Volume 7 — Louisiana Annual Reports

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

<p>A member of a commercial firm bought real property in his own name, for which he paid in a note of his firm. He afterwards sold the lotto a third person. The other members of the firm brought suit against the syndic of the purchaser to recover their virile shares, upon the ground that the act of sale showed the property was paid for by the firm, and belonged to the firm jointly, and that it could not be legally sold by one of the partners. Held... That the recital in the act of sale was not sufficient notice to the purchaser to invalidate the sale.</p>

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

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

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

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

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

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

<p>The judgment homologating a sale under a monition, may be appealed from, even where' the appellant did not appear or show cause in answer to the monition.</p> <p>The 6th section of the act of 10th March, 1834, prescribing the effect of a judgment on a monition, contemplates a judgment which has not been appealed from, and has thus become irrevocable.</p>

<p>The plaintiffhad sold to Fields, a quantity of coal, which was tobe paid for on delivery. Fields failed to comply with his bargain, as to the payment. The defendant being a judgment creditor of his, caused the coal to be seized by the sheriff. The plaintiff demanded the rescisión of the sale to Fields, upon the ground of the non-payment of the price, which ■was assented to by all parties, and the coal restored to him. He then brought suit for the damages caused by the seizure Held.- That under the circumstances, he was not entitled to damages, more especially as he had suffered Fields to retail some of the coal, which may have misled the defendant.</p>

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

The two suits of the above title were tried together. The first was brought against J. and J. Tardos to recover freight and primage amounting to four hundred and eighty-eight dollars and seven cents.

<p>A mortgagee "has unquestionably an insurable interest in tbe property mortgaged.</p> <p>Where a mortgagee upon a bouse and lot insures tbe building against fire, in case of the destruction of the building, quere, 1st. Whether the Insurance Company have not the right to insist upon the lot contributing to the satisfaction of the mortgagee’s debt 1 2d. Whether the Insurance Company upon paying the amount of the insurance, have not the right to insist upon a subrogation to the mortgagee’s rights ?</p>

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

<p>An attachment creates no privilege against the succession, where the debtor subsequently dies in this State, and his estate is administered upon here, as the place of his residence.</p>

<p>A person cannot be twice tried for the same acts ; and where there were two indictments against a prisoner for the same acts, one charging him with having committed a grievous assault, and the other for putting out an eye of another person, a trial and conviction for the first offence is a bar to a trial for the second.</p>

<p>Dirt eating is not a disease, but merely the cause of a disease. It is not, therefore, necessarily a redhibitory vice, which should annul the sale of a slave.</p>

<p>Where notice of protest is sent to a post office, in the parish in which the endorser lives, in the absence of proof of a nearer post office, the notice will be deemed sufficient.</p>

<p>The plaintiff brought an action for the removal of obstructions to the natural drainage which the defendant has made, and also for damages. Held: That the plaintiff, after dismissing his claim ior damages, still had the right to insist upon a judgment for the removal of the obstructions.</p>

Mrs. Martin intermarried with her deceased husband, in the year 1823. The slave Else was given to her by her father. In 1846, Martin, her husband, having parted with the possession of the negroes, and representing that he had sold them, his wife instituted a suit against him, and claimed a judgment for their value, which she obtained to the amount of $1,600, with a mortgage from the time when it was supposed they had been sold.

<p>The father held certain slaves under a deed of trust executed in Mississippi, binding him to hold them for the use and benefit of a son and daughter, and upon the majority or marriage of the children, to execute a conveyance to them. He removed to Louisiana, and by some means, parted with the possession of the slaves. They were subsequently transferred several times; suit was instituted by one of the children, and the heirs of the other, for the slaves, against the person who, at the time, had them in possession. The defendant and his warrantor, proved more than ten years’ possession in good faith, and under a just title. IlelH: The legal title to the slaves was vested in the father by the deed of trust. When brought by him to this State, they became subject to our laws, which recognize no such right of property as that claimed by the plaintiffs.</p>

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

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

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

<p>A mere defect of hearing, or of sight, does not render a person incompetent to be a witness to a nuncupative will.</p> <p>There is neither a substitution, nor jidci commissum, in a will to the following effect: “In consequence of the affection I bear to my grand neice, A., a child whom I have brought up, and who has always taken care of me, I give and bequeath the whole of my property, after my debts are paid, willing that, at my decease, my executor shall put the said legatee in possession of my land and slaves; that the whole shall be administered and preserved in kind by my executor, for the best interests of the said legatee, until she shall have attained the age of majority, or have married.” The evidence showing, that the legatee was of age when the testatrix died.</p>

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

<p>The testimony of a single witness is not sufficient alone, to establish a contract of guaranteeing the paym ent of the price of goods purchased, for an amount exceeding five hundred dollars.</p>

<p>A sale will not defeat an attachment ■which is levied before delivery.</p> <p>To constitute a valid delivery, the consent of the seller must be made to appear. The mero taking possession of the thing sold by the purchaser, without the consent of the seller* does not amonnt to a delivery.</p> <p>The plaintiff brought suit against the sheriff for a trespass, in levying certain attachments against a third person, upon his property. The sheriff called the attaching creditors in warranty. The plaintiff had purchased the property of the debtor. Held: That, as the attachments were levied before the delivery of the property to the plaintiff he had no right to obstruct, or embarrass, the process of the court against the debtor.</p>

<p>When a party has been induced, by misinformation and a suppression of material facts, to talce a joint interest in a shipment of merchandise to a foreign port, he is entitled to have the contract annulled, and to recover from the other party any sums he may have paid on account of the shipment.</p>

APPEAL APPEAL from the Fourth District Court of New Orleans, Strawbridge, J. In this suit the controversy was between the plaintiff and William Ryan, third opponent.

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

<p>The stipulation in bonds given to the Union Bank, that in case of non-payment at maturity, the borrower is to pay ten per cent interest after that time, is obligatory, and the party will be condemned to pay it.</p> <p>Where a stockholder in the Union Bank, in addition to the usual amount loaned on stock, borrows fifteen per cent on his stock, it will be regarded as a stock loan.</p>

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

<p>Where, in conformity to an act of the Legislature, the trastees of a sixteenth section granted by Congress for public schools, have leased the same for fifty years, the contract is valid. There is nothing unconstitutional, or contrary to the laws of the United States, in such a contract.</p>

<p>The administrator of an estate owes interest, by operation of law, to the heirs from the time of the settlement of his account, and will be condemned by the court to pay it, although not prayed for in the petition. C. P. 1007.</p>

<p>A petitory action for land, can only be maintained against the possessor or owner-. C. P. art. 43.</p> <p>A personal action must be brought in the parish in which the defendant resides.</p>

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

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

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

<p>The temporary residence of a slave, even with the consent of the master, in a foreign country, does not entitle the slave to freedom after his voluntary return with the master to a State where slavery exists.</p>

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

<p>Donations between married persons, made during the marriage, are revocable at the will of the donor.</p> <p>It is better for parties to vindicate their rights of property under their own names, and not under the cover of simulated titles.</p>

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

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

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

<p>Where the husband buys property at the succession sale of his wife’s father, for which he gives his own notes, and they are afterwards received by him in settlement of his wife’s share of the succession, she has a legal mortgage against his property for the amount of the notes, provided it is shown, that he was solvent at the time he received them.</p> <p>The article of the Civil Code, 2235, in declaring, under what circumstances the authentic act shall not be lull proof between the parties, uses the word “ forgery” in the sense of “jalsity.”</p> <p>The offence of making a false act by a notary, is punishable by the act of 7th of June, 1806.</p> <p>Where a notary has been convicted of a misdemeanor in office, by executing a false act, the instrument no longer makes full proof; but, until the act is attacked on this ground, it remains authentic and valid in point of form. There are exceptions to this general rule, viz., cases in which one individual personates another, or where an insane person makes a will.</p>

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

<p>An usufruct in real estate or slaves must be established by written evidence; parol proof of its existence is insufficient.</p> <p>An administrator of an estate, in matters concerning the succession, is subject to the ordinary rules of evidence, and even when interrogated on oath to answer interrogatories as a party, he cannot give evidence in favor of liis mother against the succession.</p>

<p>Where the husband claims property purchased in his own name, during the existence of the community between him and his wife, it is incumbent on him to show a dear intention to make an investment on his own account, and this should be so established as to have thrown the loss on him separately, in case the property purchased had been lost.</p>

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

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

<p>On the 1st of October, 1849, the accused was indicted for a murder alleged to have been committed on the 10th of August, 1848. The jury found him guilty of manslaughter only. I-Ield: That the accused, not having been indicted within twelve months after the' offence was committed, he could not be legally convicted of manslaughter.</p> <p>Where a motion in arrest of judgment has been sustained, the State may appeal/</p>

<p>Where the ma tter in dispute, at the institution of the suit, does not exceed three hundred dollars, the case is not appealable to the Supreme Court, although the plaintiff may pray for interest from judicial demand.</p>

<p>The Supreme Court has appellate jurisdiction in criminal cases, only where the punishment of death or hard labor in the penitentiary may be inflicted.</p>

<p>The plaintiffs were the sureties of an executor in the State of Arkansas. They took steps there to be relieved from their suretyship, upon which the executor placed in their hands, as an indemnity, several of the slaves belonging to the succession. He afterwards fraudulently obtained possession of the slaves, and sold them fraudulently to the defendant. Held: 1st. That the sureties had such a right in the property, as to maintain an action against mere spoliators. 2d. That they, also, had the right to maintain an action, as against the defendants, upon a forfeited bond for the delivery of property sequestered, although there had been administrators appointed for the succession, both in Arkansas and Louisiana.</p>

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

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

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

<p>Where the plaintiff claims damages for the catting and carrying away his timber, the prope r measure of his damages will be the value of the timber, and not the amount which the timber may be worth when sawed up into plank, or used in any other way.</p>

<p>APPEAL from the District Court of West Feliciana, Stirling, J.</p> <p>The only questions ne.cessary to be discussed, relate to the validity of the nuncupative will, under private signature, made by Rvfffin B. Ratliff, deceased. The will was made in the country and attested by three witnesses, residents of the parish, The Code, art. 1576, requires only three witnesses to such testaments, where the will is made in the country, and the witnesses are residents of the parish, and the provision requiring a greater number of witnesses, if they can be had, applies only when the witnesses are non-residents. .</p> <p>The emergency of the case rendered the presence and attestation of three witnesses sufficient. Dr. Walher testifies that the testator was rapidly sinking, and that he did not expect him to live through the night. If the attending physician had good reason to believe that it was unsafe to postpone the making of the will, in order to send for other witnesses, and the will was valid at the moment it was made, the fact that the testator lived two days after the execution of the will, cannot invalidate it. Reasonable diligence, and a proper exercise of judgment, is all that is required in such cases. If the will was once good, it has continued to be so.</p> <p>Robert S. Walker, Dr. Walker's son, was present in the house, but did not sign as a witness. That fact ought not to invalidate the instrument, as he has testified to every fact that his signature could possibly have attested.</p>

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

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

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

<p>It is out of the usual course of business, and unlawful, for an insolvent merchant to sell his whole stock of goods on long, credits, and without any security, to a purchaser who knew the state of his affairs.</p>

<p>Until final judgment, confirming a judgment by default, has been entered on the minutes of the court, the defendant has a right to move to set aside the judgment by default, and to file an answer.</p>

<p>The testamentary executrix who is in possession of the succession, is not under the neces. sity of demanding the seizin of a particular legacy to herself from the heirs.</p> <p>Where two clauses in a will are inconsistent, the latter is considered as the will of the testator. C. C. 1716.</p>

<p>An endorsement of a note executed by an attorney duly authorized, is binding on the principal.</p> <p>Notice of protest addressed to the post office where the endorser usually receives his letters, is sufficient.</p> <p>If the second of exchange be accepted, the holder may recover judgment on it, without accounting for the first of exchange.</p>

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

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

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

<p>Although an action to subject propcrty>t*o the payment of the debts of the succession, on the ground that the possessor holds under simulated conveyances, should be brought by the administrator, and not by tho creditors of the deceased, yet where the creditors sues both the administrator and the fraudulent possessor, and the administrator adopts the prayer of the plaintiffs against his codefendaut, and asks that the property held by tho latter be restored to the succession and sold for the payment of debts in due course of administration : in such a case, the creditors are competent to sue.</p> <p>An answer was filed after the exception had been taken to the plaintiffs* action. Held: In determining* on the exception, the court was bound to take cognizance of the pleadings as „ they then stood.</p>

<p>An endorser, who pays a promissory note, when, inconsequence of an informal protest, he was discharged, obtains no greater rights against the maker than appertained to tlie transferror, by whom it was discounted, and from whom it was obtained. The same prescription is applicable to both transferror and transferee.</p>

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

<p>The conduct and declarations of both parties to a written agreement, may be admitted to prove a fraudulent simulation. Such is also the rule of the common law.</p> <p>At the common law, a person who receives property under a fraudulent conveyance, to screen it from the debts of the owner, cannot sustain the conveyance in an action against a subsequent vendee who derives title from a sale by the same owner.</p>

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

<p>The notice to be given to the debtor, of the seizure of property under execution, is no part of the proceedings which a purchaser at sheriff’s sale is bound to heed or examine. It is for the benefit of the debtor in execution exclusively, and may be waived by him without prejudicing the rights of a purchaser, or vitiating his title.</p> <p>The object of notice to the debtor is, to apprise him what property the sheriff takes in execution, and of which he claims to take possession by virtue of the seizure.</p>

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

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

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

<p>The act of the Legislature of 1847, required each municipality of New Orleans, annually, in January, specially to appropriate a percentage of the revenues, derived from the markets and wharfage, to the sinking fund, as established by that act. Held : The rate of wharfage cannot be changed during the year.</p>

<p>The Police Jury of tlie parish of Concordia had n right to locate the levee on its present site ; a reasonable regard for the public safety required it, and therefore the plaintiff has no right to complain. Salus populi suprema lex est is the rule.</p>

<p>Where the whole account has been referred to an auditor, it is error in the court to permit the counsel to divide it and try the case on a portion of it.</p> <p>Where a party seeks to homologate the report of auditors, and, in his motion, makes reservations which leave the matters upon which the report is based, vague and uncertain and open to future litigation, a judgment homologating it will be equally vague and uncertain, and should not therefore be rendered.</p> <p>Sums paid by a tutor, in the course of his administration, are considered prima facie as proper charges against the minor he represents. Where there are circumstances which cast a suspicion upon his good faith, it is otherwise.</p>

<p>APPEAL from the Third District Court of New Orleans, Kennedy, J.</p> <p>First. Partnership is a contract made between two or more persons, to place their money, effects, labor, and skill, or some, or all of them, in lawful commerce or business, with the understanding that there shall be a communion of the profits thereof between them. Story on Partnership, No. 2. Civil Code, 2772. Purdy v. Flood, 5 N. S. 629, 630. It may be made between alí persons capable of contracting. C. C. 2773. We have no knowledge of any law or principle of law, by which a single woman is rendered incapable of becoming a party to such a contract. Married women are, in general, incompetent to become so, but the rule with respect to them is' subject to .many exceptions. In all the instances in which this is permitted, it is stated that they are authorized to do so as “ a feme sole,” to use the language of the common law. Story on Partnership, Nos. 10 to 14, C. C. 1779.</p> <p>The business which was carried on was lawful and proper. A partnership formed with a view to its prosecution between two men would be perfectly legal, and it is not easy to conceive why it should be any the less so because one of the parties was a female.</p> <p>Second. The plaintiff is the joint and equal owner, with the defendant, of all the real estate and slaves, and stock in trade acquired and held in his name, and of the debts due to him. C. C. 2779, 2782, 2824, 2825. C. C. 2836. Richardson v. Packwood, 1 N. S. 290. 4 Skilman v. Purnell, 3 L. R. 497.</p> <p>There may be two or more different contracts between the same parties, and one may be valid whilst the others are null and could give no rights.. Now, the defendant says that the plaintiff lived with him in a state of concubinage, and that there was no other cause or motive for their apparent connection. We have shown that there was another cause for that connection, and that it was of a nature that continued to operate upon and influence the parties in such a manner that all their exertions and industry were directed to a common object, that of making the business they were associated in profitable, not only whilst they were separated and lived apart for a year or more in 1831 and 1832, and for about six months in 1836, but during the whole period which elapsed from the time the defendant left the plaintiff in France, in 1844, and when they not only lived apart, but the defendant lived and cohabited with other females. No matter how improper the cohabitation of the plaintiff with the defendant might have been, it could not, under any circumstances, have any. effect upon a separate and distinct agreement of the kind we have shown, with respect to the prosecution of a lawful business, to the establishment and prosecution of which the plaintiff contributed all the pecuniary capital, and furnished at least an equal proportion of the industry, care, attention and economy necessary for its success.</p> <p>All the circumstances of the case show the entire validity of the association of the parties in the establishment, and prosecution of a common business. If, however, this admitted of doubt, in the absence of proof to the contrary, “ illegality in a transaction is never presumed; on the contrary, everything is presumed to have been legally done, until the contrary is shown.” 1 Chitty on Pleading, 220. And it is a well founded principle of law, that when an act may have been determined by two motives, one praiseworthy, and the other illicit, it must be considered to have been determined by the praiseworthy one. 2 Delvincourt, p. 203, No. 3. Paillet note g. 1 to art. 1108 of the Napoleon Code. 3d Ann. 239,157, 494.</p> <p>But in the present instance there is no room for doubt. The facts show clearly that the association in business had a lawful purpose.</p> <p>The defendant’s counsel seem to have confounded this action with another that it has no relation to. He would have it considered as if it were an action to enforce the payment of an obligation, given in consideration of the illicit cohabitation of the parties. But every obligation, founded upon such a cause, is not void. One given in consideration of future illicit intercourse is certainly so. But past cohabitation has been held to be an innocent consideration in England, and where the common law prevails. Chitty on Contracts, ed, 1842, p. 660, 1. The same doctrine is maintained in France. Repertoire du Journal du Palais, vol. 9, p. 743. It is true that.in many cases our courts have refused to enforce notes and other obligations given by men to females, who had lived with them in a state of concubinage, but in every instance it has been upon the ground that there was a want of consideration. We know of no principle which would prevent one who had lived in concubinage with another, from recovering against him upon a cause of action founded on an actual consideraton furnished by her to him. In the only cases which has occurred in our courts, that of Vienne v. Brickie, 8 M. R. 11; and of Ldbanelle v. Decorret, 2d Ann. 546, the right was recognized and enfored.</p> <p>The allegations of plaintiff show evidently, that the motive or cause of their co-residence was the concubinage. jkg court are of opinion that such was the motive, consideration, or object of the parties, when they first met together, then the peremptory exception filed must be sustained, and there must be judgment for the defendant, L. C. 1887, 1889, 1890, 2026.</p> <p>An obligation without a cause, or with a false or unlawful cause, can have no effect. C. C. art. 1887.</p> <p>By the cause of the contract, in this section, is meant the consideration or motive for making it, &c. C. C. 1890. 17 L. R. 126. 3 N. £>. 46. 1st Ann. 69. Duranton, vol. 10, No. 367.</p> <p>The judgment of the lower court recognizes a universal partnership between the parties. We maintain there was an insuperable obstacle to the formation of such a partnership between these parties. C. C. art. 2805 provides that: “ a universal partnership cannot be created without writing signed by the par. ties, and registered in the manner hereinafter prescribed.” C. C. art. 2817, 2818, 2819.</p> <p>C. C. art. 2804 provides as follows: “ Universal partnership shall only be contracted between persons who are not respectively incapacitated by law from conveying to, or from receiving from, each other to the injury of others.”</p> <p>C. C. art. 1468 is in the following words : “ Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables it cannot exceed one-tenth part of the whole value of their estate. Those who afterwards marry are excepted from this rule.”</p> <p>The spirit of that law is of public order, and to laws of that kind, parties cannot derogate. Every thing done in contravention to a prohibitory law produces no effect, and is absolutely null. C. C. art. 12.</p> <p>In a case like the present, parties must be left in the condition in which they place themselves: “ Melior est conditio possidentis,” or “ Porro autem si et dantis et accipientis turpis causa sit; possessorum potiorum esse, et ideo repetitionem cessare, tarn et si ex stipulatione solutum est.” Leg. 8, § de conditione ob turpem, 12, 5.</p> <p>If the judgment of the lower court was confirmed it would be the corner stone of a new jurisprudence in favor of concubinage; a premium to the concubine over the legitimate wife. 1. In marriage, the husband is the head and chief of the community property, which he can alienate at pleasure. 2. The wife has no right of action, against her husband, for the purpose of dividing the community property, except in cases of separation of bed and board or of divorce. 3. The legal community is to last as long as the marriage, unless the husband mismanages the wife’s private property. 4. During marriage, the wife could not form a commercial partnership with her husband. 2 L. R. 268. 5. Could she do it with her husband and concubine jointly ?</p>

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

<p>The bond given by one partner to obtain an injunction against his copartner, is the property of the latter,^md not of the partnership.</p> <p>The right of action upon the hond arises immediately upon the dissolution of the injunction.</p> <p>The death of the principal in an injunction hond, is no reason for arresting the suit against the surety: his is a solidary obligation.</p> <p>Where the condition of the injunction bond given by the obligors, is to pay such damages “ as the defendant may recover against them,” the phrase “ may recover against them,” i applies to the surety in the same manner as it does to the principals. Recovery against the principals is not a prerequisite, therefore, to an action against the surety.</p>

<p>There are somethings, that pass before the eye of a district judge, which cannot be preserved in evidence, and I will not disregard entirely his impressions arising from them when, in his written opinion, they are declared.</p> <p>Per Slidell, J. Bustis, C. J., concurring.</p> <p>I cannot consider the appearance (conduct and manner) of Genies, in the distinct court, as it is not presented in the form of testimony.</p> <p>I am inclined to think, that nothing hut a decree of interdiction, should deprive a parent of his child on the ground of insanity.</p> <p>Preston, J. Rost, J., concurring.</p>

<p>1110 sale of a litigious right to an attorney not competent to purchase, is a nullity. But the sale does not annihilate the obligation of the debtor of that right; he is still bound to the vendor. It is the sale of the litigious right, and not the right itself, which the law avoids.</p>

<p>When an account has been stated and a balance ascertained, and the account in this condition is presented to the debtor, and he acknowledges its correctness, the creditor may recover the balance of account without producing accommodation acceptances, notes, &c., the payment of which forms items of the account.</p>

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

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

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

No case has heretofore been presented to the court where they felt authorized from the facts, to order the recision of the sale on this ground. And yet, in all the cases reported, the right has been clearly recognized. The testimony stands uncontradicted to prove: 1st. That the title of the Fletchers to the plantation, was complete and perfect, and that they had possession under that title.

<p>The judgment of the district court was, that there he a separation of property between the parties, and that the wife recover one half of the property acquired during marriage. In order to effect a partition, the sheriff was directed to sell the property of the community and to pay one-half of the net proceeds to the wife. There was no specification of the community property in the petition, in the judgment of the court, nor in the evidence; nor was there any settlement of the community. The judgment of the district court was held to be erroneous; for, by Slidell, J., the judgment, on which the Jierifacias was issued, did not ascertain what property belonged to the community.</p>

<p>APPEAL from the District Court of the Parish of Jefferson.</p>

<p>In an action, brought many years after its alleged maturity, to recover the contents of a destroyed promissory note, and the only evidence of the original contract is the testimony of the plaintiff's brother that the maker acknowledged it; and it also appears that the maker lived two years after the alleged acknowledgment, and was solvent, yet, that no steps had been taken to recover it during his lifetime. Upon such testimony, it was held that the plaintiff could not recover without strong corroborating circumstances.</p>

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

<p>THIS was an application for a mandamus, to compel the district judge of the Third Judicial District, to grant an order for the sale of perishable goods, which had been attached. The petition for the mandamus did not state the value of the goods.</p>

That the Solicitor of the Treasury, by direction of the Secretary of the Treasury, empowered Mr. Mechlin, as special agent of the government, to institute this suit, and that the act of the Secretary of the Treasury is, in point of law, the act of the President of the United States. 1 Peters 296. 12 Peters 524. 1 R. R. 427.

<p>APPEAL from the Second District Court of New Orleans, Lea, J.</p> <p>The 1st and 2d articles of the Constitution of the State of Louisiana, provide that “ the powers of the government shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy “and that no one of these departments, nor any person holding office in one of them, shall exercise powers properly belonging to either of the others, except in instances expressly directed or permitted.</p> <p>The only articles of the Constitution, which refer to the levying of taxes, are the 32d article, which declares, that “ all bills for raising revenue, shall originate in the House of Representatives, &c.;” and the 127th article, which provides, that “ taxation shall be equal and uniform throughout the State, &c.”</p> <p>It thus appears, that the separation of the different departments of the government, by our Constitution, is express and positive ; and is accompanied by an inhibition, upon each department, for the exercise of any powers, properly belonging to the others; and that, while the power to levy taxes is recognized as appertaining to the legislative department, the Legislature is left to provide for their collection, under the restrictions which result from the division of the powers of the government among the different departments.</p> <p>It thus becomes an important question, to demand to which department of the government it properly belongs, to authorize and enforce the compulsory collection of taxes. . '</p> <p>It is certainly competent for the Legislature to provide for the mode in which taxes shall be assessed. When the assessment has thus been made, it may be considered as sufficient rimd facie evidence, at least, of a debt to the State, from the citizen on whom the tax is imposed. But if the citizen neglects or refuses to discharge this debt, how is the payment of it to be enforced ? In what respect does a debt to the State differ from a debt to an individual, as regards the process for its collection? It is- said, by the judge of the court below, that “ there is nothing in the Constitution which prescribes the particular process of law, by which persons may be divested of their propertybut certainly it must be by some “process of law,” in virtue of a competent authority. If a collector of taxes can be authorized to proceed, by a summary seizure, for the recovery of a debt to the State, it is not'easy to see why an individual may not be authorized to proceed in the same way. It belongs essentially to the judicial power of the government, to grant the proper remedy and aid to the State, as well to individuals, for the enforcement of the legal claims ; and any statute which authorizes a mere ministerial officer, to proceed directly to the seizure of the property of the citizen, is believed to be an infringement of the powers of the judiciary.</p> <p>If it be conceded, that the Legislature has the unquestionable power to prescribe in what mode taxes shall be assessed, and to erect the taxes so assessed into a privileged claim upon the property charged with them, yet it would seem to be the peculiar province of the judiciary, to authorize and direct the sale of the property for their payment. To grant such authority, is essentially an act of a judicial character. It was so held under a Constitution, having similar provisions with our own, in a case in 10 Yerger’s Reports, 59. The power, then, to grant such authority, must vest in the judiciary, and can be vested no where else. It must be exercised by the judiciary, and cannot be exercised by any other class of magistracy. Any act of the Legislature, therefore, which assumes to grant such authority directly to a collector of taxes, is clearly in contravention of the 1st and 2d articles of the Constitution of this State.</p> <p>It may be further observed, that the section 5lh of the revenue act of 1847, imposes a fine, in certain cases, on any person or corporation who shall be indebted to the State for any tax, license or commission, and who shall have refused or neglected to pay the same, after final judgment has been rendered therefor: It seems, then, that in the case of a tax upon any trade or profession, the amount of the tax is considered as a debt, and that it can only be recovered after final judgment. But in what does a tax on a trade or profession differ from a tax on property, as to the nature of the liability they created, or as to the proper and constitutional method of enforcing its discharge ? If a final judgment is necessary in the one case, why is it not equally necessary in the other ?</p> <p>It will be found, that the modes of enforcing the collection of taxes in the different States, vary as widely as the Constitutions of those States; and it is impossible to reason from the method pursued in one State, to the method purgue¿[ another, unless the Constitutions and laws of those States are first ascertained to be similar. There is nothing in the Constitution of the United States, to restrain the Legislatures of the several States from the exercise of judicial powers ; and where no such restrictions are found in the Constitution of the particular State, the Legislature itself may well exercise such powers or it may delegate them to such magistrates as it may deem proper. It is only in the States that have specially provided for a careful distribution of powers among the different branches of the government, that the question can arise.</p> <p>The only remaining question in this case, arises upon the proper construction of the 1st article of the 8th section of the Constitution of the United States.</p> <p>By that article, Congress is invested with the power “ to regulate commerce with foreign nations, and among the several States.” It is well settled, that the power to regulate commerce, includes the power to regulate navigation and intercourse; and that this power is exclusive. Under this power, Congress has passed laws for the enrollment and licensing of vessels, when so enrolled and licensed, all vessels are entitled to engage in the commerce among the several States, without restraints or impediments from State legislation. But if the several States have the power to levy taxes on vessels so engaged, they may easily defeat the rights acquired under the sanction of Congress. All right of taxation, is in its nature unlimited, and an unlimited right to tax, is a power to destroy. 4 Wheaton, 484. 9 Wheaton, 562. 12 Wheaton, 419. 7 Howard, 283.</p> <p>It is believed that these decisions, and the cases referred to in these decisions, go far to sustain this position, if not decisive of it. But it is proper to refer the court to a decision, upon this subject, in 3 Hill 14, Howell v. State of Maryland.</p>

<p>APEAL from the Fourth Distrct Court, J.</p>

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

<p>If, in consequence of the laches of the holder,- the endorser of negotiable paper be discharged the holder cannot recover upon a subsequent promise, without showing that it was made with knowledge of laches. Yet, where the promise to pay the debt is given in the form of a new note, it is prima facie evidence that there was no negligence by which the endorser was discharged from his obligation on the paper which he thus renews.</p>

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

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

<p>A suit to rescind the sale of a slave, cannot be sustained where the plaintiff has been guilty of neglect in not promptly giving her the benefit of medical treatment.</p>

from the Second District Court of New Orleans. Lea, J. The appellants oppose all compensation, and insist that the relations between the parties are to be governed by the law of mandate, which, they say, is in its nature gratuitous, and none can be allowed under Art. 2960 of the Civil Code. For all the purposes of this case, the appellee is perfectly willing to meet them on this ground.

The security bound himself absolutely to pay Garland’s debt, in case he departed from the State within the term of three months. The condition having happened, the security is bound. He chose to bind himself in this manner to the sheriff and plaintiff, and must now be held liable for the debt.

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

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

from the Fourth District Court of New Orleans, Strawbridge, J. Marine policies are commercial instruments, transmitted from one part of the world to the other, in about the same manner as the goods they secure. Like bills of lading, their possession is primd facie evidence of their ownership, and when this possession is known to have been made by the insured, with the knowledge of the underwriter, it constitutes a complete title.

<p>A debtormay pledge whatever movable property belongs to him, provided it be susceptible of delivery, either actual, fictitious or symbolical, but a thing which is susceptible of neither of those hinds of delivery, is not susceptible of being pledged.</p> <p>The mere agreement of the parties, is not equivalent in any case to a fictitious or symbolicaldelivery, within the meaning of article 3120 C. C.</p>

from the Fourth District Court of New Orleans, Strawbridge, J. The mere fact that Payne intrusted Lamme with the bills, without date, was a full authorization to him to fill the blanks with any date he pleased, and the plaintiffs enjoyed the same right. “If endorsers commit a promissory note to the maker, with a blank for the date, they thereby authorize him to fill the blank with what date he pleases.” See Mitchell v. Culver, 7 Cowen R. 336.

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

<p>The change in' the name of the court merely, does not change its powers, or the modes of proceeding prescribed by law. Therefore, where the jurisdiction of the criminal court over the limits of the present Third District, was transferred to the Third District Court of the State, with it were necessarily transferred the modes of prosecution prescribed by law for the criminal court.</p>

cited Chitty on Bills, 334. Nisbet v. Galbraith, 3 Ann. 692.

Was the evidence properly rejected ? We contend that it was not, on the authority chiefly of the case of Tracy v. Theyer et al., 7 N. S. 355, 356, and of Adams v. His Creditors, 14 L. R. 463. The authorities are now clear, that parol evidence cannot be given to vary the terms of the written contract where there is no ambiguity in the contract itself, and there is none in the policy sued on. 1 Arnould, 65, 79. Truman v. Loder, 11 Ad. & El. 589, 39 Eng. Com. Law Rep.

<p>The fact that one party to acontract through complaisance, and at the request of the other party, rendered a service, cannot raise a presumption against the former, that she thought herself bound by the contract to render it.</p> <p>Where the contract provides a penalty for its breach, and points out the manner in which it is to be dissolved, a dissolution of it in a manner not pointed out, is a breach, and the penalty is thereby incurred.</p> <p>Where a contract has been partly executed and justice requires it, the court will modify the penalty</p>

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

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

<p>from the District Court of the Third Judicial District, J. Calvitt Clarke, J.</p>

<p>Defendant owned the Mexican Gulf Railroad, and also a steamboat which ran from Pearl River to Proctorville, the gulf terminus of the road. At the former point, cotton was shipped to plaintiffs under a bill of lading given by the captain of the boat, binding him to deliver the cotton at the port of New Orleans, unavoidable dangers of the navigation and fire, only excepted. The cotton was transferred. from the vessel to the cars and destroyed by fire, issuing from the chimny of the locomotive, in transit to New Orleans. The court held, that the contract to carry the cotton was entire, and the exception in the bill of lading against loss by fire, extended as well to loss on the cars as on the boat, and that defendant was not bound for the loss.</p>

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

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

<p>Article 2497 of the code, which excludes from the class of redhibitory vices those defects which are apparent, does not relate to such defects as are concealed by reason of the thing purchased being in a box, barrel or package.</p> <p>Where the plaintiff purchased potatoes, in barrels, and shipped them to Shreveport, and, on opening the barrels there, the potatoes were fo'uud to be in a rapidly decaying condition, it was held, that the plaintiff could rescind the sale without offering to return them.</p>

THIS case was tried by a jury, before Lame, Judge of the First District Court of New Orleans. As to the law of this case. Held: that plaintiff could show in evidence that the term “ fur,” covered the “ skins ” in the invoice. The usage of trade may be proved by merchants dealing particularly in that article. Underwriters are bound to know the mercantile meaning of words, and are liable according to that meaning. 7 Cowen,-202.

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

<p>Slight proof of the celebration of marriage is sufficient, whore the spouses uniformly,publicly, and for a longtime bear to each other the relation of husband and wife.</p> <p>Whore a man married two wives, and the second wife was in good faith, each wife is entitled, at the death of the husband, to one-half of the community.</p>

<p>Where an offence, other than willful murder, arson, robbery, forgery and counterfeiting, has not been committed within the year next preceding the indictment the indictment should show, that the accused cannot avail himself of the limitation, by charging that he absconded or fled from justice, or that the crime was not discovered and denounced in the manner pointed out by the act of 25th March, 1844, until within a year of the finding by the grand jnry.</p> <p>The indictment charged that the mortal stroke was given in the parish of St. Bernard, buj that the deceased languished and died on Lake Borgne. It was held, that it was proper to charge in the indictment, the truth that the death occurred on Lake Borgne, and it was immaterial whether it occurred within the jurisdiction of Louisiana, Mississippi, or on the high seas, within the jurisdiction of the United States.</p> <p>To maintain tho plea of autre fois cornicb, the crime must not only be the same for which the defendant was befere convicted, but the conviction must have been lawful on n sufficient indictment.</p> <p>The accused was indicted for murder, and convicted of manslaughter. The indictment was insufficient to sustain tho charge of manslaughter, and judgment was arrested, but without prejudice to a legal prosecution for the crime of manslaughter.</p>

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

<p>The plan, by which the vendor sells property, forms a part of the title conveyed by him, and he warrants whatever may fairly be inferred from it.</p> <p>Saits for damages should not be matters of speculation,-but reasonble claims for indemnification.</p>

<p>The wife, separated from bed and board, has no need, in any case, of the authorization of her husband. She may make all contracts not prohibited to her, as if she were unmarried. It is, therefore, perfectly competent for her to make a compromise with her husband respecting the property which each party is to retain.</p>

<p>In a contest for the ownership of slaves, the plaintiff’s title was sustained. He died, and his curators brought suit for the wages of the slaves, and also for the value of those that were not delivered. Plaintiffs had judgment, which, on appeal, was affirmed.</p> <p>Slaves were delivered to defendants on their giving a forthcoming hond. Held: That this circumstance did not affect defendants’ rights in relation to tho slaves.</p>

<p>APPEAL from tlie late Probate Court, now Sixth. Judicial District Court, parish of East Baton Rouge, Burk, J.</p> <p>cited : Bullard and Curry’s Digest, p. 2, 3, Act of 13th of March, 1837. 2 Ann. 400. 4 Ann. 29, 30 ; and the case of the Succession of Salvados- Christy, 6 Ann. 427, the last case on this point reported, where the court say, the act of 13th March, 1837, requiring syndics, executors, curators, &c., to deposit funds in their hands in one of the banks allowing interest on deposits, is not unconstitutional ; and such fiduciaries are not excused from the penalty imposed by the law, upon the grounds that there were no banks which paid interest on deposits. If this case does not bear us out in our motion, then I yield the point.</p> <p>We will not trouble the court with any argument to refute the position taken by the counsel for the executor, that Mrs. Smith labored under an error of law in making her will; that she believed that her lawful heirs were her sisters and brothers of the full blood. The words lawful heirs is a plain and unambiguous expression, and cannot be departed from. C. C. 882, 884, 885. 6 Ann. 232. See, as to the interpretation of acts of last will, C. C. 1705. But the will must stand as it is, or be set aside. If set aside, so much the better for the legal heirs.</p> <p>As to the'plaintiffs’ complaint, whether heirs of the full blood are entitled to three-fourths or two-thirds of the estate. Art. C. C. 909, requires that: “If they are of different marriages, the succession is equally divided between the paternal and maternal lines of the deceased; the german brothers and sisters take part in the two lines, the paternal and maternal brothers and sisters each in their respective lines only.”</p> <p>We have viewed this question as if the article 909 established clearly in such a case as this, the right of the half blood to inherit. By the Old Code this right was denied. In effecting this innovation in the New Code, article 909, the jurist, in a note appended to the project, remarks : “The 38th article of our code makes the german brothers and sisters of the deceased, inherit the whole of his succession to the exclusion of paternal or maternal brothers and sisters, which appears to us unjust; for the paternal and maternal brothers and sisters, though not so intimately connected with the deceased as his german brothers and sisters, are no less his brothers and sisters, and ought to have some part of his succession.”</p> <p>The 40th article of the code, in the case in which the deceased has left no german brothers and sisters, but only paternal or maternal brothers or sisters, has established a complicated mode of partition, which is found in Law 586 of the Partida, tit. 13, and in the Febrero Real, book 3, tit. 6, Law 13, which presents great difficulty.</p> <p>We have thought the mode which we propose, which is taken from art. 752 of the French Code, is more simple, and grants every thing which is required by the double tie which unites german brothers and sisters, without sacrificing the rights of the paternal brothers and sisters in the article mentioned.</p> <p>There appears to be in art. 909, C. C. and art. 752, French Code, a qualified exception to the disposition of such an estate, in these words: “ If there are brothers and sisters on one side only, they succeed to the whole, to the exclusion of all the other relations of the other line.”</p> <p>German brothers and sisters may have both paternal and maternal brothers and sisters of the half blood : as for example, when a widower, with children, marries a widow with children, the issue of their marriage would be bound as by a “ double tie” to the half blood by the paternal and maternal line, although the children of the two lines respectively, are strangers in blood. It seems to us that it is only in such a case, that german brothers and sisters are required to divide an inheritance; but, in a case like that at bar, where there are sisters on one side only, they should succeed to the whole estate to the exclusion of all the other relations of the other line. It is evident the article intended to exclude some one under certain circumstances, and we frankly confess our inability to discover who was intended to be excluded, unless it be in a case where the “ double tie” did not exist, but only in a case where the half blood existed in one line only.</p> <p>If, under article 909, the half blood be entitled to any part of the inheritance, the judgment of the district court did them ample justice.</p> <p>The demand of those claiming to be heirs of the half blood should be rejected. This depends on the construction to be given to the intention of the testatrix, as her oft-expressed wish, shown by the answers of the executor to interrogatories propounded to him, and the testimony of James C. Dawson and John B. KLienpeter, taken on the trial. In fine, whether the right claimed by the half blood does not grow out of an error of law, operating on the mind of the testatrix, when in her will she said: “ It is my will, that the balance of my property, both real and personal, and debts due to me, shall be equally divided between my lawful heirs.”</p> <p>Who did the testatrix consider were her lawful heirs?</p> <p>By the Code of 1808, the half blood was not lawful heirs, ah intestato, in case there were german brothers and sisters. This rule of inheritance being known to the ancient population, a change by the Code of 1825 is still unknown to many of them, as it doubtless was with the testatrix, at the date of her will and her death.</p> <p>But the question occurs, can the heirs of the full blood plead an error of law resting on the mind of the testatrix when her will was dictated, as to those who were her “ lawful heirs 1 ’ ’</p> <p>The jurist who revised and projected the Code of 1825, which gave the half blood a right to inherit, also incorporated in the code, tit. 4, c. 2, sec. 1, par. 7, article 1840, Errors of Law.</p> <p>In a note appended by the jurist who revised and recommended for adoption the Code of 1825, it is said: “As there has been much diversity of opinion, and many contradictory decisions on the effect which errors in law ought to have upon contracts, we have thought it proper to offer some positive enactments on the subject. Neither the Napoleon Code, nor that in force in this State, have any article on that subject eo nomine, but we think there are some in both codes which show a decided intent that such errors, as well as errors in fact, should invalidate contracts. The article 1109, which is copied verbatim in our Code, (art. 9, title obligations,) declares, “ that is no valid contract which is given through error,” without making any distinction between error in law and error in fact. Art. 2052 Napoleon Code, and art. 10, title Transaction (Compromise) in our Digest, both provide that a compromise shall not be attacked for an error in law. Now, there being no such objection in any other contract, it is fair to conclude that the general expression of the article 9 would have given rise to a rescisión of all contracts, including those of compromise, or there would have been no reason for the special restriction.</p> <p>The reason of allowing a rescisión for errors of law, appears to us equally evident in both cases, Our code, and that of most other nations, has established, that when an obligation is entered into without a cause, or with a false or unlawful cause, it is void. Art. 31, tit. Obligation. If, therefore, an opinion of my right is the sole cause of my agreement, and that opinion is false, there is then no cause, no more than there woul d be if the error bore on the substantial fact, which was the cause of the contract, and of course the contract is void. Our opinion on thissubjectis supported by D’Aguesseau in his treatise on the subject, Pothier in his Pandects, vol. 1, p. 645, Domat, law 1, tit. 18, No. 14, Yennius, Huberus and other celebrated civilians, and by several learned writers in the English law. The maxim that all are presumed to know the law, we apprehend, applies principally to duties, not to contracts. But a few of the 3522 articles of our code are enactments of positive law. The capacities and incapacities of persons being defined, declaring what acts may or may not be contrary to good morals and public order, persons are left free to make their agreements, legally entered into, to have the effect of laws. The code is principally illustrative of principles which should be implied in every contract, influenced by the perpetual disposition to render every man his due.</p>

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

<p>An assignment made by an insolvent, which stipulates for an absolute discharge of the assignor, and excludes all those creditors who would not sign such discharge from any participation in the dividends, is null.</p>

If the dedication was only inchoate, not followed by use, the council had undoubtedly the right to renounce it with the consent of the owner of the land, no rights being as yet vested in any one under the dedication.

<p>It is the settled jurisprudence of the United States, that the plea of a statute of limitation to an action on a judgment rendered in another State, is a plea to the remedy, and, therefore, the lexj'ori must govern. There is nothing in the Constitution of the United States, orlaws under it, to justify an exception to the rule.</p>

<p>Charles Ford gave a bond, with James Cassidy as bis surety, in the sum of $1000, conditioned, that he should appear before the First District Court, to answer ¡ftharge of larceny, and not depart without leave of the court. The clerk issued a notice, stating that, on a certain day, the party to the appearance bond was called, but failed, to appear; that the surety was called upon to produce him, but failed to do so; that tlie bond was therefore forfeited, and judgment entered against the surety. It was held, that this was a sufficient notice under the. act of the 11th of March, 1837.</p> <p>The party to such a bond should, if there be legal grounds, make an application to the court to set aside the judgment rendered upon it, within ten days after the notification thereof. If such application be overruled, be is allowed ten days, from the judgment overruling his application, for a suspensive appeal; and if he make no such application, he is allowed a suspensive appeal within ten days from the notification of the judgment. If no such appeal be taken within the periods stated, he is entitled to a devolutive appeal only.</p> <p>Where it does not appear by the petition ior a writ of prohibition, that the sheriff was about to sell the property seized, before the final disposition of the injunction suit, [the object of which was to restrain him from executing the judgment, but merely that he was about to close up the house seized, the writ willnot he granted.</p> <p>Although the statute provides, as the condition of the bond, that the accused shall appear; yet that means an effectual appearance, that is, that the party shall remain and submit to trial. Where, therefore, the bond which the accused and his surety signed, expressed on it face, that the accused shall be and appear before the First District Court of Hew 0 leans, and not depart thence without leave of the court, to answer to the complaint brought against him for larceny, it was held, that such a condition was not more onerous than that which the spirit of the statute imposed.</p>

<p>In estimating the damages resulting from a collision, a claim for “loss of the use of a vessel, and of the profits which she could and would reasonably have made during her detention,” will not be allowed, at least in a case where the collision was not wanton and malicious. The damage is too remote and uncertain.</p>

from the Fifth District Court of New Orleans, Buchanan, J. Where the vessel is lost or disabled, and the cargo is saved, and the master has the means and power of transhipping and sending on the cargo, a loss, caused by his neglect to do so, cannot be recovered of the insurer. 9 Johnson, 21. Ib. 17. 4 Wendell, 45, S. C. 7 Cowan, 504. 1 John. 335. 5 Binney, 595. 7 Howard, 595.. The sale was unnecessary and illegal.

<p>APPEAL from the .District Court of the Seventh J udicial District, Stirling, J.</p>

<p>Ifc was competent for the State to make such changes in the mode of administration of the insolvent banks, as the public interest required.</p> <p>The laws which have from time to time been passed for the liquidation of the affairs of the Citizens' Bank of Louisiana, are constitutional.</p> <p>The decree of forfeiture, pronounced against that bank, did not thereby give the right to the stockholders to insist on an immediate liquidation of its affairs.</p> <p>The statutes, which provide for a more protracted administration, did not impair the obligation of any contract; nor was the stockholder, in consequence of those statutes, invested with a right to release his property from mortgages which he had created on it.</p>

<p>Where the interest of the applicant appeared to he less than three hundred dollars, the Supreme Court refused to entertain an application for a mcm&ar/ms.</p>

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

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

<p>Article 656 of the Civil Code should be so construed, as to reconcile the respect due to property with the interests of agriculture.</p> <p>The fall of lands fronting on the water courses in Louisiana, is from the river to the swamps behind ; the natural drain is, therefore, from the front to the rear, and the right to drain them to the rear by means of ditches, cannot he doubted; but that right should be exercised, so as to cause no injury to others without necessity. The owner of front lands cannot, therefore, by artificial drainage, accumulate the water in the rear of his field in amuch larger volume, than if suffered to flow naturally, and thereby impose a more burdensome servitude on the lands of the proprietor below-</p>

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

<p>Kule of damages where defendant is in good faith. G. C. 1928, s. 1.</p> <p>If the contract on which the action is brought, is annexed to or made a part of the petition, an objection to the introduction of it in evidence, on the ground of variance, cannot be sustained.</p> <p>In a contract for the performance of work, the omission to state the time at which it is to be completed, is an incident which the court will supply according to equity, usage and law; and testimony may be received of those facts and circumstances which tend to show the time for its completion, which the parties may be presumed to have had in view.</p>

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

<p>Although a corporation had expired by limitation, and judgment of forfeiture of charter had also been pronounced against it on behalf of the State; yet, where, from the nature and objects of the institution, a power to liquidate its affairs, after the expiration of its charter, might have been foreseen as absolutely necessay, the power to accept from the State an extension of the charter, for the purposes of liquidation, will be implied; and this extension enabled it to sue a defaulting stoekholdei-, notwithstanding the enabling statute was passed subsequent both to the decree of forfeiture, and the expiration of the charter by limitation.</p>

The plaintiff contends that bbth defendants are responsible, jointly and in solido, unto him, for the damage which ho has sufferod, and he bases his action upon the following propositions: 1. Held: that in the absence of proof, that the foreman was a person deficient in skill or improper to employ for that purpose, no action, under the 9 and 10 Vic., c. 93, was maintainable by the personal representative of the party killed against the common employer.”

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

<p>THIS case was tried by a jury before the'Fifth District Court of New Orleans,</p>

<p>A shipment made under a contract, that the proceeds should be applied to reimburse advances made on it by the consignee, and to pay certain named creditors of the consignor, creates a right in favor of the consignee and those creditors on the proceeds, superior to that of an attaching creditor.</p> <p>Intervenors, who sustain their pretensions, will not bo entitled to recover counsel fees, where the attaching creditor, who resisted their claim, was in good faith prosecuting what he deemed a legal right.</p>

from the Fourth District Court of New Orleans, Strawbridge, J. On the whole case, we conclude that the contract of affreightment of the plaintiffs, was made only with the charterer's. To them they entrusted their goods, and of them only, they have the right to demand them. Between the plaintiffs and the owners, there is no contract and no privity, and consequently no action has accrued. Agricultural Bank v. Barque Jane, 19 L. R. 8.

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

<p>The insured who violates the conditions of his policy, cannot recover from the underwriters.</p>

<p>Where mortgage property is sold at the instance of a creditor, a previous mortgage creditor is, entitled tobe paid, by preference, out of the proceeds, unless the seizing creditor prove that the defendant has other property of sufficient value, to satisfy the claim of the prior mortgagee.</p>

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

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

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

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

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

<p>Where property was sold under execution, according to a plan made by the defendant, which proved to be defective ; and a number of the purchasers had a new plan made, which they adopted; it was held, that this new plan did not bind tha purchaser, who was not a party to it.</p>

<p>One partner cannot bind bis co-partner by a note, given after tbe dissolution of the partnership, for a partnership debt. But if the dissolution of the partnership was not known at the time, to the person taking the note, the co-partner would be bound.</p> <p>To protect one partner from the acts of the other, after a dissolution has taken place, public notice of the dissolution should he given. To those with whom the firm has traded, particular notice is necessary, or notice of the dissolution must be carried home to them.</p>

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

<p>Innkeepers are responsible only for what is usually and ordinarily in the tranks of travelers— their clothes and the money necessary for their journey. But the landlord is not responsible for the unknown treasure of the traveler, unless placed in his hands.</p> <p>The room assigned to a traveler, by an innkeeper, is the proper place for the deposit of his trunk.</p>

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

<p>Until the universal legatee makes himself a party to the suit, the act of the executor in defending it, is binding upon the former.</p> <p>Where the suit was brought against C. in the Second District Court, and his succession was afterwards opened in the Eourth. It was held that the Second District Court had jurisdiction to try the suit which had been brought.</p> <p>No one can be bound by testimony not taken contradictorily with him. Therefore, testimony taken between the parties to the suit, before the warrantor is made a party, cannot be used against the latter.</p> <p>The plaintiff, in a redhibitory action, cannot recover the expense for the transportation of the slave from the place where bought, to where he died.</p>

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

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

<p>The neglect of one officer of the State to do his duty, does not excuse the defalcation of another, or discharge his securities.</p> <p>The law authorizing the auditor of the State to issue a warrant of distress, is not in violation of the Constitution.</p>

<p>The competency of a witness to testify, is restored when he has suffered the penalty of the crime of which he has been convicted.</p>

<p>APPEAL from the First District Court of New Orleans, Buchanan, J-</p>

<p>APPEAL from tlie District Court of the of East Baton Rouge. This cause was tried by a jury, before Burk, J.</p>

<p>A slave, whose appearance and color gave no indication of African extraction, passed himself as a white person, and tools passage on a steamer. After several days, the captain suspected his true condition, and delivered him to the civil authorities of Memphis, as a runaway. In an action, by the master, for damages, it was held that the captain was not liable.</p>

<p>Depositions will not be rejected, on the ground that the cross questions were not answered;— where the cross questions were irrelevant to the issue, and of such a character as would have justified the district judge in erasing them from the records of his court. Host, J.</p> <p>The domicil of origin continues until another is acquired, animo et facto. He who seeks to establish that another has changed his domicil, must prove it by express and positive evidence; so long as any reasonable doubt remains, the legal presumption is, that the domicil has not been changed. Host, J.</p> <p>The law which fixes the domicil of a person at the place where his principal establishment is situated, means the principal domestic establishment; not that where he may have the largest portion of his fortune. Host, J.</p> <p>Intention to reside, coupled with occasional residence of a few days in each year, is sufficient to continue the original domicil. Host, J.</p> <p>The testator, a citizen of Tennessee, conveyed immovable property, situated in Louisiana, to his brothers, forever, in trust; the revenues to be employ edin establishing and maintaining an academy in Tennessee, as particularly set forth in the will. He directed also that, after the death of his brothers, (the trustees,) the trusts should be continued, andpass overforever in the heirs of his said brothers, to pass the estate; and that the magistrates of the county court of the county of Sumner and State of Tennessee, and their successors in office, should be thereafter the perpetual superintendents of the aforesaid seminary. Held: The testator’s intention, in this case, was to create a perpetuity, and, as to Louisiana, a new tenure of property; that intention is a legal impossibility, and the disposition falls.</p> <p>It is impossible to recognize trust estates in Louisiana, without letting in all the laws which regulate that peculiar tenure of property; and the Constitutional inhibition to 'the Legislature to adopt any system of foreign laws, by general reference, would be rendered nugatory, if courts of justice assumed the power to introduce those systems by piecemeal, in this insidious manner. Rost, J. •</p> <p>Under the hypothesis that the words, “in trust,” in this case, should be reputed not written, the title must have vested in the original trustees in full ownership, and, if it did, tho charge to preserve and return the property to other persons after them, would be such a substitution as would avoid the entire disposition. Host, J.</p> <p>When the words of the testamentary disposition are sufficient to vest a legal title in the legatee, and the intention of the testator to create sucha title for his benefit, to the exclusion of the heirs at law, and of all other persons, is ascertained, then, in furtherance of that intention, any illegal or impossible condition the disposition may contain, is presumed to have been inserted inadvertently, and is reputed inlaw, not written; but, where the title, created by the will, as ascertained by the words used, and the intention of the testator, is a tenure of property which our laws do not recognize, the attempt to change the nature of it, and to convert it into a title, valid under our laws, would no longer be an interpretation of the will, but the making of a new will for the testator. Host, J.</p> <p>I put this case upon the principle, that,' where the condition is of the essence of the title created by the bequest, and intended by the testator, so that the will cannot stand without it, if that will be one which the law does not recognize, courts of justice cannot replace it by another, and the disposition must fall. Host, J.</p> <p>The prohibition contained in art. 1477 C. C., has not exclusive reference to citizens of other countries; it applies to sovereign States or corporations: for corporations, legally ordained, are substituted for persons. Rost, J.</p> <p>The prohibition to a citizen of Louisiana, to make donations cansa mortis in favor of citizens of other States, does not conflict with 2d sec. of the 4th art. of the Federal Constitution, guaranteeing to the citizen of each State all the privileges of the oitizens of the several States. Rost, J.</p> <p>Therefore, where a testator bequeathed immovable property situated in Louisiana, to trustees, to be held by them for the benefit of a charity in Tennessee, where the validity of the bequest is disputed, the trustees should show that the laws of Tennessee do not prohibit similar dispositions from being made in favor of a citizen of Louisiana. Rost, J.</p> <p>The trust, created by the testator, was not uncoupled with an interest; the trustees and their descendants, all had a direct interest in the bequest. The effect of such a bequest is not merely to create a perpetuity; it contains an indefinite series of prohibited substitutions. Rost, J.</p> <p>A testament is a law, and the first duty of courts, in this as in other laws, is to ascertain the mens legislatoris; when it is once ascertained beyond reasonable doubt, it must be followed, and the disppsition stands or falls, as the intention of the testator can, or cannot be carried into effect, consistently with the rules of law. Rost, J.</p> <p>Powers given to testators by the code, are exceptions to the general law regulating the devolution of property; they are limited, both as to form and substance ; and it is not enough to say, that perpetuities arc not prohibited, it should be shown that they are authorized. Rost, J.</p> <p>A trust, as attempted to be created by this will, is a right in equity, to the beneficial enjoyment of lands and slaves, of wbicb the legal title is in another person. X am not aware of any trust estate created in Louisiana, which has been recognized as a legal tenure adversely to third persons having an interest. Rustís, O. J.</p> <p>The framers of our code never contemplated to abolish naked trusts, uncoupled with an interest, which were to he executed immediately. Rustís, 0. J.</p> <p>Aman has no more power to create new, or prohibited modes, of conveying property by will, than he has by sale, or by donation inter vwos. Between parties, they may hold their property, by any tenure or terms they please; hut, as to the establishment of titles affecting the property itself, there is no power in man, out of the law; nor has society any interest in attempting to carry into effect the conceits of the dead, to the disturbance of the rules of public order and policy which regulate the living. Rustís, C. J.</p> <p>A marriage contracted out of the State, between persons who afterwards come here to live, (s’y étáblir,) is also subjected to the community of acquets, with respect to such property as is acquired after their arrival. C, 0. art. 2370. For the true sense of the language of the code, the inquiry should be, did Franklin and his wife live in Louisiana ? Were they established here ? By the words of the code, we are to understand the domestic domicil, the true and permanent home; that domestic hearth, where the husband and wife have surrounded themselves, and their offspring, with the comforts of domestic life; and from which, when he and his wife occasionally depart, for the purposes of business, or pleasure, they do so with the intention to return. Slidell, J.</p> <p>Where there is doubt on the question of domicil, the original home is to. he considered the true home. Slidell, J.</p> <p>The bequest, by Franklin, to his brothers and their heirs, forever, in trust, of certain property, the revenues to be employed in establishing and maintaining an academy, in Tennessee, to be superintended by the magistrates of Sumner county, and their successors in office, &c. &c., establishes a tenure of property unknown to the laws of Louisiana, highly inconsistent with their spirit, creating an entail, and substantially involving, in a very aggravated form, a prohibited Jicleicommissum and substitution. Slidell, J.</p> <p>The act of 1818, added facilities for the acquisition of a residence in this State, but it did not repeal the law of 1816, on the same subject. Preston, X, dissenting.</p> <p>A declaration, made in the manner pointed out by law, is conclusive of the will and intention to become a citizen and resident of Louisiana. Preston, J., dissenting.</p> <p>Special legacies are not to he paid out of the portion of theforcedheirs; and, where asumís given by the husband to the wife, in lieu of her interest in his succession, it is a charge upon his general estate. Preston, X, dissenting.</p> <p>A testator may make every disposition of his property by donations mortis causa, which he could make by donations inter vivos. Unless the law prohibits a testamentary disposition, the testator may make it, if it do not violate some rule of morality or duty. Preston, X, dissenting.</p> <p>There is, in our code, but a single restriction upon dispositions in favor of a stranger, and that is, where the laws of his country prohibit similar dispositions from being made, in favor of a citizen of this State. Art. 1477. There is no prohibition, of a disposition in favor of a foreign State, or corporation created by it. Preston, J., dissenting.</p> <p>If article 1477 of our code, was intended, by way of retaliation, to prohibit our citizens from making donations mortis causa, to citizens of Tennessee, both laws would be void, as conflicting with the 2d section of the 4th article of the Constitution of the United States, guaranteeing to the citizens of each State, the privileges of citizens of the several States.</p> <p>Preston, J., dissenting.</p> <p>Where a testator is desirous of becoming the founder of a charitable or educational institution, he does so on the implied condition, that the State will ratify his benevolent intentions. If the confirmation is withheld, the will is defeated; but, if granted, it operates like the accomplishment of all suspensive conditions, whether express or implied, and has a retroactive effect. Preston, X, dissentiug.</p> <p>Legacies, in favor of corporations; do not lapse, by the incapacity of the corporation to receive, at the death of the testator; the incapacity may be removed, retroactively, by the sovereign. Preston, J., dissenting.</p> <p>The term, substitution, embraces the ownership, and not the administration of property. It implies, that one should hold the property for another, during life, and transmit it to him at his death. It is very similar, in its effects, to the entail of the English law. To constitute a substitution, the donee must be charged to preserve the property until his death, and then return it to the substituted heir or legatee. Franklin did not give the third of his property to his brothers, under a charge to preserve and return it to their heirs. His brothers, and their heirs, were merely appointed to take charge of, and administer it, for the seminary of learning, in Tennessee. Presto», J., dissenting.</p> <p>A Jidei commission is created, where property is given to one, for another, to vest in the latter, immediately, at a given period, or upon a condition. The will does not contain a jidei commissum, because the property was not given by Franklin to his brothers, for the literary institution, but was given to the institution itself; and, the title remained in the succession of Franklin, until the seminary was incorporated. Preston, J., dissenting.</p> <p>Article 1507 of the Civil Code, when adopted in the code of 1808, was not intended to introduce new principles of law into Louisiana, but merely to recognize the existing law; and no other than substitutions, andJidei commissa, previously unlawful, were prohibited by , it. Preston, X, dissenting.</p> <p>Substitutions, which changed the order of descents, and fostered pride and laziness, and, abstracted property from commerce; and, jidei commissa, by which one held property for another, who was incapable of receiving, or for an unlawful purpose, which were prohibited by the law of Spain, in force in 1808, were the substitutions, and Jidei commissa, which the jurisconsults, who framed the code, declared are, and remain, prohibited.</p> <p>Preston, X, dissenting.</p>

<p>Where the plaintiff alleged, in his petition, that he was of age, and the judge could not have acted on it, unless he was satisfied of the fact, the action of the judge creates a presump - tionof plaintiff’s majority, which can only he overthrown by clear proof of minority.</p> <p>Where witnesses speak positively and minutely of facts in which they were not interested, and which happened many years before, when the witnesses were children, their testimony will not he sufficient to form a ground of belief.</p>

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

<p>Defendants employed plaintiff as an architect, in the reconstruction of the cathedral; he was dismissed without cause. Held : That defendants are hound for the full amount of compensation agreed on.</p> <p>An employer has the right of dismissing a person whom he employs, at pleasure, and no damages can he recovered for the exercise of that right.</p>

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

<p>APPEAL from the Second District Court of New Orleans. The case was tried by a jury before Lea, J.</p>

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

<p>APPEAL Rom the Fifth District Court of New Orleans. This case was tried by a jury before Buchanan, J.</p>

<p>The court will not grant a continuance on the ground that a commission has not been returned, where the application for the commission was not made in time.</p>

By the act of March 25th, 1810, chapter 25th, section 7, it is “ provided that no notarial act concerning immovable property, shall have any effect against third parties, until the same shall have been recorded in the office of the judge of the parish in which such immovable property is situated.” Bullard’s Digest, p. 596. This law is not repealed. Carraby v. Desmarre and the Sheriff, 7 M. N. S. 661. Gravier v. Barron et al-, 4 L. R. 239.

<p>APPEAL from the Second District Court of New Orleans. This case was tried by a jury, before Lea, J.</p>

<p>It will be presumed, unless the contrary appear, tliat all the parties to an agreement had knowledge of their legal rights ; where, therefore, there are ambiguities and conflicting stipulations in the agreement, and one party claims the waiver of a legal right by the others, in his favor, the ambiguity will be construed against the party claiming the benefit; for it was incumbent on him to have given such explanations, at the time of entering into the agreement, as would have prevented the doubt.</p>

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

<p>A testamentary executor, present in the State, but domiciliated out of it, cannot obtain letters of administration without executing Ms bond with good and solvent security, for such sum and under such conditions as arc required by law from dative testamentary executors.</p>

<p>The code provides, that if the executor has not a general seizin, his commission shall he only the estimated value of the objects which he has had in his possession, and on the sums put into his hands for the purpose of paying the legacies and other charges of the will. Art. 1677. Yet, where the seizin of the property of the succession was not given by the will, but the executors took possession thereof in the absence of the heirs, and the possession wss legal and beneficial to the heirs, it was held, that they were entitled to commissions under the article already cited.</p> <p>An executor cannot claim a comíaission on waste, uncultivated lands; nor can commissions he charged on bad debts, that is, those which are prescribed or due from insolvents.</p>

<p>Defendants purchased property at a sale made to effect a partition, and alleging that there were informalities in the action-of partition under which the sale was made, refused to pay the price, and claimed its rescisión. Thaparties interested in the partition, offered to waive the informalities, and, within a reasonable time to be allowed by the court, to ratify the sale. Held: The parties in interest could alone object, and it was competent for them to waive the informalities. Held, also,: That under the authority vested in the court, by article 2042 of the code, leave can be granted to them to waive the errors and ratify the sale within a reasonable time.</p>

<p>The captain of the steamer Concordia, who is part owner, had an insurance in an office, of which Snethen was the agent. The boat was sunk; the captain abandoned, and Snethen refused to accept the abandonment. The captain then made a contract with Snethen, as the agent of a bell boat, to “save the cargo and other property from the wreck, in consideration of the salvage hereafter to he agreed upon, by certain named arbitrators, and the free and full possession of the wreck." The bell boat raised the steamer and brought it to New Orleans, where it was sold by the port wardens. The owner of the bell boat bought it, and had it repaired Held: The sale, by the port wardens, was illegal, and the purchaser acquired no rights by the purchase.</p> <p>The circumstance, that the owner'of the bell boat raised the steamer, by means of his boat, gave him no right to possession of the steamer.</p> <p>The stipulationin the contract, that the captain of the bell boat should have “free and full possession of the wreck,” meant nothing more than a possession or holding for the purpose of saving the cargo and property, and the exclusion of all interference with his wreck; but not a possession adversely to the owners.</p> <p>The purchaser had no right to have the steamer repaired at the expense of the owners, and they are only responsible for those repairs, to the extent that they are benefitted.</p>

<p>The notary concluded the will thns:“Thig will has been dictated tome by the gieur Macarty, and I, the said notary, have written the whole in my hand, such as it has been dictated to me by the said testator, in the presence of the witnesses hereafter named and undersigned,” &c. The question being, whether the words used import that the will was dictated in tho presence of the witnesses, or was only written in tlieir presence. Held: The words, in the presence of the witnesses hereafter named and undersigned, in this connection, would apply indiscriminately to the whole clause — to the dictation as well as to tho writing.</p> <p>When the father, by will, in favor of a natural child, disposes of the portion of his estate permitted him by law to dispose of, the only restraint which the law imposes on the rest of his property is, that the disposition of it he not in favor of any other persons than legitimate relations or a public institution.</p>

Kennedy, J. The position assumed by the plaintiffs, is that the defendant owes them the shares of stock, or their value at the time he was ordered by the decree of the court to restore them, together with ail the dividends which accrued thereon in the intermediate time. The defendant was a possessor in bad faith; he was retaining possession of property to which he had no legal right, and against the will of the real owner.

<p>An authority to the agent “ to appear before all judges and justices of the peace, in any court or courts, there to do, say, pursue, implead, arrest, attach, and prosecute, as occasion shall be or require," does not authorize the agent to acknowledge a debt.</p> <p>The power of answering interrogatories on oath, cannot he conferred on one person by another. Emits, C. J., and Rost, J.</p>

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

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

<p>By an ordinance of the Second Municipality, passed May 11,1847, the recorder was empowered to suspend any police officer for dereliction of duty, and report the same to the council.</p> <p>In this case the defendants’ officers had neglected the defence; the trial was exporte; the right of the plaintiff to recover doubtful. The cause was therefore remanded.</p>

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

<p>In 1807 Delogny and Livaudais laid off two tracts of laud, within the corporate limits of New Orleans, according to plans on which figured a square designated as “ Place de I’Annonciation.” In the middle of the square there is an “ Islet,” on which is drawn the ground plan of a building, of vast dimensions, marked “ Eglise de VAnnonciation. The square “ de VAnnonciation” and the “Islet” were, for nearly half a century left in the condition of suburban property — vacant, unoccupied, and abandoned. During this time the original owners, nor their heirs, paid taxes on that properly. The heirs of Delogny and Livaudais attempted to divide and sell the Islet The owners of property who derived title from purchasers under the original plan, brought suit to defeat the action of the heirs, on the ground that the rights of the purchasers were paramount and prescriptive.</p> <p>The controversy involved a consideration of the legal effect resulting from the particular designation of this Islet on the plan, and the non-user of it by the original proprietors and those claiming under them.*</p> <p>The effect of the designation on the plan did not, under the laws of this State, create a dedication to the use of thepublic, or a servitude in favor of the proprietors. Eustis, O. J.</p> <p>The spot thus designated on the plan for the erection of a church is not a locus publicus, but private property. There was no objection on the part of the owners to the erection of the church, and full effect is given to the designation, by considering it a donation in favor of any individuals or congregation which might accept it for that purpose. But if, for nearly half a century it has never been attempted or offered to be done, this right is barred by lapse of time — by the prescription of thirty years. Nor can the owners be compelled to keep the place open for the common use of the purchasers of the property, when the right is thus barred. Eustis, C. J.</p> <p>No dedication to public uses can be inferred from the designation of places of public amusement or of public worship, on the plans of towns and suburbs, as, under the laws of this State, they are invariably private property. Eustis, C. J.</p> <p>By the Spanish law things established for the service of God were held sacred, and the dominion thereof was notin any person. Eustis, C. J. \</p> <p>In Louisiana all titles to land were, and remain allodial and not feudal. Eustis, C. J.</p> <p>Itis conceded that no particular form of dedication is necessary; but the evidence of the intention to dedicate must be conclusive, and the dedication must be accepted by user or otherwise, in the sense in which it is made; if there was originally a dedication of the land in controversy, which I do not admit, it was a dedication to build a church, which was not accepted in seasonable time for the purpose intended; and the popular conceit, that the land has been acquired to the public by another use not thought of by the grantor, and exercised under the circumstances disclosed by the evidence, is to me an unsatisfactory basis for a judicial action. Rost, J.</p> <p>In relation to public places and streets within this city, the municipal authorities represent not only the corporators but also the public; a final judgment against them is a judgment against the public, and no individual can bring the point adjudicated again before the courts. Rost, J.</p> <p>The servitude of way never extends beyond the breadths of the street adjoining the property entitled to it. Rost, J.</p> <p>Itis notnecossary for the city to show title to its common and public property. Such property is usually acquired by dedication and the cessation of all claim to it by the former owner. Preston, J., dissenting.</p> <p>Delogny and Livaudais dedicated the whole of Annonciation Place, including the site of the church, to the public use, forever; the whole was accepted the day the first sale was made by their plan; that dedication has been fully proved by their cessation to claim any part of it as private property, and by thepublic and notorious use of it as public property for forty years before they advertised it for sale. Its destination may be changed by the unlimited soverign power of the State, but by no other power on earth. Preston, J.</p> <p>When, by natural or otherevents, a public place cannot be used any longer for the purpose for which it was once destined, and has necessarily lost the legal character which its destination and consequent use had given it — has, perhaps, become a nuisance instead of a public benefit — then the sovereign may change the destination. Preston, J.</p> <p>A jadgment against the right of a city to public property, will not bar an individual who was no party to the suit, and who is interested in maintaining the dedication. Preston, J.</p> <p>Where property is sold by a plan, the ideas which it conveys are as binding on the vendors, as the words in a deed of conveyance. Preston, J.</p> <p>The vendors of this property did not bind themselves to build the church on the Islet, but they bound themselves never to build anything else on the ground. Preston, J.</p>

<p>In an indictment for an assault with intent to commit an offence, the same particularity of averment is not necessary, that is required in indictments for the commission of an offence.</p> <p>In the prosecution of two or more, under an indictment, charging an intent to commit murder, it is immaterial which makes the assault, or gives the blow, if it is inflicted with the intent charged: all concurring in that intent, the crime is committed by all.</p> <p>It is not a sufficient ground for a new trial, that the judge, when the jury returned into court without having agreed on their verdict, instructed them a second time on the evidence, as to matters about which they had made no inquiry, and on the law, as to points on which they had stated neither doubt nor difficulty.</p> <p>In summing up the testimony in a criminal case, it is legitimate for the judge to present his views of conflicting evidence, and to advert to such collateral circumstances, which are proved, as may have a favorable or unfavorable bearing on the issue.</p> <p>The Supreme Court disapproved of the district court expressing to the jury the determination to keep it empannelled, until a verdict was found.</p>

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

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

<p>APPEAL from the Fifth District Court of New Orleans. This case was tried by a jury, before Buchanan J.</p>

<p>APPEAL from the District Court of the parish of St. Charles, Duffel, J.</p>

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

<p>In cases of felony, where several are present, aiding and abetting, they may he joined with the principal in the first degree, and charged in the indictment, either as actual perpetrators, or as aiders and abettors.</p> <p>When the principal in the second degree is charged as an aider or abettor, it is not necessary to set forth in the indictment the means or manner by which he became thus guilty, but merely to describe him generally as being present, aiding and abetting at the felony and murder, (as the case may be,) committed in manner and form aforesaid.</p> <p>If a person be present, aiding and abetting, be cannot be indicted as an accessory.</p> <p>Three requisites must combine to make an aider and abettor a principal: he must be present, aiding and assisting, with a felonious intention, to the felony.</p> <p>This court cannot, upon an appeal, re-examine the decision of a district judge upon a question of fact, such as whether due diligence has been used to procure the attendance of a witness.</p> <p>Where an inferior court, in a capital case, had refused a continuance, though the defendant offered affidavits, setting forth the fact of the materiality of absent witnesses, and of due diligence in procuring them, there was no error, the court below believing the application to be simply an artifice to obtain delay.</p> <p>When some of the jurors on the list with which defendant is served, are absent or excused, and the regular panel is exhausted, talismen must be summoned.</p>

<p>A minor who is a party to a fraud, stands on no better footing than one of foil age.</p> <p>The court will not affirm a judgment in favor of a plaintiff whose case is tainted with fraud.</p>

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

<p>Suit on a physician's account. Defendent excepted to the petition on the ground that there was no bill of particulars. The exception was overruled. Held.- That the court erred.</p> <p>Where interrogatories were put to defendant, and from his answers it may he inferred that something is due, butthe amount does not appear, and no hill of particulars was filed, as to which the defendant was specifically interrogated, and no explanation offered showing why the bill of particulars was not furnished, the courtis without the means of determining how much is due plaintiff, and therefore can give no judgment for him.</p>

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

<p>The acknowledgment of a debt, in order to interrupt prescription, must be specific. Loose and vague conversations will not operate an interruption or renunciation.</p>

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

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

<p>'The acfc of March 11th, 1837, which points out the manner of proceeding against the parties to bail bonds in criminal cases, assumes that the bond is authentic, and thereby dispenses with proof of its execution.</p> <p>The act itself directs judgment to be entered against the parties to such bonds in solido.</p> <p>Where tbe sheriff’s certificate is silent as to the date when he received and accepted the bail bond given under this act, it will be presumed that such acceptance was after he had been authorized to do so by the committing magistrate.</p>

<p>The Supreme Court seldom interferes with verdicts on questions of fact.</p>

<p>Tbe Act of tbe 18th of March, 3850, does not require that tbe oath to authorize’^'^cl^^^K^ the parish of Claiborne to issue an execution upon a judgment, destroyed by tbe burning of the coxirt house of Claiborne, should be made by the owner of such judgment, and by no other person. It requires a statement, under oath, specifying the exact amount of such judgment or the balance due thereon, without saying by whom tbe oatb shall be made.</p> <p>The attorney who has obtained the judgment, and who has kept a memorandum of it, is a proper person to make the affidavit.</p> <p>Errors and irregularities in the proceedings and sale by a sheriff, under execution, are cured by the giving of a twelve months’ bond.</p> <p>The proviso in the Act of the 18th of March. 1850, “That the person against whom such execution may be issued, shall have the right to enjoin the same, upon making oath that any material statement in the affidavit of the person applying for the execution is not correct j and if such injunction be set aside, the person enjoining shall not be liable to any damages except the costs of said injunction,” is not applicable to an execution upon a twelve months' bond.</p>

The plaintiff, a physician, sued the defendant, as universal legatee of Mrs. Prothro, deceased, for medical attentions and services rendered her at the instance of defendant. Defendant pleaded, that plaintiff was not duly licensed by a medical board of the State, according to the statutes, and therefore could not recover for services rendered as a physician, in contravention of law.

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

The decisions relied on by the judge, are Purvis v. Harmanson, 4 Ann. 422. Lobdell v. Clark, 4 Ann. 99. Strother v. Lucas, 12 Peters, 458. Le Bois v. Bramell, 4 Howard, 449. We contend that this case differed materially from those cited; they were confirmed by acts of Congress, based upon reports of commissioners vested with powers to hear, decide and adjudicate upon the validity of the claims and the transfers thereof.

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

<p>A mortgage given directly in favor of the Union Bank for a loan of money, comes under the letter of the Act of 1843, and need not be reinscribed.</p> <p>When an obligation is prima facie prescribed, there must be authentic evidence of the interruption of the prescription, before the party in whose favor the obligation is made can proceed by the viáexecutivd.</p> <p>The receipts of the cashier of a bank upon such an obligation, would not even be admissible to prove the interruption of prescription in an ordinary suit.</p>

<p>Appeal dismissed, because the record was defective, containing no final nor intercolulory decree, upon which the court was authorized to act.</p> <p>The statute of 1846 (p. 335 of the Revised Statutes) gives to the Supreme Court jurisdiction of an appeal in criminal cases, from final judgments alone, returnable as in civil suits, and requires the clerk of the court granting the appeal, to make out the transcript, as in ■ civil cases.</p>

<p>A judgment rendered against an absent defendant, unrepresented by a curator ad hoc, or by a properly constituted agent, will be annulled and set aside.</p> <p>A suit against the sureties upon an administrator’s bond will be dismissed unless there be a judgment against the administrator, or he be made a party defendant.</p>

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

<p>This suit was brought to make a son liable for a debt due by his father, on the ground, that he (the son) had received a large portion of his father’s property during his lifetime, upon condition of paying his debts, and had, after his death, intermeddled with his succession, and converted its property to his own use. The prescriptions of three and five years, under articles 1176,1380, and 3507 of the Civil Code, do not apply.</p> <p>If a son, on the death of his father, takes possession of his property and treat it as his own, without any letters of administration obtained, or judicial proceedings had, he will under our laws, be held responsible to creditors.</p> <p>It is apprehended, that the law is the same in Arkansas.</p>

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

<p>Although the master of a slave may have lost his right of dominion over him, by receiving from him a sum of money for his emancipation, andby permitting him to enjoy his liberty for more than ten years, the act of emancipation, passed according to the forms of law, can alone give the slave the status of a free man, which he must have before he can prosecute in a court of justice any claim, except his claim for freedom.</p> <p>He may appear in court to claim his freedom before emancipation.</p> <p>The master may claim in his own name, the benefit of any contract, and the damages resulting from the breach of any contract entered into by the slave, not emancipated according to the forms of law.</p> <p>The right of the master to claim the services of his slaves may cease, but his duty to protect them, terminates only with their life.</p>

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

<p>He who sells a debt or an incorporeal right, warrants its existence at the time of the transfer, though no warranty be mentioned in the deed.</p> <p>Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware at the time of the sale of the danger of the eviction, and purchased at his peni and risk.</p> <p>The following order is not a bill of exchange: “ On demand please pay to the order of W. J. the sum of seven thousand dollars, according to a donation made by the Shreveport Town Company to the parish, the same to be in accordance with a resolution of the police jury, passed October 6, It commences with a direction to pay a sum certain, on</p> <p>demand, but it is qualified by the subsequent reference.</p>

Sharp, J. When a party denies his signature or his writing, (as in this instance,) it maybe proved in three different ways, either by persons who saw him write it, or by persons who have frequently seen him write and sign his name, or by comparison. O. P. art. 325. C. C. 2241. 2 M. R. 212. 3 M. R. 350. 9 L. R. 405. 15 L. R. 173.

<p>Section 35 of the Act of May 4, 1805, does not require that a copy of the indictment, and a list of the jttry which are to pass on the trial of the accused, should be delivered to him before arraignment. It requires that they should be delivered to him two entire days before trial.</p> <p>The proper time for the prisoner to malee the objection, that he has not been served with a copy of the indictment, is when he is called up for trial, and his not doing so at that time will amount to a waiver of a copy of the indictment.</p>

<p>A plaintiff who brings an action for the resolution of a sale, on account of the non-payment of the price, after having brought suit upon one of the notes given in payment of the price, may, at any time before going into the trial, discontinue one of the actions, and proceed with the other. The suit upon the note will be a sufficient putting in morat and its effect will not be impaired by the discontinuance.</p> <p>He who sues a married woman, must allege and show, that she is separate in property from her husband, by marriage contract or by a judgment of court, as the case may be, and without that showing, he will not be able to maintain his suit against her personally, or charge her separate estate.</p>

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

No principle of law is better settled than that, a person will not be allowed to deny the truth of judicial admissions made by him. 1 R. R. 544. 9 R. R. 381. 4 Ann. 293. 4 Ann. 416. 5 Ann. 22. 6 Ann. 719. Greenleaf’s Ev. sec. 22, A party to a bond cannot object, that it is irregular, or that the sheriff had no right in the property.

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

<p>APPEAL from the District Court of the Parish of Ouachita, Sharpe, J</p>

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

<p>When a continuance is refused by a district judge, the Supreme Court will not disturb the judgment rendered, even when the correctness of the particular ground on which the judge a quo placed his refusal, is doubtful, provided the court be satisfied that there was another valid ground for the refusal of the continuance, presented by the party opposing it.</p> <p>The rule, that on an application for a continuance, due diligence should be shown, is well settled.</p> <p>It is equally clear, that a party's assertion that he has used due diligence will not be heeded, when his laches are patent upon the record.</p>

<p>When the sheriff finds the judgment too vague and uncertain to enable him to execute a writ of possession, he cannot have recourse to the examination of witnesses. As was held in the case of Williams v. Kelso, 7 L. R. 408, that would be a new trial of the case before the sheriff.</p> <p>When one sues for the possession of real property, in order to obtain a writ of sequestration, he must allege that he has been evicted, through violence, or that he has reason to apprehend that the defendant will make use of his possession to dilapidate or to waste the fruits of the property. C. P. 275.</p> <p>In possessory actions, when possession is claimed under title, and the calls of the title are not natural, or at least visible and fixed, a survey of the land is of great assistance to a proper determination of the extent of the possession.</p>

<p>APPEAL from the District Court of the Parish of Claiborne. This case was tried by a jury before Jones, J.</p>

<p>This suit was brought upon two notes. The defence was prescription. The only evidence of an interruption of prescription, was the testimony of plaintiff's' attorney, in whose hands the notes were placed before maturity. A bill of exceptions was taken to the testimony. Per Curiam: Attorneys at law are not agents, and the rule which admits the testimony of agents in favor of their principals, in cases like this, should not be extended to them. If it was, this case would not come within the spirit and reason of the rule. There was no absolute necessity for resorting to this evidence, as the same facts might have been proved by an appeal to the conscience of the defendant.</p> <p>The court will not recognize the principle, that the testimony of an attorney in behalf of his client, makes full proof of the fact sworn to, particularly in cases where the attorney would be personally responsible, if the action was not sustained.</p> <p>That evidence has always been held, as being oí an inferior kind.</p>

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

<p>An antichresis, to be binding upon the property pledged, must be reduced to writing in accordance with article 3143 of the Civil Code.</p>

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

<p>APPEAL from the District Court of the Parish of Morehouse, Copley, J.</p> <p>It was an estate commencing in presentí, intended to be occupied in futuro, and upon the delivery of the deed, the whole estate passed at once from the grantor to the grantee, 2 Blackstone, 166, 167. 5 Humphrey’s (Tenn.) Reports, 411.| 7 R. R. 481. 12 R. R. 660.</p> <p>In the ante-nuptial contract between Ruth Baldree and her husband, the power to make such disposition of her property, was expressly reserved, and the deed of gift being made in accordance therewith, is good. 2 Story’s Eq. sec. 1388, 1390, and authorities there cited. 2 Roper on Husband and Wife, ch. 16, sec. 2, p. 102. Youngblood v. Flagg, 11 L. R. 341.</p> <p>The court below erred, in admitting, on the trial, the deed purporting to be from Ruth Baldree to Elizabeth Ruth Kelly, for the slaves in controversy, which had been previously donated to Eliza Waters and her children, for the reasons set forth in intervenor’s bills of exception. The signature of Moses Waring, one of the subscribing witnesses to the deed, was not sufficiently proven, nor that of the other witness; and, even had one, or both these signatures been established, without proving the signature of the donor, the deed was inadmissible. Dismukes et al. v. Musgrove, 7 N. S. 63. 7 M. R. 209. 9 L.R. 521. 2 Ann. 217. 11 L. R.251. 3 R.R. 206. C. C. 2241.</p> <p>As to its effect, the deed having been made in the State of Alabama, if such a deed was made at all, which is denied, was void, for the want of record, and could confer no title. Clay’s Digest, p. 255. 2 sec. Statute of Frauds, 2 Ala. Reports, 684, 648. Moreover, it was made by a married woman, without the consent and authorization of her husband, and is, therefore, void. C. C. art. 1467. The only power reserved to her in her marriage settlement, to dispose of her separate estate, had been previously exercised and exhausted when she executed the deed to Eliza Waters and her children. The life estate reserved to her therein, was, at furthest, all that she could dispose of.</p> <p>The deed of gift to Eliza Waters, and her issue, divested Ruth Baldree of the fee of the property conveyed ; and, of course, the power to make a subsequent disposition, even if the former had not been declared irrevocable. The deed to Elizabeth R. Kelly, is, therefore, an absolute nullity, and even if it had been properly proven, could confer no greater right than the grantor had, at the time of making it, which was but a life estate, the ownership of the slaves having already been vested in the first-named grantees, Eliza Waters and her children. Jarman on Wills, 11, 13, ne. 1 Ala. Reports, 52. 13 Ala. Reports, 731. Summerlin, Adm’r., v. Gibson et als. 15 Ala. Reports, 411. 1 Domat lib. 27, tit. 2, sec. 1. C. C. art. 1454, 9. Porter’s Ala. Reports, 649. Grahamv. Lambert, 5 Humphrey, 595.</p> <p>There can be no doubt but that the girl, Mary, was purchased with funds arising from the sale of Austin, who was one of the slaves mentioned in the deed of gift, to Eliza Waters and children; in fact, the decree of the chancery court at Hayneville, clearly recognizes ,this fact; and, if so, she forms as much a part of the trust estate, created by this deed, as any of the negroes named in it. Law Library 39, p. 131. 4 Kent, 306, and notes. 1 Johnson’s ch. R. 450. 3 Howard’s Supt. C. R. 405.</p> <p>The deed of gift to Eliza Waters and her children, made in pursuance of the marriage settlement, and in accordance with the power reserved, therein, perfected the settlement of the property previously made on Eliza Waters and her issue, after the death of the donor, and is valid. 2 Kent, 164, 170, 174. 2 Leigh 183. This power to dispose of her separate estate, was expressly reserved by Ruth Baldree, in the instrument creating it, and the disposition made, was in accordance therewith. The deed is therefore good. 1 John’s ch. R. 450. 2 Wharton, 11. 10 Serg. and Rawie, 447. The law respecting marriage settlements in South Carolina, is understood to be essentially the same as in Pennsylvania, Virginia, North Carolina, and Kentucky. 4 Dallas, 304, 307.</p> <p>The deed created a particular estate for life in Ruth Baldree, and a vested remainder in Eliza Waters and her issue, who held the fee, and to whom a legal and equitable seizin was given. 4 Kent, 201. 2 Blackstone, 164. Williams v. Caslon, Strobharts’ South Carolina Reports, 130. 7 Iredell, N. C. Reports, 123.</p> <p>It was not a contingent interest; depended on no uncertain event, and Eliza Waters and her issue had a right to the immediate possession and enjoyment of the property conveyed, upon the death of Ruth Baldree, when the precedent estate ceased. 2 Blackstone, 168. 1 Strobhart South Carolina Reports, 442. 1 Branch, 64. 5 Alabama Reports, 5, 7, 8; and 1 Richardson’s South Carolina, 161,170. 11 John’s cas. 91. 6'Peters, 68. 5 Mass. 535</p> <p>This interest, then, being vested and determined, when the particular estate was created, the grantor, Ruth Baldree, holding a life estate, was without the power to make any subsequent disposition of the property, to Elizabeth Ruth Kelly, or any one else. 2 Blackstone, 166. 15 Ala. Rep. 406. 2 Ala. Rep. 648. 4 lb. 158.</p> <p>Such a deed is similar in its nature to a donation inter vivos, and when once perfected by delivery, the fee of the property conveyed vested absolutely in Eliza Waters and her issue, and the grantor could not then revoke it, even if it was not, by its terms, irrevocable. 1 Strobhart,’s South Carolina Reports, 48. McCutchen v. McCutchen, 9 Porter’s Alabama Reports, 649. 2 Root, 383. 4 Watts and Serg. 221.</p> <p>It may be urged that the property conveyed was never actually delivered to the grantee. This was not necessary, and could not be done during the life of Ruth Baldree, who had reserved to herself a life estate in it. A delivery of the deed was sufficient. 12 Alabama Reports, 29. 9 Alabama Reports, 144. 4 Alabama Reports, 158. 5 New Hampshire Reports, 71. 2 Root, 26. 15 Wend, 656.</p> <p>It may be said that if intervenor’s title to the slave, Will, is good, he being mentioned in the deed of gift, that he has shown no right to Mary and her children, who comprise the balance of the negroes in controversy. It is true that none of these last are named in the deed, but it is alleged that Mary was purchased with funds belonging to the trust estate, to wit, the proceeds of the sale of Austin, who was named in the deed ; and, although Allen W. Coleman, who purchased Mary for Mrs. Baldree, took the deed in his own name, it was expressly stipulated that Ruth Baldree was to have a life estate in her, and that the girl was for her use.</p> <p>It is a doctrine well established, both by reason and by the decisions of the courts of other States, that when property conveyed by a deed of trust, (as this was,) is sold, the proceeds of that property should be applied as provided in the deed. 9 Porter’s Alabama Reports, 547.</p> <p>In the purchase of Mary, A. W. Coleman acted merely as trustee, and property bought with trust funds, belongs to the cestui que trust, who was Eliza Waters and her children. 10 Alabama Reports, 400, 460, 151. 4 Porter’s Alabama Reports, 27.</p> <p>Having, as we think, shown that Francis P. Coleman is clearly entitled to the property, intervenor prays that the judgment of the district couit be reversed, and that he be decreed to be the owner, and that he have judgment also for the hire of the same as prayed for in his original petition, with costs in both courts.</p>

<p>A decree of the chancery court in Alabama, and a deed of compromise executed there, that would have the effect in that State of estopping a party from setting up title to certain property, will receive a like construction in the courts of Louisiana.</p> <p>A party who gives no appeal bond, cannot be heard as an appellant, without the consent of the appellee.</p>

<p>APPEAL from the District Court of the Parish of Ouachita, Sharpe, J.*</p>

<p>APPEAL from the Districh Court of the Parish of Caddo,-, J.*</p>

<p>In this case the plaintiff claimed, under a sheriff’s adjudication of the property, by virtue of an order of seizure and sale via executiva; the defendants, under a tax collector's sale for taxes. Held; That the tax sale was null, because the property was not sold for the amount of the special mortgages existing upon it.</p> <p>That the hypothecary action was not necessary, because the defendants were not, at the time of the seizure, in the actual or even civil possession of the property, under the tax sale.</p> <p>That as between mortgagor and mortgagee, the property was clearly mortgaged by the proces verbal of sale.</p>

<p>from the District Court of the Parish of Caddo, -, J.*</p>

<p>The bond of a sheriff and State tax collector is not a bond for a sum of money, but a bond for the performance of official duties, and if the duties are not perforate d, each of the sureties is hound to the full amount for which they have obligated themselves.</p> <p>The 6th section of the Act of 1847, providing that in no case securities shall be liable .for each other, or beyond the amount for which each.one may have obligated himself in the bond, is very far from saying that they shall not, in every case, be bound for that amount. If the obligation of each surety is to be ascertained without regard to that of the others, they stand, so far as the State is concerned, as if only one of them had signed the bond, andin that case the party signing would be liable to the full amount of his obligation.</p> <p>When there is no separate book kept by the recorder of mortgages to record sheriff’s bonds, the recording the bond in the hook of mortgages will be sufficient notice, under the Act of 1847.</p> <p>The 46fch section of the Act to provide a revenue for the support of the government of the State, provides, that the bond of the collector of taxes shall operate as a legal mortgage on the lands and slaves of the collector. This act attaches the mortgage to the bond itself, and as it is silent as to the manner of recording that mortgage, the usual mode of inscription, in the book of mortgages, will be sufficient.</p> <p>The sureties upon the bond of a collector of taxes, cannot avail themselves of any fraud committed by him.</p> <p>There is nothing in the Act of 1847 suspending the operation of the penalty which it imposes on collectors of State taxes, who fail to account.</p> <p>The 63d section of the Act to provide a revenue for the support of the government of the State, ordains, that if any tax collector shall neglect or fail to pay into the treasury the amout due by him, and to obtain the treasurer’s receipt therefor, he shall forfeit the commission allowed to him by law.</p> <p>Note — It is proper to state tliat the records from Monroe had been opened before they were received by me. Some of the records contained no judgments, and some of the judgments were unaccompanied by the records. This will account for my not naming either the court or counsel in some of the cases. it.</p>

N. T. Richardson, J. This question has been settled against the defendant, by the Supreme Court of the United States in the cases of the Planters’ Bank v. Sharp et al and Baldwin etal. v. Payne et al. 6 Howard’s Rep. 301 to 344.

The facts of this case bearing on the point on which it was decided by the Supreme Court, are thus stated by Judge Larue: “This is a rule for the distribution of funds in the hands of the sheriff, resulting from a sale of certain movables seized and sold in the case of John Gauche v. Mr. and Mrs. Trautman. The amount in the sheriff’s hand is $670 72, and the only question is, who of the claimants is entitled to it, and to what amount?

<p>The privilege for freight, conferred hy article 3213 of the Civil Code, extends only to goods of which the Captain has, or has had, possession.</p>

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

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

<p>Article 684 of the Code of Practice, which prohibits a sale of property under execution, if the price offered does not exceed the amount of the privileges and mortgages with which it is encumbered ; and the article that authorizes the sheriff to raise the mortgage, the inscription of which is subsequent in date to that of the mortgage under which the sale is made, have exclusive reference to conventional mortgages.</p>

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

<p>The act of 15th of March, 1847, which declares, that no citizen of another State shall hereafter be arrested in this State, at the suit of a resident or non-resident creditor, except in cases where it shall be made to appear, by the oath of the creditor, that the debtor has absconded from his residence, applies to the citizens of the States of this Union only — not to the citizens of foreign States, or countries.</p>

<p>APPEAL from the District Court of the Parish of Jefferson.</p>

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

<p>The transferee is only possessed, as regards third persons, after notice has been given to the debtor of the transfer having taken place. C. C. art. 2613. And an execution may be properly levied by creditors, previous to such notice.</p> <p>In an affidavit for a new trial, on the ground of newly discovered evidem e, the plaintiff swore that he expected to prove notice of the transfer of certain property. The affidavit was held to be defective, because it did not state the time at which the notice of the transfer was given.</p>

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

<p>Plaintiff has the right to offer evidence to rebut the plea of prescription, aud when the plea is filed in the Supreme Court, the cause will be remanded for a new trial.</p> <p>Plaintiff, who sues ns liquidator on a contract made with a firm, must prove his authority to sue as liquidator, although it be not specially denied.</p>

<p>In a contest for the appointment of syndic, the judgment of the court, rejecting the pretensions of an applicant, is appealable.</p> <p>A person who holds the notes of an insolvent is not entitled to vote for a syndic, where it appears, that, on a settlement of accounts, there would be a balance in favor of the insolvent.</p> <p>The wife, in partnership of goods with her husband or her heirs, should not be allowed to vote, in the deliberations of the creditors of the husband, for syndic, unless her rights have been previously settled by a deed of partition, or judgment for separation of goods.</p> <p>An agent, with authority to collect or renew a draft, on which an insolvent is bound, and who has a general authority to “do what he thinks best under the circumstances,” is authorized to vote for a syndic.</p> <p>Where creditors, lawfully entitled to vote, have had an opportunity to vote, a new election cannot be ordered for the purpose of letting in new voters, whose lawful claim to vote has been subsequently acquired.</p>

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

<p>At the time of the shipment of a planter’s crop of cotton, the overseer was told by the master of the steamer on which it was shipped, that the stage of the water did not justify his taking the whole crop. In consequence of the stage of navigation, some of the bales were afterwards put on shore, the steamerretaining as many as she could carry out of the river. The evidence did not show that those which were left could, by any other conveyance, have been taken to market sooner. Held: That the steamboat was not liable for damages.</p>

<p>The law gives to every creditor, where there is no cession of property, and to the representatives of creditors, where there is a cession or other proceedings in which they are collectively represented, an action to annul any contract in fraud of their rights.</p> <p>Where a creditor, on his own responsibility, and at Ms own cost, prosecutes an action to avoid a fraudulent sale made by an insolvent, the benefit resulting from the action cannot be claimed by the syndic who is no party to it. It enures entirely to the creditor, by whose vigilance it was obtained.</p>

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

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

In the case of Avery Breed v. Thomas M. Hand, a judgment was recovered against the plaintiff, in the parish of Union, for $504 97, exclusive of interest and costs. AJi.fa. issued on the judgment, and was sent to the coroner of the parish of Orleans, who seized, in the hands of the sheriff, the money which had been paid by Purvis, Wood Sf Co. to the sheriff, in satisfaction of the judgment of Breed against them.

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

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

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

Are editors, owners and publishers of a newspaper, commercial or ordinary partners? We say they are commercial partners, under the 2796 article of the Code, which says: “ Commercial partnerships are such as are formed for the purchase of any personal property and the sale thereof, either in the same state, or changed by manufactory.” Proprietors of a newspaper buy and sell paper changed by manufacture. Paper is personal property.

<p>The vendor's privilege does not: extend to personal property which has passedinto the hands of a third purchaser, although such purchaser may have known of the embarrassed circumstances of bis immediate vendor.</p>

<p>This action was brought to recover damages from the vendor of cotton, on the ground that when the bales were opened, it was discovered that the cotton was “country damaged.” Held: It is indispensable for the plaintiffs’ action, that they should prove the existence of the damage at the date of the sale, and should show the extent of that damage with such reasonable certainty as to enable the court to assess the just reduction of price. The burden is on the plaintiffs to make the facts reasonably clear and certain.</p>

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

<p>Although the law prohibits a wife from becoming the surety of her husband, yet, if after her husband’s death, she borrow money to.pay his debts, she will be bound to repay it.</p>

<p>from the District Court of the Parish of Jefferson, Clarke1,‘‘ J.</p>

<p>APPEAL from the first J ustice of the Peace for the Parish of New Orleans, D. Byrne, Justice.</p> <p>“The case of Municipality No. One v. Wilson, 5 Ann. 747, is fully “applicable to this offence; it comes within that class of nuisances against the public order, not included in the statute, which it is the duty of the city to suppress, and for which the power has been delegated by the Legislature.”</p>

Article 765. “ If the proprietor of two estates, between which there exist ah apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist, actively or- passively in favor or upon the estate which has been sold.” - ‘ This law seems to be too clear and positive to admit of doubt or argument. * It applies directly to the case before the court.

<p>A party who seeks to make another liable for the debt of a third person, must prove such liability with reasonable certainty, or he cannot recover.</p>

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

<p>APPEAL from the District Court of the parish of Plaquemine, Rosseau, J.</p>

<p>The admission in the answer, that services were rendered, is not an admission of their value*</p>

<p>A person whose property has been sold without his consent, may appeal from a decision affecting the property, although no party to the suit, under art. O. P. 571.</p>

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

<p>Where the conduct of the first endorser of a note, was calculated and intended to induce the notary’s clerk to make no further attempt to find the maker, and present the note for pay. ment, and where he undertakes himself to have the money forthcoming, in an action against him, he cannot relieve himself from liability, on the ground that no presentment for payment was made on the maker.</p>

<p>APPEAL from the District Court of the Parish of St. Jéan Babtiste, Duffel, J.</p>

<p>The plaintiff obtained an attachment against the defendant, bat the sheriff did not take actual possession of the property under the writ, and no act of possession by him or his successors is shown, for five years after its return. About five years after that time, the attaching creditor had a curator ad hoc appointed to defendant, obtained judgment, and seized the lots under an execution. In the meantime, and within two years from the date of the attachment, defendant sold the property, and it passed iuto the hands of purchasers who were ignorant of the attachment. Held: The law required that the sheriff should have seized and detained the property; that he and his successors should have taken charge and kept possession of it; and for the failure of Goodrich, the attaching creditor, to have seen this done, and to have prosecuted his suit with diligence, innocent purchasers of the property should not suffer.</p> <p>Sheriffs must seize actually, and not fictitiously, where the law requires; and third persons must not suffer by their neglect to do so.</p>

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

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

<p>Defendant pointed out to the sheriff, for seizure under two executions, property which, he stated at the time, was far more than sufficient to satisfy them. The sheriff seized it under those executions, and under that of plaintiff at the same time. Held: We are not prepared to say, that, under the circumstances, the defendant was entitled to notice of seizure.</p>

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

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

<p>To constitute a sale per aversionem, there must be either a distinct or separate object described, such as the manor of dale, an island, an enclosed field; a sale is also considered as made per aversionem when it is for a total sum, and assigns to the land sold existing and visible boundaries, such as rivers, highways, fences, pieces of stone, iron or wood, showing the starting point and direction of the dividing line with the adjoining tenements. These last sales are held to be per aversionem on the presumption, that the parties to them have their attention fixed, rather upon the boundaries than upon the enumeration of quantity.</p> <p>When two pieces of ground have been sold by one and the same contract, with the expression of the measure of each, and there be found a less quantity in one and a larger quantity in the other, the deficiency of the one is supplied by the overplus of the other, as far as it goes. C. C. 2475.</p>

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

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

<p>The defendant’s commission had been out eighty-two days, and no excuse for the delay was shown, and the district judge was of opinion that due diligence had not been used. Held; That defendant was properly ruled to trial.</p> <p>A vessel had made a safe voyage from Turk’s Island to New Orleans. Held ; That it was notnecessary for the plaintiff to show, affirmatively, that she was seaworthy, and provided with men and provisions, and every other requisite for such a voyage.</p> <p>The verdict was written on the back of a document attached to a petition, instead of being written on the back of the petition itself. This circumstance was not urged as a ground ibr a new trial. Held: The ground of nullity, set up for the first time in the Supreme Court, is too frivolous to deserve further notice. The document was annexed to the petition, and may fairly he viewed as a part of it.</p>

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

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

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

<p>In the will of the testator there was the following clause: “ Two thousand dollars per annuni to be paid to the poor of the town of Dunblane, in Perthshire, North Britain. This sum to be divided by the resident minister of the Presbyterian church, and the two highest civil officers in the town, to be paid upon due proof of the acceptance of the trust, say $2000. Two thousand dollars for the erection of a school-house, in the town of Dunblane, for ten years only, and for the purpose of educating the poor, this being the place of my birth.” There were no officers, or persons, who, in any legal or judicial sense, would answer the description of the two highest civil officers, in the town of Dunblane. In the courts of Scotland, the legacy would not be sustained, but would be held as lapsed, from uncertainty and the want of proper persons qualified to accept the same. By the Court: It seems, therefore, that as no action can be maintained against the executors, for the recovery of this legacy, they are not authorized to retain the funds of the succession, for the purpose of paying it.</p> <p>Note. — The following memorandum was endorsed on the record: “ The opinions of Jutioes Slidell and Preston, having no relation to the matter decided, to wit, the Dunblane legacies, will not be reported; thematters to which those opinions relate, being reserved by the decree for the further consideration of the court." George Eustis, C. X</p>