Volume 8 — Robinson's Louisiana Reports

<p>The mere inéompeténcy of a person to testify as a witness in a cause, will not authorize a court to exclude from its consideration the legal inferences which might otherwise be drawn from acts done by him, at a time when it is impossible to suppose that any of the parties were manufacturing evidence for the cause.</p>

<p>No appeal will lie to the Supreme Court from an order of a District Court, directing a mandamus to a parish judge commanding him to allow an appeal to the District Court from a judgment rendered by him on an opposition made under the stat. of 26 March, 1842, relative to lands divided into town lots. Such an order is not a final -judgment in any case pending before the District Court C. P. 566, 839. Aliter, had the mandamus been refused.</p>

<p>The books of a merchant cannot be given in evidence in his favor; but if introduced by the other party, the whole must be taken together. C. C. 2244.</p> <p>To ascertain the amount due on a debt bearing interest on which partial payments have been made, interest should be calculated from the maturity of the debt till the day of a partial payment. If the payment exceed the interest then due, it should be applied first to the payment of the interest, and the residue to the extinguishment of the principal; interest to be calculated on the balance due up to the next partial payment, and so on. Should any partial' payment be less than the amount of interest at the time, it must be imputed, so far as it will go, to the extinguishment of interest. C. C. 2160.</p>

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

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

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

<p>A promise by a legatee to pay "to a third person, on the settlement of a succession, a certain per oentage on the amount of a.legacy, does not authorize the latter to oppose the seizure and sale of the legacy under a fi.fa. taken out by a creditor-of the former, on the ground that the seizure is more than sufficient to satisfy the claim, and that the sale of the legacy may cause irreparable injury to the opponent The right of third persons to oppose an execution, is confined to those cases in which the opponent is the owner of the thing seized, or has a privilege on it. C. P. 395, 396.</p> <p>The right given to a debtor to have a seizure reduced to an amount sufficient to satisfy the judgment and costs, is reserved to him alone. If he do not complain that too much has been seized, no other party can make the objection.</p> <p>A legacy, being indivisible as between the debtor and creditor, without the consent of both, a portion of it only cannot bfe seized and sold under execution. Per Curiqjpi: The executors of the estate cannot, without their consent, be compelled to pay the legacy to a number of transferrees, whether by voluntary assignment, or by legal transfers resulting from sales under execution.</p> <p>The stat. of 25 March, 1831, s. 3, extended by stat. of 29 March, 1833, s. 3, to third persons obtaining injunctions to arrest the execution of a judgment between other parties, not stating from what date, nor to what time, the interest allowed on the dissolution of an injunction is to run, such interest will be allowed from the date of'the injunction to that of its dissolution, as from that time the judgment creditor can proceed with his execution. t •</p>

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

<p>Seo. 3 of the stat. of 25 March, 1831, must be understood as allowing to the defendant in injunction, In case of its dissolution, the highest rate of conventional interest on the amount of his judgment from the date of the injunction to the time of its dissolution, and as leaving it to the discretion of the court to fix the measure of the damages he may be entitled to receive, subject to the restriction that they shall liot exceed twenty per cent, unless it be proved that damage was sustained to a larger amount. The court is not bound to allow in all cases damages to the extent of twenty per cent; the amount allowed must depend upon the circumstances of the case. It is only where the principal sum for which the judgment enjoined was rendered hears no interest, that interest can he allowed at ten per cent on dissolving the injunction ; where ¡Merest was allowed by the judgment enjoined at five per cent on a part of the principal sum, but no interest on the residue, the court should, on dissolving the injunction, allow interest at ten per cent on the latter, and at five per cent on the portion bearing interest at five per cent. Interest is to be allowed only on the principal sum for which judgment was rendered — not on the aggregrate of principal, interest and costs.</p>

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

<p>A judgment rendered in an action against the" master and owners of a steamer, for damages on the ground of injury sustained by plaintiff through the fault of those in command of the steamer, is conclusive as to such fault in a subsequent action between the master and one of the owners, to. recover from another his proportion of the damages, all of which had been paid by the former.</p> <p>A judgment rendered against the master and other owners of a steamer for damages, for injury sustained in consequence of the fault of the master, having been paid by the latter and one of the owners, they sued the other owner to recover his proportion of the damages. Defendant denied his liability to pay any thing to the master, who had the exclusive control of the boat at the time of the injury.; and prayed that, for any amount which he might be condemned to pay to the other plaintiff, he might have judgment in warranty against the master: Held, that defendant is not bound to reimburse to the master any portion of the damages occasioned by his own fault (C. C. 2972) ; and that, though defendant, if he pay any portion of the loss, may have recourse against the master, the la£-</p> <p>ter cannot be cited in warranty, his liability not being a case of personal warranty within the meaning of art. 379 of the Code of Practice. Per Curiam: Until defendant pays a portion of the loss he has nothing to claim of his agent, and can have no judgment against him.</p>

A motion to dissolve an attachment is too late, after a trial on the merits. 7 Mart. 398. Defendants having pleaded to the merits, plaintiffs are entitled to a judgment in personam, though the attachment be dissolved. That there was an appearance is proved by the bonding of the property. Code of Pract. art. 259. 7 La. 390. Besides there was an answer by counsel. A plea and trial on the merits cures any want of citation. Code of Pract. art. 333. 4 La. 482.

<p>The stat. of 8 March, 1836, dividing the city of New Orleans into three municipalities, did not abolish the old city corporation, nor deprive it of the right of suing for the amount of forfeited bonds and recognizances, directed by sect. 4 of the stat. of 1 April, 1835, to be recovered for its use. There is nothing in the statute dividing the city into municipalities," nor in any other statute, giving to any municipality the right to Recover the amount of a forfeited bond or recognizance executed before its Recorder.</p>

<p>Rule on the Judge of the Commercial Court of New Orleans to show cause why a mandamus should not be issued. The facts of ihiscase are sfa ed n the opinion delivered by.</p> <p>Morphy, J. This is a rule on the judge of the Commercial Court of New Orleans, to show cause why a mandamus should not issue, commanding him to allow the petitioner, Lucius Chit-tenden, a suspensive appeal from a judgment entered up against him as a garnishee in this case. The facts upon which the application is based, appear from the petition and the return of the judge, to be the following :</p> <p>Lucius Chittenden, being served with interrogatories to ascertain whether he was a stockholder of the Firemen’s Insurance Company, how many shares he held in it, and what amount per share had been paid on said stock, on the 22d of December, 1843, answered, that he denied that the plaintiff had any right to make him a party to this suit, or to propound interrogatories to him in any manner, or that he could be made liable for the judgment rendered therein, or any part thereof. He further answered under oath to the interrogatories with a reservation of all legal exceptions, as follows, to wit:</p> <p>To the first interrogatory : That he does not consider himself, by the 3d section of the charter creating the Firemen’s Insurance Company, a stockholder in that institution.</p> <p>To the second interrogatory : That, in March, 1839, he became the owner of sixteen shares of the stock of the Firemen’s Insurance Company; but that, as before stated, it became forfeited, and he ceased to be a stockholder therein, under the third section of the charter, long before the service of the interrogatories put to him in this case.</p> <p>To the third interrogatory: That he has sold none of the said shares, and has not otherwise disposed of them than by forfeiture as aforesaid.</p> <p>To the fourth interrogatory: That there has been paid on said stock, per share, about $26 or #27.</p> <p>On the 13th of January, 1844, the plaintiff took a rule on the garnishee, to show cause, on the 18th of the same month, why judgment should not be rendered against him for #360. Upon this rule the.sheriff endorsed the following return : “ The within rule could not he served, L. Chittende?i being out of the State."</p> <p>On the 18th of January, 1844, judgment was entered up against Chittenden, in favor of the plaintiff, for $360, as the amount due on sixteen shares at $22 50 per share; which judgment was signed on the 24th of January.</p> <p>On the 25th of April following, a notice of this judgment was served upon the garnishee, and before the lapse of ten days from the date of such service, he applied for, and obtained from the judge, an order for a suspensive appeal from the judgment thus rendered against him, returnable on the 4th of May following, on his giving bond and security according to law. This bond he filed on the 30th of April, 1844, in the penal sum of $600, with two competent and solvent sureties.</p> <p>On the 2d of May, 1844, the plaintiff took a rule on the garnishee, to show cause, on the 9th of May, why the appeal taken should not be set aside, and execution issue, on the ground that the time prescribed by law for taking such appeal had elapsed. This rule the sheriff’s return shows, was served on the 7th of May, on M. Greiner, in person. On the 9th of May, the judge made the rule absolute, and set aside the order he had previously made, allowing a suspensive appeal from his judgment. After stating these facts, the petition of Lncius Chittenden alleges, that the plaintiff has taken, or is about taking out, an execution, and that the judge of the Commercial Court refuses to set aside his last mentioned order, and to allow a suspensive appeal, which refusal operates as a denial of justice to him.</p> <p>showed cause against the rule. The answer of the garnishee is a confession of facts, entitling the plaintiff to an immediate'judgment against him. In such a case, it is within the discretion of the court to say whether the garnishee shall be called on to show cause or not. If the case is very clear, judgment is given as a matter of course. In this case, the garnishee acknowledged himself to be owner of the stock, and admitted that he had only paid a certain amount thereon, leaving a balance due. So much of the answer as speaks of a forfeiture, does not set it forth as an averment, but argumentatively. The answers of the garnishee are a mere evasion ; they do not aver that the stock had ever been declared to be forfeited. It is the practice of the court, a qua, always to allow a suspensive appeal when applied for, leaving it to the opposite party to move to set it aside, if the applicant be not entitled to it.</p> <p>The rule taken by the plaintiff on the garnishee was unnecessary and superfluous; and the judgment rendered against him, was well rendered as pro confes-so. The rule must be regarded as a mere ex parte motion fox-judgment. The neglect or refusal, merely, of the garnishee to answer the interrogatories which had been propounded to him, would have been a legal confession of assets, and sufficient authority for a judgment against him, without a rule. Code of Pract. art. 263. Parmly v. Bradbury, 13 La. 353. Deblanc v. Webb, 5 La. 82.</p> <p>By the public act incorporating the Insurance Company, the shares are fixed at $50, all which sum was liable to be called in. The garnishee confesses that he has paid not more than $27, per share. The answers of the garnishee admit the purchase of 16 shares, and that he has never sold them. The first answer states simply the opinion of the garnishee, — that he does not consider himself a stockholder,” &c. It is not therefore responsive to the interrogatory ; and taken in connection with the admissions in the following answers, entitled the plaintiff to judgment, without a rule. Charter of the Firemen’s Ins. Co. Act 10 March, 1838, sec. 1 and 8. Hart v. Dahlgreen, 16 La. 559.</p> <p>The garnishee had suffered the period prescribed by law for taking a suspensive appeal to elapse before making his application.</p> <p>No notice was required by law to be given to the garnishee of the judgment which had been tendered .against him. The notice though given, was not given either at the request of the plaintiff or his counsel; but through a mistake of the clerk. The garnishee having been cited to answer the interrogatories, and having actually answered them, became a party to the suit, and notice of a judgment rendered in such a case, is now dispensed with. Act. 20 March, 1843.</p> <p>The extent of the garnishee’s liability is to be tested by his answers to the interrogatories. Oakey v. Miss. & Al. Railroad Co. 13 La. 570.</p> <p>It is shown by the answers of the garnishee, that there was an unpaid balance in his hands, due the defendants, of $23 per share, on 16 shares of stock. He is considered as a mere stakeholder between the parties, (Kimball v. Plant et al. 14 La. 511,) and only called upon to declare what property is in his hands, and having so declared, the property is liable to be seized under execution. The effect of the answers is, to show the extent of the property liable to be seized, and the effect of the judgment against the garnishee, is merely to order the property so designated to be seized. He is therefore no more entitled to judgment, than any person would be in whose hands property had been seized, without the preliminary steps of interrogatories and answers.</p>

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

cited Civil Code, arts. 2294, 2295, 1928, §3. ll Toullier, No. 121, p. 153. Merlin Rep. vol. 26, verbo Quasi-Delit. Domat, vol. 1, b. 2, tit. 8, sect. 4. Ibid. tit. 9, Des Engagements, &c., par des cas fortuits. 2 La. 73. 7 La. 575. West. Law Journal, vol. 1, No. 5, p. 203. Graham on New Trials, 417. Sayer’s Law of Damages, 214, et seq. 2 Wilson, 205. 2 Wendell, 432. 17 Mass. Rep. 503. 9 Serg. & Rawl. 94. 2 Aiken, (Ver.) Rep. 255. 2 Hill, (S. Ca.) 573. 4 Hamm.

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

The petitioners represent: “ That by an act of the Legislature of the State of Louisiana, they were created, and are a body politic in fact and la w, de jure et defacto. That the church of St. Louis of New Orleans, belonging to the said bod}-politic, was built, finished and expressly appropriated to the use of the Catholic religion, in the year of our Lord one thousand seven hundred and ninety-four.

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

<p>Appeal from the District Court of the First District, Bu--chañan, J.</p>

<p>A sale of the property of a succession, legally and regularly made under a judgment of a Court of Probates, discharges the mortgages existing on it created by the deceased. The purchaser taires the property free of the encumbrances ; and the Probate Court may order their erasure. But a District Court cannot in such a case, issue a mandamus to the recorder of mortgages directing him to erase the mortgages, where the mortgagees are not made parties to the proceeding. Such a proceeding would be unavailing, unless carried on contradictorily with the parlies interested, and against whom it is intended to be used.</p> <p>A recorder of mortgages is not bound, ex officio, to erase from his records mortgages extinguished by a probate sale, or by the want of a new inscription, on being informed of the circumstances under which they are extinguished. He may do so, but it will be at his peril. The question whether the mortgages have been extinguished, can only be decided contradictorily with the mortgagees.</p>

<p>Appeal from the Parish Court of New Orleans, Mam'ian, J.</p>

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

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

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

<p>One who causes a drunken person to be arrested by the police for disturbing the peace in the neighborhood of his residence, is not liable in damages for so doing.</p>

<p>Though sheriffs and other public officers, acting in good faith, within the sphere of their duties, and in obedience to legal process, are entitled to protection, yet when they act in a manner contrary to their own convictions of right, and upon bonds of indemnity, persons injured by their proceedings are entitled to a liberal measure of damages.</p> <p>In an action against a sheriff for damages, for the illegal seizure and removal of plaintiff’s furniture, under an execution against a third person, evidence is admissible, under a general allegation that the furniture was removed against plaintiff’s earnest remonstrances, to show, in aggravation of damages, the manner in which the furniture was removed, and all the concomitant circumstances.</p> <p>In assessing damages for an illegal seizure of furniture, made by a sheriff under an execution against a i third person, the jury should take into consideration the manner in which the seizure was made, and the degree of rigor or lenity with which the officer acted.</p> <p>The deputy by whom an illegal seizure was made, need not be joined, as a co-trespasser, with the sheriff, in an action against the latter for damages.</p> <p>After an answer to the merits, an exception on the ground of the non-joinder of a co-trespasser, is too late.</p>

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

In actions like this the questions for consideration, are: 1. Were false representations made. 2. Was the person making such representations aware of their falsehood, or in a position in which he was bound to know the real facts. 3. Was there damage to the plaintiff. See Pasley v. Freeman, 1 Durnf. & East, 61. Eyre v. Dunsford, 1. East, 325, 6. Russell v. Clark, 7 Crancb, 87. U'pton v. Vail, 6 Johnson, 182. Allen v. Addington, 7 Wendell, 18, 19.

<p>The holder of a note cannot recover on it, without proving the signatures of previous endorsers by whom he alleges that the note was transferred to him. He might have recovered against the makers, on proof of the endorsement of the payee, without proving the signatures of the subsequent endorsers, had he not set forth such endorsements, and claimed under them.</p> <p>The holder of a note can strike out at. the trial those endorsements only, which have not been stated in the petition.</p>

<p>Appeal from the Court of Probates of New Orleans, Bermu-dez, J.</p>

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

This is an action to make the recorder of mortgages responsible for the consequences of erroneously erasing a special mortgage, on certain real property, in favor of the plaintiff.

<p>Where a draft, drawn by one as agent for a succession, was accepted, on the faith of the succession and not of the agent personally, for the purpose of raising funds for the purchase of supplies for a plantation belonging to the succession, for the use of which the proceeds were applied, and the authority of the agent to contract for the succession is not denied, the agent cannot be made personally liable for the draft. The acceptance of the draft is an admission of the agent’s right to draw in that capacity, and throws on the acceptors the burden of proving the want of authority.</p>

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

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>cited Chitty on Bills, (7 Am. ed.) 61, 149, 110, 389, 385. 2 Starkie on Evid. 245, 650. Dick v. Leverich, 11 La. 576. Jackson v. Commercial Bank, 2 Rob. 128. 1 Bullard & Curry’s Dig. 41.</p>

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

<p>Appeal from the Commercial Court of New Orleans, Watts, J. This was an appeal by the defendant from a judgment in favor of plaintiffs, for the cost of certain paving done in front of lots owned by the defendant.</p>

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

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

<p>Where one employed by the lessee of a market to collect his dues, but not to superintend its police, causes a person to be arrested for making a disturbance in the market, the act not being within the scope of his authority as agent, cannot subject the principal to damages for any injury resulting therefrom.</p> <p>A judgment of nonsuit in a prosecution in the name of the city, instituted before a magistrate for the recovery of the fine imposed for a disturbance of the public peace, is not conclusive evidence, in an action for false imprisonment, against the parties at whose instance the plaintiff was arrested.</p>

<p>Appeal from the District Court of the First District, Buchanan J.</p> <p>The return upon the alias fi. fa., and the sheriff’s deed, show that all the formalities of the law have been complied with ; and this is sufficient to sustain plaintiff ’s title unless rebutted by positive evidence. Lafon v. Smith et al. 3 La. 476.</p> <p>The opponents have produced no sufficient evidence to establish their objections. The proof is upon therfi. 4 La. 476. They have not made probable, or more than probable, what they ought to have made certain.</p> <p>A demand of property was made of the opponents before the seizure, — see the return upon thefi.fa. But though it were not made, the seizure would be still good, as a demand was not necessary. 16 La. 275. Plaintiffs had a mortgage upon the property seized, and had a right to seize. Code of Pract. arts. 648, 646.</p> <p>The opponents complain,that there was no notice of seizure. But there was notice, and to appoint appraiser. The law does not require that a return should be made into court, upon a notice of , seizure. The statement of the sheriff in the return on the alias fi. fa. is sufficient, unless the reverse is shown. This return shows, that the sheriff acted in good faith, and that defendants were non-residents of his parish; and to, do more than he did, was a legal impossibility.</p> <p>But, under the circumstances of this case, notice was unnecessary, because it was legally impossible. The opponents resided out of the parish, and the sheriff of St. Landry could not serve the notice. Code of Pract. art. 761. The sheriff of the District Court of this district was equally unqualified to serve it, for it was not a judgment or order of a court. Ibid. art. 760. Had the latter officer served the notice, it would not have been of any legal validity. Our law has made no provision for notice in such a case as this. The duty of giving notice, is only required in case the party is domiciled in the parish. Code of Pract. art. 654.</p> <p>A fieri facias was issued from the District Court of the First District to the sheriff of St. Landfy, who seized and sold a tract of land belonging to the defendants. It was the duty of the sheriff as soon as he received it, to seize the defendants’ property, and “give notice in writing to the debtor, and to annex thereto a list of the property seized, which he shall deliver to him in person, or leave at the place of his ordinary residence.” Code of Pract. art. 654. The same formalities precisely must be pursued, even where the property is mortgaged to the plaintiff. Code of Pract. art. 745. Unless this notice is given the sale will be null. 6 La. 631.</p> <p>The sheriff of St. Landry did not serve the notice of seizure in the present case on the defendant in person, or leave it at his place of residence, as appears by the return. He sent the notice to the sheriff of this District Court. That sheriff has made no return of it; does not recollect any thing about it; but was in the habit of giving such notices to the sheriff of the parish of Orleans. The latter has no recollection of it.</p> <p>What is done on an execution necessary to make a sale legal, must appear by the return. Code of Pract. arts. 642, 700. The return does not show that the notice of seizure was served on the defendant, and the verbal proof shows, that it was not. And this notice is essential to make the sale, otherwise it would be made without the debtor’s knowledge, and without any opportunity to prevent it, by payment, or any other means.</p> <p>To prevent a debtor’s property from being absolutely sacrificed by a rapacious creditor, the law requires its appraisement before sale, and that the owner should be summoned to appoint an appraiser. Code of Pract. art. 671. Act of 25th March, 1828, sec. 10. Nothing shows that this notice was given, and the property was sacrificed from the failure of the plaintiff to have this requisite of law complied with.</p> <p>There is no doubt, that if the sheriff of the District Court had served the notice of seizure, and summons to appraise, on the defendant, and returned it into court, this would have been legal. The District Court would have ordered him to do so if he refused, in order that the sale of property aright not be made, ex parte, without the owner’s knowledge. But the proceedings to sell property must appear in writing, and by the return of the sworn officer.</p> <p>Authorities are quoted which support a sale, made by the sheriff on a general return of compliance with the requisites of law. But these decisions were made before the monition law of 1834 was passed. That law was passed to enable the plaintiff to prove that the formalities of law had been complied with, and to have his title forever quieted. The onus probandi, from the very nature of the law, rests upon him. It is not for the defendant to prove that the requisites of law were not complied with. It is an enabling law for the plaintiff, and entitles him to a judgment of homologation, on his proving, in a legal manner, every thing that is denied in the opposition to the monition.</p> <p>If no means could be devised by which the debtor could be notified of the seizure and sale of his property, the court would have appointed, and sworn a curator, ad hoc, contradictorily with whom the executory proceedings could be carried on, rather than that they should be ex parte.</p>

The defendants bound themselves absolutely to cause the mortgage existing on the slave sold to plaintiff, to be erased by a certain period. This stipulation was ¿he law of the parties.

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

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

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

The appellant bound himself to satisfy such judgment as plaintiff-might obtain against P. Shannon & Brother. He so bound himself, because defendants had assured him that no judgment could possibly be obtained against them, inasmuch as they intended surrendering their property for the common benefit of their creditors, which they accordingly did. As the event on which the surety was bound to pay has never happened, he cannot be held responsible.

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

<p>Appeal from the Court of Probates of Jefferson, Smith, J.</p>

<p>that the court could give no judgment which the court below was incompetent to pronounce; that the Court of Probates has no jurisdiction, ralione materia, of any claim against the plaintiff for a sum of money ; that her consent could not have conferred it; that far from consenting, she excepted to that part of the defendants’ answer which contained a claim in reconvention, and her exception ivas sustained, the court declaring in its judgment, that it only examined and decided upon the claims set up against her, as a.defence to,' or in compensation of her own claims. If it was considered1 byLthe court that she ought to pay anything, the' judgment should have gone no further than to reserve to the administrators '-their,'''right to claim it from her in the District Court^and to her, tire right to resist the claim by showing a sub-rogation 'tNtheTnghts of the mortgage creditors,</p> <p>It is not believed that it was intended by the court, that the plaintiff should pay anything ; but as the language of the decree may admit of dispute, we pray that it may be amended. There is full proof in the record that the plaintiff has paid the debt to Shepherd in full, and almost the whole of the debt to Gardére.</p> <p>For the purpose of subrogation, it is unimportant how the payment is made, provided it has the effect to extinguish the claim of the original creditor against the debtor for whom the payment was made. The plaintiff has shown a legal subrogation to the rights of the mortgage creditors ; and the language of the decree ought to express clearly, that, in virtue of that subrogation, she is entitled to retain the sum due by her to the estate, which, if paid, could only be paid for the benefit of these very mortgages, the estate, in all other respects, having been fully settled up, and all the privileged claims paid off.</p>

<p>Rule on the Judge of the Court of Probates of West Baton Rouge, Favrot, J., to show cause why a mandamus should not be issued to him.</p>

<p>Decision in Conrad v. Prieur, 5 Robinson, 49, affirmed.</p>

<p>Owners of real estate in the second Municipality of New Orleans cannot be compelled to pay any portion of the cost of paving done in front of their property, unless such paving was directed to be done by a special ordinance of the Municipal Council, after notice given to those interested, that they might have an opportunity of opposing its passage. Stats. 8 March, 1836, s. 11; 20 March, 1840, s. 7. Ord. of 2d Municipality of New Orleans of 2 May, 1836. Where paving has been done on the mere order of the chairman of the committee on streets and landings, a subsequent ordinance providing for the payment for the work, though it may be considered a ratification by the council of the acts of the chairman, cannot bind those who had no opportunity of opposing the execution of the work by showing that it was unnecessary.</p>

<p>Where the holder of a promissory note, who had commenced an action against the malters, releases, on the trial, one of his co-debtors, in solido, in order to use his testimony, but without expressly reserving his recourse against the other,, the the latter will be discharged. C. C. 2199. And where in such a case, the release erroneously recites that a judgment had been obtained against the witness, from all liability under which it releases him, the fact that no judgment had been rendered is immaterial, the plaintiff evidently intending by releasing the supposed judgment to release the debt itself.</p>

An insolvent is not absolutely protected against suits for debts anterior to the surrender of his property. 1 Mart. N. S. 11. He may waive this benefit, if entitled to it. The inferior judge was, therefore, wrong in deciding a case on an exception personal to the defendant, and not pleaded by him. cited Civ. Code, art. 2173. Code of Pract. art. 92. Bui. & Curry’s Dig. p. 214, ss. 3, 5. 3 La. 334. 4 La. 45.

In the case of Miln v. Prest, 4 Campb. 393, it was decided, that where the language used on the presentation of a bill for acceptance could be considered as importing a promise to accept on the arrival of a certain cargo, on proof of the arrival of the cargo, the drawee would be bound.

<p>A lease made by the riparian proprietor of a batture lying between the public road and the river in front of his land, cannot he annulled by a lessee who has not been disturbed in the enjoyment of the property, on the ground that the premises leased are a portion of the bank of the river, the use of which is free and not susceptible of being leased. The space between the public road and the levée is private property, to the exclusive use of which the owner is entitled ; and he may use the part which extends from the levée to the river, subject to the regulations of the municipal authority, provided he does not prevent the use of it by others; and he may confer upon a lessee the same right. C. C. 446.</p> <p>The Civil Code, art. 2652, recognizes the validity of the lease of another’s property, by declaring that he who leases the property of another warrants the enjoyment of it against the claim of the owner. The principal obligation of the lessor is, to maintain his lessee in the quiet enjoyment of the thing, and, while he is undisturbed, he cannot gainsay the title of his lessor; the object of the contract being the use of the thing.</p>

Appeals from the District Court of the First District, Buchanan, J. The certificate of a recorder of mortgages that no mortgage exists on particular property, is only prima facie evidence of the fact. It may be rebutted. JDreux v. Ducournau, 5 Mart. 625. La-farge v. Morgan, 11 Mart. 518. The authority to release being conditional, and the condition not having been complied with, the release was null, and there was no proof of any subsequent ratification.

<p>Whore one to whom a slave has been adjudicated at public auction, discovers that the slave is affected with a redhibitory disease, he may decline to complete the purchase.</p> <p>Where the defendant in an action to rescind the sale of a slave on account of a red-hibitory defect, alleges, in her answer, that the defect complained of was an apparent one, the allegation will preclude her from recovering against her vendor cited in warranty.</p> <p>A sale cannot be rescinded for a redhibitory defect, proved by the defendant, or admittod by the plaintiff, to have been an apparent one, or one known to the purchaser at the time of the purchase. C. G. 2497, 2498.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>The defendant cannot be held liable for a mere oversight of the party for whom he was surety. This has been decided in New York. See 10 Johnson, 271. But if the surety was liable, he has been discharged by the failure of plaintiffs to give defendant reasonable notice thereof. Plaintiffs were guilty of gross laches. No attempt was made by them for nearly two years, to collect the notes ; and the payment of their amount to the holders must be considered to have been made at their risk.</p>

<p>No action'can be maintained by the syndic of an insolvent estate to recover from a third person the amount of certain notes given for the price of property belonging to the 'estate, 'on the allegations that the notes were illegally obtained by defendant from a former syndic, with full knowledge that the latter had no authority to dispose of them and that he did so in fraud of the creditors of the insolvent, and that the amount of the notes was received by the defendant, where it is neither alleged nor proved that the former syndic has failed to account for the .proceeds of the notes nor that any account has ever been demanded of him.</p>

<p>A judge has no right to state to the jury his own conclusions drawn from the law and evidence in the case. Such expressions of opinion are calculated to have an undue weight with the jury.</p> <p>To ascertain whether one employed by a corporation to superintend and direct the construction of a canal, had authority to enter into a particular contract relative to labor to be done in its construction, on behalf of his employers, all the fact? and circumstances of the case should be tajten into consideration. The authority to make such a contract need not be express and special; it may he inferred from circumstances, and the objects of the parties.</p> <p>No particular form is required for a mandate. For certain purposes it must be express and special; (C. C. 2966 ;) for others, it may he verbal and general. lbi<|. 2961. It may vest an indefinite power, to do whatever may conduce to the interest of the principal, lb. 2964. And when powers arp granted to a person exercising a profession, or performing certain functions, the authority is to be inferred from the functions which the mandatary exercises. Ibid. 2969.</p> <p>The contract of mandate may be tacit as well as express; and the acts of, the principal must be fairly and liberally construed towards those who contract with the agent, as well as towards the agent.</p> <p>Where the law requires a contract to be in writing, the power to execute it must be in writing also; but where this is not required, the power maybe in the simplest form, and the intention of the parties may be gathered, as much from their acts, as from their agreements.</p> <p>A mandate given in writing, in express terms, cannot be enlarged by parol evidence ; but, as a general rule, where authority is given by informal instruments and confers general powers, they should be construed with more liberality than more formal and deliberate instruments. The authority should also be construed, as to its nature and extent, according to the terms used and the objects to be accomplished.</p> <p>In an action on a contract alleged to have been executed by an agent of the defendants, the latter cannot object to the contract’s being read in evidence on the ground that the authority of the agent had not been proved ; but if no authority be aftewards shown, or none can be properly inferred from the evidence, the contract will be of no avail.</p> <p>The return of a sheriff showing the manner in which interrogatories propounded to a witness were served on the opposite party, may be amended on the trial of the case. Per Curiam. A sheriff should be permitted to amend his return so as to make it conform to the fact, whenever it is called in question. It is not too late on the trial of the case.</p> <p>An agent by whom a contract has been exocuted, and who has been released by the plaintiff from any liability to him, may be examined as a witness in an qctlqq on the contract, to prove the extent of his powers.</p>

<p>A garnishee cannot interfere, as to the merits of the case, between the plaintiff and defendant.</p> <p>No express authority in the charter of a corporation is necessary to authorize it to make a promissory note, in the course of their legitimate business.</p> <p>A creditor who has obtained judgment against a corporation and issued execution thereon, may propound interrogatories to any stockholder, under the 13th section of the stat. of 20 March, 1839, to ascertain whether the whole amount of his stock-subscription has been paid in ; and if any portion be unpaid, it may be seized by the creditor in satisfaction, as far as it will go, of his judgment. The fact of other stockholders having paid less than their proportion, is a matter to be settled between the stockholders themselves.</p>

<p>Appeal from the Commercial Court of New Orleans, Waits, J.</p> <p>This was an action to recover from the defendant as owner of the steamer Paragon, $28,000, the value of 850 bales of cotton, alleged to have been received by defendant to be delivered to plaintiffs, as will appear from a bill of lading annexed to the petition. The defendant answered by a general denial, averring that he had delivered to plaintiffs all the cotton he ever contracted to deliver to them; and by claiming $10,000 for freight of cotton, and for work and labor done, &c. There was a judgment below, in favor of the defendant, against the plaintiffs, for $3720 73, with, interest, from which the latter appealed.</p> <p>The bill of lading must determine the rights and duties of the parties. It is a contract in writing, and its terms cannot be varied by parol proof.' There is no- ambiguity in it, and on all questions as to its meaning, it must speak for itself. 1 H. Black. 359. 8 Mart. 206. This bill of lading, however, like all other contracts, may be affected by parol, when, by reason of fraud or mistake, it varies from the agreement on which it was founded ; but in such a case, the pa-rol proof is not to ascertain the meaning of the contract, but to ascertain the meaning of the agreement; and then, if it be proved that the non-conformity of the contract with the agreement arose from fraud or mistake, the court will reform the contract, and enforce the rights of the parties according to the reformed contract.</p> <p>It must be obvious, that such parol proof cannot be admitted under the general issue, but must be the subject of a special answer. At common law, the contract would prevail at law, and the power to reform it belonged to a court of chancery. Giving every latitude to a more loose or liberal practice, it seems to be going too far to admit a defence not disclosed by the answer, but which the answer obviously tends to conceal. 8 Mart. 206.</p> <p>The judge below seems to think, that the parol evidence in this case was admissible, because it was offered to explain the meaning of the bill of lading; and he thought it might be done as in the case of a receipt, and particularly between the parties to it. Now the case from Blackstone shows the bill of lading to be a contract; and the case in 8 Martin shows, that parol evidence cannot be admitted to explain it. If it were in the nature of a receipt, it could not be varied by parol. See 3 Mart. N. S. 454. 7 Ibid. N. S. 206. This error of the judge no doubt led him to disregard the exception, that parol proof ought not to be permitted under the general issue. *</p> <p>What then was the contract? It was an engagement on the part of the defendant, to carry a quantity of cotton from Tus-cumbia to New Orleans, and to deliver it to the plaintiffs for the sum of $2 50 per bale. We have then only to inquire whether he has delivered it according to the contract. Confessedly he has not. One hundred and twenty bales are missing, and have never been delivered.</p> <p>The defendants seek to protect themselves by the facts set forth in the depositions; and say, that the contract ought to be reformed, because, by the agreement, they were not to be liable for any loss occasioned by transporting the cotton to Waterloo; a part of the distance, and that their duties, as common carriers, did not commence until the cotton reached that place. Now it is obvious, that this asserts an agreement quite different from the contract, but independent of its inadmissibility for the reasons above mentioned, two questions are presented for consideration.</p> <p>First, whether there was any fraud or mistake, by reason of which the contract was made to speak a language' different from what it ought to have spoken. Such fraud or mistake must exist, or the contract cannot be reformed. “ Where each party,” says Judge Story, “is equally innocent, and there is no concealment of facts, and no surprise or imposition, the mistake, whether mutual or unilateral, lays no foundation for equitable interference. It is strictly damnum absque injuria.”</p> <p>In the case of Hunt v. R&usmanier, (8 Wheat. 174,) a debtor had agreed with his creditor to give him a security for his debt on a ship belonging to him; and they agreed, at the same time, as to the mode of doing it, which was by granting a power of attorney to sell the ship and apply the proceeds to the payment of the debt, if it should be unpaid at the expiration of the term of credit. . The debtor died, and a bill was filed by this creditor to have his contract reformed, and praying for a decree declaring him to have a mortgage lien on the ship, which was clearly the intention of his debtor to grant him. The court refused to entertain the bill, because there was no mistake or fraud in the taking of the power of attorney. It seems, therefore, unless the defendants in this case can show that they signed the bill of lading from some misapprehension, they ought not to be permitted to set up a parol agreement.</p> <p>But this view of the case need not be pressed, as it is clear that the second matter suggested for consideration, viz., whether, in point of fact, there was an agreement differing from the contract, is clearly with the plaintiffs. “ In all such cases,” — that is, in cases of fraud and mistake, says Judge Story, "if the mistake is clearly made out, by proof entirely satisfactory, equity will reform the contract, so as to make it conformable to the intent of the parties ; but if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief, on the ground that the writing ought to be treated as the best evidence of their intent.” I Eq. Jur. Ifi9.</p> <p>When the cotton was laden on board of the flats at Tuscumbia, it was at the risk of some person as a common carrier. Who was that person ? The boats on which it was laden, belonged to Bowman, who had purchased them of Reese, Ferris & Banks. The price agreed to be paid for transportation, was the usual price for transporting goods from Tuscumbia to New Orleans. Does the fact then, that Bowman agreed to pay a portion of the freight thus reserved by the bill of lading, to Reese, Ferrie <fc Banks, for taking the cotton to Waterloo, in any way diminish his liability to the owners of the cotton? This question arose in the case of Hyde v. The Trent Navigation Company, 5 Durnford & East, 201. In this case the bill of lading was from Gainsborough to Manchester. The cotton was taken on board defendants’ barge on the Trent, and was safely landed and warehoused in the Duke of Bridgewater’s warehouse, in Manchester, where it was destroyed by fire. The question was, whether the risk of the carrier continued until the cotton was delivered to the^ plain tiff, who resided in the town. The following facts were proved : It was the practice of some persons to send their own carts to the warehouse, but the general usage was for the defendants to furnish carts to carry the cotton from the warehouse to the house of the owner. But the defendants had discontinued the business of carting, and all the profits of that portion of the business was given over to one Hubbard, which fact was known to the plaintiff. The court declared the defendants to be liable, because they had made a charge for conveying it to the oioner ; and, although it was known to the plaintiff that this charge was paid over to another, for whose use they collected it, yet the defendants’ liability was not thereby diminished.</p> <p>“In this case,” says Lord Kenyon, “there is one peculiar circumstance that makes it unnecessary to decide the general question, and that is the charge made by the defendants for the cartage at Manchester.” — “ I am glad,” sa}rs Ashhurst, J. “ to find one circumstance which puts the case out of all doubt, namely, that one of the bills contains a charge for cartage, which is decisive to show, that the liability continued until the goods were delivered.”</p> <p>If then, the fact of charging cartage was decisive of the question of the defendants’ liability, for the carriage of the goods from the warehouse to the plaintiff’s residence, is not the fact that Bowman charged the owners of the cotton for transportation from Tuscumbia to Waterloo, equally decisive of his liability to them. And if he paid the whole, or a part of it, to Reese, Feme & Banks, that can no more change his liability than did the fact of the cartage being paid over to Hubbard, a fact well known to the plaintiff.</p> <p>That Bowman did charge for transportation from Tuscumbia to Waterloo is apparent, not from the bills of lading alone. He settled with the consignees at $2 50 per bale. Now it is in evidence, that this is the price of transportation from Tuscumbia. The price from Waterloo was two dollars. The fifty cents was made up of twenty-five cents warehouse charges, which was not properly storage, but a premium paid by the boats for a preference given them over other boats ; and of twenty-five cents for lighter-age to Waterloo. Both these sums, it will be observed, are charged to the owners in the bill of lading, and collected of the consignees.</p> <p>Reese, Ferrie & Banks did not, in lightering the cotton, act as agents for the owners, but as agents for the steamboat; and if they have not discharged their duty, they are responsible to their employers.</p> <p>But the defendant’s counsel rely on the want of capacity of the consignees, to sue for non-delivery. This is not law — the case relied on does not bear them out. Abbott on Shipping, 391. The case was on an assignment of the bill of lading by the consignor to one as his agent. It was not a consignment to a factor for sale. Such a consignee has a special property by the delivery to the carrier. The bill of lading itself, is evidence of property in the consignee. 2 Campb. 38. 2 T. R. 71.</p> <p>The defendant’s counsel refer to Abbott, 216. That writer says, that if the person to whom the consignor, on a bill of lading to deliver to the consignee or his assigns, directs thedeli very to be made to an agent, having no property in the goods, such agent cannot, in his own name, maintain a suit for non-delivery. He cites the case of Waring v. Cox. It will be seen, by looking into the case, (4 East, 211,) that the consignor sent the bill of lading to an agent to enable him to receive the goods for his use, in case the Consignee should fail. He sent an unendorsed bill of lading to the consignee. Now the court held, that the shipping of the goods to the consignee vested the property, subject only to be divested by the right to stop in transitu, and that the consignee having got possession, that right was destroyed, although the carrier ought not to have delivered the goods. The court intimate a doubt, but do not decide, that the agent to whom the bill of lading was sent, could not sue in his own name.</p> <p>The testimony of witnesses was admissible, between the parties to a bill of lading, to explain their intentions. 17 Mass. 257. 14 Johns. 210. 20 Johns. 338. 3 Serg. &. Rawle, 309. 1 Haywood, 70. 3 Cranch, 311. 3 Starkie, 1014, 1044, 1729, 1730. 2 Mart. N. S. 122, 333. 8 Mart. N. S. 542. A mere naked consignment gives no right to the consignee to maintain this suit. Abbott, 216.</p>

The case must be remanded for further proceedings, judgment having been rendered without the cause having been set down for trial, either regularly, or by consent. Code of Pract. arts. 533, 535, 463. Acts of 1841, p. 17, s. 16, 6 Mart. N. S. 635. 3 Robinson, 370. Judgment should have been rendered only on the exception. Code of Pract. arts. 344, 536, 606, 532, 419, 491, 492, 494, 495.

urged that the case should be remanded for further proceedings below. contended, that the judgment of the court below was correct. The plaintiff having admitted the existence of the discharge by impeaching it, when the impeachment was set aside, the whole case was before the court. There was no occasion to defer a decision — to do so could have been of no advantage to either party.

<p>Where no sale could be made of a slave seized under execution, for want of any bid of sufficient amount to satisfy a special mortgage entitled to priority over the plaintiff’s judgment, and the fi. fa. is returned into court, the slave cannot be detained by the sheriff. C. P. 684. Nor will the fact of a judgment having been obtained from a court of original jurisdiction, annulling the mortgage as simulated and fraudulent, authorize the detention of the slave, where the defendant has taken a suspensive .appeal. If the plaintiff was apprehensive that the slave, if returned to the debtor, might be concealed or taken out of the state, he might have caused him to be sequestered, notwithstanding the suspensive appeal.</p>

<p>Appeal from the Court of Probates of New Orleans, Bermu-dez, J.</p> <p>cited the Civil Code, arts. 2612, 3613, 2614, and the Commentaries of Troplong on the corresponding articles 1689, 1690, 1691, of the Code Napoleon. De la Vente, vol. 2, p. 453, et seq. Nos. 881, 882.</p>

The facts of this case are stated in detail in the opinion pronounced by Gakland, J. In the month of January, 1842, the United States, by their attorney for the Eastern District of Louisiana, filed… Held: to examine into its condition, the causes of its suspension, and for other purposes not necessary to be now stated.

The facts of this case are thus stated by The plea of compensation would be good though plaintiffs had acquired the notes after notice of the transfer. Such is the law of Mississippi. See Howard & Hutchinson’s Digest, 373, sec. 12; Ibid. 615, sec. 5. Laws of 1840, p. 15, sec. 7. Ibid. p. 21, sec. 2. But it is said, that the laws of 1840 are a violation of the charter, and unconstitutional. It does not appear whether the bank accepted those laws.

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

I. The defendant being entitled to avail himself of all irregularities in the attachment suit against Alsbury, contends, that the attachment in that case was void by reason of the insufficiency of the affidavit. The plaintiff’s agent swore only that defendant was justly and really indebted to plaintiff, and did not swear that the debt was due.

This was an action by Schmidt, a creditor of Zimpel, to annul a conveyance made by Frey to Manouvrier of property belonging to Zimpel, on the ground of fraud and simulation, and to subject the property sold to the payment of plaintiff’s claim.

<p>TJ olice of a loss of property, insured against fire, should he given with as little delay as the circumstances of the case will permit, to enable the insurers to talte measures to protect their interests, and preserve any property saved from damage or loss ; but the preliminary proof, required for the purpose of adjusting the loss, need not be presented so promptly. The clause requiring preliminary proof is always construed liberally. Where notice of the loss was given immediately, a delay of nineteen days from the date of the fire, is not unreasonable.</p> <p>Notice of the loss of property insured against fire, and the preliminary proof required, are in the nature of an amicable demand; and to put a party upon strict proof, the want of them should be specially pleaded.</p> <p>The fact of one of the'conditions of a policy of insurance requiring that any claim for a loss shall be sustained, “ if required, by the books of accounts and other vouchers” of the assured, creates no implied warranty on the part of- the latter to keep books of account, and to be ready to exhibit them when called upon.</p> <p>Decision in Marchesseau v. Merchants Insurance Company, (1 Rob. 438,) as to the evidence necessary to prove a loss under an open policy of insurance, affirmed.</p> <p>To defeat a recovery on a policy of insurance on the ground that the plaintiff set fire to the premises, it is not necessary that the evidence should be such as would convict the plaintiff on a prosecution for arson.</p>

<p>Appeal from the Parish Court of New Orleans, Maurian, J.</p> <p>The question in this case is, whether the execution of the Union Bank, of March, 1841, is to be considered as still pending against the Commagéres, and the plantation as in the possession of the coroner under that writ, when the Bank of Orleans issued its writ in 1843. Now the former writ had been executed and returned. Hodge had become the purchaser; had complied with the terms of the sale by paying to the Union Bank all the instalments then due ; had taken possession and retained it; cultivated the estate, put more slaves on it, and gathered two crops by the consent and permission of the Union Bank. If there are subsequent instalments due, another Ji-fa. should have been issued by the Union Bank against him; but if none were due, a subsequent creditor may surely seize the crops, and obtain a preference over the Union Bank, which had issued no new writ. The plantation could not be sold without paying, or assuming the balance due to the bank; but unless it exercised its rights by seizure, the crops are surely liable to Hodge’s other creditors, who are not to have their hands tied while the debtor is receiving ten thousand dollars a year, and to remain without the capacity of realizing their debt from his revenues. Code of Pract. art. 272. Civil Code, art. 2586. Rodriguez v, DuBertrand, 1 Rob. 535. Black v. Catlett, Ib. 540. Gallier v. Garcia, 2 Rob. 319.</p> <p>cited Civil Code, arts. 456, 457, 3278, 3367. Code Nap. art. 2133. Code of Practice, art. 401. 19 Duranton, Nos. 254, 260.</p>

The marriage of the plaintiff having taken place in 1813 it is by the laws then in force that the present controversy must be governed. By the statute of June 7, 1806, it is provided, sect. 10, that “ slaves shall always be reputed and considered real estate: shall be, as such, subject to be mortgaged, according to the rules prescribed by law ; and they shall be seized and sold as real estate.” Bullard & Curry’s Digest, page 49.

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

<p>A party in whose favor judgment had been rendered in a court of original jurisdiction on an application for an order of seizure and sale, caused the mortgaged property to be sold pending a devolutive appeal, and purchased it himself, crediting the execution by the price. The judgment having been reversed on appeal and the ease remanded for a new trial, on a rule taken by defendants on the plaintiff, to show cause why the sale should not be rescinded -• Held, that the court properly ordered the rule tobe made absolute and the sale rescinded, unless the price of the adjudication was paid into court Within a fixed period ; ,and that the right to rescind the sale could not be affected by any judicial mortgage in favor of a creditor of the purchaser, the eviction of the latter by a superior title relieving the property from all mortgages acquired under him.</p>

<p>Under the Code of 1808, conventional interest could not be recovered, unless the amount had been fixed in writing. Testimonial proof was inadmissible, to prove an agreement to pay such interest. Book 3, tit. 10, art. 32.</p> <p>Where an authentic act acknowledging a balance to be due, is silent as to the payment of interest, receipts signed by the creditor, acknowledging the payment of instalments of conventional interest “ as per agreement,” found .among the papers of the debtor after his death, are. not written evidence of an agreement to pay conventional interest on such balance, nor a recognition in writing of any existing agreement to pay it.</p> <p>The obligation of a vendor, under his warranty, must be determined by the law in ' force at the time of the sale.</p> <p>Where a judgment has been rendered in the Supreme Court in favor of the plaintiff, in an action against the purchaser of land instituted by a third person claiming to be its owner, the purchaser must be considered as evicted from the date of the order for the execution of the judgment made in the court below, and the value of the property at that time is the measure of the damages due for the eviction — not its value at any subsequent period when the owner may take actual possession. Code of 1808, book 3, tit. 6, art. 57.</p> <p>Heirs represented by an attorney of absent heirs appointed by a court, are not heirs “ represented in the State,” within the meaning of art. 122 of the Code of Practice, which declares, that “ all actions may be brought against yacant successions, when all the heirs arc absent and not represented in the State, provided they be instituted against the curator.” The representation which it contemplates is that of an agent, or curator duly appointed ; and when the absent heirs are not so represented, a judgment rendered against the curator of the vacant succession, is as valid against the succession as if rendered against the heirs. C. P. 123. C. C. 1205.</p> <p>Where the curator of a succession claims in his account rendered to the Probate Court, an amount as damages for an eviction from land sold to him by the deceased, the allowance of which is opposed by the heirs, that court has jurisdiction of the questions whether there was a warranty and eviction, and as to the amount of the damage. A Probate Court may inquire into the title to real estate, when necessary to enforce its admitted jurisdiction. Nor will the fact of the right to damages being unliquidated, be any obstacle to their being claimed and allowed in compensation of any amount due by the curator to the succession. It is not necessary that the damages should have been previously liquidated in an action by the curator against the heirs.</p> <p>Pleading in compensation should be favored, as it tends to prevent the unnecessary multiplication of suits.</p> <p>Appellant, while acting as curator of a vacant succession, was evicted from land purchased by him from the deceased, and in his account he credited himself with the amount claimed as damages for the eviction. On an opposition by the heirs, ■on the ground of prescription: Held, that until they appeared and claimed the succession the curator was its legal representative, and could not enforce a demand, in his own favor, against it.; and that to the extent of the funds in his hands, his claim was compensated, and might be opposed to the claims of the heirs by way of exception, even if incapable of being enforced in-a direct action.</p>

Ow Saturday, the 6th of July, 1844, the following order was entered, by direction of the court, on the minutes of its proceedings : It is ordered by the court, that an attachment issue, directed to the sheriff of the parish of Orleans, commanding him to attach and bring before this court, on Tuesday next, the 9th of the present month of July, at ten o’clock A. M., the body of Pierre Soldé, one of the attorneys and counsellors of this court, to answer for a contempt of this…

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

<p>The killing a slave, like that of a free person, may he either murder or manslaughter according to the circumstances of the ease ; and both offences are punishable by the laws of this State. The 16th section of the stat. 7 June, 1806, was enacted for the purpose of removing all doubt on this subject.</p> <p>The acts of the Legislature, in 1806, were passed in both the English and French languages, both being texts; and they must be construed the one by the other— as parts of a whole, and not as distinct acts or expressions of the legislative will.</p> <p>The second section of the stat. of 20 March, 1818, punishing the crime of manslaughter, applies to the offence when committed on a slave, as well as on a free person.</p> <p>The provision of the first section of the stat. of 20 March, 1818, that on trials for murder, the jury may find the prisoner guilty of manslaughter, is not inconsistent with the 18th sect, of the 6th art. of the constitution.</p> <p>An indictment commencing “ State of Louisiana, Parish of, &e.,” which recites that, “ The grand jurors for the State of Louisiana, &c., acting in the name and by the authority of the State,” &c., is a sufficient compliance with sect. 6, of art. 4 of the constitution, requiring all prosecutions to be carried on in the name and by the authority of the State.</p> <p>It is sufficient in an indictment, to charge that an offence was committed in a par-tieular parish; no further designation of the place is necessary. An averment that the offen.ce was committed at a parish is equivalent to in the parish.</p> <p>Where on an indictment for murder the jury find the prisoner guilty of manslaughter, it is not necessary that the verdict should expressly negative the murder, . nor declare whether the manslaughter was voluntary or involuntary, the law making no difference in the punishment of voluntary or involuntary roansiaugh-</p> <p>In criminal proceedings it is not necessary that the verdict should be written upon the indictment or signed by the foreman of the jury. It is sufficient that a verdict be delivered orally, in open court, when it is recorded.</p> <p>As every indictment for morder contains virtually an accusation of manslaughter, a verdict on such an indictment, finding the prisoner “ guilty of manslaughter in manner and form as charged” is strictly correct.</p> <p>In criminal proceedings no foreman is appointed to the jury.</p> <p>The Code of Practice has no application to criminal prosecutions.</p>

<p>A slave may be convicted of the crime of rape, under the 7th sect, of the stat. of 7 June, 1806, on proof of his having attempted to have carnal intercourse with a white female child under ten years of age.</p>

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

<p>In a prosecution for larceny, proof that the offence was committed on the day charged in the indictment, is not necessary. It is sufficient if it be shown to have been committed at any time within a year previous to the finding of the indictment.</p> <p>.Evidence discovered since the trial of one found guilty of larceny, which neither disproves nor has any tendency to disprove the main fact found by the jury, that the accused was guilty of larceny within twelve months previous to the finding of the indictment, cannot entitle the prisoner to a new trial.</p>

<p>Appeal from the Parish Court of Tensas, Montgomery, J.</p>

<p>Appeal from the Criminal Court of the First District, Ca-nonge, J.</p>

<p>It is not necessary that all the counts of an indictment should be written upon the same sheet of paper, nor, when on separate sheets, that they should be attached together.</p> <p>Where, on a motion for a new trial, in a criminal prosecution on the ground of the discovery of an important witness since the trial, the name of the witness is not disclosed in the affidavit, the motion must be overruled.</p>

<p>It is unnecessary in an indictment for murder to state the length, breadth, or depth of the wounds. The term mortal is indispensable in describing the bruise or wound; but whenvso described, an adequate cause of death is assigned, which will be supported by evidence of any deadly wound or bruise. It has never been required to prove either a wound or bruise as laid.</p> <p>"Where an indictment for murder alleges the infliction of “ several mortal bruises and wounds in and upon the right side of the head, also in and upon the stomach, back and sides” of the deceased, It is a sufficient description both of the character and locality of the wounds.</p> <p>The Legislature in providing by the sec. 33 of the stat. of 4 May, 1805, that “ all the crimes, offences, and misdemeanors hereinbefore named, shall be taken, intended and construed according to and in conformity with the law of England ; and the forms of indictment (divested however of unnecessary prolixity,) the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of the said crimes, offences and misdemeanors, changing what ought to be changed, shall be, except as is by this act otherwise provided for, according to the said common law,” must be understood as having adopted that sj'stem of law as it existed in 1805, modified, explained and perfected by statutory enactments, so far as those enactments are not inconsistent with the peculiar character and genius of our institutions.</p> <p>Where the mortal stroke by which a murder was effected, was given in one parish and the death occurred in another parish in this State, the crime must be prosecuted in the parish in which the death occurrrd. But where the mortal stroke was given in this State, but the death occurred in another State, the crime may be inquired of in the parish where the stroke was inflicted.</p>

<p>Appeal-from the Criminal Court of the First District, Ccr-■nonge, J-.</p>

<p>Where the record of appeal in a criminal case contains no bill of exceptions, and there is no assignment of errors apparent on the face of the record, the case cannot be examined.</p>

The indictment is not affected by mis-spelling. 2 Taunt. 401. 4 Comyn’s Dig. 664, note. Hawkins P. C. 23á. 1 Chitty, 139, 141, 142, 167, 196, 197. Jacob’s Law Diet. (Tomlin’s ed.) verbo, Indictment, No. III. 3 Black. Comm. 409, 410. Strange, 889. As to the sufficiency of the description of the wound, see 6 Com. Law Cases, p. 21. 7 Ibid. 101. 3 Chitty, 736. Leach, 569. 1 Russell & M. C. C. 5. 1 Russ. &. Ry. 345, 358. 12 Peters-dorff’s Abridg. 725.

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

<p>On a trial for perjury, the prosecuting attorney, after opening the case on the merits and being followed by the counsel for the prisoner, discovered a defect in the indictment, and moved the court for leave to enter a nolle prosequi, which was granted, and the jury was discharged and the prisoner remanded to jail. Another indictment having been found against the prisoner for the same offence ; Held, that no verdict of guilty or not guilty having been rendered, there was no trial; and that the entering of the nolle prosequi, and the discharge of the jury without the consent of the prisoner, could not support a plea of auterfoits acquit. Per Curiam. To render the plea of a former acquittal a bar, it must he a legal acquittal, by judgment upon trial, for substantially the same offence, by a verdict of a petit jury.</p> <p>"Where in a prosecution for perjury, the indictment charges that the perjury consisted in the prisoner’s falsely swearing that, “ shortly after the assault and battery committed by P. on the body of D., M. took the said D. by the collar, threw him down and kicked him and negatives the truth of the oath by averring that, “in truth and in fact the said M., after the assault and battery committed by P. upon the body of the late D., did not take the said D. by the collar, nor throw him down, nor kick him, nor commit any battery on him,” it is sufficient. It was not material to the issue to negative any assault or violence to the person of D. anterior to the assault and battery committed by P.</p>

<p>Where the record of appeal in. a criminal case contains neither bill of exceptions, nor assignment of errors apparent on the face of the record, the case cannot be examined. Stat. 6th April, 1843, § 2.</p> <p>In an appeal from a judgment in a criminal prosecution, the appellant must spread upon the record so much of the testimony as may be necessary to enable the court to which the appeal is taken to determine, with certainty, whether any error has been committed by the court of original jurisdiction. This may be done by embodying a synopsis of the testimony in a bill of exceptions.</p>

in contending for the right of the State to appeal in this case, admitted that no appeal could be prosecuted by the State so as to affect a verdict of acquittal. The State has no right to an. appeal in a criminal case, none having been granted by the statute of 1843, creating the court. The act creating the court was unconstitutional.

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

<p>To rondel a plea of a former acquittal a bar, it must be a legal acquittal, by judgment upon trial, for substantially the same offence, by a verdict of a petit jury.</p> <p>New trials may be granted in capital cases, as well as in prosecutions for misdemeanors, where justice and humanity demand it.</p> <p>Th.e effect of a new trial in a criminal prosecution is merely to grant a re-hearing of the case before another jury, with as little prejudice to either party as if it had never been heard before. No advantage is to be taken of the former verdict on the one side, nor of the order awarding a new trial on the other.</p> <p>Where on an indictment for murder, the jury find the prisoner guilty of manslaughter, and a new trial is awarded to the latter, the prosecuting attorney may enter a nolle prosequi as to the charge of murder, and prefer a new indictment for manslaughter, without thereby acquitting the prisoner of the last offence. But the verdict of manslaughter is a virtual acquittal of the charge of murder, for which the prisoner cannot be again tried.</p> <p>A nolle prosequi amounts neither to an acquittal nor pardon. It is simply the discharge of the particular indictment as to which it is entered, and is no bar to a future indictment for the same 'offence.</p> <p>At any time before a jury is empanelled, the prosecuting attorney may enter a nolle ■ prosequi, without-the consent of the court or of the accused; but where the jury has been charged with the trial of a case, this right cannot be exercised against the will of the court, which wiii not consent to its exercise where the defence appears ample, or the motion not likely to promote the ends of justice.</p> <p>The right of appeal arises in a criminal case only after verdict, judgment and sentence; Any appeal taken previously will be dismissed, on a motion to that effect.</p>

<p>A new trial will not be granted, in a prosecution for murder, on the ground of the jury having been permitted to communicate with persons not members of their body, where they were kept together in apartments provided for their use during the adjournment of the court, and the few words exchanged by the jurors with persons not of their body, were with sworn officers of the court, brought unavoidably in contact with them, and did not relate to the trial, nor were of a character to produce the slightest effect upon their decision.</p> <p>Where a jury in a criminal-case is put in charge of a sheriff or his deputy, it is not necessary that either should be specially sworn to keep them together, and not to speak to them except to ask them if they are agreed, nor to permit others to speak to them. The duty of the sheriff, or his deputy, in such a case is an official one, which they having been already sworn to perform, no additional oath was necessary.</p> <p>Where on atrial for murder, a person offered to be sworn as a jhror answers on his voir dire, that he has conscientious scruples against finding a verdict of guilty in any case involving the life of the accused, he may, on the principles of the common law, independently of any statutory enactment, be set aside for cause.</p> <p>Where twelve months have not elapsed between the time when a juror first determined to fix his residence in this State, and the date of the formation of the venire, he is incompetent, not having resided twelve months within the State, as required by law. The twelve months commence only from the date of the determination to reside within the State, though the party may have been within it for many months previously.</p> <p>An objection to a juror on account of want of residence should be made when the juror is offered to be sworn. Where no inquiry is made of the juror on his voir dire, as to his residence, any objection on that account will be too late on a motion for a new trial. Aliter, when, on being interrogated, he states that he possesses any qualification, and the statement is afterwards found to be false.</p> <p>In applications for a new trial in criminal cases, on the ground of newly discovered evidence, it must be shown that there has been reasonable diligence to procure the evidence, that it has been discovered since the trial and is material, and that it would probably produce a different verdict, if a new trial be granted.</p> <p>It is not necessary, either in England or in this State, to mention in an indictment the name of the court in which it was found ; consequently, where the style of 'the court is inaccurately given in the commencement and statement of an indictment, it will be disregarded as surplusage.</p> <p>The caption forms no part of an indictment. It is a separate act, not submitted to nor acted on by the grand jury, preferring no charge against the accused, and never appears on the record till the bill has been found, and generally not until the indictment has been removed for trial to a higher tribunal, by writ of error or certiorari. Its principal object is to show that the inferior tribunal had jurisdiction of the offence, and owes its origin to the peculiar organization of the English courts. In this State, where the same court before which an indictment is found must try it, no caption is necessary or required.</p> <p>In an indictment the venue, that is, the parish in which the offence was committed, must be stated, in order that the court may know whether it has jurisdiction.</p> <p>In indictments for offences termed felonies at common law, the time when the of-fence was committed must be stated with such eertaiuly that no doubt can be 'entertained of the period really intended. Any uncertainty in the averment of time and place will vitiate the indictment. This averment must be repeated as to every issuable fact; when they have been once set forth with certainty, they may, in every subsequent averment, be referred to by the words then and there, which are equivalent to a repetition of the time and place.</p> <p>In an indictment for murder, the material facts are the mortal stroke and consequent death, and the death must appear to have occurred within a year and a day after the mortal stroke. The averment of each of these material facts must be accompanied by an allegation of a certain time and place: thus, where an indictment for murder, after stating the mortal blow, with the usual averments of time and place, proceeds : “ Of which mortal wound so given by the said K. with the deadly weapon aforesaid, to the said W., the said W. did then and there suffer and languish and languishing did live, and, a few hours after did die of the said mortal wound,” the averment of the time.and place of the death is insufficient; and the defect is not cured by a verdict. Per Curiam : The words then and there” immediately precede and refer to the words “ languished and languishing did live,” and not to the allegation “ and a few hours after did die.” The copulative and is insufficient to connect the time and place with the death. The facts of time and place must be precisely and distinctly stated ; they cannot be inferred. Nor will the averment in the conclusion of a correct time and place of death, cure this defect; on the contrary, it will render it repugnant to the statement.</p> <p>The stat. of 4 May, 1845, s. 33, which provides that “ the forms of indictments (divested, however, of unnecessary prolixity,) the method of trial, rules of evidence aDd all other proceedings whatsoever in the prosecution of said crimes, offences and misdemeanors, changing what ought to be changed, shall be, except as otherwise provided for, according to the common law,” did not intend to confer upon the courts authority to legislate on the subject of criminal proceedings or the framing of indictments, but merely to direct prosecuting officers to omit those prolixities acknowledged to be such at common law, and unnecessary, though habitually inserted in indictments ; and the changes directed to be made, are those necessary to make our proceedings conform to our own laws and form of government. Whatever has been determined to be an essential averment in an indictment at common law will be deemed necessary here, unless a statute of the State has removed the reason, and with it the necessity for the allegation.</p>

<p>. In a prosecution for murder where the court is satisfied that the jury cannot agree in a verdict, it may discharge them, though the prisoner oppose it, and may direct a trial before another jury.</p>

<p>The incompetency of one of the grand jurors by whom a hill of indictment has been found, is not cured by the omission to urge the objection on the first day of the term of the district courts in the country parishes. The 5th sec. of the stat. of 6 March, 1840, applies only to the formalities to be observed in the summoning, formation and drawing of the grand jury, and not to the want of qualification in any of its members.</p> <p>The incompetency of any one member of a grand jury by whom an indictment has been found, will vitiate the whole proceeding, no matter how many unexceptionable jurors joined with him in finding it.</p>