Volume 6 — Robinson's Louisiana Reports

<p>Where a party to whotii interrogatories have been propounded, states facts not closé-s ly connected with those as to which he has been questioned, the opposite party should move to strike out such irrelevant matter.</p> <p>Persons in possession as tenants cannot,- by consenting to posssss for a third person', or by permitting others to disturb their possession, or to cultivate the land, affect in any manner the rights of their landlords. C. C. 3408, 3409.</p>

<p>1. No one, having a reasonable ground to believe in the existence of a fact without any to doubt it, is bound to push his inquiries as to the fact, so as to discover the truth, before, without responsibility, he can state its existence, in a negotiation. His statement of it, however false, can never be fraudulent without an intention to deceive.</p> <p>2. Where the seller of a claim against a third person, represented to its buyer, the debtor to be “ perfectly good,” and that “ there would be no difficulty in getting the money” if judgment was recovered against him; that he was “ abundantly good, very wealthy and had a great deal of property;” and the evidence showed that such seller had reason to believe such statements true, and none to the contrary, and that until a short time before such representations were made, the debtor was generally reputed to be solvent, and any difficulty in his pecuniary condition was only known to a few confidential friends, counsel and employees; Held, that such seller was not liable for the falsity of such statements, because he did not exercise the ordinary care of a prudent man, in endeavoring to ascertain the truth of such statements before he made them.</p> <p>3. No recovery can be had in such a case, where-the complaint does not allege that such representations were made for some purpose. Their mere falsity, without some deception practiced or intended, is no ground of action. It is only where a party negotiating a transaction undertakes in it to tell all he knows, that he is bound to do so, unless there is some relation of confidence between both parties. •</p> <p>4. Representations by a seller, which merely extol the character of an article offered for sale, such as, in the case of a claim against a third person, that he is rich, has a great deal of property, is abundantly able to pay all claims against him, and can pay the claim if recovered, are to be expected by buyers, very usual, and too vague to be the basis of an action. If a buyer desires more, he should have the statement reduced to more certainty, or insist on a guaranty. Such statements, without some other concomitant circumstances or expressions, are mere expressions of opinion, for which a vendor is not responsible.</p>

<p>A single citation is sufficient where the defendants, sued as tutrix and co-tutor of' certain minors, are husband and wife C. B. 162. And when not separated from bed and board, its service on either will be good. Ib. 192,</p> <p>A note endorsed in blank may be considered as one payable to b.earer, and all the endorsements posterior to that of the payee, may be stricken out on the trial. But in an action against the maker of a note, or the drawer or acceptor ofa bill, all the. endorsements stated in the petition, thongh unnecessarily, must be proved.</p>

<p>The deposition of a witness must be reduced to writing by himself, by a magistrate, or by an indifferent person. It is inadmissible, if drawn up in the hand-writino- of the party, or of his counsel.</p>

This case turned on an exception to the jurisdiction of the District Court of Caddo, the defendant’s domicil being in another parish. The lower court, having overruled the exception, proceeded to a trial on the merits. A judgment was rendered for the defendant, and the plaintiff has appealed. The exception was properly overruled. Code of Practice, art. 163. 4 La. 240. Civil Code, art. 461. The exception was erroneously overruled.

<p>A citation which mentions neither the title of the cause, the residence of the defendant, nor the place where the office is held, in which the defendant is cited to appear and file his answer, is insufficient. O. P. 179.</p> <p>Knowledge of the existence of art action on the part of a defendant, no matter how clearly brought home to him, cannot supply the want of citation.</p> <p>In actions by the heirs, or others entitled to successions administered by curators or testamentary executors, for the possession of such successions, under arts. 1001, 1002 and 1003 of the Code of Practice, as in every other suit, there must be an issue joined before any final judgment can be rendered j and if the Curator Or executor does not answer, that issue must be made by a judgment by default. C, P. 310, 311, 312. Such actions must be in the ordinary form. The provision of art. 1002, that the judge shall pronounce on the claim in a summary manner, only means as shown by art. Í034, that he shall decide upon it with the greatest practicable celerity, giving it a preference over ordinary cases.</p>

<p>The testimony of a Probate Judge, in whose office a will should have been deposited, that he had seen the will in his office, but had searched for it in vain, cannot authorize the introduction of parol evidence of its contents, and of its having been proved and ordered to be executed, where the minutes of the Probate Court are not produced, nor alleged to have been mislaid, lost, or destroyed. Such evidence, though admitted without objection, would be insufficient to establish the will.</p>

<p>Appeal from the Districl Court of Concordia, Curry, J.</p>

Appeal by the plaintiff, from a judgment of nonsuit, pronounced by the Court of Probates of Concordia, Me Whorter, J. Prescription pertains to the remedy, and is governed by the lex fori. The statute of Mississippi, of 26th November, 1821, can have no extra-territorial effect. 7 Mart. N. S. 108.' The statute does not relate to the remedy, but extinguishes the obligation. Pickett's Ex’rs v. Ford, 4 Howard’s Miss. Rep. 119, 250.. Story, Conflict of Laws, 582. 5 Cranch, 358.

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

<p>It is essential to a revocatory action in which an act of an insolvent is attacked, as having been made in fraud and to the injury of his creditors, that fraud should be alleged against the debtor, who must be a party to the suit.</p> <p>A sale under execution must be made either on the premises, or at the seat of justice of the parish, unless with the consent of the debtor, or it will be annulled. C. P., 664, 665.</p>

This was an action upon two bonds under seal, executed by the defendants to the plaintiff in October, 1865; the first in the penalty of $21,000, dated the fourth, and the second in the penalty of $25,000, dated the twenty-first of that month.

<p>A creditor of a succession, holding a claim which had been acknowledged, in writing, by the executor to be just, and had béen placed among the admitted claims against the estate, subsequently petitioned the Probate Court to have the same ranked as a privileged debt, but did not make the executor a party to the proceeding. A judgment having been rendered exparte, establishing the privilege, on appeal by the executor: Held, that the executor, not being a party, the judgment must be reversed.</p> <p>Though an executor have acknowledged in writing a claim against the estate to be correct, if before paying it he discovers that it had been discharged by the deceased, it is his duty to protect the succession against a second payment.</p>

<p>Appeal from the District Court of Ouachita, Willson, J.</p> <p>cited 5 Mart. 381. 7 La. 460.</p> <p>referred to the Code of Practice, arts. 733, 734. Civil Code, arts. 2231, 2232. 1 Mart. N. S. 237. 6 lb. 466, 531. 4 La. 322, 6 lb. 66. 1 Robinson, 408.</p>

<p>Appeal from the Court of Probates of Madison, Downes, J.</p>

<p>Appeal from the District Court of Madison, Willson, J.</p> <p>The judgment in Mississippi was by default, and will not support proceedings via executiva. Code of Practice, art. 747. To take the case out of the rule laid down by this article, there must have been a judgment on a plea, or defence. 8 La. 294. 10 lb. 193, 220, 381. 1 Kent, 260. Under the decision in Pillet v. Edgar and others, 4 Robinson, 274, executory process cannot be issued, the foreign judgment not having been revived by scire facias, though more than a year had elapsed since it was rendered.</p>

<p>Appeal from the Court of Probates of Ouachita, Lamy, J.</p>

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

Appeal by the plaintiff from an order of the District Court of Concordia, Willson, J. cited 2 Cranch, 9. 3 Dallas, 382. 3 Day, 294. 4 Dallas, 12, 22. relied on the case of Stoker v. Leavenworth et al., 7 La. 390 ; citing also, 6 Peters’ Reports, 762, and 1 Peters’ Digest, p. 494, Nos. 8, 12.

<p>Appeal from the District Court of Rapides, King, J. Three other cases were consolidated with this in the lower court, two of them being actions by overseers for their wages for parts of the current year, and the'third a suit by another lessor of land occupied by the defendant. The Judge of the District Court ordered the claims of the overseers to be paid by preference to those of the lessors, out of the crops and utensils of husbandry seized on the premises. Tanner, as administrator of W. B. Pearce, alone appealed.</p>

Benjamin Story, who had intervened in this case, is appellant from a judgment in favor of the plaintiff for the reimbursement of certain sums alleged to have been received by the defendant, a's her paraphernal property, recognizing her legal mortgage therefor on all the immoveables and slaves of the husband; and authorizing her to administer her property separately. The defendant admitted the receipt of the money.

The plaintiffs were incorporated by an act approved the 2d of April, 1835; and they sue to recover two instalments of five per cent, on a subscription to the stock of the Company to the amount of $5000, made on the 20th of the same month. The plaintiffs are appellants from a verdict and judgment in favor of the defendant.

<p>Appeal from the District Court qf Rapides, King, J,</p>

cited in support of the injunction, arts. 296, 298, No. 3, and 303, of the Code of Practice, and Denis v. Leclerc, 1 Mart. 297. relied on the act of 3 March, 1819, relative to landlord and tenant. Civil Code, art. 2683. 8 Mart. N. S. 563. 6 La. 58.

<p>Appeal from the District Court of Natchitoches, Qreneaux, J. presiding.</p>

relied on the case of Huie v. Bailey, 16 La. 216, and the cases there cited, and 19 La. 211. There was a sufficient consideration for the contract of release. 6 Peters, 251. Callihamv. Tanner, 3 Robinson, 299. 3 Mart. N. S. 596. The release having been by public act, was binding without a consideration. Civil Code, arts. 1523-1525. It is no answer that the arrange-, ment may have been beneficial to the surety.

The interest of the tutrix and co-tutor being opposed to that of the minor, it was the duty of the under-tutor to act. Civil Code, art. 301. Chisholm v. Skillman, 2 La. 144. 11 La. 189. McGuire, Curator, v. Ross, Tutrix, 12 lb, 575. 6 lb. 484.

This action was brought to compel the execution and delivery of satisfaction pieces of two judgments. In June, 1858, the defendant Hendrickson recovered a judgment, by default, against the plaintiff (Beers) for $1754.78. This judgment was, in July, 1858, assigned by Hendrickson to the defendant Callaghan and his partner, C. D. Miller, (since deceased) who were his attorneys and counsel.

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

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

as to the want of registry of the act on which the order of seizure and sale was issued, referred to Sinnott v. Michel, 7 Mart. N. S. 578. Brou v. Kohn, 12 La. 104. Civil Code, art. 3362. On the second point they cited Nathan v. Lee, 2 Mart. N. S. 32. Donaldson v. Maurin, 1 La. 29. Nicolet’s executors v. Moreau et al., 13 La. 314. Lawrence v. Burthe, 15 La. 267. Carter v. Caldwell, lb. 474.

<p>Appeal from the Probate Court of Carroll, JBosworth, J.</p>

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

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

The Distict Attorney' could not be controlled as to entering a nolle prosequi. 1 Moreau’s Dig. 295, 375, 369. 2 Mass. Rep. 414. The nolle prosequi released the sureties. B. & C.’s Dig. 26, 27. Acts of 1813 and 1830. State v. Dunbar et al, 10 La. 101. State v. Pendergast, 11 La. 69. Commonwealth v. Wheeler et al., 2 Mass. 172. 7 Pickering, 173. 1 Cbit-ty’s Crim. Law, 480, 846-7.

The husband being the head and master of the community, all contracts entered into during the marriage, trust be considered as made by him, and for his advantage, whether made in his own name, or in the names of both husband and wife. C. C. 2373, 2372, 2373. This presumption can only be destroyed by positive proof that the consideration of the contract enured to the separate advantage of the wife.

<p>Before a creditor of a succession can proceed against the surety of a curator, executor* &c., he must, under the sixth section of the act of 16 March, 1842, chap. 120, have pursued the steps pointed out by arts. 1055, 1056, and 1057, of the Code of Practice, and have exhausted all the means which the law gives him to obtain payment from the principal, officially and personally.</p>

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

<p>Where there are severat post offices through which an endorser receives his letters and papers indifferently, notice of protest must be sent to the one nearest his residence ; but when he habitually receives his letters and papers through the more distant one, notice through it will be valid.</p>

<p>Appeal from the Court of Probates of Caddo, Jenkins, J.</p>

<p>A copy of a decree of a District Court of the United States sitting in Bankruptcy, certified under the signature of the Clerk, appointing an assignee to the estate of a bankrupt, and ordering him to give security in a certain sum for the faithful dis charge of his duties, is sufficient evidence of the authority of the person so appointed to sue as assignee, where the exception does not state the grounds on which plaintiff’s capacity is denied. It will not be presumed that the certificate was delivered, before the person so appointed had complied with the orders of the court.</p>

<p>Payment of the costs of the lower court by a defendant who has taken a devolutive appeal, is not such an execution of the judgment, as will take away the right of ap. peal. Payment of the casts might have been compelled by execution, the appeal not being suspensive.</p> <p>A married woman, not separated from bed and board, cannot sue or be sued, without the authorization of her husband, or that of the Judge before whom the suit is brought. Nor can she appeal from a judgment rendered against her, without having been so authorized.</p>

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

<p>Appeal from the Court of Probates of Concordia, Dunlap, J.</p>

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

<p>Where a defendant, after having obtained several continuances, moves for leave to file an amended ansvver propounding interrogatories to the plaintiflF, a resident of another State, evidently merely for delay, permission will be refused.</p>

<p>A patent from the United States for a part of their public lands is conclusive, unless attacked for error or fraud.</p>

<p>This action was brought by the plaintiff as administrator of his deceased son, Alexander Beck, to recover damages for the death of the plaintiff’s intestate through the negligence of the defendants.</p> <p>The complaint stated that in May, 1865, near the foot of East Sixteenth street, in the city of New York, in the East river, the defendants, by the fault and negligence of their servants, so navigated their steam ferryboat, called the Suffolk County, that it ran into, capsized, and crushed a small boat containing the deceased, who, by means thereof, without any fault or negligence of himself, was drowned and lost his life. Beck jumped out of such small boat before the ferryboat reached her; and at the time of the collision such small boat did not “ contain said Alexander Beck.” No motion was made to amend the complaint, or to conform the pleadings to the proofs. Every witness on the part of the plaintiff and defendants says that “Beck jumped overboard before the steamer struck the rowboat.” The judge charged the jury on that as an admitted fact. The defendant moved to dismiss the complaint on the following grounds: First That no question was presented for the jury, because the testimony shows that the deceased jumped overboard. That the steamer did not touch the boat in which he was until after he had jumped overboard, and there was no evidence that the steamer or any thing connected with it, or projecting from it, contributed directly to the drowning of the plaintiff’s intestate.</p> <p>Second. On the ground of negligence on the part of the parents of the boy in permitting him to expose himself to danger, and that the negligence of the deceased contributed to the injury.</p> <p>The defendants’ counsel also requested the court to charge, in case of refusal to dismiss the complaint, that the burden of proof as to negligence of the defendants was on the plaintiff. The court refused so to charge.</p> <p>That no action could be sustained by the plaintiff under any circumstances; except for the pecuniary damages he had sustained by the death of his son.</p> <p>The justice refused to dismiss the complaint, to which ruling the defendant’s counsel duly excepted.</p> <p>The jury found a verdict in favor of the plaintiff for $2000, and the defendants appealed from the judgment.</p>

<p>In an action by the plaintiffs, as assignees of a prison-bounds bond, against the surety, parol evidence is admissible to prove a variance between the names of the assignees on the bond and those of the plaintiffs, to be but a clerical error.</p>

<p>Service of petition and citation, within the enclosures of a plantation on which the defendant resides, on a free person, apparently above the age of fourteen, shown to have resided at the time on the same plantation, but not in tho dwelling house with defendant, is sufficient. Per Curiam. The whole plantation was the domicil of the defendant, and service on a person living on it, was good. C. P. 189.</p> <p>A plea of payment will not authorize evidence of an adverse claim in compensation not equally liquidated with plaintiff’s demand. C. C. 2205. C. P. 367.</p> <p>Judgments in this State upon those rendered in other States, must render them executory according to their tenor, whether via executiva, or by decreeing their execution in an ordinary action. «,</p>

cited 8 Mart* N. S. 136, 246. 6 Ib. N. S. 716. Acts of 1813, and 1824. Bullard & Curry’s Dig. 596-597. A note reciting that it was given for the price of a slave, cannot be considered written evidence of a contract of sale. No contract is complete without the consent of both parties. In reciprocal contracts this assent must be expressed. Civ, Code, art, 1759. Contracts for the sale of slaves, or other real property, must be in writing. Ib. art. 2415.

<p>Appeal from the District Court of Concordia, Willson, J.</p> <p>cited Whittemore, fyc. v. Leake, 14 La. 392. Lanusse v. Massicot et al., 3 Mart. 266. 1 Peters, 578. 2lb. 543. Bayley on Bills, 179. 16 Johnson, 218. 1 Pickering, 411. Walker’s Miss. Rep. 530. 5 Howard’s Miss. Rep., case of Patrick v. Beasely.</p> <p>A post office is not a proper place of deposit for notices of protest, unless they are to be transmitted thence by mail. 5 Mart. N. S. 137, 158, 359. 6 Ib. N. S. 506. 7 Ib. N. S. 491. 8 La. 170. 16 lb. 22. 1 Merger’s Rep. 166. 3 Littell, 498. 6 Mass. 317. 10 Mass. 90. Bayley on Bills, 275. Chitty on Bills, 7 Am. ed. 222, and note. 10 Johnson, 490. 11 lb. 231. 1 Robinson, 572. 1 Carrington & Payne, 181. 1 Peters, 578.</p>

<p>The statement of the title of the caso, and of the court from which the appeal is taken, written at the head of the opinions prepared by the Judges of the Supreme Court, is not required by law. It forms no part of the judgment, and when erroneous may be disregarded.</p> <p>The functions of a District Court in relation to a mandate issued from the Supreme Court to have a judgment executed, are merely ministerial. It cannot render any new judgment which can authorize an appeal, or render one necessary. Its duty is to obey the mandate, and to order the decision of the Supreme Court to be recorded on its minutes, that it may be legally executed. C. art. 619. As soon as this is done, the party in whose favor the judgment has been rendered, has an absolute, immediate right to an execution, which cannot be suspended by any subsequent appeal. C. P. 623, 629. If the mandate of the Supreme Court be not obeyed, the party obtaining the judgment must enforce it by a mandamus; and he against whom it has been rendered, if he thinks himself injured by the manner in which the execution is ordered, must seek relief by a supersedeas.</p>

<p>1. Where a person alleged to have been killed upon the defendants’ railroad, by negligence of the defendants or their employees, while stepping upon the ground from a train of cars, near a station, was proved to have been struck by an express train, so that he fell under the wheels of the train from which he came, and was run over; Held that this was sufficient proof that he came to his death by the acts'of the defendants’ agents.</p> <p>2. It is clearly negligence for a train of cars to approach a cross road without the blowing of a whistle, or ringing of a bell, to give notice of its approach.</p> <p>3. It is not negligence to cross a railroad track, where there is nothing to notify a traveler on the highway crossing it, that a train of cars is approaching.</p> <p>4. It seems that all persons crossing a railroad, on a highway, are not bound to know the time when a train of cars may he expected, according to the time table of such road. Ter Robertson, Ch. J.</p> <p>6. Although travelers on a road may he hound to use, and are entitled to rely on, their senses to discover any approach of danger, yet they are entitled to expect that, where the sight cannot he Used, the means provided hy law for warnings, addressed to the sense of hearing, shall he used hy trains of cars on railways crossing such road.</p> <p>6. Under the decision in Ernst v. The Hudson River Railroad Company, (35 N. 7. Rep. 9,) a traveler on the highway is not hound to look out for a train of cars, when the law requires the railway company to give signals of its approach. Nor is a passenger, descending from a train at a station, hound to look out to see whether another train is approaching, before he crosses the track, where no signal to that effect has been given. And this, although by the time table, another train is nearly due at that station.</p> <p>7. Neither the vicinity of a person’s residence to a railroad, nor his habit of traveling on it, or his familiarity with its time tables, make any difference as respects his right to he informed, by the usual signals, of the approach of a train of cars.</p>

contended, that the failure of the plaintiff to cause an inventory to be made, deprived her of the right of renouncing the community of acquets. Civil Code, arts. 2382, 2383. She must not merely pray for an inventory, but cause it to be made. Ib. 1028. Merlin, verbo Inventaire, § 5, No. 2. 13 Toullier, No. 6, 134, 137, 141. Poihier, Com. Nos. 540, 558. She will not be excused from making an inventory, by any allegation, that no property was left by the deceased.

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

<p>The possession of a debtor against whom a judgment has heen rendered, is divested by the legal seizure under a fieri facias, and is vested in the Sheriff until the property is disposed of. He is regarded as the rightful possessor, and ean maintain an action of trespass against any person disturbing him in such possession. It is his duty to take the property into actual possession. If it be a plantation, jit remains sequestered in his custody until the sale, and he may appoint a keeper or manager ; and if resisted in the execution of his orders, may employ force, apd summon the posse comitatus. C. P. 656 to 669, and 762. ■ \</p> <p>The legal effect of an adjudication under a fieri facias, is tp transfer to the purchaser all the rights and claims of the party in whose hands it was seized, (C. C. 2589. , C. P. 690) ; and the Sheriff is bound, thereupon, to pass an act of sale to the .purchaser, and to put him in possession of the property sold. C. P. 691. )</p> <p>After an adjudication under a fi. fa., which divests the defendant in execution of'his title to the property, he can no longer be considered as possessing as owner, which is essential to maintain a possessory action. C. P. 47. He must, if he still clairns the property, resort to a direct action to annul the Sheriff’s sale.</p>

<p>Appeal from the Court of Probates of Ouachita, Lamy, J.</p> <p>The record containing no evidence of the laws of Mississippi, this case must be decided by our own. Though married in Mississippi, the intention of the parties was to reside in this State, and their rights must be governed by our laws. 3 Mart. 61. 2 Ib. N. S. 574.</p>

<p>This action was brought to recover damages for the nonperformance by the defendants of a written agreement. The complaint alleged:</p> <p>First. That during all the times hereinafter mentioned, the defendants were co-partners in trade, doing business in the city of New York, under the firm of Barrows, Haselton & Co.</p> <p>Second. That on the 31st day of May, 1864, the defendants, under their firm name, and Messrs. Fabricotte Brothers, merchants, in the city of New York, entered into an agreement in writing, through Sergeant & Hunt, brokers and agents, duly authorized to make the same, both on behalf of the defendants and of said Fabricotte Brothers, in the following words and figures:</p> <p>“ New York, May 31st, 1864.</p> <p>Sold for account of Messrs. Barrows, Hasleton & Co.' to Messrs. Fabricotte Brothers, three thousand barrels of standard light straw to white refined petroleum in bond, testing 110% (heat test) and upwards, @ (65cts.) say 65 cents per gallon, net cash, deliverable in yard or alongside lighter.</p> <p>This contract is made subject to the following conditions, viz: Buyers to notify sellers, on the first day of July next, of their intention to receive five hundred barrels of the quantity above mentioned; on the 15th of the same month, and so on, every fifteen days, in like manner, notice shall be given of the intention to receive five hundred barrels, until the whole three thousand barrels shall be delivered ; or, in case no notice is given, as above stated, buyers agree to pay to sellers two dollars ($2,) per barrel on the several days on which no notice should have been given, viz: $1000 on the 1st and 16th of July, August and September, in consideration for this contract, 'barrels to be all in prime shipping order, gauged by a government gauger, and buyers to furnish evidence of export.” And after-wards, on the 2d day of June, 1864, the defendants further approved of said agreement by writing across the face thereof, the words and figures following, to wit: “June 2d, 1864, accepted ‘ Barrows, Hazleton & Co.’ and the defendants duly delivered said written agreement to Fabricotte Brothers.”</p> <p>Third. That thereafter, for a valuable consideration, Fabricotte Brothers duly assigned and transferred said contract and all their interest therein to Messrs. H. Santler & Weirum, merchants of the city of New York, and who, on the 30th day of June, 1864, for a valuable consideration, assigned said contract and all their interest therein to the plaintiff.</p> <p>Fourth. That thereafter, on the 1st day of July, 1864, the plaintiff duly notified the sellers, the defendants herein, that he was the owner and assignee of said contract, and intended to receive five hundred barrels of said quantity of 3000 barrels, on the 15th day of said July; and every fifteen days thereafter in like manner notified the defendants of his intention to receive 500 barrels of said quantity of 3000 barrels, as provided in said contract; and that on the days respectively when said 500 barrels should have been so, delivered, the plaintiff duly notified the defendants that he was ready to receive the same in accordance with, and upon the terms of said contract, and was ready to pay for the same upon the delivery, and demanded that the defendants deliver the same. That in all things, at the time and times named in said contract, the plaintiff fully, and in every respect, performed the conditions thereof; and was ready and fully prepared with the cash to pay for said 500 barrels of petroleum on the respective days when the same should have been so delivered.</p> <p>Mfth. That the defendants refused to deliver, and did not deliver, said 500 barrels of petroleum, on the 15th day of July, 1864, nor- at any time thereafter; but refused to deliver, and did not deliver any of said petroleum as agreed, and as they were notified and required to do; that they entirely refused to perform said contract in whole and in part, and had not performed or complied with any of the conditions thereof, and that the time for any and all deliveries of petroleum under said contract had expired.</p> <p>Sixth. That by reason of such refusal and neglect of the defendants to deliver said petroleum as before stated, the plaintiff suffered damages to a large amount, ($17,200,) with interest on various portions thereof from six different dates, on the 1st and 15th of every month, beginning on the 15th of July, for which sum of $17,200 and interest as aforesaid, the plaintiff demanded judgment, besides costs.</p> <p>The defendants, by their answer, admitted that the firm of Barrows, Haselton & Co. entered into the agreement set out in the complaint, but denied, that the defendant Levi Kerr, was a party to said agreement or contract, or that any notice was given to the defendants as required by the contract set out in the complaint, or according to the terms of said contract or agreement. The defendants further alleged that they had no knowledge or information sufficient to form a Relief whether the said Fabricotte Brothers assigned the agreement set out in the complaint, or whether any assignment was made of said agreement, by any person or persons, to any other person or persons, whatever; but averred that neither of them, nor any one in their behalf, assented to any transfer of said contract, and he denied all right of said Fabricotte to transfer the same without the assent of the defendants.</p> <p>At the trial, before Justice McOunit and a jury, the plaintiff proved the making and execution of the agreement sued on, and the assignments thereof set forth in the complaint. When the plaintiff rested, the counsel for the defendants moved to dismiss the complaint on the grounds that,</p> <p>1st. The contract was not assignable, there being a mutual obligation between the parties, the defendants having relied, in making the contracts, on the pecuniary responsibility of Fabricotte Brothers.</p> <p>2d. The contracts provided that notice should be given by the buyer (and not the assignee,) whether he would take or not, and no such notice had been given.</p> <p>3d. It was a wager contract, and void by the statute against betting.</p> <p>The court denied the motion, and the defendant’s counsel excepted to each refusal, on'each separate ground. The defendant’s counsel putin evidence the following notice and demand, addressed to Fabricotte Brothers, signed by the defendants, and dated,</p> <p>“Hew York, July 2d, 1864.</p> <p>Q-entlemen; As you failed to notify us on the first day of July of your intention to receive 500 barrels refined petroleum on the 15th inst. as per contract, you will please send us your check for one thousand dollars, in accordance with said contract, and much oblige, Yours, respectfully.”</p> <p>Also an answer thereto, addressed to the defendants, signed by Eabricotte Brothers, and dated,</p> <p>“Hew York, 5th of July, 1864.</p> <p>Gentlemen: We were somewhat surprised at reading the contents of your letter of the 2d inst. knowing that the buyers to whom we sold the contract of the 3000 barrels petroleum had not neglected to notify you in due time that they were ready to receive (as per contract) on the 15th of this month, the first delivery of 500 barrels; under these circumstances we consider our obligation in the matter entirely at an end. We remain, gentlemen, yours truly.”</p> <p>It was admitted by the defendants that an action was theretofore commenced by the defendants to recover $2 per barrel under this contract, which action is now pending. The counsel for the defendants asked the court to instruct the jury that under no circumstances, after the notice given, were the defendants (Barrows, Haselton & Co.) liable for any thing but the damage for failing to deliver the first 500 barrels, which the court refused to charge, and the defendants’ counsel excepted to such refusal. The court directed the jury to render a verdict for the plaintiff for the sum of $19,000; to which the defendants’ counsel excepted. The court then, on the trial, ordered the exceptions to be heard in the first instance and no judgment to be entered until their hearing and decision at general term.</p>

<p>Purchasers at Sheriff’s sales cannot be affected by irregularities occurring after the sale — no act of the Sheriff, subsequent to the sale, can affect his rights. The adjudication made by him has, of itself, the effect of transferring to the purchaser all the rights and claims of the party in whose hands the property was seized. C. P. 690. It is the last proceeding which concerns the purchaser; it fixes his condition, and is the basis of his title.</p> <p>The return of the Sheriff on a fieri facias is not conclusive as to the facts stated by him, and the purchaser cannot be prejudiced by it. Parol evidence is admissible to explain any ambiguity in it, and to show, beyond the contents of the return, that the formalities required by law for the validity of Sheriff’s sales had been complied with, and how they were fulfilled.</p> <p>One claiming under a Sheriff’s sale who produces the judgment, execution, and Sheriff’s return, showing the adjudication to him, has nothing else to show in support of his title. It is for the opposite party to establish any irregularity or informality in the sale.</p>

contended that the income of dotal property may be seized, though not the right to the income, citing Toullier, vol. 12, Nos. 401, 402.

<p>1. Commissions for procuring the charter of a vessel in the port of New York are payable as soon as the charter is effected, and do not depend upon freight being taken or earned, or upon the voyage being completed.</p> <p>2. The per centage to be allowed the ship brokers is to be estimated not by the ultimate profits actually derived from the adventure, but by what they would be, if it were successful.</p> <p>3. The plaintiffs, being ship brokers, procured for the defendants a charter of a vessel for a voyage from New York to Cape Town and thence to Mauritius or Batavia, the freight to be a certain sum($l) and five per cent primage, in gold, per barrel. ^ The charter-party provided that the charter money should be settled, if at Cape Town or Mauritius at a certain rate of exchange in sterling (four shilings and two pence) for the price so fixed per barrel; if at Batavia, at a certain other rate of exchange in the currency of the country (two and a half guilders) for the price so fixed. No cargo being ever supplied to the vessel, the charter was not performed. Held that the plaintiffs were entitled to recover, as their commissions, five per cent on the value in New York of the amount of sterling currency susceptible of being earned at Mauritius, under the instrument.</p> <p>4. A contract to be completed in a foreign country, the compensation for which is payable in the money of account, or currency, or coin of that country, is to be considered as performable there, at least so far as the place, at which the value of such currency, money or coin is to be estimated at the locus fori is concerned; particularly as the charterers would have a lien on the freight at the place of delivery of the cargo.</p>

The clause of the constitution or Mississippi prohibiting the introduction of slaves into that State for sale, after the 1 May, 1833, is in violation of the provision of the constitution of the United States, giving to Congress the power “ to regulate commerce among the several States.” See opinion of Baldwin, J., 5 Peters, 511. Gibbons v. Ogden, 9 Wheaton, 186, 222. Brown v. State of Maryland, 12 lb. 438, 446.

<p>1. Although the general rule is that the liability of common carriers who have received goods for transportation, either as such or as bailees only, is continued until the actual delivery thereof to the consignee, at the place of destination; yet where actual delivery is impossible, because the consignee cannot be found, or has neglected to take the goods away within a reasonable time, the carrier may divest himself of his common law liability as such, by storing them in a warehouse, belonging either to himself or to another, for the benefit and at the charge and ordinary risk of the owner, and to be delivered to him by the storekeeper upon payment of warehouse charges, together with those of the carrier.</p> <p>So, also, where the consignee fails to take away the goods within a reasonable time after he has notice of their arrival, the carrier’s extraordinary common law risk ceases at'the end of such time, although, the goods may still remain, upon his carriage or vessel.</p> <p>By usage, too, where the same exists, goods may be deposited by the carrier at a customary place of receiving them, such as a wharf, and if the person, whose duty it is to receive them, shall fail to take them away within a reasonable time after notice thereof, the carrier will, thenceforth, be discharged of all liability.</p> <p>A common carrier cannot legally divest himself of his common law liability as such carrier in any other way, where the consignee can be found, than by an actual delivery of the goods to such consignee, or by giving notice to him, with reasonable diligence, and his failure, after the lapse of a reasonable time for that purpose, to take them away.</p> <p>The rule adopted in Massachusetts, that where it is the usage for a railroad company to deliver goods by discharging them upon their own platform, without giving notice to the consignee or owner, the persons sending goods by them must be presumed to have assented to such usage, does not prevail in this state.</p> <p>A different rule does not obtain, here, in regard to railroad companies, from that which controls aU other common carriers, whether by land or water. Where goods, transported by railroad, after reaching their place of destinanation, are before delivery to the consignees, and while yet remaining in the freight car, destroyed by fire—the consignees using due diligence in regard to taking them away—the carriers are liable.</p>

<p>The possession of a note by the maker, after it has been endorsed by a third person, is evidence that the endorsement was an accommodation one.</p> <p>An accommodation endorser, being viewed as a surety, may avail himself of any plea which his principal could have opposed to the holder.</p> <p>On a plea of usury by the maker or accommodation endorser of a note, the holder will be entitled to recover only the amount actually paid by him.</p>

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

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

<p>Appeal from a judgment entered on the report of a referee.</p> <p>The facts in this case, so far as this appeal is concerned, are as follows:</p> <p>In January, 1841, an agreement was entered into between the North American Trust and Banking Company and Joseph D. Beers, who was then indebted to such company in an amount exceeding $200,000, whereby the former agreed to receive from Beers, upon such claim, certain certificates of indebtedness, theretofore issued by the company, then held by the state of Indiana, to the amount of $175,000, if delivered within a certain time.</p> <p>In September, 1841, an agreement was made between the state of Indiana, through its fund commissioner, (Noah Noble,) and Jabez M. Woodward, whereby the former undertook and promised to allow and pay to the latter twenty-five' per cent commissions on any amount which might be recovered on the claim of the state against the company; and there was an understanding between Beers and Woodward that such commissions should be divided between them equally.</p> <p>Soon after that, the state of Indiana placed the said certificates of the company in the hands of the plaintiff, and authorized him to permit Beers to use them in payment of his debt to the company.</p> <p>Within the time limited for that purpose, by the agreement between Beers and the company, the former, with the permission of the plaintiff, offered and tendered to the latter (through its receiver) the whole of the said certificates, in payment of his debt to the latter.-</p> <p>After that, and in May, 1844, Woodward and Beers transferred to the plaintiff one third of the commissions covered by the agreement between Woodward and the state, after deducting therefrom about $1500.</p> <p>In November, 1847, Woodward delivered to the state of Indiana an instrument in writing, duly executed, of .which the following is a copy :</p> <p>“ In consideration of twelve hundred dollars, received of M. G-. Bright, fund commissioner, &c. I hereby release and transfer all my claim and interest by virtue of the annexed agreement between me and Noah Noble, dated 17th September, 1841, to said M. G-. Bright, fund commissioner, &c. provided that A. Mann, Jr. and J. D. Beers shall assent to the same by signing such consent hereunto.</p> <p>Witness my hand and seal this 2d day of November, 1847. J. M. Woodward.-</p> <p>Witness—</p> <p>Richard Varice.”</p> <p>“Having received our proportion of the above $1200, we hereby assent to the above release and assignment and transfer,</p> <p>2d November, 1847. A. Maw, Jr.</p> <p>J. D. Beers.”</p> <p>In January, 1849, the state of Indiana, by its fund commissioner, assigned and transferred the said certificates of indebtedness, and all its claims against the North American Trust and Banking Company, to Charles Fincke, who, subsequently, assigned the same to the plaintiff.</p> <p>Beers died in 1863, and the defendant was his executor. This action was commenced in 1865.</p> <p>The plaintiff claims that he thus became entitled to all the rights of the state of Indiana, as against Beers; and that he should have judgment in this action against the executor of the latter, for the amount of the said certificates, with interest; or, if such claim shall be deemed to be barred by the statute of limitations, then, for two thirds of the commissions which were to be paid by the state of Indiana to Woodward, under the agreement of September, 1841. The referee found, as a conclusion of law, from the above facts, that the plaintiff was not entitled to judgment against the defendant for the cause of action above mentioned, being the first cause of action mentioned in his complaint; and from the judgment entered upon the report, the plaintiff appealed.</p>

Appeal by the defendant from a judgment entered upon the report of a referee. Held: at the time of his death, any claim against the company except those covered by that assignment to Beers. After the execution of those assignments, an attempt was made to collect the claims; but the company proved to be wholly insolvent, and all' efforts to collect ceased in June, 1849.

This was an action for a divorce by the husband, on the ground of adultery, the plaintiff praying for the custody of the issue of the marriage. Held: that circumstances, though extremely suspicious, will not suffice; nor will any admission of the parties. 16 La. 26. The judgment of the lower court should be so amended as to grant the defendant a divorce a vinculo matrimonii, instead of a separation a mensa et thoro, but should be, in other respects, affirmed.

This action was brought to recover for the loss of the service of the adult daughter of the plaintiff occasioned by her seduction and debauchment by the defendant. A verdict was found for the defendant. A motion for a new trial was made at special term, which was denied, and judgment was thereupon entered in favor of the defendant. The plaintiff appealed from the judgment and from the order denying a new trial.

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

<p>Appeal from the District Court of Madison, Curry, J.</p> <p>The prescription of one year was not completed when service of citation was accepted by the curator ad hoc, appointed to represent the bank. This acceptance was as good as actual service by the Sheriff. 4 Marl. N. S. 238, 680. 4 La. 257. 12 La. 596. 13 La. 285. But the prescription of one year is inapplicable to this case, the plaintiffs residing out of this State. Civil Code, arts. 3437, 3442, 3443, 3444, 3507, 3508, 3510, 3511. Code of Practice, art. 593. Being an action fortherescission ofa contract, and the plaintiffs being non-residents, this action is only prescribed by ten years. Civil Code, art. 3507. In 2 Mart. N. S. 585, is a decision establishing the law in an analogous case. The mortgage is void for want of acceptance. Civil Code, arts. 1758, 1759, 1764, 1773, 3314. 4 La. 80. 6 La. 218. The Commercial Bank of Natchez, being a foreign corporation, had no authority to take a mortgage on property in this State. 16 La. 439. The mortgage is void on account of the insolvency of the mortgagor, to the knowledge of the mortgagees. Civil Code, arts. 1976, 1977, 1965. 4 Marl. N. S. 651. 8 lb N. S. 462. 10 La. 363. 14 La. 186. 16 La. 369.</p> <p>The action is prescribed by one year. Civil Code, art. 1982. Petit v. His Creditors, 3 La. 28. Caldwell etal. v. The Atchafalaya Bank, 14 La. 308. The acceptance of service of citation by the curator ad hoc, appointed to represent the Bank, was illegal, and did not interrupt the prescription. Civil Code, art. 57. 5 Mart. N- S. 307, 310. 6 lb. N. S. 130. 10 Mart. 475. 7 La. 268. 3 La. 203. 17 La. 116. Art. 177 of the Code of Practice applies only to the defendant, or the attorney employed by him; not to a curator, ad hoc, representing an absentee, who can neither waive nor admit any thing by which the rights of the party he represents may be injuriously affected. Code of Practice, art's. 194, 195, 196. Stockton etal. v. Halsuck et al., 10 Mart. 472. 4 Mart. N. S. 238.</p>

<p>Where plaintiff sues for the amount of an open account, less than three hundred dollars, he cannot give jurisdiction to the Supreme Court by claiming conventional interest from a particular period, where there was no agreement to pay it.</p> <p>Where the amount really in dispute is under three hundred dollars, the appeal must be dismissed, though at the instance of the parly who, by a fictitious claim for interest, attempted to bring the case within the jurisdiction of the Supreme Court.</p>

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

The plaintiff having obtained a judgment of separation of property from her husband, and declaring her entitled to a legal mortgage on all the immoveables and slaves in his possession for the reimbursement of paraphernal funds received by him. Brent, an ordinary creditor, appealed therefrom. as an ordinary creditor, had no right to an appeal, not having made himself a party below.

This was an action by the plaintiffs for goods sold and delivered by them to the defendants, in which the latter set up, among other defensés, that of payment. On the 16th of Hovember, 1867, the defendants being indebted to the plaintiffs, in the sum of $2968.69, balance due for sugar theretofore purchased from the plaintiffs, by the defendants, the plaintiffs wrote to the defendants as' follows: “Hew York, Hov. 16, 1867. Messrs.

<p>Plaintiff having obtained an injunction from a State court, to stay an execution about to be levied on his property, was subsequently declared a bankrupt by the District Court of the United States, under the bankrupt law of 1841. A rule having been afterwards taken in the State court, to show cause why the injunction should not be dissolved, or further security given : Held, that by the decree of bankruptcy, the State court was divested of all jurisdiction, having no authority to decide questions involving the adjustment of privileges and liens among the creditors of the bankrupt, or the distribution of the funds of his estate.</p> <p>Under the bankrupt law of 1841, all the estate of the bankrupt is, by the issuing of the decree of bankruptcy, ipso facto, vested in the assignee. It is his duty to take possession without delay, and to administer the property to the best advantage for the benefit of the creditors. If resistance be made, the State courts will grant the necessary process to enable him to do so. The assignee may make himself a party to suits in the State courts in place of the bankrupt, and take the necessary steps to protect the property and interests confided to his care.</p> <p>If the goods of one who has been declared a bankrupt under the act of 1841, be seized in execution and sold, before possession has been taken by the assignee, they may be recovered in an action against the Sheriff, or the plaintiff in execution, if he accompanied the Sheriff, or specially directed the seizure.</p>

In the former report of this case, (4 Robertson, 221,) the individual opinion of Robertson, Ch. J. was inserted by mistake as that of the court. The following opinion of Jones, J. was actually that of the court, and was accidentally omitted to be published in its proper place.

The plaintiff having recovered a judgment for the amount of certain promissory notes, the defendant appealed. A motion to dismiss the appeal, on the ground of ,a voluntary execution of the judgment, was overruled, at the October term, 1841, (1 Robinson, 71,) the evidence in the record then before the court not sufficing to establish the fact of voluntary execution.

This was an action of ejectment, to recover possession of certain lands situate in the city and county of Hew York. The plaintiffs claimed as sole heirs at law of a Mr. Tallmadge, (Theodore B.) who they allege died intestate, seisecl of the premises in question.

<p>A vendor will not be responsible, where the purchaser has voluntarily surren dered the possession of the thing sold, without any action having been brought against him.</p> <p>The holder of a promissory note, protested for non-payment, is entitled to interest on the amount from the day of protest. Act 14 February, 1821, sect. 2.</p> <p>The maker of a note given for the price of a tract of land, is bound, under art. 2531, of the Civil Code, to pay legal interest on the amount from the time when it became due, till payment.</p> <p>The provisions of arts. 3314, 3316, of the Civil Code, that neither the contracting partios, nor their heirs, can take advantage of the non-inscription of a mortgage, are not irreconcileable with art. 333 of the same Code, which declares, that the effect of a mortgage will cease, even against the contracting parties, if the inscription has not been renewed before the expiration of ten years from its date. The intention of the legislator was, that a mortgage whether inscribed or not, shall cease to have its legal effect after ten years, to be reckoned, when not inscribed, as to the parties, from its date, and as to third persons from the time of its inscription, unless renewed before the expiration of that term ; that, though the mortgage to have effect between the parties, need not be recorded during the first ten years from its date, yet to continue in effect afterwards, it must have been inscribed, as directed by art. 3333, before the expiration of that period ; and that this inscription may be considered as a renewal of the mortgage between the parties, and against third persons.</p>

<p>The purchase by one who had acted as the attorney at law of defendant, of a good ■ and valid title to the land in controversy, from persons not parties to the litigation concerning it, is not such a purchase of a litigious right, as is declared to be null by art. 2422 of the Civil Code.</p>

The plaintiff is appellant from a judgment against him. He claimed a tract of land, under a conveyance from the sons and heirs of one Franyois Grappe, whose title rested on a reservation in his favor, contained in a supplementary article to a treaty, of the 1st July, 1835, between the United States and the Caddo Indians.

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

assigned as errors apparent on the record : 1st. That the action, being ^petitory one, should have been against the person in actual possession; and that, if no one was in possession, no action of this kind could be maintained. Code of Practice, arts. 43, 964. 2d. That a defendant cannot be represented in a petitory action by a curator ad hoc, such appointments being restricted to personal actions only. Civil Code, art. 59.

<p>No state court can inquire into any act or judgment of a court of the United States, upon the merits, nor say whether the judgment was rendered upon proper evidence, or is correct; but when the proceedings of a court of the United States are set up as the basis of title, between persons litigating in our own courts, they may be looked into to ascertain whether the court had authority to render such a judgment, whether there is in fact such a judgment, or to ascertain whether the executory pro- ■ ceedings under it were legal.</p> <p>The Marshals of the United States in Louisiana, in executing process, are bound, by an act of Congress, and the rules of the Circuit Court, to conform to the state laws ; and when their proceedings form a link in a chain of title set up, the state courts will examine into their legality. A state court cannot direct a Marshal how to act, nor direct process to him to be executed; but when he has acted, and his acts are instrumental in changing the titles to property, they will, between litigants before a state court, be examined into.</p> <p>Executory process by seizure and sale, is a summary and severe remedy, and the formalities prescribed by law must be strictly complied with, or the property will not be transferred, and the purchaser acquire no title.</p> <p>To support a sale J>y a Sheriff or Marshal, under an execution or order of seizure and sale, there must be a valid judgment, by a court of competent jurisdiction ; otherwise the title will not be divested. Where there is a total want of jurisdiction, the proceedings are null and void ; and the competency of the tribunal may be inquired into.</p> <p>An officer who executes process issued by a court without jurisdiction is a trespasser, and liable in damages to the party injured.</p> <p>Under the grants of jurisdiction to the Circuit Courts of the United States,by the ilth section of the act of Congress of 24 September, 1789, those courts are of limited jurisdiction, having cognizance not of cases generally, but only of a few, under spe-' cial circumstances ; and the presumption is, not that a cause is within its jurisdiction unless the contrary appears, but that it is without it, unless the contrary be shown.</p> <p>Articles 42, 43, 44 of the Civil Code, provide for a change of domicil only as to persons already residents of the state, and not as to those coming from other states. As to them, an actual residence of twelve months within the state, is required, before a domicil can be acquired.</p> <p>A Circuit Court of the United States is without jurisdiction redime persones, of a suit between parties, all of whom reside out of the State in which the court is held.</p> <p>The provision of the 11th section of the act of Congress of 24 Sept., 1789, “ that the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature,” &c., means that where a citizen of the state can sue in the state courts against another citizen or resident, an alien, or a citizen of another state may institute a similar suit in the Cir-oust Court of the United States, for a similar cause of action, and that he shall be entitled to the same remedy.</p> <p>An order of seizure and sale cannot be obtained either from a state court, or a Court of the United States, against mortgaged property composing part of a succession represented by an executor, administrator, or curator, and in the course of administration in a Court of Probates.</p> <p>A creditor, residing in another state, cannot sue in the Circuit Court of the United States, an executor, curator, or administrator of an estate, in course of administration in a Court of Probates, as an insolvent estate, and obtain judgment, and issue execution thereon in violation of the state laws, and take the property out of the hands of the officer administering it, to the injury of the domestic creditors. But if such executor,administrator, or curator, refuse to admit the justice of a debt claimed by an alien or non-resident, and to class it as an acknowledged debt against the succession tobe paid as others, he may be sued in the Circuit Court of the United States, and a judgment liquidating the demand may be obtained ; but the judgment must provide that it is to be paid in due course of law, out of the assets in the hands of the executor, &c., to be administered; and no execution can be issued in fa- '■ vor of an alien or non-resident Creditor, unless one could be issued, in a similar case, in favor of a domestic creditor.</p> <p>Until the notice required by art. 735 of the Code of Practice to be given to a debtor, on an application for an order of seizure and sale against mortgaged property, has been given, and the time has elapsed, the o'rder directing the seizure is not a final judgment, and no executory proceedings can be had under it.</p> <p>A possessor in good faith, under a title which he honestly believes tobe just in point of fact and form, is entitled to his improvements, and is not bound to' account for the fruits and revenues, until the prdperty is claimed by the real Owner. The possession and title must be such as to entitle the party to the prescription of ten years. The possessor in good faith is one who has just reason to believe himself the master of the thing which he possesses, though he may not be so in fact, (C. C. 3414 ; j the possessor in bad faith, one who knows that he has no title, or that his title is defective, lb. 3415.</p> <p>A judgment by a court having no jurisdiction or authority to render it, is null and void ; and one possessing under it, is not a possessor under a just title and in good faith, so as to exempt him from liability for the fruits and revenues, Until claimed by the owner. To exempt him, as a possessor in good faith, from sb'ch liability, the possession must have been valid in point of form. C. C: 345S.</p> <p>A possessor without a just title, owes the fruits andrevcfiues from the commencement ofhis possession,.</p> <p>The omission of counsel to interrogate a witness as to a particular fact, is no ground for a new trial.</p> <p>A new trial will not be granted on an affidavit by one of the counsel of a defeiTd'ani that he had discovered; since the judgment,' new and material evidence, of the existence of which he wds not aware at the time of the trial, though he had used due' diligence, &c., where it is not shown that the defendant, or his other counsel, were also ignorant of the existence of such evidence, and the witness by whom the new feet-is expected to be proved was examined on the trial of the cause:-</p>

prayed for a re-hearing on the ground, that the court erred, in deciding the note for $1966 66§, to be the property of D. M. Cotton, and in sustaining the decision of the lower court refusing to allow interest from the date of the note. The decision as to the illegality of such stipulations must affect existing contracts to a great amount.

The legality of the execution of a writ from a court of the United Slates, cannot be examined into by a state court. 4 Cranch, 333. 2 Peters, 163. 6 lb. 655. 10 lb. 474. Yelverton, 179, 180. A bona fide purchaser at'a Sheriff’s sale, will be protected, though the writ was illegal, or illegally executed. 1 Cowen, 644. Yelverton, 179. A state court cannot enjoin an execution from a court of the United States.. 7 Cranch, 280.

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

Appeal by the plaintiff from an order granting a new trial. The action was brought to recover damages for personal injuries sustained by the plaintiff on the evening of January 1, 1864, in consequence of having been run over by a pair of the defendants’ horses. At the time of the accident the defendants operated a horse railroad in the city of Eew York.

<p>The decisions of the Register of the Land Office and Receiver of Public Moneys in Louisiana, in relation to confirmed land claims which may conflict or interfere with each other, under the powers conferred by sixth section of the act of Congress of 3 March, 1831, are not binding on the parties. The act does not take from the courts the right of investigating and deciding on such claims, after those officers have acted thereon.</p>

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

This action was brought to recover $2333.60, alleged to be due from the defendant on the contract set out in the complaint. The defendant was building a large beer vault on Ninety-sixth street, and employed the plaintiff to do the work.

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

The complaint- alleged that in February, 1866, the defendant, Blaise Lorillard, being the then owner of premises No. 69 Bleecker street, in the city of New York, leased the same, in writing, to the defendant, Hurlburt, for a term of ten years from the 1st of May thereafter, at an annual rent of $2500; and therein covenanted to make certain specified alterations in the buildings, &c.; and that the lease was duly recorded; that subsequently, in the same month, for the…

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>cited Mossey v. Mead, 2 La. 157. Givil Code, arts. 1811, 2656, 2658, 2659.</p>

Appeal by the defendant from a judgment entered upon the verdict of a jury. The action was brought to recover the possession of certain articles of household furniture, alleged to be wrongfully detained by the defendant.

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

<p>The privilege on the price of the property sold, where the price has not been paid by the purchaser, nor passed into an account current between him and the insolvent, granted to the consignor by art. 3215 of the Civil Code, in the event of the insolvency of the consignee, will not be affected by the fact that the property was sold with other property of the same kind, and one note taken for the price of both, where the bill of sale shows the price of each parcel, and the amount collected by the syndic can be apportioned accordingly.</p> <p>"Where in the settlement of the estate surrendered by an insolvent, the proceeds of the moveables al'6 insufficient to pay the privileged charges, the property on which liens or mortgages exist, and not the creditors holding such liens and mortgages, must contribute to their payment.</p> <p>The privilege of a vendor on the unpaid price of property sold by an agent who has made a cessio bonorwu, is superior to that acquired by levying a fi.fa. on notes given for the price, in the hands of an attorney of the insolvent before his cession. C. C. 3215. C. P. 722.</p>

Action of ejectment, to recover the possession of certain premises situate in the city of New York.

<p>Where no judgment was pronounced in the inferior court on the claim of an intervenor, his appeal will be dismissed.</p>

<p>A rule supported by affidavit, taken on a Judge of a Court of Probates, to show cause why a mandamus should not be issued to compel him to pronounce a judgment on a case which had been submitted for decision more than twelve months previously, will be made absolute where no cause is shown by the Judge.</p>

<p>Damages can be assessed only by a jury; and in suits before the District Court of the First District, or the Parish, or Commercial Courts of New Orleans, the plaintiff must advance the compensation allowed to the jurors by the 17th sect, of the act of 10 February, 1841, where the defendant has not done so. C. P. 313.</p> <p>In an action to recover a promissory note, or the amount for which it was made, with damages for its detention, the note was sequestered and delivered to the plaintiff on her giving bond to return it, in case it should be decreed to belong to the defendants. Judgment having been rendered in favor of the plaintiff for the note and damages, the defendants appealed from so much of the judgment only as related to the damages, and gave bond for a suspensive appeal in a sum fixed with reference to that part of the judgment. Heldy that the acquiescence in the part of the judgment not appealed from, was not such a voluntary execution of the decree, as to prevent au appeal fróm so much of it as assessed damages.</p>

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

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

<p>Where an endorser, the wife of the maker of a note, could not sue the latter, her endorsee cannot.</p> <p>A husband can contract with his wife only in the cases specially authorized by law.</p>

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

This action was brought to recover damages for three breaches of contract by the defendant, to wit: Failing to deliver, pursuant to a contract with the plaintiff, the iron parts of a boom derrick agreed by him to be erected for the United States government; also iron plates to be made into the legs of such derrick, pursuant to. a second contract between the parties; also a machine to bend such plates for such derrick, pursuant to a third contract between the same parties; as…

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

The defendants are entitled to the benefit of the provision of the act of 5 Feb., 1842, relative to the “ dead weightTheir debts became the property of the City Bank on the 26 February, 1842, and the act of 1842 was not accepted by the Bank, until the 16 April following. The act of 5 February, is not proved to have been promulgated before the Bank became the owners of the notes sued on. It was not a law until promulgated.

<p>Where a wife is a public merchant, carrying on a separate trade, she is in no way under the control of her husband so far as her trade is concerned, and needs no authorization from him todo any act in relation to it. C. C. 128. And where she occupies as a sub-tenaut part of a building leased by the husband, the owner of the building will acquire, by operation of law, on her separate property contained in the shop occupied by her, a right of pledge for the payment of his rent, to the full extent of her debt to the principal lessee. C. C. 2675, 2676,2677.</p>

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

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

<p>This case is reported antep. 93. The following dissenting opinion of Mohell, J, was not received in time to be inserted in its proper place.</p>

The plaintiff, as dative testamentary executor of Bernard Fox deceased, presented a petition to the District Court, representing that a sale had been made, under the orders of the Probate Court, of certain property belonging to the testator, for the purpose of paying the debts of the succession ; that he desires to cancel certain mortgages existing on the property, which the defendant, as Recorder of Mortgages, refuses to do.

<p>Appeal from the District Court of the First District, Bu~ chanan, J.</p>

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

<p>In August, 1865, Tack, Brothers & Co. residing and doing business in the city of Philadelphia, delivered to the defendants at their office in that city, a telegraphic dispatch, addressed to the plaintiff at the city of New York, directing him to contract- to sell for them, five hundred (500) barrels of-petroleum, at fifty-one and a half cents a gallon, deliverable from September 1, to September 15, sellers’ option, ,and requested an immediate reply. The defendants transmitted the telegram in all respects as it was written, except that as delivered to the plaintiff, it was written ufive thousand barrels,” instead of “ five hundred barrels.” On delivery of the telegram, the defendants demanded of, and the plaintiff paid to the defendants the sum of seventy-five cents therefor. Within an hour of the receipt of the telegram, and in pursuance of it, the plaintiff made contracts with different persons, to sell and deliver to them five thousand barrels of. petroleum, deliverable at the option of the sellers from September 1, to September 15, at fifty-one and a half cents a gallon. Whereupon the plaintiff forthwith sent a telegram to Tack, Brothers & Co. stating that he had made such contracts," and received a reply, that in the dispatch which they had sent, they had directed the sale of five hundred and not five thousand barrels; and they refused to furnish or deliver any greater number than five hundred barrels, and also refused to ratify any of the contracts made by the plaintiff in excess of the number mentioned in their dispatch. After the contracts were made, and before the error in the dispatch was discovered, the price of petroleum advanced one and a half cents a gallon, and on the 15th of September, had advanced to fifty-eight and a half cents a gallon. The plaintiff claimed that he was liable upon his several contracts to the parties concerned, and demanded judgment against the defendants for a sum which should cover such liability and also his commissions.</p> <p>On the trial before Justice Jones and a jury, it was proved that the plaintiff had paid two bills, amounting together to $2700 for the difference as expressed, in “ oil bought of Messrs. Tach, Brothers $ Qo. of Philadelphia, August 26, 1865.”</p> <p>The defendants moved for a nonsuit, on several grounds. The motion was denied, and they excepted.</p> <p>Upon the facts as proved, the court instructed the jury to find a verdict for the plaintiff for the difference between the contract and market price of the petroleum, and also for Jhis commissions, the amounts of which were agreed upon. To this instruction the defendants excepted; and appealed from the judgment entered on the verdict.</p>

<p>Under the 18th section of the act of 28 March,"1813, a Clerk may require of an appellant security for the costs of making a transcript of the record ; and, if not furnish ed, he may refuse to prepare it. The surety given in the appeal bond is not enough. The bond is conditional, and should the appellant succeed, the surety would be discharged. The Clerk has a right to require that the security be absolute, and that the solvency of the surety shall appear to his reasonable satisfaction. But he exercises his judgment at his peril.</p>

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

<p>1. The commissions of a broker are earned when he produces a party ready to make the purchase.</p> <p>2. In an action by a broker, to recover commissions on the sale of a steamboat for the defendants, there was no evidence of any employment of the plaintiff directly by-the defendants, but the plaintiff testified that he was requested by a director, or trustee of the defendants’ company, to find a purchaser. The president of the company testified that at a meeting of the stockholders he was authorized to sell the boats of the company, and that he did not delegate the authority to any other person. Held that the evidence failed to show an employment of the plaintiff, by the defendants, to sell or procure a purchaser for the steamboats ; and that in the absence of any proof of recognition by the defendants of the plaintiff’s authority, it was not error to dismiss the complaint for a failure of proof.</p> <p>3. Held, also, that a director or trustee of the company had no authority, as such, either to sell, or to procure a broker to sell, the vessel.</p> <p>4. Held, further, that if a telegraphic dispatch from the defendants’ president to the person in charge of the steamboat, offered in evidence, contained any evidence tending to show a recognition and ratification by the defendants of the plaintiff’s employment, and if the proof was sufficient to allow the dispatch to be read, it was competent .proof; but if otherwise it was wholly immaterial, and therefore properly excluded.</p>

<p>"Where the name of a party forms a part of the commercial name of a partnership against whom a judgment has been obtained, it is, at least, prima facie evidence that he was a member of the firm ; and a fi.fa. levied on his property to satisfy the judgment, will be maintained, unless it be shown that he was not a member.</p> <p>Under the 5th section of the act of 2th of March, 1827, creating the office of Register of Conveyances for New Orleans, a sale of real estate can have no effect against third persons, but from the date of its registry ; and where a judgment agains a vendor was recorded by the Register of Mortgages, before the registry in the conveyance office of the sale from him, the sale will be without effect as to the judgment creditor; and this, though a sale of the same property, from the first vendee to the plaintiff, was registered before the judgment was recorded.</p>

<p>1. An inaccurate description will not necessarily defeat an instrument; and it may be corrected by construction, if there is enough besides to identify the place, and thus supply the means of making the correction; or where the instrument, as a whole, shows, .certainly, that it was an error, and also shows, with equal certainty, how the error may and should be corrected.</p> <p>2. These general rules apply to the contract of. insurance; and if an error occurs in the policy, in describing, the location of the property insured, extrinsic evidence may be let in, to identify the place.</p> <p>8. In an action upon a policy of re-insurance, it was objected, on the trial, that there was a variance between the complaint and the policy; the complaint alleging that the property was situated between Meade and Ash streets, whereas the policy described it as situated between Meade and Arch streets. KM that the objection of variance was properly overruled; Arch street, as erroneously written in the policy, being neither a necessary, nor a material part of the description; and it could be rejected, and the description would yet be sufficient to designate the locality of the subject insured.</p> <p>4. The contract of re-insurance is totally distinct from, and unconnected with, the primitive insurance, and the re-insured, in order to recover against the re-insurer, must prove the extent of the loss, in the same manner as the original insurer must have proved it against him.</p> <p>6. Although the insurable interest of the re-insured is sufficiently shown by proof that they themselves were re-insurers of the original insurers, yet as. the contract is not a wager, but an indemnity, before there can be a recovery, a loss of the subject insured must be shown.</p> <p>6. No distinction exists between policies of re-insurance and other or first policies, in respect to the nature or extent of the proof required. Before re-insurers can recover, they must show that they have paid a valid claim; which can only be done by showing that the primitive insurers had a risk upon the subject insured, and that such subject was destroyed.</p> <p>7. Preliminary proofs are not evidence in chief, except to show a compliance with a condition in the policy. They are not evidence of the loss.</p>

<p>"Where the syndics of'the creditors of an insolvent have failed to furnish the bond required by law, a creditor may take a rule on them to show cause why another meeting of the creditors should not take place, to appoint other syndics in their place ; and the rule will be made absolute, in the absence of proof of a compliance with their obligation to furnish a bond. The creditor was under no obligation to take a rule on them to show cause why they should not give bond.</p>

<p>An account rendered by an agent to his principal is conclusive against the former, unless he show clearly errors or omissions to his prejudice.</p>

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

<p>Where property is sold without any declaration of the mortgages existing on it, and it is not shown that the purchaser was aware of their existence, the vendor will be bound to exhibit a valid and unincumbered title, previous to calling on the vendee to perform his contract.</p> <p>A purchaser who receives the rents of the property purchased, and subsequently declines to complete the contract on the ground that the vendor could not make an unincumbered title, is bound to refund the rents so received.</p>

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

<p>A donation inter vivos of real estate, made while the Code of 1808, was in force, is null and void, unless executed before a Notary Public, and two witnesses, and accepted in express terms by the donee during the life of the donor. Book III. tit. II. arts. 53, 54.</p> <p>A donation inter vivos of real property, null for want of formalities prescribed by law, cannot be ratified by any confirmative act-on the part of the donor ; nor will the voluntary execution of the donation by the donor, prevent him from pleading its nullity. Code of 1808, Book III. tit. III. art. 239. But the confirmation, ratification, or voluntary execution of such a donation by the heirs or assigns of a donor, after his death, will render it binding on them. Ib. art. 240.</p> <p>Contracts are solemn, or ordinary. As the latter depend for their validity on the ascertained will of the parties, the formalities prescribed in relation to them are only probationis causa, and may be supplied by confirmation or ratification ; while as to the former, the formalities required being solenvnitatis causa, and essential to their validity and legal existence, cannot be supplied by any ratification, express or implied. Of this class are donations inter vivos.</p>

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

Action upon a promissory note for $750, made by tbe defendants for the accommodation of the payee, and discounted by the plaintiff.

This action was brought to recover damages from the defendants for their neglect to demand from the maker of two promissory notes (deposited with them for collection by the plaintiff’s firm, consisting of himself and his brother George Ayrault,) payment thereof, at their maturity, whereby the indorsers of such notes (Ryan & Wehman) were discharged.

<p>Plaintiff having a judgment against defendants as commercial partners, seized under a fi.fa. a judgment obtained in a court of original jurisdiction by two of the partners against the third in an action for a settlement of the partnership. One of the partners, who had been appointed a receiver in the last suit, having, as receiver, enjoined the Ji. fa., deposited a sum of money in court to represent the bond and surety required for the injunction. The judgment seized being reversed on appeal, the injunction was discontinued without objection on the part of the plaintiff, who, under a second Ji. fa. seized the money deposited in court, and took a rule on the defendants to show cause why it should not be paid to him towards the satisfaction of his execution. Held, that the rule should be' discharged; that, had a bond been executed, it ought to have been signed by the party as receiver; that the deposit was in lieu of it; thac, unless the contrary be shown, it must be presumed that the money deposited was in the parties hands as receiver; that, as such, he was an officer of the court below, in the nature of a judicial sequestrator, and bound to account to it for all the funds coming into his hands; and that the court from which, the ji. fa. was issued, had no power to withdraw the funds from the control of the court in whose custody they were.</p>

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

<p>Whore the return on a fi. fa. states, that it was levied on the proceeds of the sale of certain slaves seized and advertised to be sold at a future' day, at the suit of another party, the plaintiff in the execution will acquire no privilege entitling him to be paid'by preference, out of the proceeds. Per Curiam. The slaves themselves were not seized, and the proceeds of the sale were not in existence at the time, and could not, therefore, be taken possession of. To entitle a seizing creditor to the privilege conferred by arts. 722, 723 of the Code of Practice, the thing seized must be taken possession of by the officer ; otherwise, there is no seizure,</p>

<p>The streets of a city, and the banks of a river on ^ich and the municipal authorities are bound to see thaUq^gSwsc oUthem. by thel'p^blic, is not obstructed. They cannot allow any erecti|h thereon their use incommodious ; and, though they may toleríBg, f^jjpjSlOT^vorks nfft deemed injurious to the rights of the public, no permissiorR^faCouncil Mri^Jfrevent a subsequent Council from putting an end to such toleration. JiS*where works have been permitted to be erected across the street and the bank, for the purpose of conveying timber to saw-mills built on lots fronting on the river, the municipal authorities may order such works to be removed, no one having a right to a permanent occupancy of the banks of a river.</p> <p>The erection of wharves before the city of New Orleans and its suburbs, at such places as commerce may require, is a legitimate exercise of power by the Council of any of its Municipalities.</p>

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

<p>Under art 351 of the Code of Practice, a party to an action to whom interrogatories are propounded can be required to answer, in open court, only when he resides in the parish where the court sits. Where his residence is out of the parish, but within the State, it is the duty of the party propounding the interrogatories to obtain from the court a commission directbd to some Judge, or Justice of the Peace in the parish in which the party interrogated resides, to receive his answers; or the inter rogatories, if unanswered, cannot be taken pro confessis. C. P. 352.</p> <p>A plaintiff may discontinue his action, at any time before judgment has been rendered, on paying the costs. C. P. 491. But he has no right to call upon the court for a judgment of nonsuit: As a general rule, when the plaintiff does not make out his case, the judgment against him should be one of nonsuit; but there are circumstances which render this rule inapplicable, and which ought to be considered sufficient to put ah end to the matter in litigation. Such circumstances, growing out of the evidence, are to be [eft to the sound and legal discretion of the court, without any interference on the part of the parties.</p>

<p>Appeal by the defendant from a judgment entered on the . report of a referee. The action was brought to recover the value of certain personal property alleged to have been converted by the defendant.</p> <p>The defendant let to Waugh a building on Greenwich street, in which was a steam engine, boiler, belting and shafting, for- making boxes, bought by Waugh of the former tenants. On the 20th September, 1861, Waugh was dispossessed by summary proceedings for non-payment of rent. Hull & Howell then hired the premises, and, on the permission of Waugh or by contract with Waugh, both known to the defendant, ran the engine. After two months they left. On November 1st, the defendant gave notice to Waugh that the property would be on storage at $50 a month; he gave notice of the sale of the property, for storage, to Waugh and to Roberts, and in February, 1862, sold it at auction for $325. Roberts, the plaintiff, held mortgages on the property, and just before the sale received a bill of sale of it, as security, from Waugh, forbade the sale, and before suit brought demanded the property of the defendant, who refused to deliver it.</p> <p>The referee reported in favor of the plaintiff.</p>

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

Appeal by the defendants from an order made at .a special term, denying a motion for a new trial. The action was brought to recover the value of money and a watch and chain, &c. alleged to have been stolen from the plaintiff while a guest in the hotel of the defendants; the theft having been committed in the room of the plaintiff, in the night time, after he had retired to bed.

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

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

<p>Appeal from the District Court of the FirstDistrict,N«c^c?2a?7, J.</p>

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

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

<p>1. The reliance, by a vendor of land, upon a representation made by a vendee or his agent, of the non-occurrence of a certain event, without any knowledge on his part whether it has taken place or "not, after being informed by such vendor that he would, in case such event had not occurred, accept a far inferior price, will, in case such event has not occurred, give the vendor a right • to have any contract made in consequence of such misrepsentation, avoided; although the fact misrepresented does not directly affect the value or price of the land.</p> <p>2. Thus, where the defendants, on applying to the plaintiffs for the purchase of a lot of land owned by the latter, were informed that the lot was not for sale, and that they (the owners) did not wish to sell it “ until the improvements had been commenced;” that if L.’s lots (which were in the neighborhood,) were sold, the price of theirs would be $30,000; and on being pressed for a refusal of the lots in question, the plaintiffs named, as a price, $21,500, adding, “ if Mr. L.’s lots are sold, the price of ours is $30,000, for then the improvements have commencedwhereupon they signed a contract giving the defendants the refusal of the lot for twenty days, at $22,000; within which time the defendants applied to the plaintiffs to complete the contract, inform- ’ ing them, in answer to an inquiry, that L.’s lots were not sold; the plaintiffs repeating that they wanted $30,000, as their price, if the L. property was sold; if not, only $22,000, and the defendants again saying that it was not sold; upon which a contract was executed by the plaintiffs, for the sale of the lot to the defendants, at $22,000; such representation of the defendants being untrue, L. having, in fact, previously sold his lots;</p> <p>Held that it was a proper case for setting aside the agreement, on the ground of fraudulent representations made by the defendants; such fraud being estab- ■ lished by the want of knowledge, on their part, as to whether the fact represented had occurred or not; and that it was erroneous to decree a specific performance thereof, by the plaintiffs, on the ground of the immateriality of the misrepresentation.</p> <p>3. The materiality of a representation whose falsehood affects a contract, does not depend upon its effect on the value or price, but upon its supposed ■influence on the mind of the contracting party, in entering into the contract.</p> <p>4. If a purchaser has notice how the vendor considers a sale of property in the neighborhood as affecting the price of his, however absurd or illogical his supposition may be, the purchaser has no right to take advantage of the delusion by falsehood and fraud.</p>

<p>Where the holder of a note endorses on it that he has received from the maker four smallernotes, amounting together to the sum for which the first note was given, which, when paid, will be in full of the original note, he may sue on the latter, but to protect the defendant from the danger of suits by endorsees of the smaller notes, the judgment should provide that no execution be issued, nor the judgment itself be recorded by the Recorder of Mortgages, until the smaller notes are delivered to the defendant, or deposited for him in court.</p>

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

<p>One who has contracted for a building has no right, by cancelling his contract with the undertakers, to disappoint the expectations of persons, who, on the faith of the contract, have entered into engagements to furnish the latter with materials, or to bestow their labor on the work.</p>

<p>Defendants having offered a reward of a certain .sum, for the apprehension and conviction of any of the persons engaged in the circulation of certain counterfeit bills, plaintiff, who had arrested and procured the conviction of one of the persons, claimed the reward. Defendants refused to pay the amount, on the ground that they had already paid the sum named to others who had undertaken to effect the arrest of some of the offenders, but who had not succeeded in convicting any. Held, that admitting that the defendants were bound to pay but one reward, the conviction, by the plaintiff’s procurement, entitled him to it.</p>

<p>Plaintiff having recovered a judgment against defendants, caused a ji. fa. to be levied on a certain portion of a rail road belonging tb them, and on certain fixtures, machinery, lumber, and other personal property connected with the road. The whole was offered for sale in globo, the Sheriff producing at the sale a certificate from the Recorder of Mortgages showing the existence of a mortgage, having a preference over the plaintiff, in favor of third persons, “ on all the rights, privileges, immunities, and titles of the Company.” Plaintiff, was the highest bidder, but offered a sum less than the amount of the mortgage. The officer returned that there had been no sale. On a rule on the latter, the defendants, and the mortgagees, to show cause why the property offered for sale should not be delivered to plaintiff: Held, that there was no adjudication, and that the rule should be discharged.</p>

<p>An attachment bond, executed in favor of the defendant, does not enure to the benefit of a third person who intervenes and establishes his right to the property, not being a party to the bond, and there being no privity of contract between him and the plaintiff in the attachment suit, he cannot sue on it.</p> <p>As between the principal and surety in an attachment bond, and the defendant in whose favor it is executed, a claim for damages for an illegal attachment is ex contractu ; but if the property of a third person be attached under proceedings authorizing the seizure of that of the defendant, it is a trespass, and the right of the party injured to obtain reparation arises neither from a contract, nor quasi-contract, but under art. 2294 of the Civil Code, which declares that every act of man which causes damage to another, obliges him by whose fault it happened, to repair it.</p> <p>The distinction between offences and quasi-offences is, that the former are those illegal acts which are done wickedly and with the intent to injure, while the latter are those which cause injury to another, but proceed only from error, neglect, or imprudence.</p> <p>The attachment of the property of a third person, as belonging to the defendant, is a quasi-offence ; and the action by the owner for damages is prescribed by one year from the time of the injury — that is, from the time of the seizure, and not from the date of the judgment establishing the title of the owner. C. C. 3501, 3502.</p>

<p>Defendants, in the absence of plaintiff, seized under a fi. fa,, against a third person, furniture belonging to the plaintiff, and sold it. The plaintiff’s landlord afterwards claimed and received the proceeds, in virtue of his privilege on the furniture for rent. In an action for the value of the furniture against the Sheriff and the seizing creditors, there was a judgment for the' defendants. On appeal: HM, that the court below erred ; that it is no excuse for the defendants, if their acts were illegal and caused damage to the plaintiff, that they gained nothing by them, and that another got the money they were endeavoring to obtain; that the course pursued by the defendants compelled the landlord to assert his claim, and that it is not shown that he would, in the absence of the plaintiff, have taken any step to have the furniture sold. Case remanded.</p>

The petitioners state, that the defendants are indebted*to them, as Commissioners of the Exchange and Banking Company of New Orleans, in the sum of $6500, for rent accruing from the 10th January, to the 10th March, 1843, under a contract by which the defendants, on the 20lh April, 1840, leased from the late corporation, known as the Exchange and Banking Company, the St. Charles Hotel, for five years, from the 1st October, 1840, binding themselves to pay a rent, at the fate…

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>In this case the question arises, whether a Notary can give an official attestation of a fact occurring out of the place of his jurisdiction, when it is his own act to which he certifies ?</p> <p>The presumption that the notary served the notice himself, since he certifies it under his oath, is not destroyed. The question is simply as to the sufficiency of the proof, not as^to the existence of the fact, which stands uncontradicted. Can he give an official certificate of the fact, so as to supersede the necessity of his appearance in Court as a general witness ? Is his certificate a sufficient proof of itself?</p> <p>If a protest, and a certificate of protest, were authentic acts, the question would perhaps be answered in the negative; because the rule seems to be, that an authentic act is proof, per.se, of all agreements and facts accomplished tempore instrumenti gesti.</p> <p>But a certificate of notice of protest, under our statute of 1827, is not an authentic act. 10 La. 209. It is a notarial attestation, to which the act gives full credit, merely on account of the faith and confidence due to an official oath, the witnesses being required only to attest the entry on the records of the Notary. See 16 La. 564.</p> <p>Notaries cannot, surely, be called upon to give such official attestations.out of the parish for which they have been commissioned ; because, out of its limits, their capacity ceases. “ II leur est defendu d’ instrumentar, c’est a dire de recevoir des notes hors de leur ressort.” Toullier, Vol. 8, No 72.</p> <p>But which is the instrument which requires their competency ? It is clearly the protest itself. If the demand of payment is to be made in the parish of Orleans, a Notary Public of that parish must be used. The residence of the maker or acceptor settles the jurisdiction, no matter where the notices of protest are to be served. The notices to endorsers, and the certificate of service of those notices, are but an accessary to the principal act or main instrument. Who is to perform the accessary ? The Notary who made the demand and protest. And his certificate of “ the manner in which any notices of protests to drawers, endorsers, or other persons interested, were served or forwarded, will be evidence of the matters therein stated.” Act. of 1827, § 1.</p> <p>Nothing but the fact of incompetency can invalidate the certificate of a Notary. That competency, in the case of the protest of a bill or note, depends upon the residence of the drawers, that is, on the place where the demand and protest are to be made. The moment that he is seized with jurisdiction over the principal matter, his capacity is vested to complete any other accessary act, and his certificate must be held to be valid, if it attests no act but his own.</p> <p>Another construction of the statute of 1827, would render it, in many instances, inapplicable to our distant parishes. Suppose a protest is to be made by a Notary, or Parish Judge, of a distant and yet thinly populated county, where no post office is yet established. After protesting the bill, notices áre prepared to be forwarded to an endorser living in the city. What will the Notary do ? Shall he cross the line of his parish to deposite in the adjoining post office, the letter or notice directed to the endorser? If there is no post office within his own parish, the notice musf not be sent at all; or rather, if sent by him, there shall never be any official attestation of it, because the line of jurisdiction has been crossed, in order to forward the notice; and the Notary cannot testify out of his certificate, a fact performed by him out of his jurisdiction.</p> <p>Such cannot have been the legislative intent. It might be true, even in relation to authentic acts, which prove, contra omnes, only such agreements and facts as are the objects of the contracting parties, that in some cases they are evidence of matters accomplished, out of the notarial jurisdiction of the officer. For instance, the statute requiring Notaries to give written notice to the members of family meetings, to attend at their office on the day appointed by the order of court. Some of those members may be residents of a neighboring parish within a radius of thirty miles. Yet the fact of the letter having been carried by the Notary himself may be attested. He can send it by private conveyance, and certify it to have been sent in that manner. But if he does it himself, why should not his certificate bé as good ?</p> <p>In the same way, the Notary who has protested a bill, is bound to give or send notice to the endorsers. The statute of 1827 has not changed the mercantile law. The notice may be sent by private conveyance, or by mail. If he puts the notice in the post office, the Notary’s certificate is good, because it certifies his own act. If the notice is sent by private conveyance, the certificate of the Notary is not good, because it contains the attestation of an act done by another than himself; but if he carries the notice himself, or crosses the parish line to put the notice into the letter box, these being his own acts, his certificate should have full faith and credit, because his competency has at once been vested as to any act or fact in relatioji to the protest, by the place of the demand, or residence of the maker.</p> <p>The appeal should be dismissed : first, for the want of necessary parties; secondly, because the record does not contain all the evidence introduced below. Dorsey v. Harding et al. I Robinson, 32. Bell v. Morrison, I lb. 543. The State v. Cook, 16 La. 287. Johnson v. Spearing, 15 lb. 252. Ib. 435. 19 La. 91.</p>

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

<p>Under an ordinance of the Council of the Second Municipality of New Orleans, which had been in force for several years, a fixed annual tax was levied on the assessed value of the real estate within the Municipality. In the month of December it was ascertained that the revenues of the Municipality would be insufficient to discharge its debts; and an ordinance was passed laying an additional tax for the year ending with that month, and for the succeeding year. In an action to recover the increased tax for the year just expiring: Held, that no period of the year being fixed by law when the tax shall be laid, the retrospective operation of the ordinance is no proof of its illegality.</p> <p>The fifth section of the act of 10th March, 1834, relative to the powers of the Mayor and City Council of New Orleans, aud the ordinance of the Second Municipality of that city, of December, 1838, require a notification to the tax payer, before he can be made liable for interest at the rate of eight per cent a year, on the taxes due by him. Where he has not been put in default, interest can be recovered only from judicial demand.</p>

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

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

<p>A partial payment, before prescription acquired, will interrupt the prescription.</p> <p>Neither the parties, nor their heirs, nor the witnesses to the act by which a mortgage is stipulated, can take advantage of its non-inscription during the first ten years from its date (C. C. 3316 ;) but it will cease to have effect, even as ,to them, after that period, if not inscribed before its expiration. C. O. 3333.</p> <p>The plea of prescription is one of those peremptory exceptions, which, without going to the merits of the cause, show that the plaintiff cannot maintain his action, and may be pleaded specially in every stage of the action, previous to final judgment. Such exceptions raise no issue on the merits. Thus where a judgment by default has been set aside on filing a plea of prescription, and the exception is overruled, the case cannot be tried on its merits, until put at issue by an answer, or by a judgment by default, regularly entered, after the overruling of the exception. C. P. 345, 346.</p>

The defendant’s business is that of selling goods on com-.. mission. In January, 1865, one Zingsen consigned certain goods to the defendant.

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

<p>Bricks, made by the former owner, not to be used on the place, but for sale, and lying there at the time of a 'Sheriff’s sale of the premises, are moveables, and not included in the adjudication of the land to the purchaser. C. O. 459, 460, 464, 465, 468.</p>

<p>Defendant claimed to be the owner of a slave under a notarial act of sale, executed to him on the 26th of March. Plaintiff, cited in warranty as the representative of the alleged vendor, offered in evidence a letter from the defendant to the latter, dated in that month, the day not mentioned, in which, after stating that he has not - title to a sufficient number of negroes to obtain a loan which he desired, he requests the alleged vendor “ to send him an act of sale for the slave” sued for “ for the present.” Held, that this was a counter-letter, showing that there was no sale as between the parties.</p>

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

<p>The emancipation of a minor under the provisions of the acts of 23 January, 1839, and 25 February, 1837, gives him all the power over his property and rights, of a person of full age. He may, consequently, ratify any act of partition or compromise effected by his tutor during his minority ; and the ratification will cure all defects in the original transaction. G. C. 1869, 2225, 2252.</p> <p>Where an emancipated minor, joins with his co-heirs in an act of settlement and partition of the succession of his mother, and accepts his portion as ascertained thereby and there is no evidence that the settlement did not embrace all the property of the succession, he will be concluded by it.</p> <p>A tutor who has received nothing*, and could not have received any thing for his minor, having had nothing to act upon, has no account to render.</p>

On the 2d day of July, 1835, Eli Hart, being the owner of a certain plot of ground extending from Greenwich to Washington street, sold and conveyed to William J. Bunker a portion thereof, fronting on Greenwich street.

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

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

Appeal by the defendant from a judgment of the District Court of Terrebonne, Nicholls, J. This was an action on a promissory note. The judgment was for the amount claimed, providing however, that from that amount there should “ be deducted the sum of thirty dollars, at the date of the judgment; which last sum the plaintiff is entitled to recover, upon showing that he is not responsible for the sum attached in the hands of the defendant.”

On the 26th of July, 1858, the common council of the city of New York passed a resolution, duly approved by the mayor, by. which the comptroller was authorized to lease from the proprietor of the “ Times” building the four upper stories of the one adjoining the brown stone building, being the fourth building from the corner of Spruce street, fronting on Park Row, for the term of two years, at an annual rent not to exceed the sum of five thousand five hundred dollars.

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

<p>The stipulations in a contract of sale, by authentic act, cannot, between the parties or their representatives, be destroyed or weakened by parol evidence. Nothing but a counter-letter can have that effect.</p> <p>Where, for the convenience of the vendors, in order to enable them to divide the price among themselves, the notes originally given by the vendees, are cancelled, and others executed in their place, each for smaller sums, but in (he aggregate for the same amount, in the same form, and payable at the same periods, nothing being changed as to the position or obligations of the purchasers, there is no novation.</p> <p>The ratification of an act cures all its defects ; and a voluntary execution thereof, amounts to a ratification. C. C. 2252.</p>

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

<p>Appeal from the Court of Probates of Lafourche Interior, Me Allister, J.</p>

<p>Appeal from the Court of Probates of Lafourche Interior, Me Allister, J.</p>

<p>Appeal from the Court of Probates of Lafourche Interior, Me Allister, J.</p>

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

<p>An exception to a petition on the ground that the name under which plaintiff sued is not his real name, will be overruled, where it does not state the name under which alone he could have sued.</p> <p>In answer to an action for an assault and battery, defendant alleged that plaintiff had been assaulted in consequence of having attempted to excite defendant’s slaves to insurrection. Pefendant offered to prove that, immediately before the assault, he (defendant) bad “ said, that he had been told by a person, who had heard it from a slave, that plaintiff was endeavoring to induce defendant’s negroes to run away.’* On objection: Held, that the evidence was inadmissible.</p> <p>In an action for damages, for an assault and battery and slander, evidence as to the plaintiff’s character is inadmissible, even in. mitigation of damages.</p>

This is an action on a policy of life insurance issued.by the defendant on the 13th of September, 1866, on the application in writing of one Effingham H. Warner, wherein and whereby, in-consideration of the representation made to the defendant, in the application, and of the sum of. $1000, the defendant insured the life of the said Warner for the sole and separate use of Hascall A. Hogel, the son-in-law of said Warner, in the sum of $10,000, to be paid to said Hogel, his…

<p>A physician’s bill is prescribed by three years. C. C. 3503.</p> <p>Prescription may be pleaded in every stage of the case before final judgment, and even on appeal; but it must be pleaded expressly and specially. C. C. 3427. The court cannot supply such a plea, where the party, in whose favor it exists, has not thought proper to take advantage of it. C. C. 3426.</p> <p>Plaintiff having sued for the amount of a bill, for services, as a physician, rendered by him to defendant; the latter pleaded in compensation a note, for a larger amount, drawn by plaintiff to his order, held by him, and not prescribed at the date of the .; services rendered: Held, that plaintiff’s claim was extinguished by compensation.</p>

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

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

An appeal lies from an order of seizure and sale (12 Mart.--. 3 lb. N. S. 498. 3 La. 316 ;) and is suspensive, if taken within ten days. Code of Pract. art. 575. The court, a qua, has no power to decide whether an appeal be suspensive, or not. City Bank v. Walden, 19 La. 172. Lartigue v. Beet, lb. 174, 178. An appeal from an order of seizure and sale is not suspensive, if taken after three days. Code of Pract. art. 735.

<p>Plaintiff moved to dismiss his action, at his costs, and an order was made accordingly, but before the order of dismissal was signed, it was set aside on his own motion, without notice to defendant.' A judgment by default was subsequently taken, and confirmed against the defendant: On appeal by the latter: Held, that after dismis- . sing his action, plaintiff could not have the order of dismissal set aside, and the case re-instated without notice to defendant.</p>

<p>Defendant having purchased a plantation and slaves at a Sheriff’s sale, made under a fi. fa., issued on a judgdment obtained by him against the plaintiff, procured a monition to show cause why the sale should not be homologated. Plaintiff opposed the homologation, and, on the same day, brought suit, in the parish where the land was situated, and not that of defendant’s domicil, to recover the land and slaves, with their fruits and revenues, and for damages against the defendant for having illegally and forcibly taken possession. The sale having been avoided, on the opposition to the monition, defendant prayed for the dismissal of the action, on the grounds that the main question, of title, had been decided on the monition, and that the plaintiff had no right to cumulate with his petitory action, a personal- one against the defendant, for the fruits and revenues, or for damages: Held, that notwithstanding his opposition to the monition, plaintiffhad a right to commence the action ; that, though the question of title was decided on the monition, that as to defendant’s liability for the fruits and revenues, was undetermined, and that being a mere incident of the action of revendication, the suit was properly brought in the parish where the property is situated, although the defendant resides in another; and that jurisdiction having been once vested, it could not be divested by a judgment on a part of the matter in controversy. C. P. 153, 154, 162, 163.</p> <p>A possessor of a plantation and slaves, responsible to the owner for the fruits and revenues, will be bound to account for such a crop as he might have made therefrom, with ordinary good management. The actual production of the plantation, which was proved to have been neglected, Is not a just measure of the damages due to the owner.</p>

The motion was founded upon affidavits and the judgment roll in the above entitled action, and was to vacate and set aside the judgment therein “as null and void,” and was made on behalf of Gustave de ma Carty, who appeared for the purposes of said motion, only.

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

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

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

<p>1. Where the parties to an action consented, in writing, to an order of reference of all the issues therein to three referees, and at the same time entered into a stipulation annexed to such consent, signed by themselves and their attorneys, whereby they prescribed and limited evidence to be introduced before such referees on such referenpe; fixed the time for rendering their report; made it final; provided for entering judgment thereon in the usual manner; and waived any right of appeal from such judgment; but provided that the authority of two of the referees, named, should cease, in case the report was not “ rendered ” within a given time after certain evidence was introduced; and the third should proceed as sole referee, and “ render ” a report on the same evidence, within a certain time after such termination of the authority of his" associates:</p> <p>Held, 1. That notwithstanding such stipulation contained a provision that the same should be annexed to and form a part of the judgment roll, yet that by the consent that the order of reference should be entered in the usual form and by its corresponding entry the court retained jurisdiction of such action, as such, and did not lose it in consequence of such stipulation; particularly where the parties proceeded on the trial before such referees, without any objection. So far as either controlled the other, the order made by the court was paramount, and overruled any tendency of the stipulation to convert the reference into a mere arbitration.</p> <p>2. The mere waiver of the right of appeal, as formerly of a release of errors in a judgment, neither enlarged nor diminished the powers of the referees, and did not by itself convert such reference into an arbitration.</p> <p>3. Where, in such case, two of the referees made a report in favor of the defendants, the latter were entitled to enter judgment thereon, according to such stipulation, if made within the time fixed therein, and generally according to its terms.</p> <p>4. The terms of such stipulation as to “ rendering ” a report were satisfied, by its being made and delivered to the successful party, for the purpose of enabling them to enter judgment upon it in the usual way,</p>

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

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

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

Appear from the District Court of Pointe Coupée, Deblieux, J. The only question in this case is, whether the articles found in the tomb of the defendant’s mother, were comprehended in the sale of his hereditary rights. That they were, see Troplong, Vente, vol. 2, No. 961. Such a sale conveys not only the actual, known property, but all contingent and unknown rights. The articles so found were ordinary property, not sacred or holy. Civil .Code, art. 447.

<p>Where experts, appointed by the Court, are not shown to have been sworn, and their report does not appear to have been homologated, it may be contradicted by other evidence.</p> <p>A prayer, by the appellee for an amendment of the judgment, filed the day before the , case was called for argument, and after a joinder in error, is too lato. C. P. 890.</p>

<p>This was a motion to set aside a judgment entered in this court, according to a remittitur from the Court of Appeals which reversed a judgment at general term, reversing a prior judgment at special term, and affirmed the latter,, judgment. On a certain day (July 12th) the plaintiffs’ attorney gave notice of an adjustment of his costs by the clerk of the court at his office, at a certain hour (10 o’clock) of the morning of the second day thereafter, (14th,) and of entering judgment upon such remittitur at half an hour afterwards, (10-|- o’clock.) Fext day (the 13th) an order was granted by one of the judges of the Court of Appeals, staying proceedings absolutely, for ten days. On the day fixed by such notice for the adjustment of costs, and at or before the hour designated therein, a copy of such order staying proceedings was served on the plaintiffs’ attorneys, at their office; but notice of it was verbally given by the defendant’s attorney to the clerk of such attorneys, in the office of the clerk of the court, who thereupon abstained at that time from having such costs adjusted, although they were adjusted at a later hour of. the same day. The motion for judgment on the remittitur was not made, although the latter had been filed by a clerk of the attorneys for the plaintiffs before any notice to him of the stay of proceedings. Ho evidence was furnished of the exact time of filing such remittitur, except an affidavit of. one of the attorneys for the plaintiffs, that he inferred that it was filed before such service of a copy of the stay of proceedings, from the speediness of his clerk’s return after the service of such order, after being dispatched to file such remittitur. The attorneys for the plaintiffs, later in the same day, entered judgment according to the remittitur,' with an award of the costs, which had been adjusted ex parte, and served notice of readjusting such costs at a future day, and of being ready to deduct any sum stricken from the amount of such costs,</p> <p>on their being readjusted. Such costs were readjusted on the day fixed in such notice.</p>

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

<p>The act of 13th March, 1827, relative to bills of exchange and promissory notes, does not change the general commercial law in regard to the diligence to be used in serving notices of protest, but merely provides a new mode of proving such diligence, This law cannot be understood as pointing out the degree of diligence to be used. It merely instructs the notary how to proceed, where the endorser resides in another place than that of the protest, leaving him to ascertain where the notices are to be addressed.</p> <p>A notice of protest simply directed to an endorser as in a particular parish, where there are several post offices in the parish, and the one at the seat of justice of the parish is not the nearest to his residence, is insufficient.</p>

<p>1. An action for the conversion of money, and one for its receipt in a fiduciary capacity, must necessarily proceed upon entirely different and inconsistent grounds. The latter renders the liability to pay such money a mere debt, although a ground for arrest; the former constitutes a tort. Per Robertson, Oh. J.</p> <p>2. The second subdivision of section 179 of the Code was not intended to include, in the class of persons mentioned secondly therein as liable to be arrested, any one except those who received moneys purely in a fiduciary capacity as simple agents to apply it as directed or agreed.</p> <p>3. It therefore excludes all thosé who have a'personal interest in such money or its use, and a right to control it, independently of any appropriation of it according to instructions of the owner, or where the liability for repaying such moneys grows out of a transaction in which credit is given to the pecuniary responsibility of the recipient, and not merely confidence placed in his personal character.</p> <p>4. Where an assignor of the plaintiff, having employed the defendant as his broker, to sell for him a certain number (2500) of shares of stock (Erie Railway Company) not then owned by him, and placed in the hands of the defendant a certain sum ($8500) as security against loss by any temporary rise in the market value of such stock, in order to perform such contract, instructed the defendant to borrow, and the latter did borrow, the proper number of shares of the stock of said company, for delivery, and sold the same and delivered to the purchaser the shares so borrowed, and received from him the purchase money; Held that the moneys so received by the defendant were not received by him exclusively in a, fiduciary capacity.</p>

<p>Appeal from the Court of Probates of Lafourche Interior, McAllister, J. 0</p>

<p>A purchaser of a tract of land and slaves, who has been evicted as to one-third of the property, has a right to have the sale cancelled in ioto¡ and to be relieved from the payment of the price. C. C. 2487.</p>

<p>Appeal from the Court of Probates of Lafourche Interior, Me Allister, J.</p>

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

<p>Appeals from separate orders made at a special term, merely denying separate motions on the part of the defendants to postpone the trial of an action, with an interval of three weeks between them.</p>

<p>In January, 1864, Troost, Schmidt & Co., of'New York, and Atkinson, Tilton & Go., of Calcutta, entered into an agreement to carry on a business between those cities upon joint account. The parties in New York were to furnish the. parties in Calcutta with letters of credit for the shipment of goods at Calcutta to Hew York, and for advances on consignments. Ho commissions were to be allowed for the purchase in' Calcutta, or for the sale in Hew York. The parties in Calcutta were to purchase and ship such goods, and at such times as they should deem most for the interest of all the parties, under general advices from the parties in Hew York, who were to sell the same for such prices as they should deem most for the interest of all the parties, and remit to meet the bills drawn against the shipments, at the time of sale,' whether before 'or after such bills became due, and charge the account with the rate of exchange actually paid. The profit and loss was to be equally divided between the parties, “ and settled in New York upon the winding up of each shipmentThe proceeds of consignments, over the advances and charges, were to be remitted to the parties in Calcutta, to be paid to the owners of the goods consigned. If the proceeds were not sufficient to earn the advances and charges, the parties in Calcutta were to collect the deficiency from the owners, and if any loss should accrue in not collecting such deficiency, or in remitting to meet the bills, such loss should be borne equally by the parties.</p> <p>In pursuance of such agreement, Troost, Schmidt & Co. furnished the parties in Calcutta with a letter of credit on the firm of Abraham Troost & Co., of Manchester, England.</p> <p>The general course of business under the agreement was as follows: The firm in Calcutta, on purchasing or advancing on goods at that place, drew bills on the firm in Manchester, and delivered them in payment or for the advances. They then shipped the goods to the firm in Hew York, where they were sold and remittances made to the firm in Manchester to meet the bills. . Separate bills were drawn for each shipment, and advices of such bills forwarded to Hew York with each consignment. The firm in Hew York opened and kept a separate account of each shipment, crediting or charging therein all profit or loss upon such shipment, and as far as was practicable, or perhaps possible, closing the same upon their books.</p> <p>The transactions under the agreement, embracing a large number of shipments, continued until the fourth of December, 1866, when the firm in New York, becoming insolvent, made a general assignment of all their property to the defendants Buckley and Mozle, in trust to pay their debts.</p> <p>The firm in Manchester also went into bankruptcy about the same time, (Dec. 3, 1866.)</p> <p>In May, 1866, the Calcutta house shipped to New York, by the Medusa and Audubon, 4750 bags of linseed, and drew upon such shipment two hills amounting to ¿63786, 3 shillings, which were accepted by the house in Manchester. One of said bills has been protested for non-payment; the other has not matured.</p> <p>The plaintiffs allege that they are ignorant of the holders of said bills, but that the plaintiffs are liable thereon, as drawees, for the full amounts thereof.</p> <p>The goods shipped by the Medusa and Audubon were sold by the house in New York, and the proceeds credited on their books; the two drafts drawn against the shipment, and the expenses, were charged, and the balance, being the profit, was carried down and placed to the credit of the shipment.</p> <p>At the time of the failure of the New York house they held unsettled various shipments of goods from the house in Calcutta, the value of which, over any charges thereon, is more than sufficient to pay the full amount of said two' bills.</p> <p>All bills drawn upon such unsettled various shipments have been paid, and the only outstanding obligations arising under said agreement are the two bills above mentioned.</p> <p>The relief demanded is, that the goods held by the New York house at the time of their failure, or the proceeds thereof, being the unsettled various shipments above mentioned, be applied to the payment of the said two bills, and that the defendants Buckley and Mozle, as assignees, account and pay over to the plaintiffs one half of any balance there may be.</p>

<p>Oppositions having been filed to the homologation of a tableau of distribution presented by the syndic of an insolvent, praying for the cancelling of the sales made by the syndic, that the property be disposed of again for the benefit of all the creditors, and the tableau set aside, the opponents subsequently filed other oppositions by way of amendment, in which, abandoning the objects of the first oppositions, and waiving their purpose of disturbing the sales and resisting the homologation of the tableau, they pray that the syndic may be condemned, personally, to pay them the amounts for which they were placed in the tableau as creditors of the insolvent, on the ground of his having acted without any regular appointment, having sold the property illegally, and for his neglect and waste of the property: Held, that the demands in the original and amended oppositions are inconsistent, the one precluding the other, and cannot be cumulated in the same action, (C. P. 149); that the demands in the original oppositions must be considered as abandoned by the supplemental oppositions ; and that any claim for damages against the syndic, personally, for malfeasance, should be brought against him individually, and not by way of opposition to a tableau of distribution.</p>

<p>Motion to set aside a judgment.</p> <p>This action was brought for an absolute divorce, on the ground that the defendant was a married woman at the time the plaintiff married her. The allegation of such marriage was denied by the defendant. The issues were referred by the consent of both parties to a referee, who was ordered to take the evidence and to report the same to the court, with his opinion thereon. Both parties appeared before the referee, but before all the testimony was taken, the defendant procured an order from the court, requiring the plaintiff to show cause why a commission should not issue to examine witnesses residing in 'Providence, R. I., The order also stayed the proceedings before the referee. The stay of proceedings was subsequently revoked upon the ex parte application of the plaintiff. The plaintiff then went before the referee, without notice'to the defendant, gave some additional evidence, and obtained a report that the facts alleged by the plaintiff were substantially proven; and the court thereupon entered judgment in favor of the plaintiff, dissolving the marriage. The defendant had no notice of any of these proceedings.</p> <p>A motion was afterwards made to set aside the judgment and for leave to- the defendant to be let in to defend the action. Such motion was founded upon the alleged irregularity in the proceedings, and also upon the affidavit of the defendant, in which she stated that Read (to whom it was alleged she was married previous to her marriage with the plaintiff) had, at the time of her marriage with him, a living wife; which rendered her marriage with Read void; and that, therefore, her contract and marriage with the plaintiff was binding and lawful. Upon this motion an order was made referring it to a referee, to take proof and to report the same to the court, with his opinion thereon, whether William H. Read, mentioned in the complaint, at the time of his marriage with the defendant, had been previously married to one Sarah Wakefield, or any other woman; and whether said Read had a wife living at the time of his said marriage with the defendant; and whether such previous marriage was in force at the time of his said marriage with the defendant. Both parties appeared before the referee and produced witnesses, who were examined in respect to the questions referred. The plaintiff and defendant each offered himself and herself as a witness in his and her own behalf, and were received- by the referee, notwithstanding objection thereto. The referee reported the evidence to the court, with his opinion thereon, to the effect that said Read was, in October, 1855, married to one Sarah Wakefield; that the marriage between the defendant and Read took place in August, 1856; that Read had a wife living at the time of his marriage with the defendant, and that his marriage with Sarah Wakefield was previous to, and was in force at the time of, his marriage to the defendant.</p> <p>The order of reference further directed that if it should appear from the referee’s report that Read had been previously married, and had a wife living at the time of his marriage with the defendant, then that the judgment theretofore entered, dissolving the marriage of the plaintiff and defendant, should be set aside and vacated.</p> <p>The motion now is to confirm the report of the referee and to vacate the judgment.</p>

<p>A'judgment for a separation of property between a husband and wife, is retroactive as far back as the day on which the petition was filed. C. C. 2406. The community of acquets is dissolved from that time; and purchases made by the wife between the date of the demand and that of the judgment of separation, must be viewed as made on her own account.</p> <p>The acquired rights of a party to the proceeds of a sale made under an execution in his favor, cannot be affected by subsequent acts, or proceedings, to which he was not a party.</p>

<p>A mother, a slave, having been emancipated, her infant child, about eight months old; was suffered to remain with her until the death of her former owner, when the child was sold with the other property'of the deceased. The child was then about twelve or thirteen years old. Held, that the circumstance of the child’s being left with its mother at so tender an age, cannot be considered as evidence of an intention to permit the enjoyment of liberty, within the meaning of art. 3510 of the Civil Code; and that the prescription of ten years established by that article is not applicable to such a case.</p>

<p>The controversy in this case was between different contending creditors of the G-lenville Woolen Company, a foreign corporation, the nominal plaintiff. The two contestants were Messrs. Consinery & Craig, and Messrs. Jasper, Corning & Co. The last named commenced their suit in October, 1855, and obtained therein an attachment against the property of the Woolen Company, which was served upon the defendant, Ripley, with the view of attaching the debt due from him to such company. In that suit they recovered judgment in Eebruary, 1856, (for $166*3.78.) Consinery & Craig commenced their suit against the defendant in December, 1855, in which they procured an attachment which was served on Ripley, hut did not obtain judgment thereon until December, 1863, (for $31,339.81.) Upon that judgment an execution was returned unsatisfied, and,-, upon supplemental proceedings thereupon instituted, a receiver of the property of the Woolen Company was appointed.-.</p> <p>After the levy of one or both attachments by service on Ripley, the sheriff, under section 238 of the Code, commenced this action, in the name of the company, to recover from the defendant the debt due from him to it. The defendant admitted the cause of action, but claimed a set-off thereto. The question was tried by a referee, who decided to allow the set-off, and was about to render judgment against the defendant in favor of the sheriff for the balance, which the defendant was ready to pay. A motion was made thereon to have Consinery & Craig and Corning & Co. made parties to the action, for the purpose of determining their respective priorities; it being conceded that the defendant had no further interest in the question.</p>

<p>An undertaker, having contracted with defendants to erect a building for them, employed plaintiff to furnish the materials for the roof, and to construct it. By a resolution, the defendants subsequently stipulated with the undertaker, that they should retain the’ cost of the roof out of the amount due to the undertaker, to ' be paid to plaintiff on the order of the undertaker.' It was proved that defendant’s retained, at the date of the resolution, a sum sufficient to pay for the roof, and thafit was not paid out in conformity to their stipulation, on the order of the undertaker. In an action by plaintiff for the cost of the roof: Held, that any payments made without the order of the undertaker,'were irregular, and cannot prejudice plaintiff’s right to recover. C. C. 2744. Judgment against defendants for the cost of the roof. ' I</p>

<p>1. Re-arguments of motions, upon the same facts, are only to be allowed where it appears that the justice, in disposing of the motion, has overlooked, mistaken or misapprehended some material fact; or has decided it upon some question of law not presented by counsel. They are not allowed merely for the purpose of introducing the consideration of facts not in existence at the time the motion was decided.</p> <p>2. Thus where a motion to vacate an order of arrest and attachment was granted, upon affidavits disproving any fraudulent intent on the part of the party arrested, a re-argument of such motion will not be granted merely upon the ground that certain subsequent acts of the defendant tend to establish the alleged fraud,</p>

<p>1. Where a trust to receive the rents and profits of real estate and apply the same to the education and support of an individual, is created, the interest of the cestui que trust in the trust itself is not assignable by him. The surplus of the rents and profits, only, can be reached by creditors. The only question in such a case, so far as the rights of creditors is concerned, is whether there is any surplus, beyond the sum necessary for the support of the cestui que trust.</p> <p>2 In determining what sum is necessary for the support of a cestui que trust, it is proper to take into consideration his station in life, and the manner in which he has been reared and educated, his habits, and the means he may have beyond the trust fund to aid in his support. He is entitled to be supported in his accustomed manner of living, and is not bound, so far as his creditors are concerned, to contribute to such support by his labor or otherwise.</p>

This was an action for the balance of an unsettled account, instituted on the 6th May, 1840. The first item in the account was dated 14thAugust, 1836 ; andthelast, the26th January, 1838.

Motion to set aside the report of a referee for having been made more than sixty days after the final submission of the case to him, and after notice of the election of the defendant to end the reference.

<p>1. An agreement or license, by tbe proprietor of a hotel, giving permission to another to occupy any portion of the public streets, as a stand for his coaches, is a nullity. Hotel proprietors have no right to the exclusive use of the streets in front of their premises; and any obstruction of them, in their free use, would be a public nuisance.</p> <p>2. The streets belong to the public at large,' for passage over them; no person has the right to obstruct such passage, by leaving coaches or other vehicles standing upon the highway. Hotel proprietors, having themselves no such right, can confer none upon others.</p> <p>3. But up agreement by the proprietor of a hotel, with, and license to, another, allowing the latter to place the name of the hotel upon his coaches—such arrangement to continue so long, only, as the parties are mutually “satisfied”— is a valid contract, which will subsist until terminated by a notice from either party. Continuing the use of such name, by the licensee, after the license has ceased, or is terminated, may be restrained by injunction.</p> <p>4. The proprietor of a hotel, and his licensee, may each claim the protection of the court for any violation of his individual rights by a third person; the pen- ■ dency of a suit by such licensee, for the injury he has sustained, is no bar to an action by the hotel proprietor.</p>

This was an action brought to recover ($2500) money lent by a firm (Hoogland & Van Pelt) to the defendant, the claim for which had been assigned to the plaintiff. Such loan and assignment were averred in the complaint. The answer denied both, and set up as a defense a set-off of two claims against the assignors of the plaintiff’s claim before the assignment to him; one for the price of a vessel, the other on a note of theirs, due before such assignment.

This was an action by the lessee against the lessor, to enforce a covenant to give anew lease, at the expiration of the term, contained in a lease.

<p>A motion to dismiss the complaint, under the 27th rule of court, can only be made after an issue of fact has been joined in the action. The 4th subdivision of section 274 of the Code, relates only to actions against several defendants, where the plaintiff fails to proceed against the defendant or defendants served.</p>

This was an appeal from -an order denying a motion on behalf of one of the plaintiffs (Cahn) to set aside an execution upon a judgment for costs, obtained by the defendant against him and others, issued by an alleged assignee thereof, (L. Russell.) The motion was originally made upon affidavits, and the justice by whom it was first heard directed a reference to a referee, to examine witnesses respecting the question whether another of the plaintiffs (Aaron S. Solomons) had…

This was an appeal from an order denying a motion made on behalf of the defendant. (1.) To amend the verdict rendered in the action, or the entry thereof in the minutes, and give the defendant judgment according to such amended verdict.

<p>This was an appeal from an order allowing the defendant five per cent on the amount of the plaintiff’s claim. The only papers produced on the appeal, as those on which the motion was heard, were the pleadings in the action. The order did not recite that any papers were used on the motion. It was made by the justice before whom the action was tried, after hearing counsel on both sides. The complaint claimed twenty thousand dollars damages for non-completion of a contract for the purchase of lands, and the defendant, in his answer, besides setting up a defense, set up a counter-claim for twenty thousand dollars damages for non-performance of such contract by the plaintiff, on which the plaintiff took issue by a reply.</p>