Volume 70 — Louisiana Annual Reports

<p>A PPEAL from the Fourth District Court of New Orleans, Theard, J.</p>

<p>Where the District Judge renders judgment on a rule to show cause why execution should not issue, dismissing the rule, a MmuUt,nw will not lie to compel him to order an execution. The decision, on the rule, is a judgment of the Court, which can only bo inquired into on appeal.</p>

<p>A . PPEAL from the Fifth District Gourt of New Orleans. Eggleston, J.</p>

<p>A retiring partner oía commercial firm is not exonerated from responsibility for subsequent engage mentis made in Ifie name of the partnership with persons previously in the habit of dealing with ’ Jt. unless special notice of the withdrawal be given them.</p>

<p>Where defendant shows that cotton was damaged before he was authorized to take possession of it. it is incumbent on plaintiff to show that other damages were sustained, and the extant bherool beforo he can recover.</p>

<p>The seller is bound to explain himself dearly, as to the extent of his obligations.</p> <p>The exhibition of a sample implies a warranty that the thing sold by itshall be, in some measure, in conformity to it.</p> <p>The sample is a tacit representation of the quality of the merchandise sold, and except where the warranty is clearly and explicitly excepted by the vendor, he must deliver the article in a condition equal to that of the sample.</p> <p>Where merchandise is sold by a sample, the extent of the warranty is limited to the condition of the artiole sold at the time of the sale.</p> <p>Where the commodity is by its nature, subject to change or deterioration, and no fraud or concealment is shown, the buyer must show that the defect or deterioration existed at the date of the sale, or show that it was discovered as early as it was practicable to make an examination</p>

<p>Where plaintiff has established his ownership up to a particular dale, the burden is on defendant, or those through whom ho holds, to show a legal divestiture of plaintiff's title.</p> <p>Tho warrantor cannot be condemned to pay move than the price recovered by h im, no damages being proved. ^</p>

<p>A PPEAL from the Sixth District Court of New Orleans, Howell, J.</p>

<p>A PPEAL from the Second-District Court of New Orleans, Thomas, J.</p>

<p>A simulated or fraudulent title cannot be attacked by the process of garnishment.</p>

<p>A . FPEAL from the Sixth District Court of New Orleans, Duplantier, J.</p>

<p>Where an attorney-at-law brings a suit in his own name, as principal and owner : Held—-That he cannot recover counsel fees as tho agent of another. He cannot, in the same proceeding, claim to be the owner and the agent of the owner of the same thing.</p>

<p>A PPEAL from the Second District Court of blew Orleans, Thomas, J.</p>

<p>Evidence is admissible to prove that an attorney is in the building in which, the Court sits—it being the custom of the Court to send the crier to notify the attorney, if he is not in the court-room when the case is taken up.</p> <p>In proceedings for sale of land for taxes, the act of 1858 does not authorize the appointment of a cura - tor ad hoc to represent the unknown owner, where the owner had died and a curator to his estate had been appointed.</p> <p>A party having purchased a lot of ground at tax sale, and afterwards ejected on account of irregularity in the proceedings, is entitled to recover the value of the improvements made by him.</p>

<p>A PPEAL from the Sixth District Court of New Orleans, Duplantier, J.</p>

<p>Wlien an obligor, from inevitable accident or irresistible forco, cannot perform one of two tilings eitlier of which at the time of his engagement ho had the option to do, he is not relieved from the obligation to perform the othor.</p>

<p>A PPEAL from the District Court, Parish of Pointe Coupée, Cooley, J.</p>

<p>A PPEAL from the District Court, Parish of Carroll, Farrar, J,</p>

<p>Notice of protest, enolosed in a letter addressed to tlie endorser, sent by mail to a post-office in rim parish of his residence, is a good notice, in the absence of any proof tha t there was another po.-d office nearer to his residence.</p>

A PPEAL frem the Second District Court of New Orleans, Whitaker, J. —It is necessary, on the trial of this exception, to assume certain principles, which must be granted, in order to arrive at the true issue raised by the pleadings. Tho defendants must be considered as absentees. “Absentee is the person who has resided in the State, and has departed without leaving any one to represent him.

<p>A PPEAL from the Fifth District Court, Parish of Iberville, Posey, J.</p>

<p>k BPEAL from the District Court of the Parish of Tensas, Farrar, J.</p>

<p>A PPEALfrom Fourth District Court, Parish of Assumption, Beauvais, J.</p>

<p>[n a suit for the settlement of a general commercial partnership between the partners, a mandate of sequestration is the only conservatory remedy to which the plaintiff can resort. The property is owned jointly, and is undivided, and as the plaintiff is entitled to an equal share with the other partners, of every portion of it, the whole of it must be sequestered.</p> <p>Points not raised in the lower Court, will not be noticed in the Supreme Court, unless a formal written assignment of errors has been made.</p>

<p>Á PPEAL from the District Court, Parish of Madison, Farrar, J.</p>

<p>The absence of the requisite United States internal revenue slampson letters of administration, and the papers in the proceeding for the appointment of the administrator, is fatal to his appoinl-</p> <p>The prohibition of parol evidence, against or beyond the contents of an act, only extends to the persons -who were parties to it.</p> <p>In caso of an insolvent estate, the oath of. the several parties creditors is prima fade proof, as requirod by law, to entitle such creditors to vote in the election of a syndic.</p>

<p>Whenever the thing sold remains in possession of the vendor, the law presumes that the sale is simulated, and as against third persons this presumption must be rebutted by proof.</p> <p>The payment of a price less than that stipulated in the act of sale, does riot make a simulated sale.</p> <p>Defendant cannot seize real property sold, by his debtor, after the authentic act of sale is recorded; and, when enjoined by the purchaser from selling the property, sot up the defense that the sale was fraudulent; in such a case his defonse is confined to the .auestion of simulation. He must resort to the direct action of nullity, to set aside the sale on account of fraud.</p>

<p>A PPEAL from the District Court, Parish of Assumption, Beauvais, J.</p>

<p>A PPEAL from the District Court, Parish of Pointe Coupee, Cooley, J.</p>

<p>The action of separation of the patrimony of the deceased from that of the heirs, is prescribed in three months from the date of the express or tacit acceptance of the heirs. C. O. Art. 14C9.</p> <p>Article 1005 of the Civil Code is in harmony with the articles thereof specially applicable to tlie payment of the debts of the succession. The remedy awarded by the former Article lasts as long as does the action for the separation of patrimony, and no longer.</p> <p>Piaintiffs'being mere ordinary creditors of the succession, thoir action is a personal one against each one of the heirs, to recover from him his virile share of his ancestor’s debt, and plaintiffs have no legal right to stay, by injunction, the defendant’s order of seizure and sale. Even privilege or mortgage creditors cannot arrest execution, but must resort to the remedy by third opposition, to stay the proceeds of sale in the sheriff’s hands until the conflicting rights of preference to the fund can be determined.</p> <p>The x>!ea of prescription, of five years, on a promissory note, will be maintained when the evidence shows no interruption for that length of time.</p>

<p>A PPEAL from the District Court, Parish of Ascension, Beauvais. J.</p>

<p>A PPEAL from.the District. Court, Parish, of St. James, Beauvais, J.</p>

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

<p>A. PPEAL from the District Court, Parish of Tensas, Farrar, J'.</p>

<p>A PPEAL from the Third District Court, Parish of Lafourche, Gates, J.</p>

<p>An appellant mustering into the Supreme Court all tile parties who have an interest in preventing a reversal or modification of the judgment of the lower Court.</p>

<p>A PPEAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>In a suit upon un open account, composed of distinct contracts, not exceeding five hundred dollars each, one witness to each item is sufficient, although the aggregate amounts to more than five hundred dollars.</p>

<p>If presentment ot a promissory note cannot be made at maturity, on account of irresistible power, the holder will not. be deprived of liis right against other parties, provided he makes presentment and gives proper notice, within a reasonable time after he has the power to do so The holder is never hound to an impossibility.</p>

<p>■Where an appeal bond is given in a case not mentioned in the order of appeal, the appeal will be dismissed. The order must state clearly from what case the party wishes to prosecute his appeal-</p>

<p>Tb is the provinoe of 'a jury to find the facts of a oase ; but the linding must be upon evidence.</p>

<p>By the death of a creditor, his universa) legatee, who is one ot the forced heirs, become* a creditor in his stead.</p>

<p>A PPEAL from the District Conrt, Parish- of Rapides, Cooley, J.</p>

<p>A PPEAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>A PPEAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>To constitute a prohibited substitution, the donee must be charged to preserve and return the thing donated, to a third person.</p> <p>The doctrine enunciated in the case of Cyyi itn Roy it vl. v, Ltlibcne Latiólas el al. 5 An. 552, is reaffirmed in this case.</p>

<p>A PPEAL from the District Court, Parish of Lafourche, Belden, J.</p>

<p>A PPEAL from the District Court, Parish of Lafourche, Gates, J.</p>

<p>In order to bind t.he drawer or endorser o± a draft, the evidence must show That a demand has been mad© in due time</p> <p>Where plaintiff seeks to hold the drawer and endorser of a draft responsible on a subsequent promise, lie must show by evidence that the defendant knew, nt the time he made the promise, that he was released from liability by the laches of the plaintiff.</p>

<p>A PPEAL from the Second District Court of New Orleans, Morgan, J.</p>

<p>A PPEAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>A syndic’s conimibHon.s are limited to five per cent, on the net amount of money received by him.</p>

<p>A PPEAL from the District Court, Parish of Lafourche, Gates, J.</p>

<p>A. mortgage debtor may legally renounce tbe benefit of appraisement in the proceedings to sell on executory process, and will not be afterwards allowed to attack the sale as invalid.</p> <p>The statute of March, 3866, requiring that all property sold under execution should bring its full appraisement, does not deprive the debtor of the right to make a waiver of the benefit of appraisement.</p>

<p>¿I PPEAL from the District Court, Parish of East Feliciana, Posey, J.</p>

<p>A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J,</p>

<p>If an agent exceeding powers, and, loss ensue therefrom, it will fall on him, unless the principal subsequently ratify, and recognize his departure from the letter of his instructions.</p> <p>A party cannot avail himself of his own letters, as evidence, unless the letters have been called for by the opposite party to establish some fact against him.</p> <p>A fortiori, their contents cannot be proved by parol.</p> <p>The testimony shows that Downing, a merchant in Vicksburg, received from plaintiffs a draft on defendants, Wright, Williams & Co., of New Orleans, and forwarded it to them with a letter written by himself; that he copied the letter into his letter-book, and, subsequently, sent tho letter-book to defendants, and. they are nowin possession of the letter, and the letter-book, and have failed to produce them on demand: Held-—'That on a foundation thus broad, the plaintiff's are entitled to pi*ove the contents of the missing letter by parol, and in connection therewith to show the eop> from the letter-book.</p>

A . PPEAL from the District Court, Parish of East Feliciana, Posey, J. —This is an injunction suit, in which the plaintiff and appellant sets forth that, in suit No. 617 of the docket of the Fifth District Court for East Baton Bonge, entitiled Eliza B. Sholfield, wife, v. James Bogan, husband, she was separated in property from her said husband, and decreed to own, as her separate and paraphernal property, a certain bay horse, buggy and harness; and that, since said…

<p>A PPEAL from the Third District Court, Parish of Lafourche, (fu/es, J.</p>

<p>A PPEAL from the District Court, Parish of East Feliciana, Posey, J.</p>

<p>A PPEAL from the District Court, Parish of St. Tammany, Ellis, J.</p>

<p>A PPEAL from the District Court, Parish of East Feliciana, Posey, ,T.</p>

<p>To the con tract oí lease three things are absolutely necessary : the thing, the price, and the consent.</p> <p>The price should be certain and determinate. C. O. 2640 and 2641.</p> <p>The mere occupancy of property does not necessarily imply the relation of lessor and lessee.</p>

<p>A writ» of attachment will not be maintained, where the party left the State temporarily, on account, of the political agitation prevailing hero at the time, and it if? not shown that he has established a domicile elsewhere.</p>

<p>A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J</p>

<p>A PPEAL from the District Court, Parish of Livingston, lillis, J.</p>

<p>The law prescribing the mode of drawing juries, directs that the list of jurors drawn for each term shall bo filod in the clerk’s offico as soon as completed, subject to the inspection of any person who may desire to examine it; in order that any objections which might or could be made, on account of any defects or informalities which may have occurred in the formation, drawing or summoning of jurors, or any other defect whatsoever in the construction of the jury, shall be made on the first day of the term.</p> <p>If the venire is not filod on or before the first day of the term, and the petit jury find a verdict of guilty, a new tnal will be granted.</p>

<p>The sale of a negro woman as a slave, after the adoption of the Constitution of 1864, is an absoluto nullity.</p>

<p>A PPEAL from the District Court, Parish of St. Helena, Ellis, J.</p>

<p>A PPEAL from the District Court, Parish of St. Tammany, Jones, J.</p>

<p>A PPEAL from the District Court, Parish of East Baton Rouge, Avery, J.</p>

<p>Where the City Assessor for the City of New Orleans has placed an over valuation on property, thereby causing an increase on the taxes thereon, and the board of assessors fail or refuse to make the reduction in the valuation, the party aggrieved may recover, by suit in the civil courts, from the city, the amount that he has been compelled to pay, on account of the over valuation of the assessment.</p>

<p>The act of the pretended Legislature of Louisiana, approved June 10,1883, suspending prescription during the Avar, and for one year after tho ratification of the treaty of peace hetAvoen the Confederate States and the United States, isnotlaAv. The pretended legislators could not make laws: they AYere never tiualified ; they did not take the essential oath.</p>

<p>The plaintiffs, as lessors, have the first privilege on movables seized and sold on a plantation, except on tlie crops ; on which the laborers and overseer have a preference.</p> <p>The proceeds of the crop being exhausted, the sheriff has no right to pay the overseer out of proceeds of movables, to tbe prejudice of the lessor.</p> <p>Where large fees are charged by the sheriff and clerk, and the sheriff fails to annex to his return specific bills for their foes, the case will be remanded to adjust the fees of those officers.</p>

<p>A PPEAL from the District Court, Parish of Livingston, Ellis, J.</p>

<p>A PPEAL from'the District Court,'Parish of East Feliciana, Posey, J.</p>

<p>A PPEAL from tlie District Court, Parish, of East Feliciana, Posey, J.</p>

<p>A PPEAL from tho District Court, Parish of St. Helena, Ellis, J.</p>

<p>A PPEAL from the District Court, Parish of Jefferson, (Jazabat, J.</p>

<p>A PPEAL from the District Court, Parish of Carroll, Farrar, J.</p>

<p>A. . PPEAL from the Third District (Joint of New Orleans, Felloices, J.</p>

<p>A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J.</p>

<p>The verdict of the jury must be supported by the testimony in the record.</p>

<p>A . PPEAL from the District Court, Parish' of Iberville, Posey, J.</p>

<p>A PPEAL from the District Court, Parish of Pointe Coupée, (holey, O.</p>

<p>■Whore a case has been dropped from the dockot, and afterwards restored to the docket, and put at issue by the defendant filing an answer, the garnishee is not entitled to notice of the restoration of the cause.</p> <p>evidence is necessary to authorize the taking of interrogatories for confessed against a garnishes, other than his failure to answer. O P. 263.</p> <p>Judgments must be interpreted by the pleadingsand the nature of the obligation sued upon. Garnishees sued as ordinary parties, cannot be condemned in solido; solidarity is never presumed.</p>

<p>Whero plaintiff bought cotton of dofendaut, to bo delivered at a certain place, but no time mentioned, he could refuse its immediate delivery. But no claim for damages will be sustained against defendant on account of the non-delivory of the cotton, without proof of his being putin default.</p>

<p>The Court will nob declare a mortgage null for want of reinscripiion within ten years. The partis?* in interest have their remedy by causing the mortgage to be canceled.</p>

<p>Where the vendor, in the sale of real estate, sells all the land lying between designated boundaries, there can be no increase or diminution of price on account of a disagreement of measure. O. C. 2471.</p>

<p>A verbal contract, amounting to over live hundred dollars», must be proved by at least one credible witness and corroborating circumstances. O. C. 2257.</p> <p>When two parties enter into a contract with a third, and neither a connnetcial partnership nor a solidary obligation is shown, judgment cannot lie renderod in .soii<h>.</p>

<p>A PPEAL from the District Court, Parish of East Feliciana, Cooley, J,</p>

<p>A PPEAL from the District Court, Parish of East Feliciana, Posey, J.</p>

<p>A PPEAL from the District Court, Parish of West'Feliciana, Cooley, J.</p>

<p>A PPEAL from the District Court, Parish of East Feliciana, Poseí/, J.-</p>

<p>Iq proceedings i in e.wutim the creditor must bring himself within the letter of the law.</p> <p>Where a discrepancy exists between the note and the act of mortgage by which it is cecuied, the holder cannot proceed by executory process.</p>

<p>A PPEAL from the District Court, Parish of St. Helena, Ellis, J.</p>

<p>A justice of the peace, before whom a party is brought for examination, cannot admit him to bail if the crime of which he is accusocl be punishable with death, 01* with seven years’ or more imprisonment at hard labor. Revised Statutes, 148-9, sec. 82.</p> <p>A bail bond taken by a justice of the peace, in a case in which lie is prohibited from admitting the party to bail, is void ; and the securities theroon will incur no liability.</p>

<p>After the jury have received the charge oí the Judge, in u capital case, and. have retired, the Judge is not authorized to give separate and private instructions to any of the jurors.</p> <p>If they desire further instruction, he should order all to be brought into Court, and there instruct them in presence of the counsel.</p>

<p>Where property of a juclgmont debtor lias been seized by virtue of executions in several cases, and a third party enjoins the proceeds of tho sale in the hands of tho sheriff on the ground that he has a superior privilege on the property seized: U>ld~Thai on third opponent showing a superior privilege, the seizing creditors can only claim the residue after paying opponent’s claim.</p>

<p>A PPEAL from the District Court, Parish of Livingston, Jones, J.</p>

<p>Where a party lias beou arrested in one parish, charged with an offense committed in another, it is tile duty of the magistrate to commit him to prison until he can be transferred to tho parish where the offense is alleged to have been committed, and a bond taken by the magistrate whereby the party is released from prison, is unauthorized and void, and the sureties cannot be held. Revised Statutes, page 167, 8 49.</p>

<p>To make a judgment rendered against the husband, and wife valid, the wife must be authorized by tho husband or the judge to appear and defend the suit.</p> <p>"Wbon no judgment by default has been taken, prior to rendering a final judgment, it is a nullity, and will be so declared when attacked by a third party.</p>

<p>Where several parties endorse a promissory note, they ave noti'oint sureties to the holder, but each one is severally liable to him for the whole amount.</p>

<p>Plaintiff brings suit agftinsfc a married woman, on a promissory note, alleged to be given for her own benefit, and joins her husband in the suit. A judgment by default having been set aside, the wife ■ alone filed an answer. Ho steps were talcen to have her authorized to appear in Court :</p> <p>.fleM—That her appearance being unauthorized, the judgment must be reversed. C. C. 123.</p>

<p>The action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by four years, to begin from the day of his majority. O. O. Art. 356.</p> <p>The omission of the tutor to render an account of his tutorship, does not prevent prescription from running, and judgment creditors may avail themselves of it.</p> <p>Prescription, in regard to claims which the heir may have against the succession, runs against himself, so long as he has not accepted the succession with the benefit of an inventory, and his acceptance as beneficiary heir cannot destroy prescription thus acquired against him during the interval of the opening of the succession. O. O. 3192, 3193.</p>

<p>The under-tubor is nob personally liable for expenses of hbigabion in a suib brouglib by him for the removal of the butor, and in proceedings on opposition to the tutor’s account of administration, unless, he acted in bad faith.</p> <p>Failure does not of itself prove bad faith.</p> <p>The fees of counsel in such cases do nob depend on success, and are to be paid by the estate of the</p>

<p>A PPEAL from the Sixth District Court of New Orleans, Howell, J.</p>

<p>A EPEAL from the Fourth District Court of New Orleans, Tliéard, J.</p>

<p>The order rendered on executory process is nob such a judgment ns will have the effect of the thing adjudged. Jíw jwiimUt is nob thereby established.</p> <p>The military order, staying proceedings against the property advertised for sale, on the hist January, 1866, when notified to the sheriff, put an end to that sale. It was an injunction issued by paramount authority, and the subsequent revocation of the order did not authorize the sale to be made witnout a new advertisement.</p> <p>The fact that a person, whose property was being sold at judicial sale, was present at the sale anxl did nob object thereto, is nob a waiver of legal formalities.</p> <p>A lease signed by an agent can have no effect as proof until the agency is shown by evidence of equal dignity.</p>

<p>A PPEAL from the Second District Court of New Orleans, Thomas, J.</p>

<p>Courts will not enforce ;i contract, th'c consideration of which is Confederate notos.</p>

<p>A .VP32AL from the District Court., Parish of St-. Tammany, Ellin, J.</p>

<p>A PPEAL from the District Court, Parish of East Baton Rouge, Arer;/, ,T.</p>

<p>The want, failure, or illegality of consideration may bo established by parol testimony between the parties to the note.</p> <p>Where the consideration of a promissory note is shown to be Confederate treasury notes, the Courts of this State will not enforce its payment.</p>

<p>A PPEAL from the District Court, Parish of St. Tammany, Milis, J.</p>

<p>A PPEAL from the District. Court, Parish of East Feliciana, Posey, J.</p>

<p>A PPEAL from the District Court, Parish of Iberville, Posey, J.</p>

<p>A PPEAL from the District Court, Parish of West Baton Rouge, Posey, J.</p>

<p>Issues oi fact, not l-aisod in tlic District) Court, will not be passed upon in tbe {Supremo (Jouit.</p> <p>Where real property was advertised by tho sheriff, and on tho day iixod he postpones tho sale, with out offering tho property, lie must advertise the same anew for thirty days, or the sale will be declared null.</p> <p>Discretion in the execution of legal solemnities cannot be suppoi ted.</p>

<p>A PPEAL from the District Court, Parish of Terrebonne, Gales, J.</p>

<p>A PPEAL from the District Court, Parish of East Eeljciana, Posey, J..</p>

<p>A , PPEAL from the District Court, Parish of Ht. Tammany, Jones, J,</p>

<p>A PPEAL from District Court, Parish of St. John the Baptist, Beauvais, J.</p>

<p>Plaintiff shipped at 2Co\v Oilcans, December 18th, 18i>(‘, us pilot on tho i'nlton, bound on a voyage lo Bayou Mason; at Dunn’s landing ho voluntarily left tho boat, in oonsc<|uonco oi" being told by Iho captain bhat wages would be stopped while tho boat remained at that, point: lie has no action in (lamages nor for servicos b'oyond the time actually employed, lie not having put defendant in default.</p>

<p>A PPEAL from the District Court, Parish of >St. Tammany, h'llin, ,1.</p>

<p>An obligor on. a special mortgage given as additional security to a note already secured by a mortgage given by anotliei party and on other property, cannot be treated as a third possessor.</p> <p>Such an obligor cannot avail himself of the plea of discussion.</p> <p>híotes endorsed in blank may be sued on by an agent or executor, having possession thereof, in liis own name, and a judgment thereon will bo res judimtu. The question of ownership is unimportant, except defendant lias an equitable defense against the true owner.</p>

<p>A BPEAL from tlio District Court, Parish oí Ascension, Jie.auvais, ,1.</p>

<p>Claimants of land under tax sales are held rigidly to show that all the requirements of law have been fully complied with. Itis incumbent on them to produce tlio assessmenband show its legality.</p>

<p>The plcaof a tender of payment in Confederate money will not avail defendant, although it was tin4 circulating currency at the time.</p>

<p>A PPEAL from the District Court, Parish of West Eeliciana, Cooley, J.</p>

A PPEAL from the District Court, Parish of St. Helena, Ellis, J. Reporter.-—This action was commenced in January, 1801, on ft promissory note which became due in January, 1859. Defendant pleaded (he proscription of five years. Plaintiff, in answer to this plea, produces testimony to show that defendant was in the Confederate army, and thus, by his own act, prevented the commencement of this action.

<p>No jincb proo.ppdinff as a pipa in abatement--, or bar to tho action, is known to or vppoftimert by our law. T)ip oxppnlion ot a jud^mont pan bp. stayed only by minnption and bond.</p>

<p>Where a tubri.v, administering, acknowledges in her account that the heirs are her creditors, and it is evident that she is indebted to them. The judgment homologating the account cannot he annulled. But it may be reduced by the creditors, 'if they show that the whole sum allowed is nob due.</p> <p>The husband’s separate property, being adjudicated to the widow as a part of the community, tlie subsequent creditors of the widow cannot treat the adjudication as an absolute nullity.</p>

<p>A PPEAL from the Sixth District Court oi' New Orleans, Leuumoit/, J.</p>

<p>To entitle a party to the rigorous remedy of sequestration, the affidavit must stale either that he has a privilege on the property, or that he is the owner of it. O. P. Art. 275.</p>

<p>The charge against plaintiff that ho had sworn faloely, and the nailing Jmu a swindler and thief, amount to a presumption of damage.</p>

<p>A PPEAL from the District Court, Parish of St. Helena, Ellis, J.</p>

<p>Where an appeal is granted by motion in open Court, the names of the appeiloes must be inserted in the appeal bond, otherwise the appeal will be dismissed.</p>

<p>A PPEAL from tho District Court,' Parish of Ascension, Beauvais, J.</p>

<p>i PPEAL from the Sixth District Court of New Orleans, Howell, J.</p>

<p>A PPEAL from tlie Second District Court of New Orleans, Morgan, J.</p>

<p>A general power given to the business manager of a corporation, does not authorize him to bind the corporation as drawer of a promissory note.</p> <p>A promissory note is drawn to the order of two persons and endorsed by both : they are jointly liable, but are not bound in sólido.</p>

<p>■Where the proceedings are in vein founded on a privilege, the defendant cannot except to tho jurisdiction of the Court, on the ground of his domicile being in a different parish from that where the seizure is made.</p> <p>A privilege follows the object to which it is attached, and the creditor may have the object seized by a writ of sequestration, in whatever part of the State it may be found, whether at tlie owner’s domicile or not.</p> <p>Where plaintiff claims a privilege on cotton, or other property, and has it sequestered m a different parish from that of the domicile -of the defendant, the personal action will be dismissed and the ' aotion in rein maintained.</p>

<p>A note signed by a married woman is invalid, where ifc is nob shown that the debt inured to her sejiA1 rate benefit, nor that she was properly authorized. The presumption is that the debt is that o£ the community.</p>

<p>Payment is a peremptory exception, which may be pleaded at any time before judgment.</p>

<p>Want of amicable demand, to be available, must be pleaded before issue is joinod.</p> <p>"Where husband and wife are defendants, citation served on the husband, in order to be binding upon tho wife, must bo addrossed to her as well as to tho husband.</p>

<p>The execution of a judgment cannot bo suspended on a rule to show oause. A suspensive appeal will not lie from a judgment dismissing such a rule.</p> <p>Execution of judgment can only be suspended upon petition, affidavit and bond given for injunction.</p>

<p>A PPEAL from the Fourth District Court of New Orleans, Théard, J.</p>

<p>The rule of Court, declaring that no private agreement of the parties relative to the progress of any cause shall be alleged unless the evidence thereof shall be in writing, does not apply to agreements which may give rise to another suit.</p> <p>The waiver of a1 legal right, to be available, must be clearly and explicitly shown.</p>

A PPEAL from the Sixth District Court of New Orleans, Buplanlier, J. —Auguste Pino has sued the Merchants’ Mutual Insurance Company to recover the sum of $2,086 42, the amount of damage caused him by… Held: that promise to give a note was a sufficient consideration ; that the assent of the parties was full and unconditional, and that there remained nothing to be done but to issue the policy, as evidence of that agreement.

<p>A PPEAL from tho Sixth District Court, Parish oí St. Helena, Ellis, J.</p>

<p>A PPEAL from the Fourth District Court of New Orleans, Price. J.</p>

A PPEAL from the Third District Court of New Orleans, Fellowes, J. Unless the defence of payment, set up in the answer of defendant is sustained by the testimony, the judgment of the lower Court must be affirmed, for there is no other defence interposed. The allegation is of 'payment to the plaintiff himself, but no effort was made to prove this as laid. There is some evidence tending to show payment to one Adolphe Hebert, as agent of the plaintiff.

<p>A PPEAL from the Third District Court of New Orleans, Fellowes, J.</p>

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

<p>A PPEAL from the Fourth District Court of New Orleans, Th&ard, J.</p>

<p>A PPEAL from the Second District Court of New Orleans, Thomas, J.</p>

<p>A PPEAL from tlie Second District Court of New Orleans, Morgan, J.</p>

<p>A . PPEAL from the Sixth District Court of New Orleans, Duplanlier, J.</p>

<p>Where the certificate of the clerk of the District Oourt does not show that the record contains all the evidence adduced, and the record contains no statement of facts, no exception to the opinion of the Judge, nor special verdict, and the appellant has not filed in the appellate Oourt an assignment of errors of law apparent on the face of the record, the ease cannot be examined on its merits, and the appeal will be dismissed.</p>

<p>A PPEAL from the Sixth District Court of New Orleans, Buplaniier, J.</p>

A PPEAL from the Fourth District Court of New Orleans, TMard, J. is a suit for -—This the value of two bales of cotton, alleged to have been shipped on the steamer Trent; that bill of lading was transferred to plaintiffs after arrival of the steamer and cotton at New Orleans, and that the cotton was not delivered to the transferrees of the bill of lading.

<p>Plaintiff brought; suit for the price of salt purchased by defendant in 1862; defendant pleads that the salt was for the Confederacy, and that Courts of justice should not enforce the contract. There being a doubt of plaintiff’s knowledge of the unlawful purpose of defendant, the Court will presume him to be innocent.</p> <p>The defendant cannot take advantage of his own unlawful acts to annul his contract.</p>

<p>The proprietor of atraotof land has aright to oxoavate within his own boundaries a canal, for the purposes of navigation, and to require payment for its use from those who choose to avail themselves of its facilities.</p> <p>If works, beneficial to the public, are constructed by private enterprise upon private property, and the public choose to avail themsolves of the benefits of such works, equity would require compon’ sation to be made for the benefits conferred.</p> <p>Persons availing themselves of such privileges form an implied contract to remunerate the owners of the property, and it is immaterial under what torm or expression such remuneration is claimed.</p>

<p>By refusing an order of seizure and sale, because tlie mortgage note was prescribed, the Judge would supply the plea of prescription.</p> <p>Prescription is a means of extinguishing a debt, bub can only be applied when specially pleaded.</p> <p>The questions of prescription, and of interruption of prescription, cannot be considered on an application for an order of seizuro and sale. The debtor is amply protected by Art. 739 O. P.</p>

<p>the matter of continuances for the most part addresses itself to the sound, legal discretion of the District Court, to be judged of according to the circumstances presented.</p>

<p>A party to a contract, the consideration of which is Confederate treasury notes, cannot recover thereon.</p>

<p>A</p> <p>PPEAL from the Third District Court of New Orleans, Fellouies, J.</p>

<p>A RPEAL from the Fourth District Court of New Orleans, TMard, 3.</p>

<p>Where the wife, separated in property from her husband by a judgment of the Court, enjoins the seizure under.a fieri facias against her husband, on the ground that she is the owner of the property seized, she must establish her ownership with legal certainty, otherwise the injunction will be dissolved with damages.</p>

<p>The Common Council of the city ot New Orleans passed a resolution in the year 1856, whereby the city bound itself to pay to any person who should discover and make report, and give due information of the location, and description of any real estate in the city belonging to it, of which there was no record on the books of the city, and to which it shall appear that the city has a valid title, a commission of five per cent, on the value of the samo. In pursuance of this resolution, Louis H. Pilie, then holding the office of city surveyor, made examination, and discovered certain real estate previously unknown to the city, of which it took possession, and sold for the benefit of the corporation: Held—That in the absence of proof showing that the discoveries and report formed a part of his official duties, as city surveyor, ho is entitled to recover the per centage allowed by the resolution.</p>

<p>A motion to dismiss an appeal, made moro than three judicial days after the filing of the reoord, comes too late.</p> <p>Where the amount in controversy is less than three hundred dollars, the Supreme Court will dismiss the appeal ex officio.</p> <p>Where a motion in the nature of a demurrer is made, the allegations of the petition are considered as time for the purposes of the motion; but if the cause is put at issue, it then devolves upon the plaintiff to establish his case by proof.</p>

A PPEAL from the Second District Court of New Orleans, Thomas, J, -^-Tlhe presumption of law existing in favor of accounts of administration rendered, etc., and which will no doubt be invoked by the appellee, has no application here.

<p>A contract, tho basis of which, is Confederate notes, will not bo enforced.</p>

<p>A PPEAL from the District Court, Parish East Baton Rouge, Posey, J.</p>

<p>A PPEAL from the Sixth District Court of New Orleans, Buplanliar, J.</p>

<p>A PPEAL from the Second District Court of New Orleans, Thomas, J.</p>

<p>Tho plaintiff died while the suit was pending in the lower Court. The widow, in her own right, and as tutrix to her minor child, and the other children as heirs, were made parties to the suit, and 3udgment was rendered in their favor. Defendant appeals, and gives bond in favor of the -widow in her own right, and as tutrix of her minor children, naming not only tile minoxs but those of age: Jfahlr-That the children of age were not made parties to tho appeal.</p> <p>The Supreme Court will take no notice of documents not making a part of the record of appeal.</p>

<p>A PPEAL from, tlie Third District Court of New Orleans, Fellowes, J.</p>

<p>Where a judgment is rendered against the members of a commercial firm ¡u solido, and one member of tho firm alone appeals the othor members must be made parties thereto.</p> <p>It is immaterial when a motion is made to dismiss an appeal for want of proper paitics, as, for that cause, it will be e.v officio noticed by the Court.</p>

<p>An Insurauco Company is liable on a firo insurance policy for damages done to goods by water used in saving them from destruction by fire.</p>

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

<p>A PPEAL from the Fourth District Oourt of New Orleans, Théard, J.</p>

<p>factors cannot pledge or give in paymeut of then* own debts, property entrusted to them to be disposed of for their principal.</p> <p>Plaintiff deposited brandy with Campbell ¿s Bisland, retail dealers, for sale; Campbell & Bis-land transferred the brandy to defendants on account of their own indebtedness; afterwards, and after being called upon in the interest of plaintiff, by his agent, the factors entered the account on their books as a cash transaction with defendants: Jleld—'That the transaction was a nation m payment, and not a sale, and that defendants are liable to plaintiff.</p>

<p>The CJourfi will not give judgment for the return of the price paid for goods, on account of the non* delivery by defendant, until plaintiff seeks to annul the contract for non-compliance by the defondant with its provisions.</p>

<p>Where the building committee of a corporation sell the corporato property to the builder, in liquidation of his claim, without special authority so to do, the sale will bo declared null. The undertaker will, however, be allowed what remained unpaid on his building contract, and for improve. ments by him made; and will be charged the rents by him received.</p>

<p>A PPEAL from tlie Sixth District Court of New Orleans, Duplanüer, J.</p>

<p>A</p> <p>PPEAL from the District Court, Parish of St. Tammany, Jones, J.</p>

<p>The discharge of an endorser of a note because notice of protest was not properly served, does not re* lease the other endorsers.</p> <p>The holder is only hound to notify the endorser whom he intends to hold liable.</p> <p>In relation to third parties and bona fide holders, the obligations of accommodation endorsers are co extensive with those of endorsers of business paper. It would be different if the transferrec of a note endorsed, obtained it from the «taker. In such a case the endorser would be a surety.</p> <p>Where no privity is shown between the parties to a no'te, every endorsement, whether accommodation or otherwise, is essentially an original contract, equivalent to a note in favor of the hoidei*.</p>

A PPEAL from the District Court, Parish of East Feliciana, Posey, J. Reporter.— There were several cases on appeal to the Supreme Court involving the same plea in defence, viz : want or failure of… Held: and at one time there were two Judges for the same district. Judge Avery, the regularly elected Judge, held his last term of Court in January, 1862; resigned in April, 1863. Judge Smith held a Court in 1864, under a Confederate appointment by Governor Allen.

<p>A PPEAL from the Third District Court of New Orleans, Fellowes, J.</p>

<p>A PPEAL from the Third District Court of New Orleahs, Fellowes, J.</p>

<p>Defendants had their domicile and residence in one parish, where they had resided for a number of years, from which they removed temporarily to an other parish, to avoid the dangers resulting from the late war, where they engaged in business, and participated in one or two elections by voting, without doing any other act, or signifying their intention of a change of domicile: Held— That these acts, oi themselves, are not sufficient to cause axliange of domicile, and the parties must be considered as still residing at their former domicile, where they must be sued.</p>

A PPEAL from the Fourth District Court of New Orleans, Théard, J. —On 24th March, 1863, the legislature passed an act in these words : “That the city corporation of New Orleans be and are hereby authorized to build a good and substantial foot bridge on the New Basin Canal, at the intersection of Liberty street. ” “That said bridge be so constructed as not to prevent the free egress and ingress of vessels. ” The Common Council of New Orleans, in conformity with the above…

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

<p>To entitle a party to an appeal it must be shown that he has an interest in maintaining or reversing the judgment of the lower Court.</p> <p>Ho damages will be allowed on appeal, except on moneyed judgments. O. P. 907.</p>

<p>An agent cannot bind his principal on a promissory note, under a general power of attorney. To bind the principal on the note(tlie power of the ageutinust be express and special. O. O. 2966.</p>

A PPEAL from the Fourth District Court of New Orleans, Théard, J. —The Court below dismissed the petition, because, in its opinion, the contract with Governor Pettus was illegal, and because that illegality vitiated the contract between plaintiff and defendant. With all due respect for that Court, we insist that Bowman’s right to the §5,000 is in no manner affected by the illegality of those contracts, even if they be illegal.

A PPEAL from tlie Third District Court of New Orleans, Sandlin, J. —Samuel M. Montgomery appeals from a judgment rendered against him on the 8th December, 1863. His petition for an appeal was filed on the 15th July, 1865—more than nineteen months after the judgment was rendered and signed.

<p>A PPEAL from the District Court, Parish of Livingston, Ellis, J.</p>

A PPÉAL from the District Court, Parish of Caddo, Jones, J. Reporter.■—The appeal in this case was made returnable to the Supreme Court, at Natchitoches, at the August term, 1866. By the following agree* ment of counsel, the case was taken to New Orleans and decided.

<p>A . PPEAL from tlie Third District Court of New'Orleans; Buchánan, J-</p>

<p>It is an attribute of sovereignty to authorize the issue of money, and to legalize its circulation as a medium of exchange.</p> <p>By Article l, § 10, of the Constitution oi the United States, no State is permitted to coin money or emit bills of credit.</p> <p>What one State is prohibited from doing, by the express language of the Constitution, cannot be legally performed by any combination of States.</p> <p>The late so-called Confederate States never reached the dignity of a de /ado Government, and, consequently, were without the legal right to coin money or emit bills of creditor authorize their circulation as a medium of exchange.</p> <p>The issuing of Confederate treasury notes was an act of rebellion, in palpable violation of law, and contracts growing out of the use of these notes, as a medium of exchange, cannot receive judicial sanction.</p>

<p>A PPEAL from the Fourth District Court of New Orleans, Théard, J.</p>

<p>This case involves only questions of fact.</p>

A . PPEAL from the Fourth Distriot Court of New Orleans, TMard, J. * * * Discretion is left to the jury to assess damages for quasi offences. C. C. 1928, l 3. “In such actions the jury or Court must, in many cases, allow damages when no special damage is shown.” Martin Justice Carlin v. Stewart, % La. 76. Chataigne v. Bergeron, 10 An. 669. Varillat v. New Orleans and Carrollton Railroad Company, 10 An. 87. Blade v. Same, 10 An. 33.

<p>Where minor heirs have a general mortgage upon the property of their tutor, they cannot have recourse upon his property specially mortgaged, if the tutor has other property subject to the general mortgage sufficient to discharge it.</p> <p>unliquidated mortgage of a minor does not prevent a sale of the property of the tutor specially mortgaged by the owner’s judgment creditor.</p> <p>If the legal mortgage of the minor heirs, has superiority of rank and priority of date to the special mortgage, the property seized will pass to the purchaser subject to the legal mortgage, and their right to pursue it by the hypothecary action will remain unimpaired.</p>

A FPEAL from the Fifth District Court of New Orleans, LeaUmont, J. * * The act of pledge which plaintiff sets up as having been passed before Hugh Madden, Notary Public, on 9th April, 1863, is fatally defective, and is entirely null and void ; that no stock had ever been issued to B. M. Davis at the time of the pretended pledge ; that the formalities and requisites of law were not observed in the alleged act of pledge.

<p>A . PPEAL from the Second District Court of New Orleans, Thomas, J.</p>

<p>A . PPEAL from the Fourth District Court of New Orleans, Théard, J.</p>

<p>A PFEAL from the District Court, Parish of East Feliciana, Ellis, J.‘</p> <p>* ":f * I apprehend, may it please the Court, that the sole question presented by the pleading and the evidence adduced in this cause is, shall the plaintiff be permitted to •recover the purchase price of the “slave Dick,” as evidenced • by the notes sued on and made by the defendants, October, 1860 ?</p> <p>This suit, upon these notes, was filed with the clerk of the Sixth District Court, St. Helena, on the 2áth of December, A. D., 1862, but was not tried until May, 1866. It will not be denied or doubted, that at the time of the purchase of the “slave Dick,” October, 1860, and the execution of the notes (the price or consideration) and of their respective maturities and the filing of this action, the law, as it then was, that the defendants would be compelled by the Courts to pay and satisfy these notes. It was the duty of the defendants to pay them. Infidelity to their obligations is the cause of the present suit. If the defendant has lost the slave through the action of the State and General Governments, emancipating slaves, the loss must be borne by herself. Her title was not contingent, suspensive or conditional, but was absolute at the moment of the adjudication. It is unnecessary to say more.</p> <p>-;i * * We, therefore, proceed to consider the second ground of defence, and submit the following-propositions, to be sustained by argument and authorities to be cited upon the trial, viz:</p> <p>1st. That by the act of the sovereign authority, which is equally binding upon the plaintiff and defendant, and for which the said plaintiff is equally responsible with the defendant, the consideration for which the note sued on was given has been destroyed, and that the plaintiff is estopped and restrained from obtaining, and the Court from granting a judicial remedy to enforce the performance of a contract based upon African slavery.</p> <p>2d. That said contract, having been entered into on the part of both plaintiff and defendant, with reference to and under guarantees and protection contained in the laws and Constitutions of the Federal and Stato Governments upon the subject of African slavery, and those guarantees and protection which entered into, the consideration for which the note sued on was given, having been revoked, annulled and abolished by the sovereign authority of the Federal and State Governments, the plaintiff is estopped and restrained from obtaining, and the Court from granting a judicial remedy to enforce the performance of the said contract.</p> <p>3d. That by the acts of the sovereign authority, as aforesaid, the judicial authority can no longer be envoked to enforce the rights acquired by this defendant under the contract sued upon, and that the said plaintiff is estopped and restrained by equity and good conscience from obtaining, and the Court from granting a judicial remedy to enforce the performance of the said contract in favor of the other contracting party only.</p> <p>4th. That by the acts of 'the sovereign authority, as aforesaid, African slavery has ceased to be the subject of conventional obligations, and of judicial action, and it is contrary to equity, to good conscience, to good morals and public policy, to enforce the jierformance of obligations which have no longer the sanction of the laws of the land, and under which the reciprocal rights and responsibilities of parties, created by said contracts, can no longer be enforced by judicial authority.</p>

<p>A PPEAL from the Third District Court of New Orleans, Fellowes, J.</p>

<p>A final judgment, rendered without a judgment by default being first taken, is a nullity, and will be so declared on appeal.</p>

<p>The garnishee is not required to answer, eategorióally, every question asked in the interrogatories; it is sufficient if his answers negative every fact enquired of in the interrogatories.</p>

<p>A PPEAL from the Fourth District Court of New Orleans, Théard, J.</p>

A PPEAL from the District Court, Parish of Pointe Coupée, Cooley, J, —This case presents but one question, namely: Were the slaves of Louisiana emancipated by the proclamation of- President Lincoln,'in January, 1863, or did they not ■in' the eye of the law, continue to be slaves until the last Louisiana-Convention in 1861, abolished slavery within our borders. -.

<p>A PPEAL from the District Court, Parish of East Feliciana, Posey, J.</p>

<p>A PPEAL from the District Court, Parish of St. Helena, Ellis, J.</p>

<p>Clerks of Courts and sheriffs have the right, every six months after a suit has been instituted in any of the Courts of this State, to demand their costs from the plaintiff, and after authenticating the amounts due, to issue execution for the collection of them: this right is accorded to no other officer of the State. Revised Statutes, p. 124, § 7.</p> <p>Experts, auditors and judicial arbitrators, are to bo paid as well ns the iaxed cost, b? the party cast at the termination of the suit.</p>

A PPEAL from the Fifth District Court of New Orleans, Beaumont, J. i:' * * The defendant made a motion to set aside the sequestration, on several grounds, the first of which is: “ Because the court has no jurisdiction in this case, which is one arising under the admiralty laws of the United States, and in which the United States Courts have exclusive jurisdiction, ” The defendant, by cumulating other grounds with his plea to jurisdiction, has clearly waived it'or rendered it…

<p>A PPEAL from the District Court, Parish of West Feliciana, Cooley, J.</p>

A PPEAL from the Sixth District Court of New Orleans, Buplantier, J, * * The question before the Court is not what ships were burned by military order on the morning of the arrival of the Federal fleet, but whether the evidence in this record shows that the Pettigrew was among the number of ships so destroyed, and if so, upon whom should the loss fall.

<p>Plaintiff deposited moneys in the Bank of Louisiana. The bank and all its assets were afterwards seized, and taken possession of by order of the Commanding General of the United Statos Army, all the assets were turned over by the directors of the bank, including the deposit, to the quartermaster of the department. Plaintiff, a depositor, brings suit against tho bank for the amount of the deposits still to his credit. The bank sets up in defence that these deposits have been seized and taken possession of by order of the Commanding General, and the bank is not again liable for their payment: Held—'That the bank, having paid out all these deposits under an authority they had no right to question nor power to resist, they are no longer liable to’ pay them to the depositors; that obedience to the military order was full protection to the bank.</p>

<p>A PPEAL from the First District Court of New Orleans, Howe, J.</p>

A EPEAL from ike Sixth District Court of New Orleans, Buplaniier, J. * ' * The State seeks to recover from defendants the sum of one-quarter of one per cent. on.the amount of their gross sales and receipts, as commission merchants and vendors of produce, between the first of July, 1865,-and first of January, 1866. The State also claims twenty per cent, on the amount of their - tax, as a penalty for their failure to pay said tax according to law.

<p>The heirs of the deceased become seized of the property of their ancestor at the moment of his decease. The surviving widow is seized of one-half of the community property, and the heirs of the other.</p> <p>The title so vested continues in them, subject to be divested at any time by the creditors themselves, or by the administrator for them. The widow and heirs take the estate absolutely, subject to the debts and charges against it; and all that is meant by residuary rights is, that the property is thus encumbered.</p> <p>Where the widow and lioirs of a deceased party bring suit against a third party in possession for property belonging to them, the third possessor cannot require them to show affirmatively that the administration is closed before they can recover.</p> <p>A third possessor cannot set up that there are creditors holding claims against the property in his possession to defeat the heirs; only the creditors, themselves, or the administrator for them, can make such defence.</p>

<p>Confederate treasury notes were issued in violation of law, and used for tho purpose of overthrowing the Government of the United States.</p> <p>Courts of Justice will not lend their aid to give effect to contracts, the consideration of which are illegal and reprobated by law.</p>

<p>A PPEAL from the District Court, Parish of Natchitoches, Lewis, J.</p>

<p>A PPEAL from the District Court, Parish of Caddo, Weems, J.</p>

<p>Where ono renders services beneficial to another at his request, an implied contract is raised for remuneration.</p> <p>Tho law does not- allow one person to enrich himself at the expense of another.</p>

<p>Where the petition alleges that the defendant is executor, and lie is cited in that capacity, a promissory note signed by him as executor, is admissible in evidence undor the general issue.</p>

<p>A bill of indictment for larconywill not lie, unless brought within one year afbor the offence shall have been made lmown to the officer having the power to direct the investigation.</p> <p>Tho indictment must negative prescription apparent on its face, by alleging either, that the crime was nob discovered within the year, or that the prisoner absconded or lied from justice.</p>

<p>A PPEAL from the District Court, Parish of Caddo, Weems, J.</p>

<p>The act of the legislature approved March 1858, relative to the drawing of grand jurors, requires the foreman to be selected from the whole venire, aüd the remainder to be placed on slips of paper in a box, from whicli the sheriff draws fifteen names, which, with the foreman already selected, forms the grand jury—a grand jury drawn from the list of names:on file is irregular. ‘Where the offence charged in the indictment was committed on the first day of the term, it is impossible for the accused to file'his objections to the mode of drawing the jury on the first day of the term: in such cases the objections may be made afterwards.</p>

<p>Written evidenco of a contract of sale is admissible without an allegation that the contract is reduced to writing.</p> <p>The law does not require parties litigant to allege that their evidence is in writing.</p> <p>The Supreme Court will not look beyond the transcript of appeal to ascertain facts not therein transcribed ; nor will it presume that the District Court permitted a wrong to be perpetrated on the government.</p>

A PPEAL^from the District Court, Parish of Natchitoches, Lewis, J. This action is founded on two written instruments made by defendants, payable to H. J. Patterson or bearer, dated February 21st, 1863, and one payable 23d February, 1864, the other, 23d February, 1865, for $1,750 each. The case was tried as to Bosley only.

<p>. ./This caso presents only questions of fact.</p>

<p>The contents of a written instrument cannot be proved by parol evidonce, without first showing the existence and loss of the written document.</p> <p>Tho best ovidoncein the reach of the parties should be produced.</p>

<p>The builder has a privilege on the building which he may have constructed, but if tho amount is over five hundred dollars, the agreement must be in writing, and registered, to preserve the privilege. C. O. 2746.</p> <p>Where property sold under a mortgage brings more than the amount of the mortgage, the builder having a privilege next in rank to the mortgage, is entitled to the overplus.</p>

<p>Where the transcript of appeal does nob show that a final judgment has been rendered in tho lower Court, the appeal will be dismissed.</p>

<p>A PPEAL from the District Court, Parish of Natchitoches, Lewis, J.</p>

<p>Statements made, or letters ^written, by an endorser of a promissory note, after the transfer, are not admissible to defeat the action of the holder.</p> <p>If his testimony can be used at all, it is as a sworn witness in the case.</p>

<p>A PPEAL from th© District Court, Parish of Caddo, Weems, J.</p>

<p>Where a party sells a tract of land on time, and takes the notes of the vendee, secured by mortgage on. the land to secure the payment of the price, and the vendee, before the price is paid, sells the same land to anotheb party, who assumes the mortgage in favor of the original vendor, the first vendor may have the land seized and sold to pay his mortgage, and the second vendee cannot set up, by way of exception, .that the suit be dismissed as to him.</p> <p>The original vendee of the land may be sued on the notes, and the mortgage enforced on the land of his vendee in the same suit.</p>

A PPEAL from the District Court, Parish of Caddo, Oreswell, J. —In the month of December, 1856, John B. Marshall & Co., and Peet, Sims & Co., instituted suits against T. B. Simpson, sheriff of Caddo parish, and his sureties, N. Moore, J. P. Hailey, and Henderson Markham, to recover damages for alleged misfeasance in the performance of an official act on the part of J. M. Lewis, one of Simpson’s deputies.

<p>A receipt which acknowledges payment is merely jmma facie, evidence of payment, font is not conclusive</p> <p>Where the consideration of a contract is unlawful on its face, it cannot be ratified, so as to authorize the Courts to enforce it. A contract of saléis incomplete until the delivery of the thing sold. C. O. 2150.</p>

<p>This case presents only questions of fact.</p>

<p>A PPEAL from the District Court, Parish of Caddo, Weems, J.</p>

<p>A PPEAL from the District Court, Parish of Caddo, Weems, J.</p>

<p>A PPEAL from the District Court, Parish of Rapides, Lewis, J.</p>

<p>Compensation takes place where the demand of plaintiff and defendant are equally liquidated. O. O. 2205. O. P. 368.</p> <p>Where the law authorizes the plea in compensation to be made, evidence is admissible to establish the demand.</p>

<p>All writs of fieri facias issued from any of the Courts of this State, must be made returnable into Court by the clerk thereof, in not less than thirty nor* more than seventy days from the date of issue. Revised Statutes, page 529.</p> <p>Where the sheriff omits to return theyici-i facias, within the time fixed by law, without showing tho consent of the party in whose favor it issued, he becomes, personally, liable for the debt, which may be recovered on rule alter ten days’ notice.</p> <p>The fact that the defendant in execution is insolvent, does not excuse the sheriff from calling on the plaintiff to point out property. He might be insolvent, and still have property liable to seizure.</p> <p>Where the liability of the sheriff is prima facie shown by the return, it is incumbent on him to show a legal excuse for his neglect.</p>

<p>Defendant executed Wo promissory notes for $4,000 each, dated February 1860, secured by special mortgage on real estate m Shreveport; W A. Violett & Oo., of New Orleans, afterwards became the holders of these notes. In the month of December, 1865, defendant drew two drafts, for the amount, of the two notes and interest, in favor of *VV. A Violett & Co., on Messrs. Levy & Dieter, \utli stipulation in the drafts, that on payment they would become subrogated to all the rights and privileges of W. A. Violett & Co., to the two mortgage notes held by them. The drafts were accepted and paid at the time fixed, 18th of March, 1866, and the mortgago notes delivered to them: llckl—That, by the holders of the notes, W. A. Violett & Co., endorsing on the back “received payment as stated,” they adopted all the conditions in the drafts, as much as if they had repeated the expression of subrogation in the receipt, and that a complete subrogation took place at the time of payment.</p> <p>Damages cannot be allowed defendant, as attorney’s fees, where the judgment is in favor of plaintiff</p>

<p>A PPEAL from the District Court, Parish of Rapides, Cooley, J.</p>

<p>The act; of the Legislature, approved February 28th, 1866, prescribing the mode by which the records of the parish of Rapides, destroyed by fire in the year 186d, may be reinstated, does not permit -the question of the invalidity of a judgment, the record of which has been destroyed, to be inquired into, in the suit for its restoration.</p> <p>Only the question of fact, as to the existence of such judgment and its destruction, can be made the subject of examination in such suits. Session Acts, 1866, page Í9.</p>

<p>Parol evidence is inadmissible to change the parties to a written instrument, by showing that the party who signed the note did so as the agent and surety for another, whose name does nob appear on the note.</p> <p>A promissory note, payable on timo with interest, bears interest from date.</p>

<p>Where the holder of a promissory note permit's a payment to be endorsed on the note in Confederate treasury notes, (on unlaxofvl issue) Courts "will not interfere, but will leave the parties where their conduct has placed them.</p>

<p>By an act of tbe Legislature, approved March 15th, 1855, to regulate corporations generally, the officers of each insurance company are required to publish annually a full statement under oath of the business of the company, etc.; and, on the estimate thus made and published, the assessor is. authorized to make his assessment for the year.</p> <p>A party objecting to the assessment roll on the ground that it is incorrect, must resort to the mode pointed out by law, and within the time prescribed, to have it corrected; otherwise, he will be bound by it.</p> <p>Where the tax-payer omits to furnish the assessor with á statement of his property taxed in the manner and within the time prescribed by law, the assessor is authorized and required to make the assessment from the best information he can obtain.</p>

<p>A . PPEAt from the Fourth District Court o£ New Orleans, Thcard, J.</p>

A PPEAL from the Third District Court of New Orleans, Fellowes, J. * * * But it is said that Cromer was taken aboard the Oornudella at New Orleans, and had not visited Bagdad for “ four or six weeks previous” to the loss of the steamer.

<p>Where the charter of an incorporated company has fixed fche qualification of voters, by declaring that each share of stock shall be entitled to one voto, which may be cast by the stockholder in person or by proxy, any vote or votes cast by a party at any election of the corporation, without the qualifications named, is null and void, and the election will be declared and enforced without counting such votes.</p> <p>The right of voting, conferred by the charter, is nob to be tested by the mere ownership of stock, but the transfer of it must be patent on the stock-book.</p> <p>Where stock of the company stands on the books in the name of an individual, as president, and has not been transferred by him on the books of the company, he has no right to vote on it, or for it, at any election.</p> <p>Stock, or shares standing on the books of the company, in the name of the corporation itself, cannot be voted for by one of its officers.</p> <p>An agent or mandatory, intrusted with the management and control of real estate here for his principal, who resided in one of the Northern States before and during the late war, was not absolved from his obligations to his principal by the breaking out of hostilities between the two sections of the country. The agency continued during the war, and his acts, as such, were binding on his principal.</p> <p>The doctrine, that astate of war dissolves or suspends all commercial partnerships existing between citizens or subjects of the belligerents, does not apply to agents or agencies.</p>

<p>A PPEAL from the Third District Court of New Orleans, Fellowes, J.</p>

<p>Where defendants sold goods for account of plaintiff, and received in payment Confederate notes, without plaintiff’s authorization to do so, they will be liable to him for the proceeds of the sale in legal currency.</p>

<p>A PPEAL from the Second District of New Orleans, Thomas, J.</p>

<p>The answers of a party interrogated on facts and articles form a part of the pleadings, and make a part of the record, and either party may use them without formally introducing them in evidence.</p> <p>Where articles of merchandise have been sold for cash and delivered, but not paid for, and a third party has attached them in the hands of the purchaser, the vendor may have the attachment set aside, and recover back the goods, if he make demand and identify the object sold within eight days from the day of delivery. Ü. O. 3196.</p>

<p>A PPEAL from the Fourth District Court of New Orleans, Tkéard, J.</p>

<p>A PPEAL from the Second District Court of New Orleans, Thomas, J.</p>

<p>'j he exercise by Congress of the constitutional power, vested in them to establish a uniform system of bankruptcy, repeals the insolvent laws of each particular State.</p> <p>The United States bankrupt law does not, however, divest the State Courts of the jurisdiction necessary to the final administration of the estate of an insolvent who had made a surrender previous to its passage</p>

<p>A PPEAL from the Sixth District Court of New Orleans, Howell, J.</p>

<p>Courts of justice will not lend assistance to enforce or annul contracts when the consideration is illegal and reprobated by law.</p>

<p>The jurisdiction of the Second District Court of New Orleans, over the persons and property of minors, whose parents had died within its limits, and to whom it had appointed a tutor, who has since died, is not divested by the removal of the minors to another btate.</p> <p>Where minors have removed to another State, after the death of their tutor in this State, and guardians have been appointed thereto by competent judicial authority, such appointments will not be recognized by the Probate Court of this State having jurisdiction of the minor’s property. They must qualify as tutors to the minors, according to the laws of this State, before they can sue for or obtain possession of the property of the minors.</p>

<p>This case involves only a question of fact.</p>

<p>A PPEAL from the Sixth District Court of New Orleans, Buplantier, J.</p>

<p>No greater alimony -will be granted a bastard child than is shown to be necessary for its support. Should a larger sum become necessary, it is within the province of the Probate Court to grant it.</p>

<p>A PPEAL from Third District Court New Orleans, Duplanlier, acting J.</p>

<p>Where an order for a suspensive appeal, fixing the amount of the bond as the law direots, is granted from a judgment for twenty-nine hundred and fifteen dollars and ten cents, and the bond is given for five hundred dollars: JZeW—rhat neither a suspensive nor a devolutive appeal can be maintained.</p> <p>To maintain an appeal as either devolutive or suspensive, the bond must be for the sum fixed by the Judge or by the law.</p>

<p>Where a party has acquired a negotiable note after its maturity, he will be protected asan innocent holder, if the immediate holder who transferred it to him took the note by endorsement bona'Jidc for value, before it was due.</p> <p>The holder of a promissory note in good faith succeeds to all the rights of the endorser under whom he holds.</p>

<p>During the existence Cf the community of acquets and gains, between T. L. King and his wife¿ he purchased immovable property, and put the same as stock into a partnership of which he became ft member. After the dissolution of the community, by the death of Mrs. King, the property was sold on execution for the debts of the partnership: and the heirs of Mrs. King bring suit for her oommumty interest therein: Held—That T. L. King, as the head and master of the community, had the right to put the acquets and gains as stock in the partnership; by so doing, it became the property of the partnership, and specially liable for its debts; and a forced sale thereof to pay them, divested whatever title the community had in said property.</p>

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

<p>In order that a creditor may maintain a writ of arrest against his debtor, the creditor must swear that the debt or damages which he claims is really due to him, and the amount thereof, and that the debtor is about to remove from the State without leaving sufficient property in the State to pay his debt. He must, besides, execute his bond in favor of the debtor, in a sufficient amount to cover the damages, which he might sustain from the wrongful issuance of the writ of arrest. O. P., Art 214, and amendments.</p> <p>The 3d section of the Act of the Legislature of 1855, (p. 42) placingresident and non-resident debtors on the same footing, as to the prerequisites for an arrest, is not repealed by the aot of 1860, (p. 80) amending and re-enacting Art. 214 of the Oode of Practice.</p> <p>The Act of 1856, only prescribes an additional condition for the arrest of both resident and non-resident debtors.</p>

<p>A .PPEAL from the Fourth District Court of New Orleans, Théard, J.</p>

<p>A commercial partnership is nofcliable on the obligations contacted by one of tlie partners previous to the formation of the partnership, notwithstanding the fact that the partnership was to continue th,e same business in which the obligations were contracted; and that specified portions thereof were assumed by the individual members.</p> <p>A party who introduces evidence noc admissible under the pleadings, cannot object to testimony being offered by the opposite party to rebut it.</p>

<p>T he sale of a horse, by a person employed by the owner as groom for his stable, is an absolute nullity, and the owner can recover back his property or the value thereof, with damages from the purchaser.</p>

A PPEAL from the Fifth District Court of New Orleans, Leaumont,- J. —On the 6th day of June, 1861, the plaintiff sold a negro woman, Phillis, and her three children to defendant for the sum of $1,800, payable $800 in cash and balance at twelve months, for note of defendant secured by mortgage on the property conveyed. See act of sale, pages 12 and 13.

<p>A PPEAL from the Sixth District Court of New Orleans, Duplanlier. J.</p>

A PPEAL from the Second District Court of New Orleans, Thomas, J. —On the 24th of May, 1861, the plaintiff applied for and obtained an order of seizure and sale, founded on the vendor’s privilege… Held: by the sheriff. It has no effect until such possession is acquired.' ':It ceases with such possession. That possession of the sheriff rests Only on the writ. When he returned the writ on the 25th of August, 1865, the seizure and possession of the sheriff necessarily ceased.

<p>A PPEAL from the Fourth District Court of New Orleans, Théard, J.</p>

<p>Payment of a promissory note to the holder, endorsed in blank, -will dischargé the drawer and endorser.</p> <p>Where the drawer and endorser of a promissory note seek to avoid payment on the ground that the , • holder is not the owner thereof, and that they have equities against the veal owner, the burden oí proof is on them to show the equities that exist. |J</p> <p>The holder of a promissory note, though he is only the agent of the owner, may sue and recover judgment in his own name.</p>

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

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

<p>A PPEAL from the Second District Court of New Orleans, Thomas, J.</p>

<p>Where an attorney-at-law has rendered services in his professional capacity to an estate, and the universal legatee has agreed to pay him a certain amount agreed upon, and makes a partial payment in liquidation thereof, the attorney may sue on this acknowledgment, and recover the balance against the succession. In such a case, the defendant representing the estate, cannot successfully urge the plea of res judicaia, where the amount first paid has been placed on the tableau, and a judgment rendered allowing his claim which has been paid.</p> <p>Where the defendant alleges a written contract, he will not be allowed to prove by parol a verbal acknowledgment by plaintiff, nor will he be allowed to amend his answer by striking out the word - ** written," when the case is on trial, in order to enlarge the evidence.</p>

<p>A PPEAL from the Fourth District Court of New Orleans, Thécird, J. ■</p> <p>Reporter.—The original opinion in this case is reported in the 18th Annual, page 483. The case should not have been reported until the rehearing was disposed of. See 18th Annual, page 483.</p>