds thereof, a certain sum, ($2146.) That the sum of $100 was a reasonable and fair compensation for the defendants’ services therein. That the plaintiff, at various times in the years 1862 and 1863, at said city, duly demanded from the said defendants payment of the said sum, the proceeds of the plaintiff’s said bill so received by the defendants, less their proper charges and commissions for the collection of said amount. That no part of said sum has been paid the plaintiff, except the sum of $800, and the defendants are now justly indebted to the plaintiff therefor in a certain sum, ($1246,) with interest tnereon from the date of its collection; for which he demanded a judgment against the defendants, with costs.</p> <p>The defendants, by their answer, denied most of the allegations in the complaint. It alleged that in or about the month of January, 1862, one William S. Bliss called at the office of the defendants in the city of New York, and represented to them that he was an officer in the military service of the United States, and had a claim against the government of the United States to a large amount, for money expended by him, said Bliss, in recruiting a regiment called the Bliss cavalry; that he, said Bliss, subsequently left with the defendants certain papers purporting to be the expenditures, or an account thereof, in recruiting said regiment; that it also appeared that the plaintiff herein was one of the principal claimants for such expenditure; ■ that in accordance with the representations of the plaintiff and said Bliss, said claim was made out at the sum of $2152.20, and presented to the United States government by the defendants for payment; and the defendants had from time to time collected from the United States govern-. ment portions of said claim, amounting to about the sum last aforesaid; that it was duly agreed by and between said Bliss and the plaintiff and the defendants, that in consideration that the defendants would prosecute and collect said elaim, and would pay all the necessary disbursements therefor, they the defendants should receive and retain from the amount collected the sum of ($500) five hundred dollars over and above their ordinary commissions, and that thereupon said claim was prosecuted and collected by the defendants upon and in pursuance of the agreement aforesaid; that the defendants hadpaidtothe plaintiff, or to or upon his order, and by his directions, at different times, between the 18th day of February, 1862, and the 11th day of December, 1862, on account of the bills or claim in complaint mentioned, the sum of. $1521.39. That the sum so received and collected by the defendants from the United States government, as alleged above, and also the sum so paid to the plaintiff, were so received and paid for the benefit of the plaintiff, and all other persons interested in the recruiting of a certain regiment called the Bliss cavalry, and that the plaintiff furnished certain supplies to said regiment, and he had received from the defendants the whole amount of Ms claim for any supplies so furnished to said regiment; that he is only a nominal party in this action; and that the action (if any) should be prosecuted in the name of said William S. Bliss, as the real party in interest,-and not in that of the plaintiff. For a further defense the defendants alleged that on the' 8th day of August, 1863, the plaintiff, for the consideration of seventy- dollars ($70,) and the further- consideration to be performed, as expressed therein, executed under his' hand, and delivered to the defendants the agreement or release, of which the following is a copy:</p> <p>“ I hereby consent to the discbntinuance of the suit in the case of Isaac D. Hammond against Christie & Stow, and the said suit is hereby discontinued, and the cause of action released, in consideration that Christie & Stow pay the costs of said suit, and pay a certain order or draft drawn by me on Christie & Stow for $70, now in the hands of James M. Sheehan.</p> <p>New York, August 8, 1863.</p> <p>(Signed) Isaac D. Hammond.”</p> <p>That the said sum of $70, being .the amount of the order or draft mentioned in said agreement or release, was duly paid to James M. Sheehan, the person therein mentioned, on the 8th day of August, 1863; and at the time last aforesaid, these defendants offered to pay, and tendered to said James M. Sheehan, he being the plaintiff’s attorney in this action, the plaintiff’s costs of said action.</p> <p>The referee found the following facts : That the defendants were co-partners in business, as brokers and claim agents, in the city of New York;.that on or about the time stated in the complaint, the plaintiff employed them in their capacity of brokers and claim agents to collect certain moneys due from the United States, arising out of certain claims against the said United States, amounting to the sum of $2146 and upwards, and that the defendants undertook such employment, and agreed to collect the said claims for the plaintiff; that after the collection by the defendants for the plaintiff of the said claims, so placed by him in the hands of the defendants, they recognised the plaintiff as the person to whom they were hound to account for the moneys received by them, by continuing, to transact business with him relative to such claims, and by payments to him on account therepf; that there has been no account and satisfaction between the plaintiff and the defendants in this action, whereby the claim of the plaintiff has been settled and discharged, or this suit discontinued; that the plaintiff in this action is the sole party in interest herein; that the defendants, after their employment by the plaintiff, and the agreement made by them to collect the said claims against the government' for him, collected, as his agents, the sum of $2250; that the defendants have paid to the plaintiff, for and on account of the moneys so collected by them, for him, the sum of $909.66, for which sum they are entitled to be credited in this action; that they are not entitled to be credited on the order on them given by the plaintiff, in favor of William S. Bliss, for the sum of $500, for a larger amount than the sum actually paid by them to Bliss thereon; which was to be $100, and that the retention of the order by the defendants from the said Bliss, in whose favor it was drawn, did not constitute a payment to the plaintiff of the amount of the draft; that there was no agreement between the plaintiff and the defendants, for any specific sum, as a compensation for their labor and services in collecting for him the said claims against the Hnited States; that there were no peculiar circumstances of trouble or complexity in making the collection, and that the defendants a,re not entitled to receive from the plaintiff a larger compensation under the circumstances than the usual brokerage in such cases, which was ten per cent on the actual amount by them collected for the plaintiff, and which compensation amounted to the sum of $225; that after deducting all payments made by the defendants to the plaintiff, or paid by virtue of his orders, and after deducting the amount of commissions on the said collections, to which the defendants are entitled, the plaintiff was entitled to' receive from the defendants the sum of $1115, with interest thereon from the 18th day of July, 1862, amounting to the further sum of $340.08.</p> <p>The referee found on the foregoing facts, as conclusions of law: (1.) That the defendants, having undertaken to collect the amount of the claims placed in their hands, for the plaintiff", and in his name and as his agentsj were estopped from denying that he was the party in interest in this action, and from denying their liability to account to him therefor. (2.) That the plaintiff, independent of his interest in the subject matter, had by the payment and advances made by him on the claims collected by the defendants, and by the consent of the parties interested, that the collection should be made in his name, such an interest in this claim as to enable him to maintain this action in his own name, under section 113 of the Code of Procedure. (3.) That the order for $500 given by the plaintiff to William S. Bliss, on the defendants, did not operate as an assignment to that extent of the claim of' the plaintiff in this action, the payee, Bliss, never having consented to accept the responsibility of the defendants for the amount of the order, or to discharge the plaintiff from his liability for a larger sum than the actual amount received thereon. (4.) That from the facts proved the plaintiff was entitled to recover from the defendants the said sum of $1465.08, principal and interest.</p> <p>He, therefore, reported in favor of the plaintiff, for that amount, and judgment was entered accordingly, with costs.</p>

Rule on Smith, Judge of the Court of Probates of the parish of Jefferson, to show cause why a mandamus should not be issued, commanding him to homologate the proceedings of a family meeting,

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

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

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

Appeal form the Commercial Court of New Orleans, Watt's, J. This was an action by the plaintiff, as holder and owner of certain promissory notes, drawn by the defendants. The latter excepted to the petition, alleging, that the matters therein set forth are in litigation between the same parties in an action pending before the Supreme Court; and prayed to be dismissed with costs.

<p>This action, as appears by the demand for relief in the complaint, is brought to recover certain demised premises, by reason of forfeiture of a term therein, for non-payment of rent; also damages for loss of rent; and to prevent the defendants from using the premises in a specified way. It was begun in March, 1866.</p> <p>On the 1st of August, 1864, the plaintiffs by a bipartite instrument under seal demised to the defendant Christie the basement or lower floor of the building * * 100 Broadway, excepting and reserving to themselves “the right to pass coal through the front entrance of said basement from the walk, and alongside of the front of their heating furnace, together with the coal and wood bins adjoining . the same; also the right of uninterrupted entrance from the rear of said basement to and the exclusive use of said furnace, and the water closet- * * in the northeast corner of said basement, with the appurtenances, for the term of two years and nine months” from the 1st of August, 1864, at the yearly rent of $450 payable quarterly.</p> <p>It was agreed in such instrument that if the rent should he unpaid, or default should he made in any of the covenants therein contained, it should be lawful for the plaintiffs to re-enter such premises and repossess the same. The defendant Christie agreed thereby not to underlet such premises, or any part thereof, to any one whose business or signs should “be considered objectionable by” the plaintiffs, or “without their written consent first obtained.” He further agreed to restore to its then order his water closet in the basement, if he allowed the tenants of the upper floors of such building so to make use thereof, as to overflow or in any other way damage it. It also contained covenants for quiet possession, and surrender in as good condition as reasonable use and wear and damages from the elements would permit.</p> <p>In February, 1866, the defendant Christie, without any written consent of the plaintiffs, underlet the whole of the premises to the defendant Lyon and one Peter E. Lyon, who commenced to make alterations therein, prepared a counter for a restaurant, constructed a bar, introduced liquors, and made all the preparations usual for a restaurant; They remained in possession until April, 1866.</p> <p>The complaint set forth the execution of the lease to the defendant Christie, and alleged that he proposed on taking the premises to use them for offices, and fitted them up therefor. It also set forth the underletting to the defendant Lyon; his taking possession of the premises and making alterations therein, and alleged that the business he was about to carry on therein would injure the plaintiffs in their business as an insurance company. That Lyon proposed “to change the conductors of heat from the furnace below the basement, through it, in a manner to be seriously detrimental to ” the plaintiffs in their business. The answer of the defendant Christie admitted the execution of the lease, and the occupation of the premises by him until the lease to the two Lyons, and set forth such letting to them, denied any present occupancy or possession by him, and admitted that the sub-lessees intended to use the premises as a lunch room. It denied that their business would injure the plaintiffs in their business, and controverted all other matters alleged in the complaint.</p> <p>After the commencement of this action the defendant Christie, on the 1st of May, 1866, paid to the secretary of the plaintiffs,.who accepted it from him, the sum of $112.50, which was the rent due on that day, and the defendant Christie, on the 9th of the same month, put in a supplemental answer setting up the payment and receipt of such rent as a defense, and also that such defendant had ejected his co-defendant from such premises, since the commencement of this action, and was at the time of putting in such answer in possession thereof.</p> <p>On the 10th of May, 1866, the plaintiffs filed a supplemental complaint, alleging that since the commencement of this action the defendants debarred the plaintiffs from the use of the furnace on the premises mentioned in such lease, and thereby prevented them from heating their offices for a long time, greatly to their injury and that of their business, but such supplemental complaint contained no demand for relief. The defendant Christie controverted the allegations of such complaint in his answer thereto.</p> <p>Only the defendant Lyon answered -the original complaint. In such answer he admitted the making of the lease from the plaintiffs to the defendant Christie, who underlet them to him, but controverted any understanding by such defendant with the plaintiffs as to the use of the building, or want of a consent by the latter to its underletting. It also denied that the business of the defendant would injure the plaintiffs in their business, or that he intended to keep a bar-room or restaurant on such premises, or that he proposed .to make any change in the conductors of heat from the furnace below such basement, through it, or into the plaintiffs’ offices or elsewhere. It averred that the only business he intended to conduct was a lunch room; denied that he intended to cook any food upon such premises ; and alleged that he intended to conduct his business in a quiet, cleanly, orderly and un exceptionable manner. It also averred that the only changes he had made was to remove temporary movable wooden partitions, placed there by the defendant Christie at his own cost, in such a manner as to leave the basement unobstructed, and that he had placed a proper shelving and counters theréin.</p> <p>No answer was put in by the defendant Lyon to the supplemental complaint, nor does any action seem to have been taken on .the same against him.</p> <p>The issues made in this action were tried before Justice McCuKfisr, in June, 1866, without a jury, who rendered a decision containing findings of fact. The facts found- by such decision were, the making of the lease to Christie, set out in the complaint; a concurrent agreement by him to use the premises as offices; the underletting to Lyon without the consent of the plaintiffs; his alteration of the premises for a restaurant and bar-room business, and putting in fixtures for an oyster cellar and a bar, with liquors, wines and beer; the injury to the business of the plaintiffs from conducting such business; the exclusion of the plaintiffs, by the defendant Lyon, from the use of the furnace in question, and consequent injury to their business ; the payment by the defendant Christie, and the receipt by the plaintiffs, of the quarter’s rent dne on the 1st of May, 1866, but without the knowledge or supposition by either party that such payment and receipt would affect the right of the parties; and that this action was treated at the time of such payment, by both parties, as an existing action.</p> <p>The conclusions of law, in such decision, were that the plaintiffs were entitled to recover possession of such premises, and to have such lease determined, also $75 for damages and loss of rent sustained by them, and to have the temporary order theretofore made in the action, restraining the defendants from doing certain acts, made perpetual, and have such defendants perpetually enjoined from using any part of such premises in a manner forbidden by such temporary order.</p> <p>Upon the trial the president, (Brokaw,) secretary, (Bal. lard,) and a clerk (Martin) of the plaintiffs, were the only witnesses examined for them. The defendant Christie was examined as a witness on his own behalf.</p> <p>Mr. Brokaw testified that the defendant Christie used the premises while he held them for offices; that he let them to the defendant Lyon, who constructed a bar in them and introduced liquors; made all the preparations for, and said he meant to use them as, a restaurant. That such restaurant would affect the plaintiffs’ business detrimentally. That the entrance to such premises was directly under their window. That they were driven from the basement by the defendant Lyon on one occasion, when they went to make a fire in the furnace, and were kept two weeks without heat. That he received the rent from the defendant Christie on the 1st of May, 1866, without understanding that he waived by it, or that it affected, any rights of the plaintiffs. Nothing was said about its affecting this action.</p> <p>Mr. Ballard testified that he did not know, in receiving the rent, that it affected the rights of the plaintiffs. Any number of persons going into the basement would obstruct the light of the plaintiffs; their entire bodies would be in the light. The smell of a restaurant would be offensive; its use as a thoroughfare, drinking and smoking, would be detrimental to the business of the plaintiffs, and a nuisance. It is necessary for an insurance company that claims to be respectable, to have every part of its premises respectable, and- the plaintiffs would not consider a restaurant or barroom respectable. He saw the bar and liquors, going down. It would be a nuisance to the plaintiffs, if not any where else. There is a lunch room under The Excelsior Insurance Company, which they let for a restaurant.</p> <p>Mr. Martin testified that the defendant Lyon put up a counter, bar, fixtures and the like, and an oyster stand; he told him he was going to have lunch, cold cuts, oysters, raw and cooked, and the like. He saw liquors there in demijohns and bottles. The defendant Lyon prevented his going down to make a fire, and the premises were locked for two weeks afterwards. He did not see any cooking apparatus.</p> <p>An affidavit of the defendant was offered in evidence in which he had stated that in pursuance of a covenant of such lease before mentioned, he had paid to the plaintiffs the rent for .one quarter of such premises. The defendant Christie testified that Lyon was in possession until April, 1866; no other evidence was given that the premises had gone back into the possession of the former.</p> <p>Exceptions were taken to the admission of the testimony respecting the acts of the defendant Lyon; the understanding of the plaintiffs as to the receipt of the rent; the effect on the respectability of the plaintiffs of having a restaurant in the same building; the refusal by the defendant Lyon of access to the furnace, and the admission of the affidavit of the defendant Christie.</p> <p>Exceptions were filed by the defendant Christie to every finding of fact and conclusion of law in the decision, and an appeal was taken by him from the judgment.</p>

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

<p>Action to recover the amount of certain notes delivered to defendant for collection, with directions to apply the proceeds in a particular way, and not accounted for. Defendant having answered, that he is not indebted to plaintiff, and had been always ready to account, an interlocutory judgment was rendered, ordering him to file an account within a fixed period. No account being filed within the time, a rule to show cause why he should, not be ordered to pay the amount claimed, was made absolute, and judgment rendered for the amount. On appeal; held, that the judgment should be affirmed.</p>

<p>Action by a tenant against his lessors, for damages for a disturbance, in his enjoyment of the premises ; defendants excepted to the petition, denying any disturbance, but averring if there had been any, it did not proceed from them, or from those over whom they had any control, or for whose acts they could be held responsible. The exception having been sustained below, and the suit dismissed, in an appeal by plaintiff: Held, that the plea of defendants was rather an answer to the merits, than an exception, and that the court erred in dismissing the suit, without atrial on the issues made up between the parties.</p>

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

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

<p>This action was brought to recover the sum of $1000, which the plaintiff deposited with the defendant Hoffman, on the 20th February, 1865. He took Hoffman’s receipt for it, by which it was to be applied as a subscription to a company about to be organized by the defendant Hoffman, to be known as the Hoffman Oil Company, which was so done. Subsequently the defendants solicited the plaintiff to change and put his money into the Rosiaro and Valencia silver mines, which the defendants represented they were about to purchase. The defendant Rose was acting for himself and Hoffman in what he did. The plaintiff gave up his first receipt taken for the $1000, and his certificate of stock in the oil company to a Mr. Seldon, and took the receipt set out in the complaint, under the specific agreement, that the $1000 he had subscribed for the oil company, should be changed and used for the purchase of the Rosiaro and Valencia silver mines. After this agreement with Rose, the receipt taken from Hoffman was given up to them, and the receipt set forth in - the complaint was given to the plaintiff. The Rosiaro and Valencia silver mines were abandoned by the defendants.' The plaintiff demanded the return of the $1000, which the defendants declined to return, and this action was brought to recover it.</p> <p>After the evidence was in, the judge directed a verdict for the defendants, subject to the opinion of the court at general term. The plaintiff requested him to submit the question to the jury whether or not the contract was to put the $1000 subscribed to the oil company into the silver mine. Also all the questions in the case. Also, to direct a verdict for the plaintiff, which the court refused; to which refusal the plaintiff1 excepted. Other facts appear in the opinions delivered.</p>

<p>In an action against defendants, for damages on account of an injury done to plaintiff’s boat by a steamer alleged to belong to the former, who pleaded the general issue, proof that defendants were owners of the steamer, is necessary to a recovery; and where the omission of evidence of ownership was attributable to the oversight of the plaintiff’s attorney, the case will be remanded to obtain such proof.</p>

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

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

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

<p>Service of interrogatories to be propounded to a witness under a commission, may be either on the adverse party, or his counsel. No written notification to either is required. C. P.426. Act 25th March, 1828, chap. 83, § 7.</p>

<p>The owner of a steamer, as a common carrier, is responsible for property received on his boat, and lost by his fault.</p> <p>Interest is due, from judicial demand, on an amount recovered as damages for property lost by a common carrier. The sum claimed arises out of a contract, though the amount due was unliquidated.</p>

This is an action of ejectment to recover the possession of one half of a certain vault, under Mercer street, in front of the plaintiff’s land, with damages for detention. In June, 1848, the executors of J. GL Coster demised to the defendant, for a term of about ten years, the premises known as 539 and 541 Broadway, extending through to Mercer street.

<p>In general, where joint obligors or creditors unite in a common acquittance, each will be presumed to have received his share, according to the contract. Each stipulates only for himself.</p>

<p>Appeal from the City Court of New Orleans, Collens, J. The petition alleges, that Claiborne, as Marshal of the City Court, had wrongfully seized, under a Ji. fa. issued at the suit'of his co-defendant Whiting, against one Gottschalk, five post notes of $100 each, issued by one of the municipalities of the city of New Orleans ; that the notes are the property of the petitioner, who had, some months before the seizure, furnished Gottschalk with certain bank and municipality notes, and other money, to be employed by the latter on the petitioner’s account and at his risk, in the business of money brokerage ; that Gottschalk was allowed, as compensation for his services, half the profits, which were settled 'up daily ; and that all the notes, coin, or other money in Gottschalk’s possession at the time of the seizure, belonged to the petitioner. It was further alleged that the Marshal, though requested so to do, refused to give back the notes so seized. An injunction was prayed for, and a judgment for the notes. The answer denied the allegations of the petition generally, and averred, that the notes were paid to the Marshal to satisfy zji.fa. issued by Whiting against Gottschalk,. to whom the notes belonged.</p> <p>Ezekiel, a clerk employed in the office kept by Gottschalk, testified that the latter kept an office “ for account of the plaintiff that the business carried on for Levistones is that of an exchange broker, and that Gottschalk is engaged in a stock and note business for himself; that the money in the office belongs to Levi-stones ; that he was in the office at the time of the seizure, and that the.post notes taken by the Marshal belonged to Levistones ; that Gottschalk received a compensation for his services, settling with Levistones generally every week; that he did not share with Levistones his profits as a broker, in stocks and notes; that Gotts-chalk had no interest in the business; that when the Marshal came into the office he attempted to seize the money on the counter ; that Gottschalk told him it did not belong to him, when he answered that he had orders to seize the money, and should do it; that Gottschalk then asked the plaintiff if he should point out the money to be seized, and, on his consenting, Gottschalk pointed out the municipality post notes; that plaintiff told the officer that the money belonged to him ; that the office furniture belonged to Levistones; that he does not know who leased the office, but knows that Gottschalk pays the rent out of plaintiff’s money. Goltschalk’s name is on the door ; that all the money in the office on the day of the seizure belonged to Levistones; and that the witness looks to him for his salary.</p> <p>Goodman testified, that during the sickness of the first witness, he had discharged his duties as a clerk, and that from his knowledge of the books of the office, he is certain that the capital belonged to the plaintiff.</p> <p>Rochebrun deposed, that he was present when the seizure was made ; that when the Marshal informed. Gottschalk that be was about to seize, the latter answered that the contents of the office belonged to Levistones, who, at that time, entered the office ; that the Marshal having seized all the money, Gottschalk told him there was more than enough in the office to satisfy the claim ; and, after speaking with plaintiff, delivered to the officer a quantity of municipality post notes.</p> <p>Crozat, the Deputy Marshal by whom the seizure was made, testified, that on entering the office and informing Gottschalk of his orders to seize, the latter told him that he had no property ; that on looking towards the bank notes on the counter, Gottschalk told him not to seize them, as they were not his ; that he then told Gottschalk that he had orders to seize, and should do so; that Gottschalk then spoke a few words with plaintiff, and delivered to the witness the municipality post notes ; that plaintiff told witness that the money seized was his; that Gottschalk whispered in plaintiff’s ear both before and after the delivery of the money ; that hef (witness,) did not count the money in the office, but thinks there was between $5000 and $7000 in bank • and municipality notes at their nominal value, besides the gold and silver on the counter ; that Levistones did not speak to witness before Gottschalk had delivered the money to him; that, before the money was so delivered to him, Levistones spoke aloud, but witness did not listen to him ; and that Levistones appeared to be angry.</p> <p>Fellows, a witness for the defendant, stated that Gottschalk’s office was next door to his own ; that Gottschalk’s name is on the door, and that the business of the office was done by him ; that in the beginning of the last summer, Gottschalk told him he was about to form a partnership ; that, sometime after, he told witness that he. had formed a partnership with the plaintiff who was .to advance the capital, and he, Gottschalk, was to do the business; that Gottschalk removed to the office in which the seizure was made, immediately after telling witness that he had formed a partnership with Levistones ; that it was not publicly known that Levistones had advanced the capital, and the communication to witness was a confidential, one ; that he has seen plaintiff in the office every day; knows Gottschalk to be needy.</p> <p>Goodman, in answer to a question by the court, stated, that the municipality, bank, and uncurrent notes, and specie in the office at the time of the seizure, were worth from $3500 to $4000.</p> <p>On this evidence, there was a judgment in favor of the plaintiff, ordering the return of the notes, and the defendant Whiting has appealed.</p>

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

<p>The proceedings by a plaintiff, against a Sheriff, to make him responsible, on the ground of his having illegally released the defendant from arrest, or of having neglected to seize and sell the property of the latter, must be by a regular action, and not by rule. Arts. 766 and 767, of the Code of Practice, which authorize any one entitled to money received by a Sheriff, in virtue of an order or judgment of court, to proceed against that officer by motion, do not apply to such a case.</p>

The plaintiff’s assignor was subrogated to the rights of the Carrolton Bank, under art. 2156, § 1. A verbal agreement to subrogate was sufficient, and parol evidence admissible to prove it. 12 Duranlon, No. 117, p. 184. Boilleux, Comm.de Code Civil, vol. 2, p. 639. Dalloz, Dictionaire Général de Jurisprudence, vol. 4, p. 403, Nos. 18, 19, 20. Plaintiff was legally subrogated under § 3 of art. 2156.

<p>This was an action for damages for injuries to a canal boat belonging to the plaintiffs, (The Ogden,) by a steam ferry boat belonging to the defendants, (The Abbie,) plying between New York and Brooklyn in January, 1857. The collision occurred at the former place. The river was at that time full of ice. The plaintiffs’ vessel was deeply laden, and had sacks of salt on deck. Her captain attempted to take her 'across the slip, into which the vessel of the defendants always ran, and where the ferry was, in order to moor his vessel under the lee of some wharf to protect her from the floating ice. It was after the sunset, which was one minute before five o’clock on that day. The vessel of the defendants was fully lighted; it had a pilot at the bow, and a look out along side of him. On the trial, witnesses on behalf of the plaintiffs testified that it was so light at the time that the vessel of the defendants could be seen at Brooklyn from the New York side without regard to her lights; that on her approach her pilot could be seen from the deck of the canal boat, and one witness stated that he could see the passengers in the ferry boat as plainly as he saw “the faces of the jury.” The captain of the canal boat testified that immediately after the collision took place he went to look for men to haul off his deck load, which was twenty minutes after six. One witness examined for the plaintiffs, (Gillen,') the pilot of the ferry boat, (Shepherd,) the look out, (Cole,) a bridge man, (Brown,) and a carpenter, (Goodrich,) testified that it was at' night. The pilot testified that he thought the canal boat to be a mass of ice, and as soon as he discovered his mistake he used every means to avoid a collision, he immediately stopped his engine and reversed the wheels, to back the ferry boat. Some of the witnesses also stated the time of the evening by the clock. No light was shown on board of the canal boat. Her captain saw the ferry boat from the time she left the Brooklyn side, but gave no warning, and did not do any thing to avoid a collision.</p> <p>Upon the trial, the counsel for the defendants moved to dismiss the complaint upon two grounds: First, that there was no evidence of negligence or carelessness on the part of the defendants; and second, that the evidence showed negligence on the part of the plaintiffs, causing or contributing to the injury.</p> <p>The court denied the motion, to which the defendants’ counsel excepted. The jury found a verdict for the plaintiffs of $3371.80. A motion was subsequently made for a new trial upon a case and denied. Judgment was entered upon such verdict, from which, and from the order denying a new trial an appeal was taken.</p>

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

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

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

<p>1, In an action by an administrator to recover money, as belonging to the estate of his intestate, which had been the bounty paid to him upon enlisting in the army of the United States,- as a soldier in the recent war, "in which he was killed, where the defense set up by the answer was that such intestate gave the defendant such money, to be retained as a gift in case of the death of the donor; Held that an offer on behalf of the defendant to prove that the intestate gave him such money at the time he received it as a donatio mortis cama, and never revoked such gift, was properly rejected as not admissible under the pleadings.</p> <p>2. A gift, in case of death at any time is either absolute, since the contingency is certain on which it is made, or is void. The offer of evidence did not tend to establish such a gift.</p>

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

<p>The rule has, in this case, been recognized, that in a sale where there is no fraud, nor even a suspicion of it on the part of the vendor, he is answerable to the vendee, according to the difference of value in a foreign market, selected by the vendee, and not designated in the contract of sale. This is a most important subject. The principle, it is believed, is new in our jurisprudence ; and it is hoped, that the court will not, ,in view of the immense commercial transactions of our State, deem its reconsideration an idle expenditure of time.</p> <p>In the case of Brown v. Duplantier, Judge Martin adopts the standard of the place of contract. “ It appears to us,” says he, “ that the only measure of damages is, the difference in the price given, and that which would have been given, had there been no deception in the bales.” 1 Mart. N. S. 321. At page 318 of the same case, he observes : “ Whether a vendor, who has a deceit practised on him in the sale, gain or lose by the subsequent sale of the thing, his right to the action, qua-nti minoris, remains perfectly the same. This subsequent sale is his own act. It could not place his vendor in a worse situation, neither do we think it may place him in a better. The second sale is at the first vendor’s risk ; he is not bound to account for any part of the profits he makes thereby, as he could not claim a compensation for any loss resulting from it. The excess of price paid is, in the hands of the first vendor, money, which, ex aequo et bono, he is bound to refund — money had and received to his vendee’s use ; the latter has the right to call it out of the former’s hands, and this right is independent of any posterior act which may render the purchase beneficial or burdensome, in a greater or less degree.” “ Hence, in this case, we find the reduction awarded by the court to be the difference between fourteen cents, and eleven cents per pound ; in other words, the difference in value in New Orleans.” Ibid. 320. What are the advantages of this standard 1</p> <p>I. It is more certain. It is certain as to time — it is the time of the sale itself. It is certain as to the place — the place of the sale itself. Each contracting party knows at the moment of the contract, with certainty,' the character of his duty or his responsibility. Vendor and vendee have both before their eyes, in the market of the day and place, the standard of reimbursement, if it should turn out that the article is not what the one honestly supposed he was selling, and the other that he was purchasing.</p> <p>Not so, where the other standard is adopted. In transactions of this sort, the buyer does not disclose his market, nor the time at which he proposes to sell. He, in truth, has, perhaps, no fixed determination on the subject, and if he had, would not communicate it to the vendor, How, then, is either party to know the extent of the vendor’s future responsibility ? The purchaser may ship to New York, to Havre, to Boston, to Liverpool, or to Amsterdam. When the cotton has arrived at the foreign port, he may sell at once, or defer the sale. All these matters are left at the buyer’s discretion. Great fluctuations, too, may occur in the market selected, in the relative prices of an article such as it was supposed to be, and an article such as it really was.</p> <p>II. There is equalityin the standard of the domestic market at the date of the sale, because both know it, and neither has any choice ; but there is a want of equality in the rule recognized by the present decision. The seller is placed wholly in the power, and at the discretion of the buyer. Is this just, where both are in good faith ? where dishonesty and intentional deceit, are not only not proven, but are expressly negatived by the opinion of the court ?</p> <p>Lastly — It is respectfully submitted, that interest is not recoverable — the claim is purely unliquidated.</p>

<p>To recover in a redhibitory action, the purchaser must prove that the alleged vice or malady existed before the sale to him, unless it makes its appearance within the three days immediately following the sale ; in which case, it will be presumed to have existed before. C, C. 2508.</p>

The petitioner alleges, that the defendants, who had formed a particular partnership under the style of the New Orleans Tobacco Warehouse Company, are indebted to him in the sum of $16,692 50, for services rendered by him, under a contract with them, as a superintendant of their establishment, at an annual salary of $5000, commencing from 10th April, 1837.

<p>1. Mortgagees in trust, the mortgage to whom has been foreclosed hy a suit in equity, the decree in whose favor in such suit, directs the amount found due on such mortgage to them as such trustees, as well as another amount found due to them in their own right for expenditures upon the mortgaged premises, to be paid out of the proceeds of their sale in such suit, indiscriminately, with- ■ out providing for any order of payment, are bound to apply such moneys to the satisfaction of both claims in their order of legal priority.</p> <p>2. A new estate in lands, previously conveyed to a trustee upon certain trusts, may be granted to him, as well as a stranger, upon entirely .different trusts; without affecting his duties or responsibility under such first conveyance, which cannot be changed without the consent of the cestuis que trust under it, although by his acceptance of such new conveyance and trusts, he may subject himself to a double responsibility for not discharging two sets of inconsistent duties, both of which cannot be discharged without interfering with each other. He may be even made responsible to the first set of cestuis que trust iot any personal benefit derivable from such second conveyance, where he was aided in obtaining it by his prior position as trustee for them.</p> <p>3. The liability of a trustee to account for advantages obtained by him through his position as trustee, is not imposed as a punishment for a breach of duty, but arises from his agency for his cestuis que trust, who have a right by ratify-1 ing and adopting his acts to obtain the benefit of them.</p> <p>4. Cestuis que trust who claim the benefit of any act done by their trustee beyond the line of his duty as such, are bound to ratify it as a whole and accept it cum onere, so that where he acquires the possession of trust property or other advantages, not directly arising from his situation as trustee, upon condition ■ of assuming certain burdens and duties not imposed upon him by his duty as trustee, such cestuis que trust are not entitled to avail themselves of such advantages so as to deprive their trustee of all claim for expenditures, and lien on the trust property therefor, where the making of them was the consideration for the acquisition of such advantages.</p> <p>.6. It would be highly inequitable, for the holders of bonds issued by a railroad company, secured by a mortgage in trust upon the road, its stock and appurtenances, to lie by for a series of years and allow the trustees in such mortgage to continue the making of such road and work it at their own expense under a new conveyance to them upon new trusts, and claim the benefit of their earnings, while repudiating the expenditures which produced them. Per Robertson, Ch. J.</p> <p>6. It is questionable how far a mortgagee in trust, in possession of mortgaged premises, on or by means of which, in order to make them profitable, complicated and expensive operations, (such as running railway trains, conducting a manufactory or working a mine,) must be carried on, is bound or entitled to carry them on-at the expense of the mortgagor or his cestuis que trust. Hence, where mortgagees of a railroad in trust for the .payment of bondholders entered into possession of it, immediately after a conveyance of it to them subsequent to such mortgage, in trust to run its trains, build its depots and continue the making of the road which yielded its earnings, it would he very doubtful whether their acts in carrying out such latter trusts could in any way be attributed to their position as mortgagees in trust, so as to exclude their rights as such grantees in trust. Per Robertson, Ch. J.</p> <p>7. Even in such a case, a holder of a bond secured by such mortgage would be bound, before becoming entitled to a share of the profits in working the road to the extent of the amount of his bond, to ratify all acts of expenditure by the mortgagee in trust, while in possession, (beyond those permissible in a mere mortgagee,) which may he necessary to render the new enterprise successful.</p> <p>8. Whatever may be the facility or" difficulty of apportioning the profits and expenditures of a continuous railroad, composed of different parts owned by different persons, among the holders of separate bonds of the owners of such different parts secured by a deed of trust of the whole of such road and its appurtenances in solido, where such bondholders are by the terms of such deed of trust to share indiscriminately in the net earnings pf such road pro rata, and it is made an integral enterprise for the benefit of all of them, the bondholders who have ratified or may ratify such deed of trust and claim under it, are bound to contribute to the indemnification of the trustee, even where their expenditures exceed their earnings.</p>

contended that the plaintiffs were entitled, by the 23d sect, of the charier of the Bank, to compound interest; that it is of the very nature of a sinking fund that the sums appropriated thereto should bear such interest; and that the opposite construction would place the plaintiffs in a worse situation than the other stockholders of the Bank, who, by withdrawing their semi-annual dividends, and re-investing them, could insure interest upon interest.

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

Appeal form the Commercial Court of New Orleans, Watts, J. contended, that he was not personally bound . to the plaintiff, under the act of sale between Robin and himself; citing Pothier on Obligations, No. 57. 3 Delvincourt, 378, note 2. Journal du Palais, (ed. of 1841,) vol. iv. p. 510, (9 Floreal, an. xiii.) Ibid. vol. xv. p. 315, (8lh June, 1819.) 20 Duranlon, No. 256, or edit, of 1841, vol. xi. p. 143.

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

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

<p>The obligation of the plaintiff in a fi. fa., to refund to the purchaser on his eviction, the money received by the former, is merely statutory, (C. P. 711, et se¡.¡) and it cannot be extended further than to the reimbursement of the price paid by the purchaser, and received by the plaintiff, or which might have been received by him but for his own neglect; but the purchaser may recover from the defendant in the execution, the whole sum paid by him. He is entitled to a joint action against both the parties to the execution — against the plaintiff, for the amount received by him, and against the defendant, for the whole sum paid.</p>

<p>This was an action by a lessor for rent, and for damages for injuries done to or waste committed on the plaintiff’s building by the defendants.</p> <p>In July, 1858, the common council of the defendants passed an ordinance directing the comptroller to lease from the proprietor the premises in question, being four floors, for the term of two years, at an annual rent not exceeding $5500. Another and distinct resolution in the same ordinance provided that the second floor, when leased, should be appropriated for the use and occupation of the street commissioner; but no provision was made in regard to the other three floors. The comptroller, thereupon, leased the premises at the rate of $5000 per year, for sometime over two years, terminating on the 1st of May, 1861. No further authority to lease, or to continue the possession of the premises, was directly given by the common council, nor was any lease, in fact, made for the year ending May 1, 1862. Bpt, in April, 1862, a new lease was executed on the part of the owner, and, in terms, on the part of the defendants, by their comptroller, for the year ending May 1, 1863. Ueither this lease nor the first one contained any provision designating the purpose for which the premises, or any portion of'them, were to he occupied or used. The street commissioner, however, took possession of the whole of the premises, under the first lease, and continued to occupy the same until,after the 1st of May, 1863; and the rent was duly paid until the last mentioned date. In April, 1863, an ordinance was. adopted by both branches of the common council, directing the comptroller to lease a portion of the 'Broadway Bank building, for the use of the street department, which ordinance took effect, and became operative, on the 1st of May, 1863, by the return of the same to the common council by the mayor, without his objection or approval, on that day. After that ordinance was passed by the boards of aldermen and councilmen, and before it took effect, although the plaintiff, through his agent, substantially notified the comptroller that he' desired the corporation to retain the premises for another year, no agreement was made, nor could the plaintiff ascertain whether the defendants designed to keep them or not. On the 2d of May, 1863, the street commissioner informed the plaintiffj by letter, that the comptroller had leased other rooms for the use of the street department, and that he would immediately commence moving from the premises in question, and would endeavor to be out by the 9th of the month. The removal was commenced on the 1st of May, and completed about a week thereafter, some thirty or forty men being employed in making such transfer, due diligence being used therein. The plaintiff" claims that the defendants, by such holding over, after the expiration of their term, became liable for all the rent for the year ending the 1st of May, 1864.</p> <p>On the trial the plaintiff’s counsel offered to prove that the premises were not left by the city street commissioner, (the occupant of the same,) in as good condition as when taken by the defendants, natural wear excepted; but that they had" been greatly injured and damaged by the department, and offered to prove amount of damage. The defendants’ counsel objected to this evidence, on the ground that the covenants in the lease were not binding on the city, and the defendants were not liable for such damages. The court sustained the objection, an'd excluded the evidence, and the plaintiff’s counsel duly excepted. The plaintiff then rested. The defendants’ counsel then moved that the plaintiff be nonsuited, on the following grounds:</p> <p>1st. That any occupation by the street commissioner of the premises in question was unauthorized by the defendants, and such occupation was not an occupation by the defendants.</p> <p>2d. That the corporation, by reason of its artificial creation, are incapable of holding over, and cannot create a liability, except in a mode presented by its charter.</p> <p>■ 3d. That the street commissioner, if an agent of the corporation, is such agent acting under special instructions, and with limited powers, from which he cannot depart, and of which the plaintiff is bound to take notice; and that if his occupation of the premises, after the, 1st of May, 1863, was not authorized or assented to by the defendants, then his holding over was not an occupation by the defendants.</p> <p>4th. That the tenancy of the defendants of the premises in question, terminated on the 1st of May,. 1863, and that after the passage of the resolution of 1863, made by the common council, it was not in the power of the street commissioner, by any agreement or occupation of the premises, without the authority of the defendants, to render them liable, as tenants, for another year.</p> <p>The court decided to hear all the evidence, and denied the motion, to which the defendants’ counsel excepted.</p> <p>All the facts before stated were found by the judge. The judge’s conclusion of law was: That no relation of landlord and tenant existed between the parties after the 1st day of May, 1863, and that the defendants were not • liable for the rent of the premises during the year ending May 1, 1864, nor for any part of said year; and that the defendants must have judgment for their costs.</p>

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

The fourth section of the act of 1st April, 1835, (Acts, p. 179,) must be considered, as referring to recognizances taken by the City Magistrates, for criminal offences against the City regulations ; as an act, passed the very next day, (April, 2d — see Acts of 1835, p. 219,) provides, that all fines and penalties whatever incurred by persons bound over to appear before the Criminal Court of the First District, shall be prosecuted before it by the Attorney General.

<p>The State tribunals were not deprived, by the bankrupt law of 19 August, 1841, of any portion of their jurisdiction, necessary to the final administration of the estates of insolvents who had made a surrender of their property previous to its passage. A State court, in which a surrender was made, has authority to decide, between the syndic of the creditors under the cession in the State court, and an assignee subsequently appointed by the United States Court under the bankrupt act, the right to property alleged to have been ceded under the State law, but afterwards placed on the schedule of the debtor, on his application tobe declared a bankrupt.</p>

<p>Proof of the promise of a purchaser at an auction sale,-1 o pay any loss that may result from a re-sale of the property on his account, and of his authority to the auctioneer to do the best he could with the property, will dispense with the evidence which would otherwise be necessary in an ordinary case of sale, ala folie enchere.</p>

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

<p>When a minor has no ascendant in the direct line, the Probate Judge is not to appoint his presumptive heir, as tutor. C. C. 285. When there are relations who may . claim the tutorship by the effect of law, or who are bound to accept the same, and the Judge is called upon to appoint a tutor from among them, the tutorship is a legal one, and he cannot appoint the presumptive heir, but must select the nearest of kin who comes after such presumptive heir or heirs.</p> <p>It is only where a minor has no relations who may claim the tutorship by the effect o f the law, or who are bound to accept the same, that there is room for a dative tutorship. C. C. 288.</p>

The administrator of the succession of Frederick Jacobs deceased, is appellant from a judgment rendered on a rule taken by one John A. Zender on him, to show cause why he should not pay out of the funds of the succession, a claim for a commission of five per cent on the value of certain property alleged to have been recovered by Zender, as agent for the deceased.

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

<p>An assignment of a claim, though gratuitous, followed by notice to the debtor, who had no offset at the time, is valid as to him.</p>

<p>Where, after the last day of grace, the drawer of a bill promises the holder to pay it, if he will not present it, and the latter subsequently presents and protests it, the former will be released from any obligation arising from his conditional promise.</p> <p>After the last day of grace, the funds in the hands of the drawee are at the risk of the holder.</p> <p>Though the drawer of a bill may be discharged from his obligation to pay it, by the neglect of the holder to have it presented at the place of payment, and protested, and to have notice given thereof, on the ground of the damage he is presumed to have sustained by the laches of the latter, yet, if he afterwards withdraws from the hands of the drawee the funds on which he had drawn, he will be responsible, under art. 2294 of the Civil Code, to the holder, who had become the owner thereof, for the amount.</p>

This action was to recover damages for the non-delivery of 2000 shares of the Downieville Gold Mining Company, contracted to be sold and delivered by the defendant to the plaintiff’s assignor. • The contracts were as follows: “ 1000 shares S. 60, C. 41 e. Eew York, 24 May, 1866.

<p>Under arts. 608 and 616, of the Code of Practice, a Court of Probates has jurisdiction to annul, or rescind decrees or judgments rendered by itself, though the controversy involve the ownership of immoveable property.</p>

<p>1. A structure erected by the plaintiffs in the Hudson river, for ferry purposes, by permission of the corporation of the city of New York, (adjoining upland owned by them,) which was composed of rows of piles driven into the soil under water, and covered on the upper ends, (to which it was fastened,) by a horizontal flooring of plank, by which to reach ferry boats belonging to them, extending to the bulkhead used by them for ferry purposes, and of rows of piles driven into such soil in front of such covered piles for the purpose of guiding and receiving such ferry boats, is not such a pier as to prevent the defendants from building a.pier within one hundred feet thereof under the “act to establish bulkhead and pier lines for the port of New York,” (¿Y T. Sees. Z. 1857, ch. 763,) and the amendment thereto in 1860, {laws of 1860, ch. 522,) particularly where, at the time of its erection, piers were required by law to be built with cribs filled with stone or solid masonry; but is simply a ferry rack and bridge, having none of the essentials of a pier. -Monem, J. dissented.</p> <p>2. The ownership and use of such a structure for upwards of thirty-five years does not entitle the plaintiffs to restrain the defendant from building a pier in front of upland owned by him, adjoining that of the plaintiffs, although it may interfere with some of the uses to which such structure may be put.</p> <p>3. The only adverse possession of the land under water, upon which such structure stood, which could be claimed .by the plaintiffs, would be against the people of the state. No such adverse possession could be sustained where, as in this case, the plaintiff’s right was derived from a permission by the corporation of the city under the authority of the state, and was only to continue during its pleasure.</p> <p>4. A possession to be adverse, must be exclusive, and a claim to the entire ownership. It cannot be taken and held of the beds of rivers over which the tide ebbs and flows, which can only be occupied by authority of the legislature.</p> <p>6. Coupling an offer to prove that the plaintiff had paid taxes yearly for thirty years on a certain piece of land, and that certain maps were used upon the assessment of such taxes, with an offer to show that the plaintiff had been thirty years in possession of such premises, vitiates the whole, and justifies its exclusion as an entirety.</p>

<p>A mortgage obtained by a creditor who knew of the insolvency of the debtor at the time, is null as to other creditors, so far as it gives the mortgagee any advantage over them, though executed more than three rrtonths before the failure. C. C. 3979. Where the only objection to such a contract is the undue preference, the action to rescind is prescribed by one year;.</p> <p>A fraud perpetrated by the machinery of a- judgment, where the court was made the unconscious instrument, is as liable to .bo annulled as when effected in the usual form of a contract.</p>

<p>The verdict of a jury will not be disturbed, unless clearly erroneous, especially when pronounced upon questions of fraud.</p>

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

Humphreys, a balance due for the price of one-sixth part of a sugar plantation, sold by Brown to their ancestor. The material facts of the case are stated in the opinion of the^ court. Henry Clay, on the same side. Brown being the sole owner of a sugar plantation on the German Coast in Louisiana, sold one-third of it to J. B. Humpreys in 1816, and entered into a partnership with him, to conduct it for the term of ten years.

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

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

<p>Where it is admitted, that an award was made without the arbitrators having been sworn, parol evidence of their proceedings is inadmissible.</p> <p>Parol evidence is inadmissible to prove the cancelling of written contracts. Such evidence is inadmissible against a written contract; and proof that it was cancelled, is the strongest evidence that can be given against it.</p>

<p>In an action for damages for a malicious prosecution, a defendant may, under the general issue, offer in mitigation of damages, evidence of circumstances calculated to show that he had just cause to suspect the plaintiff of the offence with which he ■was charged. All the circumstances attending the transaction tending to show the defendant’s motives, ought to be inquired into.</p>

<p>The best evidence which the nature of the case admits of, must be produced. Loose admissions, or conversations of parties, cannot supply the absence of documentary evidence, when in existence. The documents themselves must be produced, unless their loss is satisfactorily proved, or their absence clearly accounted for, and then their contents must be established.</p> <p>Parol evidence of the admissions of a party, tending to contradict positive written evidence, such as the enrolment of a steamer, is inadmissible.</p> <p>Extra-judicial admissions of parties, particularly those made in loose conversations, are the worst species of evidence, and entitled to little weight, unless it be impossible to procure any other.</p>

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

<p>.This was an action brought by the plaintiff,' as receiver of the assets of the firm of Irwin & Co., (composed of James and John Eettretch, Arthur Irwin, and Peter Algie,) to recover a balance claimed to be due, amounting to $1498.62, upon a contract made between said firm and the defendant, for furnishing and putting up the brown stone fronts of five houses in the city of New York.</p> <p>The complaint alleged that in January, 1866, shortly after making the contract, Peter Algie ceased to be a member of the firm of Irwin & Co.; that a pretended settlement made between the, defendant and Algie was subsequent to the latter’s withdrawal from the firm, and after the defendant had received notice thereof, that Algie had no authority to settle such claim, and that the settlement was collusive. All this was denied by the defendant, who alleged in his answer, that in March, 1866, he paid to the firm of Irwin & Co. the sum of $700, which sum was accepted and received by said firm in full satisfaction of all claims.of said.firm against the defendant, and which constituted :an" ^accord' and satisfaction of all claims alleged in the plairitifi'’kcq:mpláint. \ As a foundation for the accord, the defendant alleged that the firm of Irwin & Co. failed to perform, their contract; .-that the material was of inferior quality, and the fronts put up in an unskillful and an unwórkmánliké manner,, by mean8 of which the defendant sustained loss. ,.-</p> <p>The action .was. tried before Justice Jones and a jury. By the1 articles' of copartnership of Irwin & Co. dated November 12,1864, the partnership was to continue for one year, On the, expiration, of the year, the firm continued, (without any new agreement in writing,) carrying on the same business, by the same persons until the 27th of January, 1866, when Algie withdrew. The plaintiff testified that notice of the withdrawal' was given to the defendant’s agent. Other evidence tended to show notice to the defendant that Algie was out of the firm. The defendant and his agent denied that at the time of the settlement with Algie, they had received any notice that Algie had gone out of the firm, and testified that they had no knowledge that he had. There was some evidence of defective workmanship and materials, depreciating the value of each house $500. The defendant then proved, that on the 27th of March, 1866, he settled with Algie all matters arising under the contract, and as a compromise paid him $700 (the whole of the claim being $1320, deducting the difference for insufficient and bad work,) and took from Algie, in the name of Irwin & Co. a receipt in “ full settlement and satisfaction of all claims,” &c.</p> <p>Two questions were submitted to the jury: 1st. As to the performance of the contract'; and 2d. As to the good faith of the settlement. If they found there were defects in workmanship or material affecting the value of the buildings, they were to find for the defendant. If they found they did not exist, or were not substantial defects, they were instructed that then the plaintiff was entitled to recover, unless the settlement with Algie was good. On that subject the justice charged, that there was nothing for the jury to consider, except as to whether the compromise made with Algie was a fair, honest compromise. To which an exception was taken. He further charged, that he saw nothing in the case showing that the defendant or his agent were informed that Algie was indebted to his firm, to which the plaintiff excepted. Other exceptions taken to other parts of the charge as well as to a refusal to charge, as requested, as they relate to the subject of the compromise, are not necessary to be stated, the court having charged that “assuming that Algie had retired from the firm, and assuming that the other partners gave notice to the defendant not to pay because he had so retired, that did not take from Algie his right to demand payment of the defendant; To which there was no exception.</p> <p>The jury gave the plaintiff a verdict for $125. Judgment having been entered, the plaintiff appealed.</p>

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

<p>1. The assured, by a time policy upon a vessel which provides, that the loss, (if any,) shall be payable at a certain time after proof of loss and interest and that the premium shall be deducted from the loss, are entitled, in case of a general average loss, insolvency of the insurers, and an' appointment of a receiver of their assets, to have such loss set off against the claim of such receivers, on a premium note given by the assured for the premium on such policy.</p> <p>2. A loss incurred by a solvent assured under a policy issued by insolvent underwriters, before the insolvency of the latter occurs, is a mutual debt or credit,” within the meaning of the statutes relative to trustees of insolvent debtors, capable of being set off against the premium upon -such policy; although, by the terms of the policy the loss be not payable until a certain time after proof of it and interest, and no such proof was presented to the receivers before such insolvency.</p> <p>3. In such a case the loss is to be deemed to have occurred at the time of tho injury to the vessel by the peril insured against. The making of the repairs, out of which the claim arises, and the adjustment of such claim, only fix the amount of damages. The right to indemnity is fixed at the time of the injury.</p>

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

<p>In an action against a corporation, based on alleged acts of fraud and deception, on the part of the directors, collectively and individually, evidence is admissible of the acts and declarations of individuals who were, at the time of such acts and declarations, directors, and concerned in the alleged fraud. Such acts and declarations, havingbeen made before, and at the time of tne transaction, are part of thq res gesta. The voluntary execution of a contract, with the full knowledge of the grounds upon which it might be rescinded, amounts to a ratification of it, and involves a renunciation of the means and exceptions that^might have been opposed to it.</p>

This action was brought to recover a penalty of $25 per day, imposed by section 8 of the act “ to establish regulations for the port of New York,” passed April 16, 1857, as amended -by chapter 226 of the Laws of 1858. {Laws of 1857, vol. 2, p. 487, § 8.

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

The great importance of the question involved in this cause, and a strong conviction that the. opinion pronounced by the majority of this honorable court is erroneous, will, I trust, be… Held: that an act which, in its direct tendency, infringes the Constitution, is unconstitutional. Can it be reasonably argued, that notwithstanding the specific mode of removing public officers pointed out by the Constitution, there may be a concurrent power of removal in the Governor ?

<p>This was an action brought against the corporation of the city of New York, by the plaintiff, for damages by reason of injury done to or the destruction of 157 boxes or cases, with their contents, consisting of 3143 carbines, claimed by him to have been injured or destroyed in July, 1863, in consequence of a riot in that city. Such cases and carbines were alleged to have been at the time of such supposed injury or destruction, taken from the fifth story of a building, at the corner of an avenue (Second) and a street (Twenty-second) in such city, used by a gunsmith (Marston) as a work shop or factory, where they had been previously stored. Such carbines had been originally»repaired, altered and packed in such cases in that shop, then removed to a factory opposite (Opdyke’s) and were claimed to have been brought back and piled against the wall, endwise, fourteen or fifteen feet high, nearly the height of the room. Five hundred of them, recently repaired by Marston and sold to the state of New York, lay near the hatchway of such , fifth floor. From fifty to over a hundred workmen ordinarily worked in such shop. The lower part of the building was. occupied by a steam engine and apparatus. The riot commenced on the 13th July, 1863, and was renewed for several days after. Two attacks were made on the 14th of July, 1863, by rioters on the place where such guns were stored. The first commenced between eleven o’clock in the morning and ’noon, and the second between two and three o’clock in the afternoon. A police force of about two hundred men arrived about ten minutes after the first entrance of the rioters, and found them taking arms out of the. building.- All of those arms were retaken by the former, after a conflict in the street. They also obtained all the loose arms on the second and third floors, amounting to seventy-five pieces. On the second occasion, soon after the rioters entered the building, about the same number of policemen, accompanied by a military force arrived, and with difficulty fought their way to the upper part of the building. There they found two or three boxes of carbines, which, after carrying them -down to the sidewalk; they broke open. They also took seventy-five muskets from the rioters outside, making, with those obtained on their first visit, two hundred pieces. They also took some guns from the rioters inside of the building. All the guns taken from the rioters on both occasions, besides those found in the second and third stories by the police on the first occasion, and those found by them at the second in the fifth story, were carried by the police to their head-quarters. Guns were thrown from the windows of the fifth story of the building on the sidewalks of both the street and avenue, by the rioters, on both occasions^ Rut not as many the second time-as the first. They had been throwing out such guns on the second occasion some ten or fifteen minutes, when the police arrived. Most of those thrown 'out were carried away, apparently unbroken. A larger number than those so thrown out were brought down stairs by gangs of from ten to fifteen' rioters, the stair case being very narrow. Those so bringing them down were assailed by a large number outside, to get possession of' the fire arms, and after a struggle they. were generally deprived of them. Such guns were thrown from the windows by the rioters on both occasions, apparently inconsequence of the attack of the police upon them in the building, and the blocking up any exit, from such building, so that the rioters could not get down stairs. When they did come down, with arms in their hands, they Were struck by the policemen with their clubs. They then dropped their weapons and fled, and the crowd outside picked up such guns and escaped with them. The five hundred guns sold to the state, put in order and packed in boxes a day or two before the riot, lay in a very convenient place to be carried off by the rioters.</p> <p>Nine thousand guns-, including those in question, (only five thousand of which had not been employed in actual service,) were bought by the plaintiff in 1861 (August) and 1862, from the United States government, and received by him two or three months afterwards. . He paid three dol- ' lars for some, a half dollar more for others, but nothing for the cases. Eight thousand of them were taken to the factory in question, eighteen months or two years before the riot. Improvements having been made, and -all necessary repairs done upon them, they were repacked in cases alleged to contain about twenty each, and were then moved to the factory opposite, in'"December, 1862. Some of the cases were brought back to the first factory shortly after, because there was no room for them in the second. Such improvements consisted principally of rifling the barrels, and cost one dollar a piece for one hundred and sixty-nine of them and thirty cents more for every one of the residue altered. Sixty guns, including two cases, were found immediately after the riot buried in charcoal,’some of which were broken. They were carried to the police head-quarters, but somewhat injured, by their transportation. Fifty or sixty such guns, out of two or three hundred brought to the same place during the riot, were alone in good condition. The barrels of the rest were full of filth. Some had broken stocks and the barrels of others were bent in the middle. Two days afterwards others were brought in, increasing the total to upwards of seven hundred, in a similar condition and with bent bayonets. About a week after such riot, one hundred and fifteen of such guns, known as Hall’s and seven hundred and nine of them, known as Jenk’s carbines, were at such police head-quarters, where they were packed in cases brough from the factory in question. They were examined by a gunsmith (Jephson) and those in order put by him in separate cases from those- out of order. Over sixty had been repaired by replacing the injured or lost parts of one with corresponding sound parts from others. So that four hundred and thirty-three of them were in good working order, two hundred and sixty-four were rusty, eighty-eight new, thirty-two broken and fourteen had broken bayonets. The cost of putting in order those that were rusty would have been $1.25 for each, and of repairing some of such broken ones $1.50, and others a quarter of a dollar more, each.</p> <p>The complaint alleged principally that the plaintiff owned the carbines in question with their' cases. That they were destroyed in consequence of the riot in question, without any negligence on the plaintiff’s part, or his previous knowledge of any intention to destroy them. The answer took issue upon the facts stated in the complaint. The issues in the action were tried before a referee, who gave judgment in favor of the plaintiff for $52,911.60. ie referee found in his report as facts: c. The occurrence of the riot.</p> <p>. ¿u. A destruction of large amounts of property in the neighborhood of the building in question, by the rioters.</p> <p>3d. The storing of one hundred and fifty-seven cases of carbines amounting to three thousand one hundred and forty-three in number, belonging to the plaintiff, in the fifth story of the building in question.</p> <p>4th. A notice by the occupant of the factory (Marston) to the city authorities of the' riot, on the 13th of July, 1863.</p> <p>5th. The entry of such factory by rioters on the 14th of July, 1863; their smashing the cases containing such carbines, throwing large numbers of the latter from the windows so as to destroy the value by the fall, injuring and “ so far as their value was concerned” destroying two thousand six hundred and forty of them, and one hundred and twenty one cases, and greatly injuring and damaging the residue except forty-nine.</p> <p>6th. The expulsion of the rioters from the building and the rescue of the residue of such carbines, most of them damaged, and thirty of their cases, by the police. The transportation by them of all the guns in the hands of the mob and others (including those taken down stairs and not thrown from the windows by the rioters,) with some left in the upper part of such building, to their head-quarters, where others, of such and other guns taken in a damaged condition from the rioters, were subsequently brought.</p> <p>7th. The purchase of such guns by the plaintiff from the United States, his improvement and ownership of them, and a good demand for them in July, 1863.</p> <p>8th. A presentation of a claim for adjustment by the plaintiff on the 1st of October, 1863, to the city comptroller, and his neglect to pay the same.</p> <p>9th. The absence of any negligence on the part of the plaintiff, “ which could have contributed to the destruction of such guns,” and his ignorance of any intention to destroy them.</p> <p>■ 10th. The value of such carbines at $15, and of the. cases containing them $2.50 each, at the time of the riot.</p> <p>11th. The injury and “so far as their value was concerned,” the destruction of one hundred and twenty-one cases, and two thousand six hundred and twenty carbines in them, and the great injury and diminution in value of the- remainder of such guns in consequence of such riot. The damage to the plaintiff by such destruction and injury of $42,632.50, amounting with interest thereon to the date of such report ($10,279.15) to $52,911.65. For which sum the referee held as a conclusion of law, from the foregoing facts found by him, that the plaintiff was entitled to judgment against the defendants. From the judgment entered upon the report the defendants appealed and filed exceptions.</p> <p>Evidence was given on the trial, of the time of day of the first entry of the rioters into the building in question, the duration of their stay before their expulsion, their numbers and conduct while inside, as well as that of those who remained outside, the quantity of guns thrown from the windows, and the. effect of "their fall upon them, the ultimate fate of them as well as of those brought down stairs, the concealment of some in the building afterwards, the transportation of some discovered therein as well as those taken from the rioters to the police head-quarters,, and the general condition of those carried there. Also as to the number of guns belonging to the plaintiff and stored in such building prior to the riot, the value of those claimed to have been injured or destroyed, and the extent of the injury. Uncontradicted evidence proved the various facts herein before stated.</p> <p>The only witness who testified on the trial as tp the time ■ of day of either attack by the rioters upon the factory in question, besides the inspector of police, (Dilks,) who commanded the force who drove them out; the officer, (Burden,) who watched their movements and telegraphed from a police station in sight of them for such force, and an officer, (Clinchy,) who saw the second attack, was Bergman, who fixed the time as “about noon.” Another witness, Schmidt, at some time letioeen noon and 3 o'clock of the day in question, saw persons throwing guns out of the windows, and others bringing them down stairs, but did not state the time of their entry. Bergman was also the only witness, besides such police officers, who fixed the stay of the rioters when he saw them in the building, which he made half an hour before the police came, differing therein from the statement of' Burden, unless it applied to the second assault.</p> <p>As to the number of persons present at such attacks, and of those who were actively engaged in the riot, and of those in the building employed in injuring or carrying away guns, the evidence varied; Six witnesses, only, testified on that subject. (Boppoeh, Clinchy, Bilks, S. Marsten, Schanck and Bergman.) Hoppoch saw two or three hundred (mostly boys) go to break open Marston’s factory, and also guns thrown out, but took no note of the time of the last act, because he was so excited, prpfcecting his own affairs, that he could not tell whether it was Monday afternoon or Tuesday morning. He estimated the crowd, including men, women and officers, as being at some time about one thousand. Clinchy, on the second attack, saw a great crowd, (as he termed it',) go up to the building, and get on the fifth floor, of- whom ten or fifteen stood in the entrance. He fixed the numbers of the crowd at that time in the street at about one thousand. S. Marsten thought there were, perhaps, two or three or four hundred engaged' in the riot; there might have been a thousand; but he was unable to fix the day of the week, his memory being bad, and did not state the time of day. Schanck stated the crowd to be about a thousand, at some time, which he did not fix when guns were thrown from the windows. Bergman stated the crowd of persons present, at both attacks, to be about a thousand; the rioters were a great many more than the policemen. Bilks testified that on the second occasion ten thousand persons were collected, but many of them simply looking on. As to the time the rioters were in the building, a police officer, (Burden,) who watched their operations, and telegraphed for the police force, when necessary, testified that the first time they were not in ten minutes when such force arrived. The other officer (Clinchy) testified that the second time they were in from twenty-five minutes to half an hour. Two witnesses (Hoppoch and Bergman) attributed the throwing of guns out of the windows, which they saw, to the attack by the police on the rioters. Three witnesses testified to seeing guns thrown out of the windows on Twenty-second street, on Second avenue, and into the yard of an adjoining building.</p> <p>Only five witnesses, (Burden, Schmidt, Bergman, S. Marsten and Bose,) examined, saw the guns thrown from the window. The first (Burden) thought there were fifteen or twenty on the first occasion; not more ; and not as many as fifty. The second (Schmidt) saw about a couple of dozen thrown out on Twenty-second street. The third (Bergman) saw about fifty thrown out on the Second avenue. The fourth (S. Marsten) saw several hundred thrown on the street. The last (Bose) saw a great many lying about on the sidewalk of the street, which had been thrown out, but he could not state how many. Another witness (Boppoch) saw a great many stocks and barrels on the sidewalk in the street, which had been broken by the fall. Several witnesses (Boppoch, Bohn, GUbbs, S. Marsten) gave their opinions, as experts, that the fall of a gun, even less than fifty feet to a pavement, would render it useless and destroy its pecuniary value. One witness (Bohn) testified that the guns which he saw thrown out were cracked; some were bent, and some had the wood broken.</p>

<p>1. Imported goods, on their passage to this country, are in the actual or constructive legal possession of the owner, importer or consignee, and so remain even when placed in the joint custody of the owner of a bonded warehouse and an United States officer of customs, to secure the payment to the United States of duties, and until then, to be taken care of.</p> <p>2. The meaning of the term “ custody,” as applied to the possession, by United States officers, of merchandize, used in the acts of congress, {act of March 28, 1854,10 V. S. Stat. at Large, eh. 30, p. 270, §§ 1 and 3,) is confined to its original sense of a guard or watch for the interests of the government. It was not intended to embrace legal possession for all purposes.</p> <p>3. Notwithstanding the “custody” given to the United States officers, by statutes, the warehouse keeper is the guardian of the interests of the owners; that is, of the goods subject to the lien for duties, and is responsible for their safe keepin'g, like any other bailee. If he neglects to exercise due diligence, he is liable to the owners of the goods.</p> <p>4. In an action by the owner against the warehouse-man to recover the value of goods lost, the burden of proof, as to due diligence, is upon the defendant. The mere non-production of the subject of.bailment is prima facie evidence of a deficiency in the care of it.</p> <p>5. After the defendant has, by an objection, excluded positive testimony of negligence, offered by the plaintiffs, he should he estopped from moving to dismiss the complaint for want of that proof.</p> <p>6. Where the proof introduced, after a motion to dismiss the complaint, sustains the verdict, this will cure any error in the refusal to grant the motion.</p> <p>7. A court is not bound, in instructing a jury, to pronounce upon every proposition that may be conceived to have some bearing on the case, but only those which the evidence either warrants, or might naturally give rise to in the minds of the jury. Per Robertson, Ch: J.</p> <p>8. In an .action against a warehouseman for the conversion of goods, interest on the value of the goods (if allowed by the jury) is recoverable, by way of damages; it being an action for a breach of duty.</p>

Appeal form the Commercial Court of New Orleans, Watts, J. The petitioners represent, that one Elam Bowman, drew a bill of exchange on them, in… Held: that a legal subrogation does take place in favor of the endorser, who anticipates his liability by payment of the bill before maturity, what is the extent of the rights which he acquires by the subrogation 1 He pays as surety. It is well settled, that the surety who pays for his principal, is entitled to an indemnity only.

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

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

The facts on which this controversy turns, will be found at length in the opinion delivered by Garland, J., in the case referred to by the… Held: that the policy is conclusive proof of the intention of the parties ; and he would not permit the slip to be introduced to show, what kind of policy the parties intended to make. Douglass, 12 note. See 1 Phillips, 43 to 54. But, even if admitted, the testimony of Northam does not established the fact of knowledge in the defendants.

<p>1. Merchandise is delivered, within the meaning of the statute of frauds, if sold by samples while on board of a vessel and stored by the vendors with a third person, by whom it is compared with such samples, if such acts are done at the request of the vendee.</p> <p>2. It is sufficient evidence of the acceptance by a vendee of the title to goods sold to him by sample, if he receive and retain for five days without objection measurer’s returns in favor of the vendors, and indorsed hy them to him, of the quantity of such goods, at his request, stored in the warehouse of a third person, and there compared with such sample, after the vendors had accepted an offer of such vendee to buy them on a credit of ten days, provided the latter would pay the storage during that time, and also direct such warehouseman to deposit, for his benefit, with the vendors the receipts for such merchandise given by such warehouseman in favor of the latter and indorsed by them to the vendee.</p> <p>3. The agency of the warehouse keeper for the vendee, is sufficiently established in such a case, by proof of a direction of the latter to the former to do certain acts in regard to putting such merchandise in order, and to compare it with the samples as received.</p> <p>4. Where a sale and delivery of goods are found upon conflicting evidence hy a referee, the same ought not to be disturbed to let in the defense of the statute of frauds.</p>

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

<p>Defendants in answer to an action on their promissory notes, alleged that they had entered into an agreement with the plaintiff, and their other creditors, by which a certain per cent on the amount of their debts was to be received as a full discharge thereof, averring a tender of that amount, and that they had been always ready to comply with the terms of the compromise, but that plaintiffs had since refused to accede thereto. Plaintiffs having moved for, and obtained a judgment for the per centage alleged to have been tendered, reserving their right to prosecute for the balance, and ordering the plaintiff to retain out of the per centage enough to defray the costs of the further proceedings should they result in favor of defendants, the latter, having been refused an appeal, moved for a mandamus to compel the allowance of one. Held, that defendants having admitted the debt to the amount for which judgment was rendered, and having averred a tender and their readiness to pay, cannot, under art. 567, of the Code of Practice, be allowed to appeal therefrom.</p> <p>No particular form is necessary to a confession of judgment. Any admission of the debt sued for, which is such, that it leaves no issue to be tried, is, in fact, a confession of judgment. If the admission goes only to a part of the sum claimed, it is , a confession pro tanto ¡ and there is no reason why the creditor should be delayed in the collection thereof, until a decision be had on the disputed portion.</p>

<p>The holder of a promissory note cannot proceed by attachment against an endorser, previous to maturity. The obligation of the endorser may never become absolute ; the drawer may pay, or, in the event of his failure, the endorser be discharged by the omission of demand, protest, or notice.</p> <p>A judgment rendered in a State court against a party declared a bankrupt under the act of Congress of 1841, and to whom an assignee had been appointed, without such assignee having been made a party, is a nullity.</p> <p>A District Court of the United States has no power to revise any decision rendered by a State court.</p> <p>The assignee of a bankrupt under the act of Congress, of 19 August, 1841, may come into the State courts, for the purpose of protecting the interests confided to him.</p>

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

<p>The Spanish Governor of the province of Louisiana, Miro, was invested with the power of granting lands within the province. The Marquis de Casa Calvo, a subsequent Governor, had no such authority, the power of disposing of the public domain having been conferred, in October, 1798, on the Intendant, but the Governor still retained his other civil functions, and was the highest judicial officer in the province.</p> <p>The Spanish provinces of Florida and Louisiana were under the jurisdiction of the Captain General of Cuba ; but the Governor of Louisiana was always recognized as having authority over the Governor of West Florida, and as having power to grant lands in that province.</p>

The action was brought to recover $1000 for money paid, by mistake,'to the sheriff, under an' erroneous belief that the same was then due from the plaintiffs to a person who was a defendant in an action in which an attachment had been issued in favor of the defendants, as plaintiffs, which had been paid over by the sheriff to the latter on an execution issued in the same action. The cause was tried without a jury.

<p>A married woman has no mortgage on the real estate of her husband, for the reimbursement of money paid by her as his co-obligor in solido, where the law authorized her to join in the contract.</p>

<p>The penalty, or forfeiture imposed by the 4th sect, of the act of Congress of the 25th April, 1812, relative to claims to lands in that part of Louisiana east of the river Mississippi and the island of Orleans, on persons claiming under the French, British, or Spanish Governments, who may fail to cause the written evidence of their claims to be recorded in the manner directed by that act, cannot be invoked by parties having no grant from the United States to the land in controversy.</p> <p>The provision of the same section declaring that no grant, order of survey, deed, conveyance, or other written evidence, which shall not be recorded as directed by that act, shall be admitted as evidence in any court of the United States, against any grant which may be derived from the United States, establishes a rule of evidence for the courts of the United States ; but the rule has no binding authority over the courts of the States.</p> <p>A confirmation of a land claim by the United States, amounts only to a relinquishment of all claim thereto on its part.</p> <p>Where a bill of exceptions is not mentioned in the argument, nor otherwise insisted on before the Supreme Court, it will be considered as waived.</p> <p>An order of a Spanish Governor of the province of Louisiana authorizing the oath of allegiance to be administered to a party, and directing him to be maintained in the possession of certain lands, is a public and official act, of .which a copy is admissible in evidence. It is not necessary that the original should be produced. Such an act was correctly deposited and recorded in the office of the Parish Judge of the parish in which the land lies, and he is authorized to certify copies thereof.</p>

<p>The assumption of the quality of heir in an authentic act, is an unconditional acceptance of the succession. C. C. 983.</p> <p>The acknowledgment of a debt by an agent, will stop prescription. C. C. 3486.</p>

<p>Appeal from a judgment entered upon the report of a referee. The action was upon a policy of insurance of $3300, on a cargo of wheat. The facts established were as follows : On the 18th December, 1860, the appellants received from the- respondents a policy of insurance upon a cargo of wheat contained in a canal boat, [The W. H. Platt,) for one month only;- in which permission was given that the boat be towed from place to’place in New York harbor. It excepted theft, robbery, ice or barratry, from the perils, insured against. On the 14th of January, 1861, such canal boat, with the wheat on board, after having been towed from her berth in Jersey city, in the state of New Jersey, to a pier 36, East fiver, in New York harbor, while in the act of being fastened to the pier, was struck by ice and sunk. The boat received no injury, except from ice, and the injury to it caused thereby damaged the wheat to the amount insured in such policy. Other facts appear in the opinion of the court.</p> <p>The plaintiffs claimed that the boat on board of which the cargo was, when the loss occurred, was neither lying up nor on a trip or voyage within the meaning of the policy, but was being towed from place to place in Eew York harbor, as provided in the written portion of the policy, and that the exceptions did not therefore apply.</p> <p>The referee-held that the damage sustained by the plaintiffs from the loss and injury to the wheat was incurred from the peril of ice, which was excepted from, those insured against.- He therefore directed judgment to be entered for the defendants, and that the complaint be dismissed.</p> <p>Judgment being entered accordingly, the plaintiffs appealed.</p>

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

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

<p>Appeal by the plaintiff from a judgment of the District Court of St. Mary, Campbell, J., in favor of the defendant.</p>

This was an appeal by the defendant Fowler from a judgment rendered against all the defendants. The action was brought to recover damages sustained by the plaintiff by falling into a coal hole in front of a house on Broadway, in New York, in October, 1863, against the defendants, the Woods, as tenants, and the defendant Fowler as landlord of the premises. On a former trial, the plaintiff’s complaint was dismissed when his evidence was closed.

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

<p>Appeal from ihe District Court of St. Mary, Campbell, J.</p>

<p>Inaccurate or ungrammatical language in the certificate of a notary, will not vitiate it, where the meaning is obvious.</p> <p>Every means of defence, suoh as payment, release, novation, &c., which goes to show the extinguishment of an obligation admitted, or proved to have once existed, must be pleaded specially, and cannot be urged under the general issue, which only denies the facts alleged in the petition. The plaintiff might otherwise be taken by surprise.</p> <p>A plea of release not made in the lower court, will not be listened to by the Supreme Court. This defence will be presumed to have been waived.</p>

from a judgment of the Court of Probates of St. Mary, Dumartrait, J., removing him from the tutorship of his child on the ground of notorious bad conduct.

<p>Where plaintiff, who had been employed by defendant as a physician, sues for the value of his services, and defendant pleads that plaintiff was not licensed to practice, the burthen of proving that he was not so authorized will be on the defendant, he having employed the plaintiff as such.</p> <p>Persons practising as physicians without having been licensed as required by law, can claim no compensation for their services.</p> <p>No action will lie on a contract the consideration of which is prohibited by law, or which originated in the violation of any statute. C. C. 1887, 1889.</p>

Appeal by the defendants from a judgment rendered on the. verdict of a jury; also from an order denying a motion for a new trial, made on the judge’s minutes; and from an order refusing to grant a new trial, upon the ground of newly discovered evidence, also from an adjustment of costs. The action was tried before Justice Garvin and a jury, in June, 1866, and the motion for a new trial for newly-discovered evidence was decided by Justice Jones, in February, 1867.

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

<p>A vendor who fails to comply with his obligation to release a mortgage on the property sold, and thereby impedes or prevents its resale, or subjects his vendee to unnecessary expense, or the title to doubt, will be responsible in damages.</p>

<p>A husband living with his wife in a house belonging to her, and attending with her to a retail shop kept in the same building, sold the contents of the shop to her in part payment of paraphernal funds received by him. Meld, that these facts proved a sufficient delivery.</p>

<p>N either the wife with her legal mortgage and privilege on the property of her husband, nor any other person holding a general or special mortgage, though entitled to be paid by preference out of the proceeds, can prevent an inferior mortgagee from causing the property subject to his mortgage to be sold. C. C. 3245, 3249. C. P. 710, 713, 714, 715. Under arts. 396, 401 and 403Aof the Code of Practice, a third person may oppose the payment of the price to the seizing creditor, when he claims a preference on the proceeds, and the court may order the amount to be retained by the Sheriff subject to its order.</p> <p>A wife cannot claim the proceeds of property sold at the suit of a creditor of her husband, or exercise her action of mortgage against property in the hands of a third person, if the latter prove that there is other property subject to her lien in possession of the husband, or since sold, which she is bound to discuss.</p>

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

<p>Neither the validity of a will under which a plaintiff holds the appointment of testamentary executor, nor the certificate of his appointment from the Court of Probates, can be inquired into collaterally, in a controversy between the executor and a debtor of the succession represented by him. The court cannot look beyond the certificate of his appointment, or letters testamentary ; and until the will be regularly annulled, which cannot be done in the absence of those having an interest under it, he will he entitled to exercise the powers conferred on him by law.</p>

<p>In an instrument signed by the deceased and another, offered for probate as a nuncupative will by public act, the notary, after stating that the act was executed by him as dictated by the testator, in the presence of the witnesses required by law, added • lt The parties dispense with the certificate required by art. 3328 of the Civil Code, and exonerate me, said notary, from all liability on account of the non-production of the same. All of which was done without interruption, andVithout turning aside toother acts.” &c. Held, that the instrument is invalid as a nuncupative will by public act; that the stipulation relative to exonerating the officer from all liability in consequence of not producing the certificate required by law, is a matter viler vivos, foreign to dispositions mortis causa having nothing to do with the formalities of the will; and that its introduction was a t/ivrnin% aside to another act, and an interruption of the formalities, which, were consequently not fulfilled at one time, as required by art. 1571 of the Civil Code.</p>

<p>Appeal from the District Court of St. Landry, Boyce, J.</p> <p>The court is without jurisdiction. Way-man v. Southard, 10 Wheaton, 1. United States v. Peters, 5 Crunch, 115. McKimsr. Voorhies, 7 lb. 279.. 2 Wheaton, 1. 7 Martin, 436. 1 Wheaton, 305. 5 Ib. 1. 1 Kent’s Comm. 385.</p>

This action was brought to recover damages for the conversion by the defendants of United States bonds, placed in their hands by the plaintiff to be taken care of; and also for selling gold coin placed in their hands to be sold, when it reached a certain price, upon the ground that the defendants sold the gold for less than they were instructed to receive therefor in currency, thereby violating the plaintiff’s directions.

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

<p>The assent of a Police Jury to the emancipati.on of a slave, is not an ordinance requiring the signatures of the President and Clerk on the journal to give it validity, in the meaning of the seventh section of the act of 20 March, 1816, relative to the organization and powers of police juries.</p> <p>It is not essential to the validity of the acts of a Police Jury that the daily journal should be attested by the president and secretary. The 7th sect, of the act of 20 March, 1816, is directory to the officers of such bodies, and their neglects of duty cannot be allowed to prejudice persons having no power to control or direct them.</p> <p>The assent of a Police Jury is only necessary to the emancipation of a slave, when under thirty years of age. Act 31 January, 1827. Such assent when the slave is thirty years of age, is only necessary to relieve the master from giving bond to remove the slave so emancipated out of the State within one month. Acts of 16 March, 1830, and 25 March, 1831.</p> <p>Against a mere trespasser without right, a plaintiff need only show a prima facie title.</p>

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

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

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

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

This was an action brought by the plaintiff as assignee of the lessor of certain premises in the city of New York, against the lessees thereof, and their assignee or tenants,' to recover possession of them, because the buildings upon them were not kept in repair, according to a covenant and condition contained in the lease.

This was an action for damages, for a hurt received by the plaintiff* in July, 1866, from the wadding of a cannon negligently discharged on board of a vessel or pleasure yacht (the Rambler) of the defendant by one of its crew during the absence of the defendant.

Appeal by the defendants, the Hudson River Railroad Company, from a judgment entered on the verdict of a jury. On the 30th of July, 1866, the plaintiff, being a passenger on a car of the defendants, the Central Park, North and East River Railroad Company, received an injury in consequence of a collision between said car and a locomotive engine of the appellants engaged in drawing some cars out of their depot yard at Thirtieth street.

This was an action brought in August, 1859, to recover back the amount of a draft drawn by a firm in Washington, (D. C.) consisting of… Held: presented and collected it, and did all other acts in relation to it, solely' as the agents of that firm, and paid over the amount collected by then! to it, without any knowledge that the Park Bank had paid such bill under a mistake, or that the plaintiffs claimed that it had been so paid, or any right to recover it back. • An order…

<p>1. The law which supposes every one to be designated and known by two names, (one of his family, and the other given to him at his baptism,) allows him to be designated by two fictitious names in legal proceedings, when either of the real ones are unknown, but does not recognize a single separate letter as part of such designation.</p> <p>2. The mere sale of a stock of goods, even when the owner is indebted, is not sufficient evidence, by itself, to warrant the inference of fraud. Mere indebtedness does not impose such disability on the owner. Other additional circumstances, such as a hurried sale, at a low price, accompanied by acts of concealment, are necessary, to establish a fraudulent purpose.</p> <p>8. Where, in an application for an attachment, the whole charge of “ removing and disposing of property, and departing from the state, with intent to defraud the plaintiffs,” rested upon the proof by a single witness, of an offer by the defendant to sell him her stock in trade for less than to any other person, and a request by him to her to keep the matter secret; Held this was not sufficient to sustain the attachment, particularly where the defendant was carrying on business in a store with a stock of goods worth $2000, while no indebtedness of hers was proved beyond $á00.</p>

<p>Motion to discharge the defendant from arrest, or to reduce the amount of bail.</p>

<p>Where, in an action brought against two defendants, as joint debtors, the summons is served on only one, who appears, no appearance being entered for the other, the judgment should be entered against both defendants, but directing the amount recovered to be made of the joint property of both, arid the individual property of the defendant served.</p>

<p>Motion for an order to compel the production of books, &c.</p>

<p>1. The "injury” intended by the 219th section of the Code, the production whereof entitles the party exposed to it, to an injunction, is not that accomplished by judicial proceedings and forms of law, unless abused.</p> <p>2. An action by a landlord, or a new tenant, against a lessee in possession, to recover possession of the land, or summary proceedings before a magistrate for that purpose, do not constitute such an injury.</p> <p>3. The making of a parol lease by the owner of land constitutes a legal title in the lessee, which he is entitled to defend against all the world, by all the means the law permits for the defense of property against an arbitrary assailant ; and constitutes a complete barrier to all attempts legally to eject him, before the legal termination of the lease.</p>

<p>Additional evidence to support a point which was the subject of inquiry and testified to, on the trial—such as the degree of injury to the plaintiff in an action for an assault—is substantially cumulative; and a new trial will not be ordered on the ground of its discovery since the trial; particularly where the fact to be proved was within the knowledge of a witness examined on the former trial.</p>

<p>1. Counsel fees and alimony are generally to be allowed to a wife in an action for a divorce against her when in her answer she either denies her guilt or sets up affirmative defenses, such as forgiveness, of recrimination, under oath, or does both. But the court may refuse either, in the exercise of a sound discretion, when satisfied that the wife is altogether in the wrong, or has no reasonable ground of defense.</p> <p>2. The disagreement of a jury upon a previous trial of issues' framed in an action for divorce, takes the case out of the rule applicable to motions before trial for alimony, that the failure of the wife, either to aver her innocence under oath, or, if she has set up affirmatively as a defense, recriminatory charges on information and belief which are denied on oath by the husband, to support them by testimony of others who know the facts, deprives her of the right to alimony and counsel fees.</p> <p>3. Not only does such disagreement take the case out of the rule last mentioned, but it brings it within that other rule, which obtains on motions of this character, even when made before trial, to wit, that although a wife may be unable to verify recriminatory charges in her answer, even on information and belief, yet if she produce either positive affidavits of their truth by those who know the facts constituting such charges, or affidavits establishing them beyond question, alimony and counsel fees will be allowed, notwithstanding a denial by the husband of the charges against him under oath.</p> <p>4. A party in contempt of a court is not in a position to ask a favor of it; but the fact of his being in contempt of one court will not prevent his asking a favor of another one.</p> <p>5. It is very doubtful whether a charge against a party, in ex parte affidavits, (even although not denied) of having willfully disobeyed a prior order of the court in the same action, will justify such court in withholding a favor from such party, since it seems that to induce a court to withhold a favor on the , ground that the applicant is in contempt, such party must have been adjudged by the court to .be in contempt. Per Joses, J.</p> <p>6. A motion for alimony and counsel fees if granted, will not necessarily or gen- ■ erally be qualified by the condition that the defendant consent to a reference. A wife should not be forced to forego her right of a trial by jury, simply because she applies for alimony and counsel fees.</p>

<p>1. Excepting to bail, taken by the sheriff, is an “ act to be done,” within the meaning of section 174 of the Code, permitting the court, in its discretion, “ to allow an answer or reply to be made, or any other act to be done,” after the time limited by the Code for doing it.</p> <p>2. If the sheriff has been prejudiced by the neglect to except, that is a matter to be shown in opposition to the motion, to influence the discretion of the court.</p> <p>3. When leave to except is given, after the time for excepting has expired, it will be on terms, and reserving any right of the sheriff to set up the neglect to ' except in time in any action against him.</p>

This action was brought to recover the last of several installments claimed to be due upon a contract for building a store, and also for extra work done thereon.

<p>2. The mere allegation of a belief of the plaintiff of the fraudulent intent ofrthe defendant in removing such goods, which removal he is superintending, or of a fraudulent assignment in general terms, does not furnish grounds for judicial action.</p>

<p>1. There is no authority for one justice of this court to vacate an order made by another justice, except upon notice to the parties who have a right to be heard. But such an order cannot be disregarded, and it seems it can be corrected only upon appeal, or by the same justice who made it, upon a motion before him for that purpose.</p> <p>2. Where an order, settled ex parte, which set aside a referee’s report and denied a motion to vacate the order of arrest, also vacated a provision in the order of reference extending the time to answer until some time after the report should be confirmed, and the plaintiff perfected judgment immediately for want of an answer, and issued execution, the court, on motion, opened the judgment and let the defendant in to defend; on the ground that had' the vacating order been settled on notice to the defendants, and the attention of the justice been called to all the provisions of the order of reference, he would not have vacated the extension of the time to answer, but would have given the defendants a reasonable time to set up their defense.</p>

This was an application by motion, to cancel two judgments made by a party on whose lands they were a lien, upon the ground that they had been paid, although not a party in the action in which they had been recovered. Those two judgments were recovered in this court, against the defendant; the first in June, 1858,. for $1754.78, and the other in February, 1860, for $2155.67.

This action was instituted against the Eighth Avenue Railroad Company, to recover damages for injury done to the person of the plaintiff by means of an alleged willful act of the driver of a car belonging to the defendants.

Appeal by the plaintiff from an order made at a special term, denying a motion to set aside proceedings, under section 401, subdivision 6, of the Code of Procedure, for the examination of witnesses before a referee, and to suppress the depositions, &c. on the ground of irregularity.

This action was brought to reform a written contract made between the plaintiff and the defendant, and on such reformation to recover from the defendant the sum of $251.03.' An answer to the complaint was put in. The issue thus joined was brought on for trial at a special term held for the hearing of equity causes. On such trial judgment was rendered for the plaintiff.

The court, on appeal, having reversed an order made at a special term, with costs of the appeal, and costs of opposing the motion below, the defendant made out a bill of his costs, and gave notice to the plaintiff of the presentment thereof to the clerk of the court for adjustment. Both plaintiff and defendant appeared before the clerk, and the plaintiff objected to several items of the bill, which were stricken out hy the clerk.

This was an appeal from an order made at special term, dismissing the appeal of the defendants from a judgment entered in the action, for want of prosecution. The action was one for the recovery of personal property and damages for its detention. On the 27th day of April, 1866, judgment was entered for the value of the property as assessed by the jury, and the .damages awarded by them, without awarding any return of the property, in the alternative.

This was an appeal from an order denying -a motion to vacate an order of arrest, and setting aside the report of a referee to whom such motion had been referred.

<p>This was a motion for a re-argument of an appeal from an order made at special term, denying an application by the defendants for a further bill of particulars of the plaintiffs’ claim in this action which should show “the nature, character and purpose of items and amounts given in ” a previous “ bill of particulars as credited ” to one of the defendants, (J. H. Biglow.) Such motion was founded .on the appeal papers; the order of the general term affirming that appealed from; the opinion of the court delivered on the hearing of such appeal; and an affidavit of the attorney for the defendants, stating that such order “resulted from a palpable and vital misapprehension of the material facts before the court; and on which the same were predicated.”</p> <p>The action was one for damages caused to -the plaintiffs by being induced to pay-certain moneys to the defendant Biglow, by means of certain fraudulent entries in their account books to his credit, in their account therein with Mm made by the other defendants who were their clerks, employed and confided in to make true entries therein, and also by means of a fraudulent omission by them to make certain other entries therein to his debit; which ought to have been made. Which entries and omissions were claimed to have been made in pursuance of a fraudulent conspiracy entered into by some of such defendants, with the defendant Bigelow to defraud the plaintiffs, which was known to the rest of the defendants and concealed by them from the plaintiffs for the same purpose. By a reliance on which entries, and in consequence of which omissions, the plaintiffs were induced to pay such sums of money to the defendant Biglow.</p> <p>The complaint alleged the existence, in January, 1864, of a firm, consisting of one of the plaintiffs, (Albert Drake,) and one James Drake,, doing business in the city of Eew York as stock and specie brokers, who were employed by the defendant Biglow in numerous transactions in buying and selling stocks and gold coin for. him to a. large amount. That, sums earned by such firm for commissions on such transactions to a certain amount (¡$108.07) were omitted to be entered in the account of the defendant Biglow in the account books of such firm, by the other defendants, in pursuance of such conspiracy.</p> <p>The complaint further alleged that the plaintiffs, together with the said James Drake, in June, 1864, formed a limited partnership for dealing in stocks and gold coin, wherein they were general and he was the special partners. That four of the defendants (Thayer, Gferner, Quinn and Persiam) were in their employment as clerks in December, 1863, another (Walter) in their employ in May, 1864, and the sixth (Halsted) in January, 1865, and they so continued until May, 1865. That by reason of the extent of the business of such firm, the keeping of the books and accounts of such firm, and making of purchases and sales by such firms were entrusted to such defendants, so employed as clerks; great confidence was reposed in them; and the plaintiffs relied upon the accounts kept by them with the defendant Biglow in such books. That a few days previous to the 4th of May, 1865, it appeared by the account so kept by such defendants with him in their ledger, that the plaintiffs owed .him $10,000, which they paid him, believing that they owed him that sum ; when they did not. That in like manner, on such 4th of May, 1865, they paid him a certain balance appearing due on such books, ($1256.21,) and in like manner they had previously paid him other sums of money so charged.' At its fifteenth folio such complaint alleged that since May 4, 1865, Biglow was credited on the ledger.of the plaintiffs with various sums not paid by him to such firm, and with which he was not entitled to be credited, amounting, with the omitted sums, to over ten thousand dollars ($10,151.25.) It also alleged, in a subsequent part, that some of the defendants who were the clerks of the plaintiffs, with the aid of the others, made contracts in the name of the plaintiffs, as brokers, for the purchase and sale of stocks and gold 'coin, which they entered in some of the books of the latter, but not in their ledger, as made for Biglow, and paid for that so bought with the money or checks of the plaintiffs, and received the price of that so sold in their name, deposited it to their credit in a bank, and passed any profit on such transactions to the credit of Biglow. Such complaint demanded as relief the payment of $10,259.32, with interest from May 4, 1865, which sum of money the plaintiffs claimed to have been their damages by the acts of the defendants therein set forth. The summons gave notice of applying for the relief demanded in such complaint, and not of judgment for the sum claimed.</p> <p>Upon an affidavit of the attorney for the defendants, setting forth, among other things, that they were entitled to “ a copy of the plaintiffs’ account specifying the items and particulars of the plaintiffs’ claim in this action-, and showing the nature, character and purpose of the entries of the sums alleged infolio 15 of the complaint to have been credited to the defendant Biglow,” an order was granted to show cause “why the plaintiffs should not furnish the defendants’ attorney a copy of the plaintiffs’ account, specifying the items or particulars of the plaintiffs’ claim in this action as specified in ” such affidavit, or why the defendants should not have other relief. Upon such cause being shown, an order was made requiring the plaintiffs to deliver, within a certain time after service of such order,, (ten days,) “ a bill of particulars of their claim in this action, as specified in said order to show cause, specifying the items and particulars of said claim, giving the dates and amounts thereof, and showing the nature, character and purpose of the entries of. the sums alleged in folio 15 of the complaint.” Upon that order the plaintiffs served upon the defendants’ attorney three lists of items, with dates and amounts therein, verified by the oaths of such plaintiffs, that they contained the particulars of their claims. The heading of the first thereof was “ Bill of particulars of amount of commissions earned by the firm of I. M. Drake & Co. on purchases and sales of stocks, &c. for the account of L. H. Biglow, and omitted to be charged against him,’.’ of the second, “ Bill of particulars of amounts credited to L. H. Biglow on the books of Drake Brothers, but never in fact paid to said Drake Brothers,” and of the third, “ Bill .of particulars of amounts earned by the firm of Drake Brothers on purchases and sales of stocks, &c. for the account of L. H. Biglow, and omitted to be charged against him, including tax on sales not deducted from the amount of sales.” The-first contained eighteen items stated to be of gold or stock purchased, with the dates and amounts. The second, of seventy-two items of “ cash ” credited, with their dates and amounts; and the third, thirty-seven items of what is stated therein to be purchases and sales of gold coin and shares in a mining company. After the receipt of such lists, an order was made by one of the justices of this court, upon an affidavit of the attorney of the defendants of their insufficiency, requiring the plaintiffs within a certain time (five days) after service of a copy of it, to give a further bill of particulars of their claim, showing the nature, character and purpose of the items, given in “ the hill of particulars served,” as credited 11 to the defendant on the hooks of the plaintiffs’’ orto “ show cause on a certain day why the same should not be furnished.” Upon cause being shown on such order, the motion was denied, and from the order so denying it, an appeal was taken, upon which the same was affirmed, with costs.</p> <p>Four grounds were assigned for the denial of such motion at special term, by the justice who denied it, in an opinion delivered by him:</p> <p>1st. That the plaintiffs’ “claim” consisted solely of money advanced to the defendant Biglow, and not of the fictitious sums alleged in the complaint to have been entered in the books of the plaintiffs by those defendants who were their clerks.</p> <p>2d. That a statement of “ the nature, character and purpose ” of entries of moneys which were never advanced, could not form part of a bill of particulars of money advanced, and even if inserted in it, could not perform any part of the offices of one, either by limiting the generality of a complaint, or indicating the particular entries intended.</p> <p>3d. That the complaint had already shown the general nature, character and purposes of such entries, and to order a repetition of it in a bill of particulars would be useless.</p> <p>4. That the lists of items served identified the entries intended, with sufficient definiteness and certainty to enable the defendants to prepare to meet on the trial of the issues, the allegations in the complaint.</p> <p>The order appealed from, was affirmed mainly upon the grounds, that there was no objection made to the first and third parts of the bills of particulars, and that the nature and character of the items in the third part appeared by it and by the complaint.</p>

<p>1. On the taxation of costs in the absence of positive evidence that a particular witness was not necessary, proof that at every trial he was actually sworn and examined, and the oath of the party that he was necessary, are sufficient prima facie to establish that he was so.</p> <p>2. If a witness attends, either by virtue of a subpoena, or upon a special request, a liability to pay his legal fees attaches, which, if he was necessary, will entitle the party for whom he attended to have their amount taxed in his bill.</p> <p>3. A statement in an affidavit, that a witness, “in pursuance of a subpoena for that purpose attended this court as a witness for the plaintiff,” in certain months designated therein, and “that the distance from his residence to “the place of trial by the usual route which he traveled for the purpose of attending this court as a witness as aforesaid ” was a certain number of miles; is to be construed as meaning that the witness attended in each of the months ■ specified, in pursuance of a separate subpoena for that occasion.</p> <p>4. The affidavit of a witness, that he attended in one month and year, when the cause was reached and partly tried; in another, when the cause was tried; in a third, when the cause was on the day calendar, although not reached; in a fourth, when the cause was reached, partly tried and then put off for the term on the adversay’s motion; in a fifth, when the cause was on the day calendar, although not reached; and in a sixth, when the cause was tried, is prima facie evidence to a taxing officer that the attendance of such witness in ■ each of the months named was necessary.</p> <p>6. When a witness lives at such a distance as not readily to admit of his return every day to his home, the charge for attendance fees is not necessarily to be limited to those days only when the cause is on the day calendar.</p> <p>6. The practice which has grown up in the city of New York among the profession and been tolerated by the court, not to subpoena witnesses until there is a reasonable expectation of the cause being reached for trial, merely requires a party to use reasonable diligence and judgment in ascertaining when a cause may be expected to be on the day calendar, and in having his witnesses in attendance when the cause is called for trial. Per Jones, J.</p> <p>7. When a cause is reached and postponed by order of the court, on the application of the defendant, the costs and disbursements of the term depend . wholly on the express disposition thereof, made in the order of postponement. If that is silent on the subject of costs, none are given or taxable.</p> <p>8. It seems a witness is entitled- to his fees for attendance on Saturdays and Sundays, when the" court does not sit, as well as for other days in the week, during the sitting of the court.</p> <p>9. Where the affidavit of a witness, after setting forth his residence, and that in pursuance of a subpoena for that purpose, he attended the court as a witness for the plaintiff, in divers specified months, alleged “ that the distance from his said residence to ” the place of trial “ by the usual route, and which he traveled for the purpose of attending this court as witness as aforesaid, is ” a certain number of miles; Held, that the only proper and reasonable construction which could be put upon such allegation, was, that the witness traveled only once from his residence to the place of trial, for the purpose of attending as a witness. »</p> <p>10. Held, also, that although for that once the plaintiff might otherwise have been allowed to charge travel fees, yet he could not when it appeared that for one of the terms he was not entitled to tax any costs or disbursements; and the affidavit did not show that the occasion on which the witness traveled was not, to attend at such term.</p> <p>11. In order to entitle a party to include in his costs, travel fees for witnesses, he must show by affirmative and clear evidence that he is entitled to them. It is not sufficient for that purpose to rely on affidavits, which do not definitely and clearly show his right, but leave it to the court to infer from them that upon some.strained construction in some possible event he may be entitled to tax some fees of that kind. Per Jokes, J.</p>

<p>1. The title which a possessor of lands must claim in order to avoid the deed of an owner out of possession must arise, either from a written instrument, either professing, on its face, or agreeing, to convey some title or interest in the land in question, executed by some person holding adversely to such owner, who therein assumes to have the legal title so to convey, which is actually binding upon such person, or else from some judgment, decree or executed process of some court.</p> <p>2. At the time of the conveyance of certain premises to the plaintiff, the defendant claimed to hold them under proceedings for foreclosure; a sale to a third person, accompanied by an attornment of the occupants and tenants, to him; a deed from such third person, conveying the premises in fee to a fourth person; and a lease and deed from that person to the defendant in fee simple. Meld that such third person, by the sale to him and the attornment of the tenants, meyely took the place of the'mortgagee, unless the proceedings to foreclose were effectual; and that such sale and attornment did not cut off the right of the owner to convey.</p> <p>3. Attornments may be made to mortgagees, after a forfeiture of the mortgage, but only in such cases, or else .with the landlord’s consent, or pursuant to a judgment or decree.</p> <p>4. Mere possession by a mortgagee, so long as there is a right to redeem, is not adverse to the mortgagor’s rights.</p> <p>6. An absolute conveyance ih fee simple, by a mortgagee in possession, and a claim of title under it, though sufficient to bar an action, after twenty years holding under it, yet as it is also available merely to assign the mortgage to the grantee, and give him only the,same right of possession.as the mortgagee, it cannot be such a title, as to render void a deed from the owner out of possession to a third person.</p> <p>■6. It is not necessary to rely on the affidavits filed, in a statutory foreclosure, as proof of the regularity of the steps taken for such foreclosure; since it may be supplied aliunde by other evidence.</p> <p>7. The statute (2 JR. S. 546, § 2, suhd. 3,) which requires copies of the notice of sale in foreclosure proceedings, in order to preclude persons having a subsequent lien, to be served on them either personally, “ by leaving the same at their dwelling house,” or by mailing it twenty-eight days before the time of sale, “ properly folded and directed to such persons at their respective places of residence,” does so in order to enable such notice to reach the parties interested ; and affidavits of such service should state, enough to show) by their mere inspection, and to enable the court to see and determine, that the proper measures were taken to accomplish that end.</p> <p>8. An affidavit of service of notice of sale on several persons, by mail, stating that on a day specified, the affiant served “ a copy of such notice on each.of ” the persons named, “ by depositing the same in the post office of the city of New York, properly folded and directed, to each of” such persons “at their respective places of residence in the said city of New York,” without specifying any place of residence, or mode of folding or directing, and that the affiant put a “proper postage stamp on each of said letters,” without otherwise mentioning its character, held to he insufficient proof of service by mailing under the statute, and therefore the proceedings to foreclose the right of redemption of the owner of the premises to be ineffectual for that purpose,</p>