Volume 6 — Louisiana Annual Reports

<p>Where the defendant was indebted to the plaintiff, for which sum the plaintiff drew bills upon the defendant, which were accepted by him, but not paid, the plaintiff being under the necessity of taking up the bills as drawer, the defendant is liable to the plaintiff for the original account, although it appears to have been settled by the acceptances; and the claim is not barred by five years prescription.</p>

<p>Although an act be in the form of a sale, yet from the circumstances and the stipulations it contains, it may he manifestly a retrocession.</p> <p>A resolutory condition is implied in all commutative contracts, and the effect of the dissolution of the contract is to place matters as though the contract had never existed. The vendor takes hack the thing sold, free from all mortgages resulting from the possession of the vendee.</p> <p>retrocession may be made by the voluntary act of the parties, where the rights of third persons are not prejudiced thereby.</p> <p>Whenever a cause of resolution of contract exists, a party may do that voluntarily which he can be compelled to do by suit. No one is compelled to defend a suit unjustly, and any consent judgment has no greater effect than a transaction which third parties may have set aside upon the grounds of collusion and fraud.</p>

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

from the Fourth District Court óf New Orleans, Strawbridge, J. contended: The evidence showed that the succession of Anderson was never closed, no account of the administration having been homologated. It is idle to talk of prescription in such a case : here is a contestatio litis pending in court, and up to this day undetermined.

The counsel for the defendant asks “to whom did this money belong after it had been deposited; to Breen or to Schmidt?” Let his own client answer.-..-Is his clientin-the habit of taking money that don’t belong to him? Is he in the habit of calling on notaries to get the money deposited with them to pay his notes when they fall due? Why did he call on the notary for this money? Let him speak for himself.

<p>The city of New Orleans, under the act of incorporation of Eebi-uary 17th, 1805, did not possess the power of laying a tax on capital employed in traffic; nor did the city acquire that power under the act of May 3d, 1847, for raising a revenue for the State.</p>

<p>The act of May 4th, 1847, to provide for the payment of the debts of the municipalities of New Orleans, gave a certain destination to the sinking fund, by which vested rights were acquired that could not, under the art. 109 of the Constitution of the State, be divested by a subsequent act of the Legislature. The act of March 20th, 1850, providing for the liquidation of the city debt, gave a different destination to the sinking fund, and is, consequently, unconstitutional.</p>

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

<p>Where a party employs a broker to effect a sale of a plantation and slaves, and the broker finds certain purchasers who enter into a written promise to take the property upon the terms required, the broker is entitled to his commissions, although the party afterwards releases the buyers from the contract and re-sells upon different terms to one of them.</p>

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

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

<p>The plea of prescription of one year bars the action for the rescission of the sale of a slave, upon the ground of the slave being addicted to running away, unless it is proved the vendor knew of the existence of the vice at the time of the sale, and neglected to declare it to the purchaser. C. C. 2512.</p>

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

<p>Where the purchaser at sheriff’s sale was aware of the character of the title and the antecedent litigation attending it, he cannot by rale against the sheriff have the price retained until he is secured from the danger of eviction in consequence of certain suits claiming a judicial mortgage on the property.</p>

<p>Where the judgment of the court decrees that the plaintiff is the owner of a thing, and orders defendant to deliver it, or in default thereof pay a certain sum, the defendant has not the option of keeping the thing or paying the sum. The plaintiff may seize the thing on execution, if it can be found.</p>

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

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

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

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

<p>APPEAL from the Fifth District Court of New Orleans, Buchanan, J. An for a writ of warranto and decree, the relation Philip Prendergrast.</p>

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

Buchanan, J. John R. Shaw Sf Co., a commercial firm in New Orleans, professing to act as agents for John Nolan, a planter residing in the parish of West Baton Rouge, and also for James Goodloe, an engine builder living at Cincinnati, entered into a writing dated 26th November, 1845, purporting to be an agreement for the building and putting up of a sugar mill and engine for Nolan, to be completed on or before the 1st day of September, 1846, for the sum and price of $6250, to…

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

<p>The setting aside an order of seizure and sale, does not affect the petition, and cannot be considered as dismissing the defendant from the jurisdiction of the court; and where, from a change in the territorial jurisdiction of the court, the property to be seized is thrown into the jurisdiction of another court, the plaintiff may, nevertheless, obtain a new order of seizure, and proceed on the petition in the original court.</p> <p>Article 2252, O. C., assimilates in all respects the voluntary execution to the confirmation or ratification of contracts ; and where the parties to a sale execute the contract by giving notes for the price and signing a notarial act of sale, they will not be allowed to dispute the authenticity of the act, upon the ground that a certain person had not signed the act who was not a party to the sale, and was to have signed it merely in consequence of a stipulation in favor of the vendor.</p> <p>Where the vendor re-purchases property sold under an order of seizure and sale for the price, and the re-purchase is set aside on account of defects in the order of seizure, the possession which the vendor had under the void sale does not prevent his claiming interest on the original price.</p> <p>The sheriff’s return is prima facie evidence that the forms of law as to seizure, notice, appraisements and sale, have been complied with. If the return be untrue, the errors it contains should be specially set forth and shown.</p> <p>The party making opposition to a monition is to all legal intents the plaintiff, and must substantiate his allegations by proof.</p> <p>Proceedings on an order of seizure and sale which are litigated by the defendant, suspend prescription.</p> <p>A third person cannot stand injudgment for the purpose of avoiding a judicial sale on account of informalities, of which the judgment debtor does not complain, without showing he has been injured by it, and without securing both the debtor and the seizing creditor against any loss which may result to them in consequence of the proceeding.</p>

<p>Where a community of acquets exists, property purchased, whether by the husband or wife* belongs to the community unless the contrary be proved, (C. 0. 2371,) and the debts contracted daring the marriage, must he acquitted out of the common fund; the wife’s separate property is not liable for them, although she may have given her promissory note, secured by mortgage upon her property, for the payment of such debts. Tobe a public merchant, the wife must carry on a separate trade from her husband. C. C. 128. The separate property of the wife is liable for frauds committed by her.</p>

<p>The drawer of a promissory note, who had resided in New Orleans, removed to Madisonville before the maturity of the note, leaving no office or place of business in New Orleans, though frequently in the city. To hind the endorser, demand should have been made of the drawer, either in person, or at the place of his domicil in'Madisonville.</p>

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

<p>Where the plaintiff sues to annul a sheriff’s sale of his property after it has been re-sold at private sale to a bona jide purchaser, upon the ground of informalities in the mode of appraisement, he must show injury to himself in consequence of the informal!,ies, and furnish security to warrant that the property, if re-sold, would bring a higher price than it did at the sale which is sought to he annulled.</p> <p>The deputy sheriff is authorized to administer the oath to the appraisers of property sold at sheriff’s sale; and the law does not require that the appraisers, if acquainted with the property, should personally inspect it for the purpose of malting their appraisement.</p>

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

<p>Under C. 0. art. 2746, the furnisher of labor and materials for the construction of a hoüSe!¡ has no privilege for the sum of §556 55, unless there was a Written contract duly registered.</p>

<p>Under C. C., art. 330, the tutor is bound to furnish security before taking possession of the ward’s estate, and cannot be allowed to take possession of the property for the purpose of making an inventory..</p>

<p>The exemption in favor of the Barataría and Lafourche Canal Company created by the second section of the act of 9th January, 1833, does not extend to slaves or other property belonging to the company, but relates to their capital stock only.</p>

<p>Possession is a fact and not a right; and although resort may be had to the title to show the extent of the possession, the fact of possession itself must be ascertained without regard to the nature of the title under which the parties claim.</p> <p>Damages may be allowed in a possessory action for a tortuous possession.</p>

<p>Where a purchaser acquires property which is divided by the boundary line between two adjoining parishes, and registers his purchase in one of the parishes only, the part lying in the other parish is liable to seizure by a creditor; especially if it is not proved he had notice of the sale.</p>

<p>APPEAL from the First District Court of New Orleans, Larue, J. This case arose from an application for a mandamus against the auditor of public accounts and the State treasurer, upon the relation of the major-general of the Louisiana militia.</p> <p>The judgment of the district court was as follows :</p> <p>“The relator alleges, that he is bylaw entitled to receive from the State trea'surer, the sum of two thousand five hundred dollars, but that Louis Bordelon, Auditor of Public Accounts, refuses to deliver to him the warrant upon the State treasurer for the said sum, without which warrant it cannot be legally paid. A motion to show cause why a mandamus should not issue to the auditor and treasurer, was granted. And the cause shown by both is the same, to wit: ‘ that there is no law specially appropriating the amount of money for which a warrant has been demanded in this case, and that without a specific appropriation no money can be drawn from the treasury, under the 93d article of the Constitution.’</p> <p>“ The only question, then, in this case is, whether any appropriation has been made by law of the sum for which the warrant is claimed, in conformity with the Constitution of the State.</p> <p>“The article of the Constitution declares that ‘no money shall be drawn from the treasury but in pursuance of specific appropriation of money be made for a longer term than two years.’ The same rule, with the exception of the word specific, was contained in the former Constitution, (art. 6, sec. 5.) "Why this word was inserted does not appear from the proceedings of the convention, for the article was reported and adopted W’ithout debate; (Debates in Convention, 823 ;) but as it was evidently designed to change what formerly existed, full force and effect must be given to it.</p> <p>“ The law under which the applicant in this case claims the warrant from the auditor, is entitled ‘ an act making appropriations for the support and maintenance of the Louisiana Legion, and the volunteer uniformed companies now organized, and which may be hereafter organized in the city of New Orleans,’ and was approved March 21st, 1850 ; and it enacts, ‘ that the treasurer of the State pay upon the warrant of the auditor of public accounts, out of any moneys in the treasury not otherwise appropriated, to the major-general of the first division of the Louisiana militia, and, in his absence, to the brigadier-general of the Louisiana legion, and, in the absence of both the above named, to the brigadier-general of the first brigade Louisiana militia, the yearly sum of two thousand five hundred dollars, for the support and maintenance of the Louisiana legion, and of the other volunteer companies uniformed, now organized in the city of New Orleans, or which may be hereafter organized, and be attached to any present military organization, and not otherwise provided for by law.’ The act further proceeds to direct the mode in which this money shall be distributed.</p> <p>“ It is contended, that this is not a specific appropriation," nor, indeed, any appropriation at all. The first thing that impresses itself upon the mind is, that the General Assembly intended the act to be an appropriation act. This is evident from its title. Has the Legislature, in the body of the law, failed to accomplish its intention ? AVhat is the meaning of the word appropriate ? It is to allot, assign, set apart, apply, anything to the use of a particular person or thing, or for a particular purpose. This may be done without using the word appropriate itself. And this act certainly does assign, allot, and set apart a certain portion of the public moneys not otherwise appropriated, and directs the said portion to be paid to particular persons, for a given purpose. There are no formal words required to bp used in an appropriation bill. The Constitution has not undertaken to direct what technical language shall be employed ; this has been wisely and safely left to the legislative power, and they seem to have used their right in this instance in such a manner as to leave no doubt to what they meant to do, or of what they did. The language of this act must, therefore, be regarded as fully sufficient to constitute an appropriation. -</p> <p>“Is the appropriation specific in the intent of the Constitution 1 It is specific in the amount to be paid — two thousand five hundred dollars a year. It is specific in the person to whom it is to be paid — one or the other of the named officers, as the case may be. It is specific as to the time when the money is to be paid in each year, during two years. It is specific as to the purpose for which it shall be used — the maintenance of the legion and certain other volunteer companies. It is specific as to the money out of which the same shall be paid — any moneys in the treasury not otherwise appropriated. In what other respect an appropriation could be constitutionally required to be specific, has not been suggested by counsel, nor does it occur to the court. In the only sense, then, in which the words of the Constitution can have any meaning, so as to distinguish a specific appropriation from any other appropriation, the present act seems to be as specific as it can be possibly made.</p> <p>“ It is therefore ordered, adjudged and decreed, that the rule be made absolute,‘j and that a peremptory mandamus issue, as prayed for.”</p>

<p>from the District Court of West Baton Rouge. Penn, J. G. S.</p>

<p>APPEAL from the Fifth District Court of New Orleans. Buchanan, J. The judgment of the district court was in favor of the plaintiff for the cost of repairing the damages suffered by the collision of the steamer Ben Adams with /the Mary Foley.</p>

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

<p>A creditor had caused certain property of his debtor to be seized on executory .process, the snle of which was enjoined, upon the ground of the want of proper notice of seizure and a defective advertisement. The injunction was dissolved by the district court, and an appeal taken to the Supreme Court. Pending the appeal, the creditor ordered the sheriff to return the process, and issued a new order of seizure and sale, which was also enjoined on account of the pendency "of the appeal on the first injunction. Held: That ns the only questions involved in the first injunction related to the regularity of the proceedings, the creditor might legally abandon those proceedings and issue new process, and that the appeal would still remain to determine the question of. damages.</p>

<p>Where one signs an instrument between other parties, in which it is stipulated surety is to be given, and the instrument is signed in the presence of persons who are styled witnesses, he will be considered as having signed as surety, not as a witness, although his name may not appear in the body of the instrument.</p> <p>Where a party signs, as surety, a lease, in which the lessee stipulates to take possession of the property at a certain time and to return it at the end of the lease in good order, and to execute his notes for the rent, the surety will be liable for the rent.</p> <p>Where the lessee abandons the premises, the lessor may rent the property to other tenants, and does not thereby cancel the lease, or impair his recourse upon the lessee. He is, however, equitably bound to credit the lessee for the amount he receives from the new tenants.</p>

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

<p>Tile space which is to bo left for public use by the adjacent proprietors on the shores of navigable rivers for roads and levees, is a servitude imposed by law, of which purchasers are bound to lmow the existence, and form no cause for refusing to pay the price.</p>

<p>It is the duty of an administrator to ascertain the nature and extent of the assets of the succession, before he attempts to sell them "by an indefinite description of the rights and interest of the succession in lands and debts. If the succession has no rights, a sale would be a fraud upon the purchasers. If it has rights, the vagueness of the description would operate an injury to the minors.</p>

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

<p>Whore there is a contest between the plaintiff and an intervenor, as to the ownership of a ' promissory note sued on, and judgment is rendered in favor of the intervenor against the defendant, the plaintiff being non-suited, he may appeal, in order to determine-to whom the note belongs, without making the defendant a party.</p>

<p>Where a partnership sells an interest in a plantation to a third person on credit, it being stipulated the share of the third person in the profits shall be applied to the payment of the price of his purchase, the transaction will be regarded not as creating a joint ownership merely in the plantation, but as a sale upon condition that the third person's interest shall be applied to the payment of his debt; and other creditors cannot subject that third person's interest to the payment of debts due 1:o them, until the price of the purchase is first paid.</p>

<p>Where the wife who had sued and obtained a separation of property from her husband, had taken property in payment of the judgment, and a creditor of the husband had caused her property to be seized on an execution, treating the judgment for separation and the dationenpaiement as a simulation to defraud creditors, and consequently a nullity. Held: that the consideration for the judgment having been shown, and the dation en paiement not being simulated, they could not be set aside without a direct action, which should have been brought within one year from the date of the dation en paiement.</p> <p>Where a creditor acquired his rights nine years after a judgment and separation of property between husband and wife, he cannot complain that he was 'defrauded by that judgment and separation of property. I</p> <p>Under the laws of Spain, a wife could not make a marriage-contract to be governed by the laws of a foreign country; nor could she stipulate by" marriage contract, that her separate property should enter into the community.</p>

<p>The act of 15th April, 1847, limiting the time within which suits were to he brought for the annulment of prohate sales made in Lafourche on account of informalities, is constitutional, and all such suits are barred by the prescription mentioned in the act.</p>

<p>Any contract or engagement entered into by the father during the existence of the community, showing that his apparent title is not a real one, is binding upon the community, and descends to the heirs of the wife, who has not renounced the community, as a burden upon their inheritance, estopping them from disturbing a title derived from the father in execution of such a contract or engagement.</p> <p>The declaration of a father, made on oath to a family meeting convened for the interests of his minor children, of whom he is tutor, declaring that certain property purchased by him in his name was, in reality, a purchase made on the joint account of himself and another, is a fact admissible in evidence against the children when claiming the whole property; and when corroborated by other evidence, is sufficient to exempt the possessors of the property from the danger of eviction by the minors.</p> <p>It is an error to suppose that the law can sanction the perpetration of frauds by minors.</p>

<p>The plaintiffs had received of a third person, who subsequently became insolvent, the negotiable promissory note of defendants before its maturity, as collateral security for a debt due to them. The syndic of the insolvent claimed that the note belonged to the insolvent’s estate, and that, being placed in the hands of the plaintiffs merely as collateral security, they had no right of preference to the proceeds of the note. Held: That as no objection had been raised as to the form of the contract by which the note was placed in the hands of the plaintiffs, and no case made out under C. C. art. 1973, by which it could be avoided at the suit of creditors of the insolvent, the plaintiffs were entitled to the note and to judgment against the defendants for its amount.</p> <p>The want of consideration in whole or in part cannot be insisted on, if the plaintiff or any intermediary party between him and the defendant took the hill or note bond fide and upon a valid consideration.</p>

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

from the District Court of Pointe Coupée, Farrar, J. We are truly at a loss to conceive on what ground the defendants rest their hope of relief at the hands of this court. As he was not yet within the enclosures of the defendants, the killing of the slave could not be necessary for the defence of their persons, their family, or even their property and consequently was not justifiable.

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

<p>By the act of 25th of March, 1813, defining the powers of police juries, they have the right-to determine how lands situated within the points on the Mississippi river shall be drained.</p>

<p>It is not essential that the notary should embody in his certificate of notice of protest, a copy of the notice sent to the endorser, nor is it' necessary that he should state in the notice that the holder looks to the endorser for payment.</p>

<p>It is not essential tliat it sliould appear from the notary's certificate of notice of protest, that the notice was addressed to the endorser on the face ofit. It is sufficient if the name and address of the endorser be written on the outside of the notice addressed to him.</p> <p>It is sufficient, if the notice of protest states that the note has been protested, without stating that it was protested after due demand.</p> <p>The omission to state in the notice of protest the date of the maturity of the note is not material, when it is not shown that the endorser had endorsed other similar notes, and there is no reason to believe ho was left in any doubt as to the note which was protested.</p>

<p>APPEAL from the parish of West Baton Rouge, Burle, J.</p>

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

<p>Where a receipt is signed with the name of a firm of country merchants by their clerk, who signs bis own name immediately below the name of the firm without using the word “by" or “per,” it may be implied from circumstances, that the clerk signed the name of the firm as their agent.</p> <p>An unliquidated demand cannot compensate one that is liquidated.</p>

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

<p>A testament is without effect until it is proved and the execution of it ordered. A will proved in the court of probates, but not ordered to be executed, can have no legal effect, and cannot be the basis of prescription. C. C. 1637, 3507.</p> <p>The admission of a will to probate and the order to record are not judgments binding on the heirs even if they were present or duly cited.</p> <p>Testaments are more easily avoided than contracts, on the ground of unsoundness of mind. They may he avoided although the insanity was not notorious and an interdiction was not applied for, even where more than thirty days elapsed between the time of making the will and the testator’s death. C. C. 1781, secs. 6 and 10.</p> <p>A will made hy an insane person during a lucid interval is valid. C. C. 1781. But a lucid, interval in the sense of the law, is not an apparent tranquility or seeming repose. It is not asimple diminution or remission of the disease, but is a temporary cure: an intermission 'so clearly marked that it perfectly rosemhles a return of health, and must have continued for a length of time sufficient to give certainty to the temporary restoration to reason.</p>

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

<p>Privileges aro stricti juris, and only to be allowed in cases expressly provided for by law. C. C. 3152.</p> <p>Where a person employs a clerk by the year, and during the year causes that clerk to post np the hooks of another commercial house, he has no privilege upon the effects of that commercial bouse for the services of the clerk. The clerk himself has no privilege, because he was not employed by that house. The employer has no privilege, because he was not a clerk.-</p>

<p>Where the defendant, being sued upon a promissory note, alleged that he had received notice from a third party that half the note belonged to him, and prayed that said third party, be cited to appear in the suit, the said third party cannot be prevented from appearing and filing an intervention, upon the ground that it came too late and would delay the progress of the cause.</p> <p>Where a party claims, in a petition of intervention filed in a suit on a promissory note, to have an interest of one-lialf in the note, his right to recover the same cannot be defeated by the exception that he ought to have sued for a Settlement of the partnership, when it does not appear there were any other partnership transactions to he settled.</p>

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

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

<p>APPEAL from the District Court of Pointe Coupee, Burle, J.</p>

<p>The defendant should be allowed to file an answer pleading the general denial even after the plaintiff has moved to confirm a judgment by default, if it produces no delay in the trial of the cause. C. P. 314.</p>

<p>Where a party repudiates the authority of an attorney at law to have acted for him, it is necessary that it should be supported by his own oath, and not that of an agent.</p>

<p>A married woman cannot renounce prescription when once acquired without the authorization of her husband. C. C. 3425.</p>

<p>APPEAL from the District Court of Carroll, Richardson, S.</p>

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

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

<p>Where one member of a firm took a note from a customer payable to himself individually, but the note was credited on the customer’s account in the books of the firm fifteen months before tbe death of the partner to whom it was made payable, it will be considered, not as belonging to the heirs of the deceased partner, but as partnership property, and the liquidating partner has the right to sue for and collect the same.</p>

<p>Where a vessel has been surveyed and condemned at Key West as unseaworthy by sentence of a Court of Admiralty, such sentence is not evidence in the courts of Louisiana of the facts or grounds on which the condemnation proceeded, nor is it res judicata as to the question of seaworthiness.</p> <p>The right to abandon is to be tested by the actual facts at the time of the abandonment. If, at the time of the attempt to abandon, the thing insured is taken out of the hands and control of the assured by some peril or act not insured against, the insured cannot abandon.</p> <p>Where a vessel had been so damaged by perils of the sea that she was forced to enter a port for safety, and was there unjustly libelled by passengers and sold for a return of the passage money upon the ground of her having been unseaworthy at the commencement of the voyage; Held: That the insured could not abandon and recover for a total loss because the insurers did not insure against the risk of loss by an illegal condemnation, but that the assured might recover the amount of the loss occasioned by damage from the perils of the sea incurred before the vessel was libelled.</p>

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

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

<p>The assured are not entitled to abandon and recover for a total loss, from the mere fact of there having been a sale of the vessel; but the right rests upon the ship’s being reduced to such a state as to justify the sale.</p> <p>The power of a master to sell a vessel whioh has been damaged at sea, has been wisely circumscribed to very narrow limits. It is limited to cases of extreme necessity, and where, by reason of the distance from the scene of disaster, there is not an opportunity of consulting the owner or underwriter. The same is to be observed with regard to the power of the master to arbitrate or compromise a claim for salvage.</p> <p>The report of surveyors as to the necessity of the sale of a damaged vessel, is not conclusive as to that necessity, or as to the right of the assured to abandon.</p> <p>Where a vessel was damaged at Tampico, so that her salvage and cost of repairs at that place were estimated at a sum sufficient to justify an abandonment, and she was sold and brought to New Orleans, where she was repaired at comparatively a small sum, not sufficient to justify an abandonment; Held: That the assured could not abandon and recover for a total loss, without advising with the underwriters; as it was practicable to have brought the vessel to New Orleans, where she could be repaired upon much better terms than at Tampico.</p>

<p>Where the testatrix died in France, charging by will immovable property in Louisiana with the payment of certain legacies, and the property was not sufficient after the payment of the debts to discharge those legacies in full, Held: That as there was nothing which required that the debts contracted in Louisiana should be paid out of the property situated in this State, the legacies should be paid in full out of the property here, leaving the debts to be paid out of the property left by the testatrix in France.</p> <p>The practice of remitting the funds belonging to a succession to a foreign country to be distributed in the course of administration there, is a matter of discretion in the courts of this country, and depends upon the established comity of nations. But where there are creditors and parties in interest seeking to enforce their rights here, our courts have the power of enforcing those rights on the property within their jurisdiction.</p>

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

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

<p>Natural children cannot take by inheritance the property of a deceased parent, unless they have been duly acknowledged; but natural brothers and sisters may prove their relation, and inherit from each other, although they have never themselves been acknowledged by their parents. C. C. 913, 916.</p> <p>A judicial recognition of the paternity of a natural child, never acknowledged by the parent, does not entitle the child to the inheritance of the parent’s succession.</p>

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

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

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

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

<p>from the District Court of Lafourche, Randall, L</p>

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

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

<p>A. pm-chased property of B., which he subsequent sold, and, after some intermediate sales, again re-puroliased the property, assuming to pay a sum due on the price by bis last vendor. The plaintiffs brought suit on one of the notes which A. had thus assumed to pay. Held: that A. had no rights of warranty, so far, at least, as the price he promised to pay does not exceed the amount he received when he sold the property; and that he could not demand security from the plaintiffs against the danger of eviction from a judicial mortgage against B., which existed at the time he sold the property.</p>

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

<p>1 PPEAL from the District Court of Madison, Richardson, J.</p>

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

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

<p>Where a sheriff seized on execution a note which was filed in a suit in the clerk’s office, by taking temporary possession of it until he copied it, then returning it to the clerk, giving notice of the seizure to the clerk and the defendant in the suit in which the note was filed; Held: That a sale of the note under this seizure was invalid and conferred no title upon the purchaser. That to constitute a valid seizure of tangible property, it must be taken into actual custody, and that a promissory note must be seized as other movable property.</p>

<p>There were two parties who claimed the rent from a tenant. He selected the party to whom he should make payment, taking a bond of indemnity, in case it should he decided in a suit then pending that the other party was entitled to the rent. It was subsequently decided that he had paid the wrongparty. In settling with the party entitled to the rent, he transferred, in part payment, the bond of indemnity he had taken from the other party. Upon this bond suit was brought. Held: That the bond was legal, and that the plaintiffs were entitled to recover on it. *</p>

<p>The personal property belonging to a succession should be accounted for by the administrator at the place of the domicil of the deceased person.</p> <p>An administratrix of the succession of a deceased person who had been domiciliated in New . Orleans, went to Boston, and again qualified as administratrix of property belonging to the succession there. Held: That the administration there was to be regarded merely as auxiliary to the administration here, and that tlie administratrix was bound to account hero.</p>

<p>Every change in the owners of a boat, while she is engaged in carrying passengers and merchandize for hire, dissolves the existing partnership and creates a new one. A retiring partner remains bound for debts already contracted, but cannot be made responsible for new debts. 7</p> <p>The partnership created between the owners of a vessel engaged in commerce, is one only as to the use of the vessel, the ownership remaining with the individual partners, subject to the privileges in favor of the creditors of the partnership.</p> <p>Where one brother sold his interest in a steamboat to another brother, who was merely a clerk destitute of means, without the ability to have made the cash payment acknowledged to have been received, and the vendor remained in possession, it will be presumed that the sale was simulated.</p> <p>Where one of the owners of a steamboat sells out his interest, he will be entitled to the vendor’s privilege on the share thus sold, after the privileged debts against the boat are paid off.</p> <p>A revocatory action to annul a proceeding upon the ground of a fraudulent preference given to a creditor, cannot be tried in the form of an opposition to a distribution of a fund. On such an issue, the parties have a right to a trial by jury.</p> <p>Parties who sell supplies to a steamboat on time longer than sixty days virtually abandon their privilege, and will be regarded as ordinary creditors*</p>

This action was brought on a promissory note in the following words: “Baton Rouge, February 27th, 1845. In all the month of March next, I promise to pay to the order of TV. L. Fenn, $307 39 with eight per cent interest from date till paid, for value received. (Signed) Eliza Holmes, B. S. Holmes.”

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

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

<p>APPEAL from the District Court of Tensas, Richardson, J.</p>

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

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

<p>At common law, where a party has received paper as collateral security, he may excuse himself from liability for the failure to collect, upon showing the insolvency of the parties hound by the coliatoral paper or the inutility of suit; the rule being that the pledgee is liable only for the damages sustained by the pledgor.</p>

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

This is an appeal from the ruling or judgment of the court below, refusiug the plaintiff the right to cite in, and make the widow and heirs of J.- B._ F. Maxent, one of the defendants deceased, before issue joined, parties to the suit. The court, will find a suggestion of the death of Maxent, simply, by his counsel, without any “leave” asked for or granted by the court, “ to make proper parties,” as averred in his petition afterwards filed on the 21st September, 1850.

<p>In a suit for the annulment of a judgment decreeing the ownership of land, it is essential that the party seeking the annulment should allege, in his petition, the ownership of the land of which he has been evicted by the judgment he seeks to annul.</p> <p>In a suit for land which is alleged to be in the possession of A., as agent for B., an absentee, where the agent disclaims any title or possession either in himself or principal, and the residence of the principal is unknown, the appointment of a curator ad hoc to represent the absentee is proper; and the judgment thus obtained will be sustained, if legal in other respects.</p>

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

<p>In a suit where the defendant sets up a reconventional demand, the verdict of the jury in favor of the plaintiff covers the reconventional demand. If the defendant desired a special finding of the jury upon his reconventional demand, he should have asked for it before the verdict was recorded.</p>

<p>A slave may become a party to a civil suit when he has to claim or prove bis freedom. C. C. 177.</p> <p>The heirs may dispute a legacy to a slave of her freedom upon the ground of the concubinage of the slave with the testator, and cannot be defeated by the objection that they are thus alleging the turpitude of the person from whom they derive their title. In such a case, tbe fact that the legatee was the slave of the testator, does not constitute a legal excuse for the concubinage. C. C. 1468.</p> <p>Slaves are made immovable property by the laws of Louisiana; and the donation of freedom to a slave, is the donation of an immovable.</p>

<p>from the District Court of East Feliciana, Sterlings J.</p> <p>cited, to show that the note was not negotiable, and consequently not barred by prescription. Acts 1834, p. 118, sec. 11. 3 Kent, 49. Story on Bills, 61. Chitty on Bills, 180, 218. '</p> <p>cited, to show the negotiability of the note, Fleckner v. Bank of United, States, 8 Wheaton, 338. Miner ét al v. Mechanics’ Bank, 1 Peters, 46, 70. Story on Bills, p. 132, § 127. Angelí and Ames on Corp., 295, 296. Story on Agency, 130, 131, § 114. To show the power of the Bank as to negotiable paper, Myers v. JDeLee, 1 R. R. 516.</p>

<p>Where a party is in possession of property under a forthcoming bond which had been given to release the property from a sequestration, the party thus situated cannot be sued for the same property in another court, while the suit in which the property was sequestered is still pending, upon the ground that the property was improperly bonded.</p>

<p>In a prosecution, under the statute of 16th of March, 1830, against a person for having used language of a tendency to produce'discontent or insurrection among the slaves, it is essential that the indictment should set forth the words thus used, and charge that they were used with a felonious intent.</p>

A statement of the facts of this case will be found in the briefs of the counsel engaged in the case. Daniel Stocking died on the 1st day of January, 1848. John C. Morris applied for letters of curatorship bn the 7th of January, 1848; his application was published on the 8th of January, 1848, and he was appointed on the 12th of February, 1848. There was no opposition made to his application.

<p>In the inheritance of successions amongst collateral relations, the nearest in degree excludes all others ; and if there are several in the same degree, they partake equally. C. C. 910.</p> <p>The propinquity of consanguinity is established by the number of generations, and each generation is called a degree. O. C. 885.</p> <p>In successions falling to collateral relations, there is no distinction between those of the whole blood and those of the half blood: they share alike.</p> <p>A joint proprietor, or heir, or co parcener, can maintain a petitory action for the whole undivided property, against a mere possessor without title.</p> <p>A right is litigious only where there exists a suit and contestation on the same. O. C. 2623* C. O. 3522, $ 22.</p> <p>The defendant who wishes to avail himself of the privilege of paying the plaintiff the price at which a litigious right has been purchased, must actually tender or deposit the amount and cease all litigation as to the existence of the right.</p>

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

<p>APPEAL from the District Court of East Baton Rouge, Burk, J. On the opposition of William D. Baker to the account of the administrator.</p>

1. The plaintiff is the legitimate son and heir of the deceased; born and reared in lawful wedlock. Is pater est quem nuptial demonstran!. C. C. 203. 2. The declarations of his parents cannot render him illegitimate. Tate v. Penn, 7 N. S. 548. Eloiv. Mader, 1 R. R. 584. 2 Toullier, 119 3 Partidas, tit. 14,1. 19. Pand. lib. 22, tit. 9,1. 29. Lacombe, “ Mat. Enfant,” No. 10. 2 Manf., 442. Cowper, 591.

1. As Cain, in his petition, asked for no judgment, was it proper to render one ? 2. Should not the petition have notified them that Caz» sought to recover from them a judgment? He only demanded that they answer the interrogatories; and as they owed Hereford nothing, and no judgment was prayed for against them, they might well conclude that none was to be rendered. 3. No citation issued.

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

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

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

<p>Marriage between persons who do not live in the State gives rise to a community of acquets only from the time they come here to live, and where they do not come to live in this State, the wife has no community interest in the property acquired here by the husband.</p>

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

This was an action on the part of the wife against the husband for a divorce. The following extract from the decision of the district judge shows the nature of the case: “The testimony adduced shows that the defendant is an habitual drunkard and that he has been guilty of wanton cruelty and gross personal abuse towards the plaintiff. And that said drunkenness, cruelty and abuse are, in the opinion of the court, of such a character as to render it insupportable.”

1st. No sufficient consideration has been shown for said transfer. The voluntary sale from a husband to his wife cannot certainly give her any greater rights than a decree of the court executed. ¿ C. C. 2402. When such a sale is attacked the burden of proof is on the wife; JDeblancv. Deblanc, 4 L. R. 422. 2d. The husband cannot make any other contract with his wife than that of sale. C. C. 2421.

<p>By baying out the interestof the partners and receiving the partnership assets, the purchaser himself becomes the debtor of the creditors of the partnership to the extent of the assets. The interest of a partner in a firm is his portion of the residuary excess of partnership assets over liabilities.</p>

Joseph J. Capers was indicted for inveigling, stealing and carrying away a slave. The jury, by which the cause was tried, returned a verdict of guilty. Subsequently, a motion for a new trial and also for arrest of judgment was filed by'the counsel for defendant.

The court is referred to the affidavit of the attorney for appellant, showing that there was no one who could stand in judgment at the time the appeal was made returnable.

<p>The transfer of a judgment with all the rights resulting therefrom does not include a judgment for special damages allowed on the dissolution of an injunction taken out against an execution issued on the judgment so transferred, but it does include the interest of ten per cent allowed by the judgment dissolving the injunction.</p>

<p>Where executors, without judicial sanction, compromiso a note given for the purchase of property of a succession, they will be held liable for the amount of the note so compromised, unless they can show there Was a defence to the note, or the insolvency of the party bound to pay the note.</p>

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

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

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

<p>Tbe term Le2?rosy, used in tlie article 2502, prescribing the absolute redhibitory vices of slaves, does not apply to mere cutaneous diseases, which are not shown to be incurable, and which do not materially affect the value of a slave, although such diseases may be styled leprosy in the more general signification of that term.</p>

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

<p>A party will not be allowed to do that indirectly which cannot he done directly; and where a person, wishing to evade the prohibition of the law against donations to a concubine, has the title to a slave purchased by him made out as though the purchase had been made by the concubine, her title is no better than if it had been a donation in form. C. 0.1468.</p> <p>The concealment of a donation to a person incapable of receiving, under the form of an onerous contract evidenced by a notarial act, is in law a fraud upon the heir; and to establish that fraud, he may contradict the notarial act by parol proof or any other legal evidence. The rule, that the possession follows the authentic act by which immovables are transferred, is a fiction of law, not applicable to a case where the thing sold remains in the corporeal possession of the seller, who is suffered to act ad owner to the injury of a third person.</p>

Charles, Duffel, J. The judgment of the district court was as follows: “ The defendant in this case, Patrick Langton, obtained a writ of injunction to stay the execution of a writ of ji. fa. issued on a judgment of this court forfeiting a bond furnished by the defendant to secure his appearance in court to answer a charge of assault and battery. “ The injunction was applied for on the ground: 1.

<p>One partner against whom a separate judgment has been recovered, is an incompetent witness for the plaintiff to prove the indebtedness as against the other partner.</p>

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

<p>The domicil of the husband is also the domicil of the wife, and she has the right to call upon the police to protect her from violence even against her husband.</p> <p>The police officers, tor the purpose of preventing a felony or even a breach of the peace, may enter the dwelling house of the accused in the night time without a warrant and. arrest him, provided his conduct was such at the time as to justify the belief that the perpetration of a felony or breach of the peace was intended^</p> <p>Where the accusation of a crime includes an offence of an inferior degree, the jury may dis-</p> <p>charge the defendant of the higher crime and convict him of the minor one; hut several offences created by different statutes cannot be embraced in one count.</p> <p>On an indictment for an assault with the intent to commit murder, the jury may find the accused guilty of an assault with intent to kill.</p>

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

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

<p>Where a mechanic undertakes to make and deliver a piece of machinery as soon as possible, and actually does deliver the machinery, but7 so defective that it will not answer the purpose intended, he will be considered in default from the time of the delivery of the defective machinery, and will be held responsible for such direct damages as the other party may have suffered from the delay caused by the defective work.</p>

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

<p>Where no adequate cause is shown for the failure of the appellant to file the appeal in the Supreme Court in due time, the appeal will he dismissed.</p>

<p>An heir who sues for a share in the community existing between a deceased sister and her husband, cannot recover the value of what has been consumed in necessary daily use, nor for what was necessary for the continued improvement .and cultivation of the plantation in which he was interested, and in the crops of which he shared.</p>

<p>tPhe damages which may be recovered by the vendee from the vendor of real estate does not extend to the increased value of the property which has been caused by the mere fluctuation of estimated value. If the vendee has been unable to get possession of the property he is entitled to be reimbursed the price he lias paid with interest from the date of payment.</p>

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

<p>It is not a valid objection to an indictment against the accused for stealing a calf, that the terms he “ did steal, take and carry away," are used instead of “ drive away." Further, that the property stolen is described as goods and “ chattels," instead of “ cattle;" the term chatties including every species of personal property.</p> <p>If the indictment shows the offence to have been committed in the parish, it is sufficient showing of its having been committed within the jurisdiction of the district court of that parish.</p> <p>The Supreme Court will not revise upon a writ of error the decision of the district judge in a criminal case upon a matter which is subject to the exercise of his discretion; and consequently will not re-examine his refusal to grant a new trial.</p> <p>The judge of the district court should state the reasons and refer to the law on which the judgment is founded. If he omits doing so, the Supreme Court will amend the judgment in these respects.</p>

<p>Where a person entrusts to a merchant engaged in trade in Western produce on his own' account, and also as a factor, a sum of money to be invested in whiskey, and the merchant accordingly buys and keeps stored in his own name a large quantity of the article, giving the party thus advancing a memorandum of the purchase, which be neglects having placed to his account in the warehouse, the merchant, having the indicia of ownership, will be regarded as the real owner so far as third persons are concerned.</p>

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

<p>The same principle decided in the preceding ease.</p>

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

<p>APPEAL from the District Court of Jefferson, Ciarle, J.</p> <p>amongst others, _made the following point: That the plea of “failure to reinscribe,” made by defendants, was not sustained by any proof, and the onusprohancli lays on the party making the plea. In support of this ground he referred to decisions in reference to pleas of prescription, which he contended were analogous, viz: Andrews v. Rhodes, 10 R. R. 52. 5 N. S. 341. As to the onus prohandi, he referred to 9 M. R. 48. 6 N. S. 88. Greeuleaf on Evidence, No. 74.</p>

<p>The sheriff) by consent of parties, sold a steamer which had been seized on a writ. The terms of sale were a portion cash, and the balance for satisfactorily endorsed paper at eight months. At the time of the sale, inqiury was made by the sheriff as to the solvency of the proposed endorser of the note, who was considered good by the persons inquired of. The note was protested at maturity and suit brought upon it, in which nothing was recovered on account of the insolvency of the parties to the note.</p> <p>The plaintiffs then brought suit against the sheriff) for his neglect in not taking proper security. The plaintiffs had made no objection to the endorser until after the failure to collect the money of him on execution. Held: that the sheriff had shown due diligence at the time the note was taken, and that although the evidence showed the endorser to have been insolvent at the time, the fact was not generally known amongst the commercial community.</p>

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

In January, 1838, Penelope McGill purchased at a probate sale of the property of the succession of John Fucker, a cotton plantation at the price of about $90,000, for which she executed her notes… Held: that under the Partidas the law of the place of marriage governed only so long as the parties remained at that place; and that on their removal to a country under Spanish dominion, their acquisitions were governed by the Fuero Real.

<p>APPEAL from the District Court of Iberville, J. J. Burk, J. W. E.</p>

This case came up on an appeal from a judgment against Edward Brown, the intervenor. 1st. No act has been done by plaintiff, Rogers, in any way showing an intention to renounce his privilege as vendor. Hence this privilege still exists on all the slaves sold. 2d. The act of sale from plaintiff to defendant is properly recorded, and in accordance with law.

The plaintiff sued to recover a lot of household and kitchen furniture whilst in the possession of the defendant, or at least from the time they were demanded; and in case the defendant did not restore the furniture, then that she be decreed to pay the value of it.

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

<p>Where the judgment of the lower court allows a little more interest than was really due, the defendant should move to correct the mistake before the judgment is signed.</p>

<p>Notice of protest served upon one of several executors of a deceased endorser is sufficient to bind the estate.</p>

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

<p>íthe necessary expenses for boarding and medical attendance upon slaves, seized in a suit • and so held pending tlie litigation, constitute a privileged claimed upon the slaves. C. C. 3191, 3229.</p> <p>Slaves, although generally immovable by law, are movable by nature, and are, like other movables, subject to a privilege for the expenses necessary for their preservation. C. C, 461, 3SP9,3191.</p>

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

The important facts of this case are correctly stated in the Brief of the plaintiff and appellant’s counsel. The points raised may be considered under the following heads: 1st. The period fixed for the execution of the slave Jerry having passed, pending an appeal to the Supreme. Court, and no new day having been designated for. the execution at the time of the commutation of the punishment, has the sentence become inoperative, and the commutation ineffectual?

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

<p>The surety on a forthcoming bond for property which had been attached is not liable on a rule taken against him, without a ji. fa. against the principal in the bond having been returned unsatisfied, or, at least, until the principal has been put in default for the failure to produce the property bonded.</p>

<p>A clerk iu a large dry goods store frequented by female customers, while ladies were in the store, engaged in a quarrel with another clerk and drew on him a revolver without there being any necessity for such violence, Held: that such conduct justified the employer in discharging him.</p> <p>Where a party has used the process of courts for the sole purpose of vexing and harrassing the defendant, without any reasonable hope or expectation of recovering any portion of the sum claimed, such party becomes liable to the other for damages, even though the suits thus brought were merely ordinary civil suits.</p>

upon the question of evidence decided by the Supreme Court: As to the letter of the defendants, of course they cannot make evidence for themselves. Weave completely-strangers to the matters therein set forth. The defendants could only establish these matters by proper evidence. The letter was introduced merely to show the fact that such a letter was written, and received by plaintiff, after the plaintiff had attempted to get possession of the leased premises.

Plaintiff owned, in her own right, a valuable real estate in the State of Virginia, where she resided till within a few years last passed; that her husband owned a large number of slaves; that from losses in trade, he became embarrassed and was-obliged to sell property to pay his debts; that plaintiff consented that her husband should sell her land to pay his debts, upon the condition that he would convey to her by means of a trust deed a number of slavos equal in value to…

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

<p>APPEAL from the District Court mf Plaquemine, Rousseau, J.</p>

<p>Where a party who has advanced money Upon a hill of lading, which he afterwards has íéá' son to believe is a forgery, permits the supposed forger to raise means from a third persoU to reimburse the advances made, and the bill of lading proves to he a forgery, it will he regarded as a fraud upon the third person, by which the party who made the advance will not he allowed to benefit himself.</p>

<p>APPEAL from the Fifth District Court of New Orleans, Buchanan, J.</p> <p>This case came up on a rule by the syndic of the insolvent against the recorder of mortgages.</p>

made the following points which were deduced from an elaborate examination of the case, and of the authorities: The testimony of defendant tending to prove, by parol evidence, a verbal representation made by the auctioneer, pending the sale of immovable property, and where, besides, better evidence exists, cannot be admitted. ■ In support of this position he relied upon C. C. arts. 2584, 2415, 2256 and 2586. Macariy v. New Orleans Canal and Banking Company, 8 R. R. 105.

<p>APPEAL from the Fourth Justice of the Peace of the parish of Orleans,</p>

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

<p>A constable bad seized a slave upon which there were prior special mortgages for more than Ins value. On the day of sale, the mortgagee made a verbal consent to the silo upon the condition, that the constable should hold the proceeds until other property included in the same mortgage was discussed. Held : that as the judgment debtor did not consent to this arrangement, the sale was invalid, although the other property, when sold, actually more than paid the mortgagee.</p> <p>Where property seized on execution is not sold, because the sum bid does not exceed the amount of prior special mortgages, the seizure is not thereby released. If the property ho real, the rents are to be collected by the sheriff and applied to the execution ; or if it bo slaves the judgment creditor may arrange to be subrogated to tlie rights of the mortgagees.</p>

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

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

<p>Where a person makes an engagement with a broker for the purchase of a house, and tho ’ principal refuses to sell the house on the terms stipulated by the broker, but does sell at an increased price, the broker cannot claim his commissions of the purchaser.</p>

<p>An act of the Legislature, authorizing police juries to impose taxes, to be assessed equally on real and personal property, slaves, and any other property, does not authorize a police jury to lay a tax on the profession or calliug of a commission merchant or retailer.</p>

<p>The testimony of one witness is not sufficient to destroy the answers of a defendant to interrogatories propounded to him by plaintiff; nor will the possession of promissory notes, which are harred by prescription, he considered asa sufficient corroboration of the testimony of a witness to a promise, on the- part of defendant, to pay the notes, when the promise is denied by the defendant in bis answer to the interrogatories.</p>

<p>Damages for the wrongful issuance of a provisional seizure for rent, will not he allowed where the seizing creditor acted without malice, and where the circumstances were such as to give prohable cause for the seizure.</p>

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

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

<p>APPEAL from the District Court of Jefferson, Clarice, J.</p> <p>In this case a sheriff’s sale was sought to be annulled upon the following grounds: 1. That there was no judgment authorizing the writ under which the sheriff acted. 2. That no notice, as required by law, was given to Kessler; nor the legal advertisements made previous to the sale. 3. That the sale was not a public one, but the result of a combination between D’Orgenoy and the sheriff for the benefit of the latter. 4. That the price was never paid. 5. That the sheriff never made any return of the writ under which he acted. 6. That the sale was not registered in the proper office of conveyances in the parish of Jefferson.</p>

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

<p>A vessel is not liable for damage caused to goods from the “ sweating of the hold’’ when the vessel has been supplied with proper ventilators. But if the injury results from improper stowage, the vessel willbe held liable.</p> <p>When goods receipted for in good ordor are found in a damaged condition at the end of the voyage, the vessel is presumed to be liable until the injury is shown to have been caused by the act of God, inevitable accident, or public enemies.</p>

<p>In tlie absence of evidence to show the value of the fruits of property belonging to minors, the tutrix who has acted in good faith is liable only for legal interest on the appraised value of the productive property; and where the tutrix possessed in good faith, as her own, property which in reality belonged to the minors, she is liable for interest only from judicial demand.</p> <p>A disposition of more than the disposable portion is not null, hut only reducible upon the action of the heirs to the disposable portion.</p> <p>Where minors, after becoming of age, purchased property for less than its appraised value, on a judgment obtained against their mother as tutrix,* brought an action, alleging the nullity of the said judgment and claiming a new settlement, they will be compelled, so far as third persons are concerned, to account for the property, so purchased and retained by them, at the appraised value, and not at the price given by them.</p>

The defence set up may be classed under three heads: I. The errors committed by the plaintiffs in a former suit, and the judge who rendered the judgment. The one in asking for, and the other in rendering a judgment that was contrary to law and the evidence. 2. That the judgment has been reversed by the Supreme Court. 3. That the action is barred by the prescription of three years.

Celestin. Leonard was indicted, in the First District Court of New Orleans, of the crime of murder, and convicted, without capital punishment. Three others were indicted with him, as aiders and abettors, but were acquitted. Leonard has appealed, and relies on two grounds for a reversal of the judgment against him, and for a new trial.

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

<p>Where a collision of vessels has occurred without the fault or negligence of the defendants, or where the plaintiffs were as much in fault as the defendants, no damages can he recovered.</p>

<p>The plaintiff sold the defendant a quantity of salt, -which at the time was afloat and to arrive at a future day. When the salt arrived, the defendant received it without objection, and then refused to pay the price, on the ground that the salt was damaged. The damage consisted in the sacks having been blackened by stowage with coal or other black substance. Held: That as the injury was apparent, and the purchaser had received the salt without there having been any fraud or concealment on the part of the seller, he was bound to pay the price</p>

<p>The act of 13th March, 1837, requiring syndics, executors, curators, &c., to deposit funds iu their hands iu one of the hanks allowing interest on deposits, is not unconstitutional; and such fiduciaries are not excused from the penalty imposed by the law, upon the ground that there were no banks whichpaid interest on deposits.</p>

<p>The Union Bank held a mortgage and pledge upon a plantation and the crops, to secure the amount due on a loan on a pledge of stock, which was also secured by a mortgage on the plantation. A judgment creditor caused the sale of the plantation, and became the purchaser, retaining in her hands the amount due to the Union Bank. Another creditor, on a judicial mortgage, claimed the proceeds retained by the purchaserfor the Union Bank. It appearingfrom the evidence that the Union Bank bad received a portion of the crops pledged to it, Held: that the bank was bound to apply the proceeds to the debt; and the amount thus received was to be deducted from the amount retained, and applied to the payment of the judicial mortgage, further, that the stock of the bank should be sold, and the proceeds also applied to the payment of the debt due to the bank; and that the surplus thus left in the hands of the purchaser should be applied to the judicial mortgage.</p>

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

<p>This case was submitted to a jury without argument of counsel. Upon the jury returning and requesting argument, it was agreed the case should be argued on the following morning. On that morning, one of the counsel of record for the plaintiff fell sick. Another counsel for the plaintiff was present, who moved the postponement of the trial on account of the absence of his associate counsel. It being the last day of the jury term, the court refused the postponement and the case was left with the jury. Held: There was no error in the refusal of the court to postpone the trial on account of the absence of one counsel, when another, on the same side, was present.</p> <p>Where a party effecting an insurance upon a vessel had heard a rumor that the vessel was lost, he is bound to communicate the rumor to the insurance office, although he may have had doubts as to the truth of the report.</p>

<p>APPEAL from the District Court of Plaquemine, Rousseau, J. J. Q.</p>

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

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

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

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

<p>An order of seizure and sale on notos secured by mortgage should not be issued for the costs of protest, when there was no evidence that the notes had been protested.</p>

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

<p>Our laws secure the public use of the banks of navigable rivers, and within the incorporated limits of towns the municipal government is authorized to regulate that use; but their regulations must be in furtherance of the public use to which the banks are subjected, and cannot be taken advantage of for the purpose-of forever enjoying the property of the riparian proprietor, which is not necessary for public use.</p> <p>CcuiTÓllton Bank v. Winthrop, 5th Ann. 36, affirmed.</p> <p>The public have the right to use the banks of navigable rivers, but this right does not authorize the permanent location of a dry-dock in front of the land owned by another person.</p>

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

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

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

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

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

<p>Where A. entrusts funds to B. to pay over to C. the latter has not the right, in case B. misapplies the funds, of proceeding against him under the 10th section of the act of March, 24th 1840, abolishing imprisonment for debt. That right exists in A. alone.</p> <p>Where an agent receives money with instructions to pay it over to a third person, upon his neglecting to do so the third person may maintain an action against him for money had and received for his use.</p> <p>It is a settled rule of the law of mandate, that if the instrument confirming the mandate be not expressed in plain and unequivocal terms, free from ambiguity, but is susceptible of different interpretations, and the agent is thereby misled, the principal will be bound and the agent exonerated.</p>

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

<p>Where a judgment of the Supreme Court, after recognizing the plaintiff’s right to recover, remands the cause for the purpose of fixing definitely the amount, it is not such a final judgment as renders the security on the appeal hond liable.</p>

<p>Usurious interest which has been paid cannot be recovered back after the lapse of twelve months, nor can it be imputed to the original debt.</p> <p>An order of seizure and sale cannot be enjoined on account of an unliquidated claim for</p>

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

<p>APPEAL from the District Court of West Feliciana, Stirling, J.</p> <p>This is an action brought by plaintiff against the defendants for the value of a slave by the name of Ned, alleged to have been killed by the defendants. The petition sets forth the time and manner of the killing of the slave, aud alleges that the killing was the act of the defendants, and avers the slave to be worth the sum of $-, and prays judgment against the defendants in solido, for the amount, interest and costs. The defendants answered separately, but merely put in a general denial.</p> <p>Upon the merits, the killing of the slave Ned by defendants is fully made out. See testimony of Ackley Perkins, of George Williams, and of John Wederstrandl. The facts, as proven by the witness Ackley Perkins, are substantially as follows : the defendants came to the house of witness early in the morning with their negro dogs, and said they were going to hunt runaway negroes ; they went down into the plantation of witness, and were not long gone before witness saw them returning, one of them walking, and the negro boy Ned lying across one of the horses, shot. They brought him to the house of witness; and after some ineffectual attempts to staunch the blood, the negro was sent home to Benjamin’s, his master, and next day he died of his wounds. The testimony of John B. Wederstrandt, who was one of the coroner’s inquest, fully describes the nature of the wounds, and the cause of the negro Ned’s death.</p> <p>The defendants attempted to justify, by trying to prove Ned was run away; this they endeavored to establish by several witnesses. This testimony was objected to by plaintiff’s counsel, upon the grounds that the character of the boy Ned was not put at issue by the pleadings, and there was no allegation in the answer that Ned was run away. The court received the evidence, and plaintiff took his bill. They also proved by Perkins, that they brought in with Ned a large carving knife that had been stolen or taken from his quarter, that was used there for cutting up meat, when they issued out allowances to the negroes. They also proved, by George Williams, that some of the dogs were cut with a knife, &c. All this was objected to by plaintiff’s counsel, but admitted by the court, and bill reserved. This is, in substance, their justification. They also endeavored to prove that Francis Matt was a freeholder. This was also objected to, on the ground that a title to freehold could not be proved by parol.</p> <p>Then, the first question that presents itself to the mind is, was the boy Nedthe property of Mr. Benjamin, the plaintiff, killed ? If so, by whom was it done ? That he was killed will scarcely be denied. If it is, then the testimony of Ackley Perkins, George Williams, John B. Wederstrandt, and Robert Chatham, before referred to, fully establishes the fact. Then, did the defendants doit? No one saw them do it. But they were seen bringing the boy Ned home across one of the horses, badly shot, and fresh bleeding; and that the boy died next day, and an inquest was held over him. Have they attempted to account for the boy Ned’s being in that condition ? Certainly not; but they have attempted to justify, by endeavoring to prove Ned was a negro of bad character; that he was runaway at the time, and that some of their negro dogs were cut with a knife, and that the knife brought home with them was stolen from Perkin’s quarter. They have attempted further to prove by Robert Chatham, that when he related to Benjamin what Davis had told witness about the killing of the negro, that he, Benjamin, said he wished they had killed the rascal. Now is not the conclusion irresistible, that Davis and Matt killed Benjamin’s boy Ned; they were seen going out in that direction in the morning, hunting runaway negroes, and soon returned with Ned badly shot, of which he died next day. Benjamin all the while was absent from home.</p> <p>Davis was the overseer of Benjamin. This boy the day before had given some offence; Davis attempted to flog the boy, and Ned run; this is the head and front of Ned’s offending. And Davis goes and gets Francis Matt and the negro dogs, and because Ned had not power of human endurance enough to stand and let the dogs worry him to their entire satisfaction, they shoot him down like a beef. Just imagine what excuse can two powerful, athletic men, with horses, guns, pistols, and dogs, in an open field, have for shooting an old negro down of forty-five years of age, unarmed, or at least having nothing but a carving knife, if that. If this is to be tolerated, the shedding of that species of human blood is much more commendable than I had ever dreamer/ of. It is true there has been one mistrial, and the last time the case was submitted, without argument of counsel, the jury gave a verdict for the defendants. But now we rely on this court for a reversal of that verdict, and one in favor of plaintiff for the value of the boy Ned, as prayed for, with interests and costs in both courts. See the case of Bell v. Hebert, 3 Ann. 132 ; Crawford v. Chaney, 3 N. S. 143; 16 L. R. 117 ; 1 R. R. 140; C. C. 2294, 2309, 1928; Allen v. Young, 9 M. R. 221; Delery v. Monett; 11 M.R. 10 ; Morgan, Syndic, v. Feverish, 8 N. S 590; McMasters v. Beckwith, 2 L. R. 331; Gotdenburgh v. Wright 13 L. R. 373; Taylor v. Andrews, 16 L. R. 438.</p> <p>In this case a motion has been filed to dismiss the appeal, on the ground that no legal return day for the same has ever been fixed by the judge of the.district court, and on the ground that the record was filed too late. On these points the-record shows, that, on motion of counsel for the appellant, an appeal was granted, and made returnable on the second Monday in February, A. D. 1851. The legal return day forappeals from the Seventh Judicial District Court is the fourth Monday in February. Act of 1850, p. 45. The late Supreme Court held, that an order allowing an appeal returnable on a day on which the court does not sit, is as an order allowing one returnable on any day, or not returnable at all. Rains v. Kemp, 4 L. R., 318. The order, then, making the appeal returnable on the second Monday, a day on which the Supreme Court does not sit for the trial of appeals from the seventh district, is the same as if no return day had been fixed. The provisions of law are positive, requiring a return day to be fixed. C. P. 574.</p> <p>Should the court be of opinion, that the second Monday was so far a judicial day, that the appeal was not vitiated by being made returnable on that day, then, by the same reasoning, the days following the 'second Monday would be judicial days, and the appeal should be dismissed on the ground that it was filed too late. The appellant, certainly, should not be permitted to treat the second Monday and the three days thereafter as judicial days,'on which his appeal could properly be made returnable, and treat them not as judicial days when it is sought to enforce against him the legal penalties, for not seasonably filing his appeal.</p> <p>This suit is brought to recover the sum of eight hundred dollars damages, alleged to have been occasioned by the act of the defendants, in shooting a slave belonging to plaintiff. The defendants severed in their answers, each pleading the general issue. One of the defendants, Joseph Matt, subsequently filed an amended answer, in which he alleged that he was a freeholder. A motion was filed for a separate trial, which was overruled.</p> <p>This case turns mostly on questions of fact, upon which a jury has found in favor of the defendants.</p> <p>The only evidence, to prove the killing of the negro, is the testimony of Achley Perkins and George Williams, who testify, that they saw the negro on the horse of one of the defendants, who brought him to the quarter of Dr. Perkins, there borrowed a cart and sent him to the residence of plaintiff, and that during the time the negro was thus in the custody of the defendants, he was suffering from a gun-shot wound. There is no'act of the defendants thus testified to, but what tended to protect and preserve, rather than destroy the property of plaintiff.</p> <p>The evidence for the defendants shows that the negro was a runaway. It also shows that the negro was armed, and resisted. Achley Perkins testifies that, when he saw the defendants with the negro, one of them had a knife about eighteen inches long, which belonged to witness ; that the negro had a wife on the plantation of Dr. Perkins, and that the lcnife had been stolen from the house in which the negro was in the habit of staying when in the quarter of witness; that the dogs of defendants were bleeding and appeared to have been cut with a knife. The evidence shows that the negro was a runaway, and justifies the inference that he was armed, and resisted attempts made to capture him.</p> <p>It is lawful to fire upon runaway negroes who may be armed, and upon those who, when pursued, shall refuse to surrender. Greiner’s Digest, § 3396.</p> <p>Aside from the evidence, which brings the case clearly within the provisions of the law last cited, the presumption of law in favor of the defendants would be sufficient to exonerate them from all responsibility. The negro, by being a runaway, had placed himself in a state of resistance to the authority of tho_ defendant, who was the overseer and agent of the plaintiff, and also in a state oí resistance to the laws, and this resistance must be presumed to continue until some act on the part of the slave be proved, showing his submission.</p> <p>It was the duty of Davis, as overseer for plaintiff, to attempt to capture the negro. He had a right to use the dogs in his attempt to make such capture, such means being customary among the planters of the parish, and the same means having been previously used by plaintiff to capture the same negro. The evidence shows that the defendants were acting in good faith towards the plaintiff, and that when Davis was asked to join in the hunt, he replied that he would, as one of Benjamin's negroes had runaway; and asked permission to take him home, in case he should be caught, without having him committed to jail.</p> <p>It is also in evidence that the plaintiff, when informed that the negro had been shot, replied, that he wished he had been killed.</p>

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

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

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

<p>Where a note secured by mortgage is endorsed by tliepayee to a third person, the endorsee cannot issue executory process on the mortgage, without authentic evidence of the endorsement.</p>

<p>Where cotton had been consigned to the plaintiffs by the shipper, and the clerk of the boat by mistake, filled up a bill of lading to the defendants, who, received and sold the cotton, notwithstanding the claim of the plaintiffs and the correction of the mistake by the clerk of the boat soon after the delivery, the defendants will be held liable for the advances made by the plaintiffs and the commissions received for the sale of the cotton; and in such case the consignor is a competent witness for the plaintiff.</p>

<p>A certificate of a commissioner to take testimony, at the end of the answers to the interrogatories in these words, “ sworn to and subscribed before me, commissioner, &c.” is not alone a sufficient proces verbal, to authorize the reception of the testimony in evidence.</p> <p>Where testimony has been taken under a commission, which on the trial was rejected on account of informalities in the manner of execution, and it appears that the testimony had been filed long enough before the trial for the party to have had it taken over again, the case will not be remanded to allow him an opportunity of re-taking the testimony.</p>

<p>APPEAL from the Third District Court of New Orleans, Kennedy, 3.</p>

<p>The defendants had contracted to furnish their notes, payable at one, two, three, four and five years, but did not do so, and the plaintiffs, after the lapse of twelve years, brought suit against them. Held: that the action was barred by prescription.</p>

<p>A mandamus -will not be issued to a judge of the district, directing him to grant an appeal from an interlocutory decree ordering the sale of partnership property in a suit between partners for a dissolution and settlement of the partnership.</p>

<p>The plaintiff had seized, on an execution, property on which there appeared to he a mortgage, by the recorder's certificate. He then took a rule against the mortgagee to show-cause why the mortgage should not be cancelled, upon the ground that it was simulated: Held: that the validity of the mortgage could not be tested in this summary mode, but that the plaintiff must resort to an ordinary action.</p>

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

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

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

<p>Where casks of wine had been so badly stowed, that in a gale of wind of no great violence, they were turned with the bungs down, so as to cause leakage through the vent holes left for the fermentation of the wine, Held,: that the vessel was not entitled to freight.</p>

PPEAL from the Third District Court of New Orleans, Kennedy, J. upon the subject of the consequential damages, made the following argument: If the defendant undertook to haul this cotton for us, knowing that we wished it hauled with a view to realize the profit on compressing, and yet failed to haul it without any good excuse, and thus deprived us of the profit which we would otherwise have made, and rendered dead and fruitless the large capital we had invested, it would…

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

This cause was tried by a juiy, who gave a verdict for the plaintiff for five thousand dollars. The defendants appealed.

<p>Where a party sells property, stating that he sells ude bonnefoi et sans tiires,” the purchaser does not acquire such a right as to be the basis of ten years prescription.</p> <p>An executor cannot, as a general rule, sell property of a succession at private sale; but where he has done so, if the heirs do not object after a long lapse of time, the presumption is, they have ratified the sale by receiving the price ; and the title of the purchaser is a just title.</p> <p>Where an executrix was also sole heir, her selling the property of the succession at private sale will be regarded as an acceptance of the succession as heir; and the title conveyed will be considered a just title.</p>

<p>The clause of the 95th art. of the Constitution, which restricts eligibility to parish offices to persons who have the right to vote in such parish, contemplates State officers; and does not prevent a municipal corporation from electing a surveyor who resides in an adjoining parish.</p>

<p>The ordinance of Municipality Number One, approved January 31st, 1849, imposing a tax of one dollar per day upon persons retailing oysters in any water craft, or on the levee or batture, and in case of non-payment to be subject to a fine of five dollars, and not more than ten dollars, is illegal in assessing a penalty for the non-payment of the tax.</p>

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

<p>The payment of a policy upon the life of a slave was resisted, upon the ground of the existence of a chronic disease in the slave at the time of effecting the insurance. The evidence, on the part of the defence, rested principally upon the opinions of physicians from a post mortem examination, made fifteen hours after the death. The slave was examined at the time of making the insurance, by a physician of the company ; and was proved not to have been sick before, by the physician who practiced in the negro-yard from which he came. Held: The Insurance Company was liable on the policy.</p>

<p>APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>Iu this case, the principal contest arose between the plaintiffs and Gray and Campbell, the garnishees.</p>

<p>The art. 313, C. P., requiring that in claims for damages, the court shall direct a jury to be summoned to assess the damages, where a judgment by default is sought to be confirmed, applies only to cases wherein the damages are uncertain, and rest in opinion alone, without a fixed rule or means of proof to ascertain them precisely; as in suits for slander, libel, and the like. The artielo does not apply in cases of damages for breaches of contracts, where the damages can be ascertained with certainty.</p> <p>Where a judgment by default was confirmed upon testimony sworn to before the deputy clerk, but his attestation does not show that it was taken in open court, it is liable to objection; but the objection will not be examined by the Supreme Court, unless brought before it by bill of exceptions, or in some other legal manner: and it forms no excuse for not taking the bill of exceptions, that it was a confirmation of a judgment by default; as the defendant should have been present to protect himself from the effects of illegal testimony.</p>

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

from the District Court of Jefferson, Clark, J. The principal evidence in this case, was as follows: “ Received from the defendant, the sum of three hundred and sixty-nine dollars, in full satisfaction of the plaintiff’s demand; the plaintiff to pay costs. New Orleans, April 5th, 1848. ( Signed) R. M. Carter, Attorney for plaintiff.” “ Richard M. Carter, witness for defendant. Testimony taken by consent, subject to legal exceptions, except as to matters of form.

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

<p>Where an amended petition was unnecessary, because the evidence to sustain it could havd been properly introduced under the original petition; Held: That the filing of the supplemental petition afforded no good ground for a continuance on the part of the defendant; and that the case was properly tried, without any answer to the' supplemental petition on the part of the defendant. i</p> <p>Where a party has himself opposed a motion to rescind an order of cumulation of two suits, he cannot complain of the order of cumulation.</p> <p>A surviving partner cannot maintain a suit upon an obligation for money due to the partnership, without making the representatives of the deceased partner a party; but where the suit is to annul a sale in which he has an interest, even of a movable, it can be maintained by him alone.</p> <p>The whole tendency of modern practice is, to enlarge the latitude as to .the admissibility of evidence, leaving the courts to restrict its applicability.</p> <p>Notice of seizure on execution to a debtor before the sale must be made, unless clearly waived; and parol proof of the waiver is not admissible. Notice to the attorney of a debtor, who is himself present in the State, is not sufficient.</p> <p>Such instruments as twelve months’ bonds cannot be seized on execution, without taking actual possession of them by the executive officer, and delivery of them to the purchaser, in pursuance of the adjudication.</p>

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

<p>The plaintiffs sold a steamer to A. and Bfor the accommodation acceptances of the defendant. They also had the policy for the insurance of the ho at transferred to them. Oil this policy $1000 were collected, which the plaintiffs permitted A. to use. Held: That the plaintiffs were hound to have seen the $1000 applied to the payment of the acceptances; and that the acceptor was discharged to that extent.</p>

<p>Where A. garnisheed, on execution against B., a claim for which B. was sueing C., notice to B. of the seizure was not necessary. The law only requires that notice of the seizure should have been given to C.</p>

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

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

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

<p>The Commercial Bank, having gone into voluntary liquidation, under the act ofl2fcli of March, 1842, presents no reason why the commissioner appointed to liquidate its affairs should notuse the corporate name of the hank, in collecting its debts by judicial proceedings.</p>

In this case, Francisco Del Camino intervened, and also claimed damages for goods shipped on the John Bell, which were lost.

<p>Where the plaintiff Sues for a debt due to him individually, the defendant may plead, in com-' pensation, a debt due to him by a commercial firm, of vvhich the plaintiff was a member.</p>

<p>The sheriff had seized, on execution, property, as belonging to the defendant, which was claimed by a third person, and an injunction obtained against the sale of it. The judge, in granting the injunction, made an order for the delivery of the property to the claimant. On a rule taken by plaintiff’s counsel, this order was rescinded. The claimant then applied for an appeal from the judgment rescinding the order, on the refusal of which by the district judge, application was made to the Supreme Court for a mandamus directing the district judge to grant the appeal. Held: That the judgment was an interlocutory order, which could not work irreparable injury; and was not, therefore, subject to an appeal.</p> <p>Where the sheriff has made a seizure of property on an execution, the sale of which was enjoined, and the property claimed by a third person, until the trial of the injunction, the court is bound to believe the property belongs to the defendant in execution.</p>

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

<p>Every fraudulent device, contrivance or artifice, by which a creditor may have been injured, and from which a fraud upon his rights is practised, may be remedied by the action ot creditors in avoidance of contracts, provided by the Civil Code.</p> <p>Under arts. 1972 and 1973, C. C., the plaintiff is entitled to the alternative remedy, of either having the sale annulled, and the property applied to the payment of his demand; or, judgment for his debt, against the possessor of the property.</p>

<p>On a Re-hearing.</p>

<p>The Tight of resorting to force, upon tlie principle of self-defence, does not arise while the apprehended mischief exists in machination only, without some positive act showing the necessity of thus resorting to violence.</p> <p>A cause should not be continued on account of the absence of a witness, when the facts expected to be proved by him can as well be established by other witnesses who are present.</p> <p>In order to obtain a continuance, on account of the absence of a witness, it must be shown that his testimony is really material, and that the party has used due diligence to obtain the testimony, according to the rules of law and tbe practice of our courts of criminal jurisdiction.</p> <p>The rule of court, that evidence of verbal agreements between counsel, as to the trial of a cause, will not he received, is applicable to criminal as well as to civil cases.</p> <p>Letters found in one of tbe garments of the accused, in the room where, shortly before, ahoxni* cide had been committed, are admissible as circumstantial evidence, without proof of the handwriting of the accused.</p> <p>If the jury carry with them, when retiring to consider of their verdict, a paper they should not have carried, this does not avoid their verdict; nor is it sufficient ground for a neiv trial, unless it appear that the jury were improperly influenced by the paper so earned with them.</p> <p>If the jury, in rendering their verdict, decide the whole issue, and then add other immaterial things, the verdict is not thereby vitiated. The immaterial things so added will he regarded as surplusage.</p> <p>Matters left to the discretion of the judge of the district court, resting on facts, such as motions for continuance and new trials, will not he reexamined by the Supreme Court, in criminal cases.</p>

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

<p>The plaintiff garnisheed, on a judgment against the defendant, an absentee, by service on his agent; Reid: That as no special authority was shown in the agent to answer for the principal, the answers of the agent did not bind the principal, and that no judgment could be entered against the principal.</p>

<p>Where the principal resides in a foreign country, and his agent, without any sufficient authority, makes a contract for him, which he afterwards ratifies, the contract will bo governed by the law of the place of the agent’s residence ; the ratification relating back to the date of the contract.</p> <p>An assignment, by an insolvent debtor, for the equal distribution of his property among his creditors, in a country where such assignments are legal, will be valid against all creditors who reside in countries governed by similar laws. Such an assignment made in New York, is valid against a creditor residing in Mississippi.</p>

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

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

<p>The plaintiffs, on an execution, had garnisheed A. He filed his answers to the interrogatories. Six years after, the plaintiff's took a rule against the garnishee, to show cause why judgment should not be entered against him upon his answers. The grounds of the rule were, exceptions to the manner in which the interrogatories had been answered. Held: That a final judgment could not be entered against the garnishee.</p>

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

<p>APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>contended as follows : This is an injunction.-taken out by plaintiffs to arrest certain seizures against its property, under judgment obtained by defendant. There was no contest as to the correctness of the judgment under which the execution issued ; the plaintiff merely contending that the property seized was not liable to' seizure. The injunction was dissolved in the lower court, with damages. On the merits, the only question in controversy is, whether the effects seized are liable to seizure.</p> <p>The petition of the plaintiff classes them all under the name of revenues of Municipality Number Three. But it is contended, that this is by far too broad a term to bring them all, if any, under the scope of the decision of this court, in the case of Egerton v. Municipality Number Three, reported in 1st Ann. To simplify the enquiry, we will divide them in three classes, according to the distinctions made in the petition of plaintiffs, and argue each in its turn. And 1st. The petition names “a certain twelve months’ bond given to Municipality Number Three, for the sum of dollars, at a certain sale made of certain property belonging to the succession of Qormley, under a judgment obtained against said succession for banquets made by this petitioner. The case of Egerton v. Municipality Number Three, taken in its broadest construction, only decides that taxes of the municipality could not be seized by its creditors. The bond seized was clearly not obtained for a tax. The judgment was obtained against said succession for banquets made.”</p> <p>This court has decided that assessments for paving, ordered to be done by an ordinance of a city corporation made in the exercise of its legal authority, are not taxes. 4th Ann. 1. In New York, churches are exempt from taxation. A religious corporation claimed exemption from certain assessments, under the law in that city, similar to ours, relating to opening of streets, asserting that the bur-then thus imposed was a species of tax ; the Supreme Court held differently. 4th Ann. 2. Matter of the mayor of New York, 11 John, 80. An impost, tax or duty, is an exaction to fill the public coffers, for the payment of the debts aud general welfare of the country. An assessment provided to pay the expense of constructing bridges on causeways, etc., to bo paid only by those who enjoy the advantages resulting from such expense, is neither an impost, tax nor duty. 11 John. R. 11 M. R. 325, 333, 335. It was therefore a mere debt due to the municipality, which had, moreover, assumed a still more transferable form, in the shape of a bond given in paymentof the property of the succession of Gormley, sold under the judgment. It even appears, from the testimony of the treasurer of the municipality, that the plaintiff did consider it as a negotiable instrument, as it had once transferred it to some other of its creditors, though it subsequently returned to the possession of the municipality.</p> <p>2d. From the testimony on record, it appears that one of the judgments seized, was for a fine. This is admitted by the plaintiffs; and it therefore stands in the same position as the seizure above mentioned, a mere debt due to the municipality.</p> <p>3d. The other seizures are admitted to be judgments rendered for taxes due the municipality. The aggregate amount of them is small, and it is in evidence on the record, by the sheriff, that he has never collected a dollar under them ; in fiiet, he states that the only money in his hands, (and for which this contest was began) is the amount of the bond first mentioned. But even these last, we contend, do not fall under the decision first quoted, which is merely against the seizure of taxes. In that case, the plaintiff had, under his execution, garnisheed several lax payers of the municipality : the court, in substance, decided that he could not assume the right of sovereignty belonging to the municipality, of collecting its taxes; that it was an infringement of the franchise which it alone could exercise.</p> <p>When those taxes have been collected and put into another shape, no one will contend that they do not stand in the same situation as any other property of the municipality. A novation has taken place, and they have become transferable rights, the same as a negotiable instrument. The municipality could not have sold its right of taxation and collection, but it can undoubtedly sell any judgments which it may have obtained. This is, in fact, a transaction of every day’s occurrence. Were the municipality to invest its funds in building houses or buying slaves, they would undoubtedly be liable to seizure, although the proceeds of taxes. To argue otherwise, would be at once to say, that no property of the municipality is liable for its debts ; for it is all the proceeds of taxes, fines, or contracts, as in the first instance. If none of its property is liable to seizure, then every judgment given against it is a mockery, for there is no mode of enforcing the judgment of the court, except by a writ of distringas. The sentence of tho court would bo contemptible without the power to enforce. Black., vol. 1, c. 7, p. 242.</p> <p>Under all these views of the case, we think we are clearly entitled to an affirmation of the judgment of the lower court, with the damages therein given, according to .the 3d section of the act of March 25th, 1831, p. 102. Dorsey v. Vaughan, 5th Ann. 155.</p> <p>We wish, however, to call the attention of the court to the fact, that the main contest, in reality, is, for the bond given in payment for property sold under the judgment against the succession of Gormley; and that its amount is all the money that has ever, or probably ever will, come into the hands of the sheriff; that amount, however, being nearly sufficient to pay the whole judgment of defendant against Municipality Number Three. Our case not coming at all, as we believe, in conflict with the decision in Egerlon v. Municipality Number Three, we would bo willing to rest it hero.</p> <p>But such dangerous latitude has of late been given to this decision, such utter faithlessness and bold disregard of its obligations has been displayed by Municipality Number Three, by the extension and perversion of the original meaning, that we deem it a duty we .owe to the public, to this court, and to ourselves, to seize the opportunity we now have of putting the whole matter before the court, that it may review tho decision and restrain it within its original bounds; and we cannot do so more fully than by giving the reasons for his judgment, given by the judge of the lower court. “In the case of Egerton v. The Third Municipality, 1st Ann. 440, the learned judge who delivered the opinion of the court, said in the conclusion, ‘On first view of this question, there is something very repugnant to the moral sense in the idea, that a municipal corporation should contract debts, and that, having no resources but the taxes which are due to it, these should not be subjected by legal process to the satisfaction of its creditors.’ Such is the impression made on the mind, and notwithstanding I have read that decree over and over again, my first impressions remain, and I cannot bring myself to render a judgment sustaining an injunction against an honest debt of the municipality established by a judgment; it is a dishonest and immoral act on the part of tho corporation, and no reasoning can justify it.”</p> <p>The sovereign is not suable. Black., vol. 1, bk. 1, chap. 7, p. 242, says : “ The law ascribes to the king the attribute of sovereignty or preSminence;” and further, “ Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him, for all jurisdiction implies superiority of power and authority; to try, would be vain and idle, without an authority to redress ; and the sentence of a court would be contemptible, unless that court has power to command the execution of it; but who, says Finch, shall command the king?”</p> <p>This principle is recognized in our own Constitution. Under the Constitution, as first adopted, a clause in it was supposed to give'the courts of the United States jurisdiction in a suit between a State and citizens of another State ; such was the decision in the case of Chisholm v. The State of Georgia, 2 Dali. 437. But the States, alarmed for their sovereignty, obtained an amendment which settled this question. The general government of the United States is sovereign; the State of Louisiana is sovereign; but the Third Municipality is not sovereign, nor the city of Lafayette, nor Donaldsonville, nor Baton Rouge, nor the town of Covington, nor is the governor sovereign, nor the Legislature, nor the Supreme Court, although their salaries cannot be seized. The sovereign in this country, is the people, represented by the government they have created and constituted, as their agent, for that purpose. The whole government, and not a.ny separate department. Sovereignty is from its nature, undivided ; it cannot be split and separated. There begins and ends this difficulty. The sovereign cannot be coerced; all others are subject to the law, which is for that reason, by a figure of speech, often termed sovereign. “It is obligatory on all the inhabitants of the State; the foreigner whilst residing there, and his property within its limits, ai’e subject to it.” C. C. "art. 9. “Corporations legally established are substituted for persons.” C. C. 424. “ They may make valid contracts, obligate others and obligate themselves.” At common law, they are called civil persons, in opposition to natural persons, of which they are comprised. They are treated of, in the code, under the title of persons. Bk. 1st. “They may make valid contracts, obligate others, and obligate themselves.” And art. 248 declares, “its creditor can seize no other effects, but such as belong to the corporation.” From which, it strikes mo, a very strong inference is to be drawn, that such effects are liable.</p> <p>To my mind it is inconceivable, that whilst the Legislature were thus defining the capacities and incapacities of corporations, including “the corporations of cities,’ in,a code which, as above, subjected all the inhabitants and it to the law, which law declared the property of the debtor, the common pledge of his creditors; (they had not used the word citizen or inhabitant, nor man, nor individual, but they used the word debtor, large enough to cover all persons treated of in this code, and not expressly excepted ;) I say, it is incomprehensible to me, that the Legislature could have overlooked so prominent a principle, if they had intended to sanction so extraordinary a pretension ; and it is extraordinary, that they again overlooked it, when exempting the salaries of officers from seizure. So far from believing in such an intention, it is my belief, that if such a measure were proposed in that body, it would be scouted.</p> <p>It is said, that the Legislature intended to give the municipality the means of preserving it, and undoubtedly it is so; and as, undoubtedly, I think they did, so they gave it the power of self government and an unlimited power of taxation ; let it use that power and pay its debts, or let it use a more rare, but much less expensive article, prudence in going into debt; and I think it will be found, the Legislature has afforded to them, not only the means of sustaining itself, but ample and liberal means.</p> <p>The Creator made the natural man with the means of sustaining himself; but if, by extravagance and debauchery, he ruins his constitution, his punishments follow, and his means of sustaining life are impaired or destroyed ; and so is it with the corporation, to which abundant power and means have been given, and abused. It may, however, be said, that the right is not claimed to exempt the corporation from suit, or from seizure of its other property; it is only the uncollected taxes which are exempt. Let the reader look back to the quotation from Blackstone: “The sentence of the court would be contemptible, without the power to redress.” The power of even the Supreme Court may be made contemptible by such means ; its power to coerce a corporation, is by the proper writ of distringas, which directs the sheriff to seize their estate, to receive the rents, issues and profits ; if not so, they are above the law. The learned judge "Wilson, in the case of Chisholm v. The State of Georgia, remarked : “A State, like a merchant, makes a contract; a dishonest State, like a dishonest merchant, wilfully refuses to discharge it. The latter is amenable to a court of justice; shall the former be permitted to assume a new appearance, and insult him aud justice, by declaring: T am a sovereign State?’ Surely not; before a claim so contrary to the general principles of right and equity be sustained, the person, natural or artificial, should be well known and authenticated.” Judge "Wilson was one of the most accomplished lawyers of that day, and a man of distinguished moral worth.</p> <p>The modern doctrine is, that the powers of corporations are to be strictly construed. Head v. The Provincial Insurance Company. 2 Cranch, 127. 4 Wh. 636. 4 Peters, 152. In the case of Dartmouth College, Chief Justice Marshall said; “Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or incidental to its very existence.”</p> <p>It is contended, that the exemption from seizure is thus necessary, and it is precisely here, as I conceive, the fallacy exists. The power of raising the funds necessary for its support is essential to its existence, but when these funds have been improvidently squandered, it is not necessary the course of justice should be stopped or impeded. If the Legislature had passed such a law, it strikes me, it would be unconstitutional, it would impair the obligation of contracts. But whether this be so or not, I am of opinion, that when an unrestricted power of taxation is given, the Legislature is clearly acquitted of the charge of not giving it the means necessary to its existence. Let them use that power, but don’t mock the public, by telling them that it is necessary to the existence of the Third Municipality, that the administration of justice should be suspended as to them, and the decrees of our courts made powerless. It were far better the municipality ceased to exist.</p>

<p>The commissioners appointed to assess the benefits and damages of opening a street in New Orleans, filed their tableaux; which,was homologated. One of the owners of property took a devolutive appeal. The city authorities proceeded to open the street. The judgment was reversed, on the appeal. The party whohad appealed then brought suit against the municipality, as a trespasser, for damages caused to his property by opening the street through it. Held: That the municipality, acting under a judgment of the court, was not a trespasser; but as the plaintiff’s property had been taken without giving him compensation, as required by the Constitution, he was entitled to recover such damage as he actually sustained.</p>

<p>To support an action for a malicious prosecution, both the want of probable cause, and malice, must be proved; but the malice may be inferred from the entire want of probable cause.</p> <p>The wanton and causeless injury of an individual is ia itself a malicious act.</p>

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

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

<p>The tax of five dollars upon negro traders, for every slave they sell, imposed by the act of 3d of May, 1847, is not unconstitutional. The article 107 of the Constitution gives the Legislature the power of taxing occupations and professions.</p>

<p>The late bankrupt law of the United States allowed partnership effects to be surrendered by one of the partners who had become bankrupt.</p> <p>Where a person, at the sale of a bankrupt’s effects, became the purchaser of a debt due the bankrupt by a third person, the debt cannot be compensated by a debt due from the bank» rupt to such third person, which was acquired after the bankruptcy.</p> <p>The prescription of two years, for actions by or against assignees in bankruptcy, as pro, vided by the late bankrupt law of the United States, does not apply to cases where one has become the purohaser, at the sale of the bankrupt’s effects, of debts due by third persons.</p>

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

<p>Where the dowry of the wife has not been paid in the presence of the notary, she must prove, as against third persons, that it was actually received. The receipt of the husband is not to be entirely disregarded, but is not proof of the fact, unless supported by other circumstances.</p> <p>Where the existence of paraphernal property has been shown, a roceipt for it, given by the husband, in the absence of all interested or reasonable motive to misrepresent the facts, will be entitled to full faith.</p> <p>Where the administration of the wife's paraphernal estate is entrusted to the husband, he is responsible for the value, if it should be alionated during the marriage, unless it bo shown that it was applied to her benefit; and it will be presumed, that the husband administered the paraphernal property, unless the contrary be showm.</p>

A. Walker and T. R. Dufrocq, Justices. This case was appealed upon the following assignment of errors : “ 1st. That it does not appear from the record, that the trial of the accused was had in the ward in which the justice resided, before whom the complaint was made; but on the contrary, aud so is the fact, it was had in a different ward. 2d. That Leon Bonnecaze, who had been summoned as a juror, was set aside without legal excuse. 3d. It appears from the record, that but…

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

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

A. The plaintiff, a depositor in the Mechanics and Traders’ Bank, sues to recover the amount of a check drawn by him, to the order of Payne and Harrison, a well known commercial house in this city,… Held: that loss by payment of a check forged either in the drawer’s or payee’s name, or altered as to the sum, must fall upon the banker; because it is his duty to see that a cheek is genuine in all respects.

<p>The article of the code requiring execution to issue within a limited time after the decree of separation of property between husband and wife, under pain oC nullity, is only applicable to cases in which there is judgment against the husband for a sum of money.</p> <p>Where a separation of property, between husband and wife, has been decreed by a court upon tho voluntary admissions or agreement of the parties, the judge who decreed that separation, cannot take the ground, that the decree was rendered upon insufficient evidence.</p> <p>As against creditors, manual gifts have no date.</p> <p>A donation made by the husband to his wife, may be attacked and set aside by subsequent as well as prior creditors.</p>

<p>A suit for a separation of property and the dissolution of the community, will be sustained where the pecuniary rights of the wife, whether springing from her dotal or paraphernal estate, are put in jeopardy by the embarrassed condition of the husband’s affairs.</p> <p>Where the wife has obtained a decree of separation, and has renounced the community, she becomes a debtor to the community for the value of the improvements put upon her separate property, when she chooses to keep those improvements as the owner of the soil. C. 0.2377.</p> <p>In estimating the value of the improvements made upon the wife’s separate property upon the dissolution of the community, the proper standard is their value at the time of the decree, and not the original cost.</p> <p>Where the wife, at the date of the marriage, owned female slaves, the children of those slaves born after, belong to the wife, and not to the community. C. 0.183, 480, 491, 492, 525, 536, 539. C. C. 537, 2371, 2375, 2376, 2363, 2351.</p> <p>The child of a paraphernal slave is paraphernal.</p> <p>The wife cannot be charged, as the debtor of the community, for the necessary expenses of slaves which were the paraphernal property of the wife. C. 0. 564.</p> <p>The wife is the debtor of the community for the payment out of the community funds of debts owed by her before the marriage. 0. C. 2372.</p>

<p>Where a preemption lias been once claimed on a certain tract of land, the claim cannot be transferred to another tract of land.</p> <p>Settlers upon the public lands of the United States are not trespassers, the Government of the United States having, by the various preemption laws, encouraged the settlement of the public lands.</p>

<p>The defendant had constructed causeways across'his land, leaving the gullies and natural channels for the flow of water open, bridges having been constructed over them. The plaintiff, whose plantation was situated above, complained that the causeways interrupted the flow of the water. Held, that the article 656, C. C., must be construed in reference to the condition of the country, and that the natural channels and drains having been left open, the plaintiff’ could not have the causeways removed; but that the channels being filled up by fallen timber and other obstructions, he had aright to cause those obstructions to be removed. ,</p>

<p>The plaintiff sued the defendant to annul a sale made to him by his father-in-law, about a month before the death of the latter, upon the grounds of the insolvency of the father-in-law at the time of the sale, and that the sale was fraudulent, having been made without consideration. The insolvency of the father-in-law was proved. Held: That the defendant was hound to prove the consideration, and having failed to do so, the sale was null.</p>

<p>Where one of several joint obligors has removed out of the State, lie may be made a party to a suit against the obligors by the appointment of a curator ad hoc.</p> <p>Michael Lyons left to his wife the usufruct of certain property. His heirs agreed to give her ten per cent on the value of the property in lieu of her rights of usufruct. A sale of the property was contemplated; but owing to the neglect of the heirs, a portion, viz, a dwelling-house was not sold. The house, was subsequently destroyed by fire, on which account the heirs claimed an exemption from the payment of the ten per cent. Held: That the heirs were not thereby exempted from the payment of the stipulated interest.</p>

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

<p>In criminal cases, where the accused applies for a continuance upon the ground of the absence-of material witnesses, accompanied by an affidavit of the facts he expects to prove by the absent witnesses, ho cannot be forced to trial upon the prosecuting attorney offering to admit, that if the witnesses were present, they would swear to tho facts as stated, reserving the right of disproving their testimony. The admission mast be of the truth of the facts stated in the affidavit, or the accused will he entitled to a continuance. The rules of practice laid down in the Code of Practice, govern in civil cases, but do not apply to criminal cases.</p> <p>Where a juror, in a criminal case, when examined on his voir dire, states that “ from the rumors lie,lias heard of the case, his mind is biased and prejudiced; but that the bias and prejudice may be removed after he has heard the evidence in the case, and that his mind is open to conviction, and thinks he can do justice between the parties; ” his answer does not constitute a good ground for challenge. It is only when the juror called has formed so decided an opinion of the case, that he believes himself, or the court believes, it would influence his verdict, that he should be rejected.</p> <p>The verdict of a jury is the record of their deliberate judgment. Jurors cannot he examined to impeach their own verdict or the record by parol proof.</p> <p>Where, on an indictment for murder, the accused was entitled to a continuance upon an affidavit showing the absence of material witnesses, and containing a statement of the facts ■which the absent witnesses would prove, which evidence would have alleviated the crime to manslaughter-, but was forced to trial upon the prosecuting attorney admitting that absent witnesses would swear as stated in the affidavit, and the jury have convicted the accused of manslaughter only, a new trial will not be awarded to him; full effect having been given to the testimony of his absent witnesses.</p> <p>The court will not, upon an appeal, re-examine the decision of a district judge upon a question of fact, such as, whether due diligence had been used to procure the attendance of a witness. In giving a prisoner the benefit of all questions of law erroneously decided against him in the courts of the first instance, care is necessary, in order not to incroach upon the discretionary powers which the judges of the district courts hold, and must exercise, in the delicate and responsible cases of applications for continuance and .new trials, over which the Supreme Court has no supervision, except in determining the questions of law, alone submitted by bill of exceptions, or on an assignment of error.</p> <p>Where a party, on a trial for murder, has been convicted of manslaughter only, in the event . of a new trial being granted, he cannot be again tried for murder; but will be tried, as if the prosecution had been originally for manslaughter.</p> <p>The accused, on his trial for murder, was convicted of manslaughter. He asked for a new trial, upon the ground, that he was forced to trial in the absence of witnesses, who would have proved certain facts. Held,: That as the facts stated, if proved, would not have formed a good dofence to the charge of manslaughter, he was not entitlod to a new trial.</p>

<p>Parol evidence is inadmissible to prove a settlement and a release, by a minor, of the morp gage in his favor against his tutor. C. C. 3335.</p> <p>The four years’ prescription, hy actions against tutors, by minors after their majority, does not run Where a minor has died after his majority, hut within the four years, leaving an infant child.</p> <p>An estate cannot be considered vacant, unless the heirs are unknown, and no one claims; or' unless the heirs havo renounced it. The mere absence of a formal acceptance by the tutrix of a minor heir, does not cause the estate to be regarded as vacant. C. C. 1088.</p>

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

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

Mary. Voorhies, J. In this case, the defendants plead the prescription of one year, and excepted that the ordinances and decisions of the police jury were final and conclusive as to the proper location of the road. The plaintiff is appellant from a judgment of the district court, rendered on the verdict of the jury.

from the District Court of Lafayette. Overton, J. The sale, the nullity of which is demanded by this action, should be set aside and avoided, because, in reality, it is a disguised donation to plaintiff’s husband, Franpois Herpin, by means of an interposed person, the defendant, Victor Herpin; because she has never given her consent to an absolute conveyance to the latter, from whom, she never received any consideration whatever-, and she was fraudulently induced, by him and…

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

<p>The appellants claimed a subrogation to a mortgage, to secure a note, which, they alleged, they had paid. The mortgagor made a cession of his property, before any act of subrogation had been passed. Held: That an agreement to subrogate was inoperative, and that the rights of creditors, having become fixod by the cession of property, could not be affected by a subrogation made subsequently.</p>

<p>from the Dislxict court of St. Laadxy. Cushman J.</p>

<p>The fact of there having existed a partnership in comrncndam between the parties, does not prevent the plaintiff from recovering of the defendant sums of money paid for the use of the latter, and which were not taken from, or connected with, the partnership.</p>

<p>Where wood-land lying between two tracts of land, the ownership of which is disputed, has not been possessed or enclosed by either, both having been in the habit of cutting wood from it, neither of the parties can claim by prescription.</p> <p>Where both parties claim under a confirmed Spanish grantj the first confirmation must take the land.</p>

<p>Where prescription had run. against the mother of certain minor heirs, before her death, for more than ten years, and for more than three years against the heirs after their majority, the claim will be bai-red by ten years’ prescription.</p> <p>A suit which was voluntarily abandoned, does not interrupt prescription. C. C. 3485.</p>

-Mary, Voorhies, J. The district judge, upon the subject of the arbitration bond, decided as follows: “Before considering the evidence on the account sued on, it is necessary to dispose of the question relative to the alleged forfeiture of the arbitration bond. This instrument is not free from ambiguity. It was evidently the intention of the parties to submit the correctness of the charges, amounting to seven hundred and six dollars and ninety-six cents, to arbitrators.

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

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

<p>The admissions of the dying declarations of the deceased, in evidence, in prosecutions for homicide, is not inconsistent with the statute giving the accused the right of meeting the witnesses face to face. The rule of evidence by which such declarations are established under the common law, has not been changed by the statute.</p> <p>The right of the accused to receive a copy of the indictment, and a list of the persons who are to pass on his trial, is one created in his interest and for his benefit, and he is competent to waive it.</p>

<p>The act of June 1st, 1846, for the trial of slaves, is not unconstitutional. The 81st article of the Constitution provides for the vesting of criminal jurisdiction in justices of the peace by the Legislature. There is no conflict between that arricio and the 78th article of the Constitution.</p> <p>The true ground upon which confessions of persons accused of crime, which have been extorted by violence, or induced by promises, are excluded from evidence, is, that the violence and hope destroy all confidence in the 'confessions. Upon true principle, the objections should go rather to the credit of the confessions, than to their admissibility as evidence. If they he obtained, under such circumstances, as to force the belief they are true, they ought to he received as evidence.</p>

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

<p>Bail for the appearance of a person charged with crime, cannot be taken by the sheriff without an order of court therefor.</p> <p>An order of the judge, fixing the amount of bail, which the clerk had omitted to enter on the minutes, cannot be supplied by parol proof. The order must be in wilting.</p>

<p>APPEAL from the District Court of Bienville. Lawson, for plaintiff.</p>

<p>from the District Court of Caddo. Jones, L</p>

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

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

<p>Where authority is given to an attorney at law, to take out an attachment, he is authorized to sign an attachment bond for plaintiffs.</p>

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

<p>An authority to an attorney at law to take out an attachment, authorizes him to sign an attachment bond for the plaintiff'.</p>

<p>An order of appeal must be in writing; but where, from some oversight, the clerk neglected to enter it on the minutes, it may be done at a subsequent term of the court, nunc pro tunc.</p> <p>The declarations of an agent, while acting as agent, are good evidence against the principal. So, an acknowledgment by an agent, that he had received a draft in part payment of a debt he was appointed to collect, is evidence of the fact. ■</p>

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

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

It is well settled by the decisions of this court, that when a person is in possession of immovables under a conveyance not void on its face, the question… Held: that when “ the sale is of slaves by authentic act and possession given by the deed itself, and knowledge of the existence of the contract brought home to the seizing creditor,” the sale could only be set aside by a direct revocatory action, and could not be inquired into collaterally by commencing with a seizure.

Copley, J. 1. If the court should be of opinion that the lower court could not go into the investigation of title, then, is it contended, that the property in controversy was the property of the minor, Thomas Smith Heard, and descended to George Franklin Heard, the plaintiff, as heir-at-law. Let us, then, consider the effect of this deed of Smith to Emily S. Traylor.

<p>An attorney to represent ati absent defendant died, after putting in an answer praying for a jury. Another was appointed; but the minutes of the court were so defectively kept, that they did not show bis acceptance of the appointment, or that he was present at the trial. The case was tried without a jury. Held: That the record did not show that the prayer for a jury had ever been waived.</p> <p>Where a judge made an appointment of a curator ad hoc, and afterwards recused himself from trying the cause, on account of having been of counsel in the case. Held: That the appointment is not valid.</p>

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

<p>Where the 'affidavit for an attachment was made by the plaintiff’s attorney in fact, the Code of Practice does not require the affidavit should state the plaintiff was absent from the State; that fact being shown by the petition. C. P. 244.</p> <p>An affidavit for an attachment which states, that “ the defendant resides out of the State, having acquired no legal residence in the State,” is sufficient.</p>

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

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

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

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

<p>A lease of lands, houses or tenements, has no effect against creditors, unless the same has been recorded as required by law, in cases of sale of real property.</p>

Barry, •!. 1st. That tho plaintiff having introduced her judgment in evidence, solely to sustain her allegation that she is separate in property from her husband, and not to show her right to any property that ever belonged to her husband, or which was acquired through or by an execution issued on her judgment, and not even naming the word judgment in her petition, as incorrectly stated in defendant’s answer, the defendant had no right, under such circumstances, to set up…

<p>Where the real amountin dispute is less than three hundred dollars, and there is added to it a claim for five hundred dollars for damages, evidently fictitious, the appeal will be dismissed by the Supreme Court for want of jurisdiction.</p>

The only questions raised by the defendants the court below, were : First, that the partnership of Stewart and Grayson was not a commercial one; or, if it was, that the note… Held: Van-Ness dissenting, that it would, and that in such case, the defendant would have to look to the attorney for damages. The court, however, say that they would allow the judgment to be opened so far as to enable the defendant to show his defence, but not to let the judgment loose its privilege.

<p>Tbc death of one of the part owners of a steamer, engaged in carrying property for hire, dissolves the partnership, but if the survivors continue running the vessel, they aro liable as commercial partners.</p>

<p>APPEAL from the District Court of Claiborne, Jones, J.</p> <p>This case presents but one legal question, and there is no dispute as to the facts of the 'case.</p> <p>■ Can a person who has resided on a piece of public land, until he has forfeited his right to all the preemption laws in favor of actual settlers on the public domain, sell the improvements made by him thereon, and enforce the payment of the price in our courts 1 The judgé of the court below, guided by what he deemed the true intent and meaning of the decisions of this court, thought not, and so we think.</p> <p>It has been repeatedly decided by this court, “Improvements made upon the public lands of the United States, where the party making them is not in a situation to avail himself of the preemption laws, cannot form the object of a contract.” Jenkins v. Gibson, 3d Ann. 203. Wood v. Lyell, 4th Ann. 145. Hollon v. Sapp, lb. 519. In all these cases, except the first, the plaintiffs had entered the lands from the United States, and was suing the defendants for possession, and the defendants now claiming pay for their improvements, and the first case is, in principle, the same.</p> <p>We have carefully examined the case of Price v. Curran, 5th Ann. 686, relied on by plaintiffs and appellants in the case before the court, and, we understand, the real question at issue and decided in that case was, that Cmran, defendant, and maker of the note sued oni failed to show that Gammon, to whom the note was given, was not entitled to a right of preemption to the lands on which the improvements wore made, at the time he sold the improvements, and that the court would presume that he was a settler in good faith, rather than a trespasser. This was all that was necessary for the 'court to decide in that case, and any other opinion expressed in the case, was mere ohitu dictum. It is true that it is intimated in the opinion of the court, in this case, that if Curran was placed in a condition to acquire a preemption to the land, it might be sufficient to bind him to pay the note. It is worthy of remark, that this is the only decision that has thrown out the intimation that, placing the purchaser of an improvement in the situation to acquire the right of preemption, would make the contract binding in favor of a trespasser who sold it; in fact, we do not consider this case as going that length, and when we recur to the fact that, at the same term of court and a few days afterwards, another case, Norman v. Ellis, 5th Ann. 694, was decided, turning as near as possible on the same point, and no such intimation is made; on the contrary, it is decided in this case, that the defendant failed to make out his case, by not proving that the vendor was not in a situation, at the time of the sale, to acquire the right of preemption, so we cannot believe that in the case of Price v. Curran, the court intended to go as far as plaintiff contended for.</p> <p>It is admitted, in this case, that Allen, the vendor of the improvement to defendant, Glass, had forfeited his right of preemption before the sale, and was, consequently, a trespasser, and sold that that did not belong to him; the sale of the property of another is void. C. C. 2427. •</p> <p>The argument of the appellant, which he seeks'to draw from the case of Price v. Curran, that not only the vendor of the -improvements on public lands must not be in a condition to acquire the right of preemption at the time of the sale, but that the vendee must also be in a condition that he cannot acquire the right of preemption, in order that the contract should be void, is not based on any good reason. What difference can it be, in principle, with the purchaser of an improvement, whether he can acquire the right of preemption on the improvement, or not? A man owning three hundred and twenty acres of land is not permitted to avail himself of a preemption right; yet, can it make any difference in his legal rights, when he purchases an improvement on public land from a trespasser, whether he is the owner of three hundred and twenty acres of land, or not ?</p> <p>If the improvements made by a trespasser, in violation of the laws of the United States, on the public land, cannot form the object of a contract, as is decided in the cases first cited in this brief, we cannot see how plaintiff is to recover in this case. The point raised by the appellant, that Allen, at the time of the sale of the improvement to Glass, had been in possession for more than a year, and could not be ejected from the land, except by a petitory action, is not tenable. Trespassers on the public lands are liable to fine and imprisonment, and to be expelled by military force. Gordon’s Digest of Laws U. S., Nos. 1508,1511. 1 Land Laws and Opinions, p. 114, sec. 14. The State laws do not extend over them, in regard to their right of settlement or pay for improvements, until after the United States is divested of title. Norman v. Ellis, 5th Ann. 694.</p> <p>This was an action brought by plaintiffs to recover of defendants five hundred dollars, due on a promissory note made by him in favor of Greene Allen, with eight per cent interest from the 1st day of January, 1849.</p> <p>The defendant answered, admitting the execution of the note, but avers that the same was given for an unlawful consideration — an improvement on public lands; and that Greene Allen, the payee, was not in a condition to acquire a preemption right in said land, at the time of sale.</p> <p>Upon these issues the cause was tried, and judgment rendered in favor of defendant, from which judgment the plaintiff has taken this appeal.</p> <p>The facts of the case are briefly these: The note sued on was given to Greene. Allen for the purchase of an improvement on public land, containing one hundred acres, or more, cleared land, with good log buildings on it. Greene Allen lived on it more than a year and thirty days, before he sold it to defendant. The land was subject to entry at the time defendant took possession of it, and lived on it upwards of a year, and then moved off; tried to sell it and rent it, after he left it. The rent of the land was worth $1 50 per acre.</p> <p>The plaintiffs contend that the judgment of the lower court is erroneous, and should be reversed, for the following reasons: That the case should have been decided upon the same principles as the case of Price v. Curran, decided in this court at this place last fall. In that case, held, that it was necessary to release a party from the payment of a note, given for the purchase of an improvement on public land. To show that neither the vendor nor vendee were in a situation to avail themselves of the benefit of the preemption laws of the United States, atthe time of the sale. In the present case, that was not shown. It was shown that Allen had resided on the place more than a year and thirty days, which, perhaps, would include the idea that he was entitled to a preemption on it. But, then, it is not shown that Glass could not have availed himself of the benefit of the preemption laws. If Glass gained any thing by the purchase, it seems to me, he ought to be liable for the price; he gained the possession of the place and its use, which was worth one dollar and fifty cents per acre, making one hundred and fifty dollars, and he occupied one year and left it. Allen was in possession of the place more than a year, and could not be dispossessed, except by a petitory action. The defendant gains that right, and was on the premises, in a situation by which he could have joined his premises to Allen’s, making more than a year’s possession in him. The fact of Allen selling him his improvements on said land, was an act of trespass, not in violation of the laws of the United States, because it will not be presumed that Allen was on the place for any other purpose than a lawful one, he having the right under the law, and settled on the place and improved it for thirty days before he declared his intention of claiming a preemption; and the law will also presume, that the defendant, Glass, purchased the right to enter on the land with a lawful intention, to wit, that of acquiring a preemption. For all which reasons, plaintiffs prayjudgment in their favor, and for cost and for general relief.</p>

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

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

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

That the judgment of the court below is correct, and should be affirmed. The defendants moved to dissolve the injunction, on the grounds that there was no legal injunction bond signed by the plaintiff a married woman; that the father and mother had no right', to appear for their minor children; that the trustee alone could prosecute the suit, and he had not authorized it. The injunction bond is signed by the agent and securities.

<p>Where a line is imposed by an ordinance of a police jury for the commission of certain acts, any one injured by a person violating the ordinance, has a right of action for the damages, independent of the fine imposed; and a judgment previously rendered against the offender is no bar to such an action.</p>

<p>Where the property of minors is to be sold to effect a partition, there must bo an inventory and appraisement of the property, and the sale must be on such terms of credit as a family-meeting shall recommend. C. C. 1247, 1263, 1264.</p> <p>By the Act of 10th of March, 1847, the sale of succession property is authorized by auctioneers.</p> <p>Where the heirs of age have sued for the partition of property, have proved a sale and received their share of the price from the purchaser, they will not be allowed to oppose the homologation of the sale, it beingperfect as to them, *</p>

<p>The plaintiff sued upon a promissory note. The defendant answered that the plaintiff had received the note as agent of a firm, a member of which had died, and his agency had terminated. To interrogatories propounded to him, the plaintiff answered, that he held the note as agent, but that the firm was still in existence", notwithstanding the death of one of the members. Held: That under the circumstances, the plaintiffhad the right tomaintain the suit in his own name.</p>

<p>The defendant had attached a slave of the plaintiff; which the latter bonded. Afterwards, the plaintiff caused the slave to be sold on a mortgage in his own favor, which had not been recorded at the date of the attachment, and purchased the slave. The defendant obtained judgment, and caused the slave to be seized on execution. The plaintiff enjoinedíleld: That the slave was liable to defendant’s execution, and the injunction was dismissed, with damages.</p>

<p>PPEAL from the Fourth District Court of New Orleans, Strawbridge, ,1.</p>

<p>The defendants purchased a quantity of gunny bags and mess pork for and on account of the plaintiff, giving their own note in payment of the price. The articles were to be sold under tho directions of the plaintiff, and the proceeds applied to the payment of the notes which had been given by the defendants. Before the expiration of the time agreed upon, the defendants sold the gunny bags and pork without the knowledge of plaintiff. The plaintiff demanded the gunny hags and pork. The defendants offered to replace them with other articles of a similar quality. Held: That the defendants were liable to the plaintiff for the damages he had sustained by their having sold the articles.</p> <p>Where an agent has received gunny bags and mess pork, he is hound to deliver to the principal the exact articles received, and cannot replace them by similar articles. Any cus - tom to the contrary, is against law.</p> <p>A submission to arbitration, to he binding on the parties, must he in legal form.</p>

<p>There is no rule of law or usage which requires the owner of an untenanted house to have it guarded by a keeper, to enable him to recover his insurance, in case of a loss of the building by fire.</p>

<p>An owner of a vessel is not liable for goods purchased by the captain on the orders of merchants in the country, with the view of procuring freight, unless the owner, has either expressly or impliedly sanctioned such a course of dealing.</p>

<p>Where a party receives paper to collect as collateral security, he is bound to show that ho has returned it, or used, in vain, due diligence to collect it, otherwise, he willjbe liable for the amount. _ '</p> <p>Proof of the acknowledgments of a party by a single witness, is the weakest kind of evidence, and is insufficient to support a claim for over five hundred dollars.</p>

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

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

<p>The thing claimed, cannot be alienated during the pendency of the suit so as to prejudice the rights of the claimant. This principle applies even when the property is carried into another State, and there sold.</p> <p>The institution of a suit in Texas, for property which was subsequently removed to Louisiana and sold, is an interruption of prescription in Louisiana, if the suit in Texas has never been abandoned.</p> <p>A purchaser of property in Louisiana,which had been removed from Texas, where there was a suit pending for it, will be regarded as a possessor in good faith, unless he had notice of the suit in Texas. ' V '</p>

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

<p>APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.</p> <p>In this case, the counsel for defendants, in answer to a rule to show cause why the testimony of a witness, Fitzpatrick, taken under a commission, should not be readtin evidence:</p> <p>“ 1st. The commission is not duly executed according to law; in that, it does not appear that the witness came before tjie commissioner, and duly examined upon his corporeal oath, and that the testimony was reduced to writing by the commissioner; that the testimony appeared in the handwriting of the witness; that the testimony is not taken by regular examination in order of interrogatories, but the answers to direct interrogatories are separate from those to cross-interrogatories, and separately certified by the commissioner.</p> <p>“ 2d. That the jurat and return of commissioner, is not in accordance with law.</p> <p>“ 3d, That it does not appear that the commissioner, who signs himself as justice of the peace, was such officer at the time of his certificate.</p> <p>“ 4th. That thei’e is no seal of commissioner attached.”</p> <p>The evidence was rejected in the district court.</p>

<p>Where an ordinance of the city of Lafayette, under which a contract for paving was made, allowed five per cent to be recovered from the persons assessed after default, and the Legislature subsequently passed an act allowing eight per cent, only five percent can he recovered on that contract.</p>

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

<p>Where the plaintiffs had carried on the business of making advances to a party on consignments, payments made to them, in the course of that business, will be imputed to the mercantile account, and not to a mortgage note held by them on the party.</p> <p>In a contest between two mortgage creditors, for a particular fund, the interest of the debtor being equally balanced, he is a competent witness.</p>

' Slrawhidge, J. This suit was brought on several promissory notes and bills of exchange given by the defendant, for the purchase of a steamboat. The defendant denied his liability, upon the ground that the vendor had never executed title to him. The judgment of the district court wjas in favor of defendant, and the plaintiff appealed.

<p>A judgment of non-suit, in a former suit, about the same matter, will not sustain the plea of res judicata.</p> <p>Proof of payment should not be admitted, without a plea to that effect.</p>

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

<p>A delay granted to the drawer of a promissory note, without any consideration or the taking of a new obligation, does not discharge the endorsers. The agreement for delay, in order to discharge the endorsers, must he one for some consideration, and of such character as to prevent the holder from suing the drawer.</p>

<p>The property in the hands of the garnishee, is to be considered as held for the purposes of the garnishment, and it cannot be taken out of his hands to the prejudice of the garnishment. The law does not require that the sheriff shall take actual possession of the property in the garnishee’s hands, in order to render the seizure by garnishment valid.</p>

<p>A non-resident'member of a commercial firm established in New Orleans, may be taxed.</p>

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

<p>Where the wife, in a suit against her husband for separation of property, alleges that she settled a dowry upon herself at the time of her marriage, she is bound to show affirmatively the truth of her allegations.</p> <p>Where the marriage contract stipulates there shall be no community of gains, that the wife shall be at liberty to trade in any manner she shall deem requisite, and alienate and encumber her property as she shall see fit, and that the husband shall give a receipt by notarial act for such,of her property as he shall receive, the property will be regarded as paraphernal, although other parts of the contract would characterize it as dotal; and to enable the wife to recover against the husband, she must prove that the property went into his hands.</p> <p>Where a third person intervenes in a suit brought by the wife against her husband to recover her dotal and paraphernal rights, alleging in his petition of intervention, that the marriage contract is fraudulent, and the wife denies there was any consideration given for the notes on which the intervenor sues, but that it is a contrivance between the intervenor and her husband to defraud her, the intervenor is bound to prove the consideration and validity of the notes.</p>

<p>Solar as the creditors of the husband are concerned, the wife must prove the reality of her dower by other evidence than the acknowledgment of the husband, or a judgment of court rendered between them.</p> <p>Where the wife claims as her dower, by. marriage contract,1large sums placed by her father in her name, in certain partnerships, in commendam, audit appears, from the evidence, that the money was returned by the partnerships t.o her father and not to her husband, and she fails to show that the money was originally hers, or how; she came into possession of it, the transaction will be, as to creditors, regarded as fictitious.</p>

<p>APPEAL from the Fifth District Court of New Orleans, Buchanan .1.</p>

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

<p>The partners of a firm engaged in the business of ship carpenters are not commercial partners, nor are they bound in solido on an endorsement of a note in their partnership name.</p>

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

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

<p>APPEAL from the Fourth District Court of New Orleans, Strawbr¡dge, .T.</p>

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

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

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

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

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

<p>An endorser has the whole of the day after the date of-protest, to make payment; hut, if sued on that day, and the citation is not served until after that day, the suit will not he regarded as premature.</p>

<p>An execution issued upon a judgment cannot be enjoined upon tbe groundof payment, without the party applying for it giving security.</p>

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

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

<p>APPEAL from the Third District Court of New Orleans, Kennedy, 3.</p>