Volume 9 — Louisiana Annual Reports

<p>APPEAL from the Pifth District Court of New Orleans, Buchcmcm, 3.—</p> <p>But the appellant contends that we are bound solely and entirely by the advertisement. That all evidence as regards the acts, the explanations sought and given, and declarations made by the auctioneer at the time of sale, cannot enter into the contract, nor be considered by the Court, nor proof be offered regarding them.</p> <p>The appellant seems to consider the advertisements of auctioneers as contracts of the most solemn nature; as unalterable as the laws of the Medes and the Persians; as irrevocable as the decrees of fate; a species of Procrustean bed into which all lengths, all breadths, all sizes must be made to lit.</p> <p>This extraordinary position is attempted to he sustained by several decisions of our Court, some of which are herein referred to, and all perhaps, decisions proper and just under their peculiar circumstances. One fact is, however, true with regard to them all; a fact which conclusively answers the exceptions taken by appellant’s counsel, to the admission of any testimony with regard to the facts which transpired at the time of sale. That fact is this, that in every case, the circumstances attendant on the several transactions, are minutely shown and and attentively considered by the Court, and in one, the most recent of them, Poree v. Bonneval, 6th A., 387; the wisdom of such a course is properly commended. In the 10thL. R., are two cases, Ffott & Go. v. Oakey, page 18. After examining the facts of the case, the purchaser was released from the penalty of a salo a la folie enchere because conditions more onerous were imposed by the auctioneer, and conditions at variance with those in hand-bills distributed through the crowd. “ The purchase may have been made, say the Court, under an error created by the plaintiffs themselves.” It will be found that the only principle enunciated in this and in all analogous decisions is this rule as old as law itself: that when error is created in the mind of the purchaser by the act of the vendor, the purchaser is not bound and should not suffer.</p> <p>The difference between these cases and the present is, that the defendants do not claim the benefit of any alleged error on the part of the vendor, but claim to substitute a contract of their own in place of one incurred.</p> <p>As to the merits of the case, the Tutor, defendant, submits that</p> <p>All sales of property ceded to creditors must be made on the same terms and under the same formalities that property seized on execution is sold. Art. 2180 Civil Code.</p> <p>When there exists a mortgage or privilege on the property put up for sale, the Sheriff shall give notice before he commences, that the property is sold subject to all privileges and hypothecations of whatsoever kind they may be, with which the same is burthened, and with the condition that the purchaser shall pay in his hands whatever portion of the price for which the property shall be adjudicated, may exceed the amount of the privileges and special mortgages to which such property is subject. Code of Practice, Art. 679. Vide also 688.</p> <p>Art. 689. When a seizing creditor has a privilege or special mortgage on the property seized, for a debt of which all the instalments are not yet due, he may demand that the property bo sold for the whole of the debt, provided it be on such terms of credit as are granted to the debtor by the original contract for the payment of such instalments as are not due. Vide Louche v. Union Bank, 2d An., p. 618.</p> <p>Act of 1817, p. 134, Sec. 16. The privileged or mortgaged creditors of the insolvent debtor shall not be bound by the decisions of the majority of the other members, either in amount or persons, if the said creditors want to sell the property on credit, and the privileged or mortgaged creditors shall always have the right to require that the sale of so much property only on which their respective privileges, or mortgages rest, be made for cash as will be sufficient to make the amount due to them, together with interest and costs.</p> <p>La. Rep., Vol. 7. The mere legal agent appointed to sell property by authority of law, has no powers but those conferred by law'. Page 421,. (as a Syndic.)</p> <p>La. Rep. Vol. 19, p. 18. Where the terms of an auction sale are changed, or new conditions imposed from those advertised, by proclaiming them at the stand, at the commencement of the sale, the purchaser is not bound by them. Nott & Go. v. Oakey.</p> <p>2d Annual, p. 2. The advertisements are binding upon both purchaser and vendor, and neither party can insist on any thing that w'as said by the auctioneer at the time of sale, in any respect varying or adding to the printed conditions or the description of the object offered. Layton v. Hennen. Babington on Auction Law, Lib. 18. Vide 6 Annual, 386, to the same effect.'</p> <p>The case is now stated to the Court, and the authorities on w'hich the defendant relies.</p>

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

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

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

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

<p>Irregularities in the proceedings in attachment, anterior to judgment, except an entire want of citation, must be corrected by some direct proceeding before the court in which the attachment issued, or by appeal: they cannot be drawn into question collaterally.</p>

<p>PPEAL from the First District Court of New Orleans, Lm'ue, J.</p>

<p>APPEAL from the Third Judicial District, Olw'lee, J.</p>

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

<p>APPEAL from the Sixth District Oourt of Now Orleans, Oolton, J.</p>

PPEAL from the Second District Court of New Orleans, lea, J. It is well settled that prescription being once interrupted, the previous time can never afterwards be computed to make up the time… Held: That this was an acknowledgment of a debt still due. Austin v. Bost-wieh, 9 Conn. R. 496. U. S. Digest, vol. 2, p. 818, No. 587.

<p>Defendants opposed a rule taken to homologate the report of auditors. The Court decreed that the sale he made absolute, and that the report of the auditors “be homologated and adopted as the basis of the judgment of the Court in the premises.” Held: That defendants had a right after the decree homologating the report of the auditors, to have the cause set down for trial on the merits. The judgment was not final; it was irregular in the Judge to sign it, but being merely interlocutory, the appeal was premature.</p>

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

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

<p>PEAL from the Fourth District Court of New Orleans, Reynolds, J.</p> <p>Copley v. MeFmdane', 9 E. 183; Harrison v. Poole, 4 R. 193 ; Morgans. Yarborough, 13 La. 76; Louisiana State Bcmh v. Orleans Navigation Company, 3 Ann. 294; Story on Notes, sec. 195.</p> <p>Mathews, Finley & Co. v. Rutherford, 7 Ann.; 1 Greenleaf’s Ev. art. 451; 1 Starkee, 106; Rose v. Blalcemore, Ry. & M. 383; L. 23, Cod. deprdb et praesumt; C. 0. 1842.</p>

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

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

<p>JPeHn BovZat purchased property at a Sheriff’s sale — the deed was made to JPerwiBoulard. Held: That it was competent for Perm Boulat to prove, by parol, that he was the identical person to whom the property was adjudicated.</p>

<p>Kirwan entered into a contract with the plaintiffs to repair the Church of St. Louis, of which they were wardens, according to plans agreed on by the parties. He failed to comply with the stipulations of his contract. Held: — The plaintiffs had a right to rescind the contract and finish the work themselves.</p>

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

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

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

<p>A party who takes a suspensive appeal and abandons it, cannot afterwards take a devolutive appeal.</p>

<p>APPEAL from the Eifth District Court of New Orleans, Bueliaman, J.</p>

<p>APPEAL from the District Court of the Parish of Plaquemines, Bousseau, J.</p>

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

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

1. We contend that the verdict rendered in this case is contrary to law, because it was rendered on incompetent evidence, and on remote and irrelevant facts not admissible. 1 Stark, on Ev., p. 39, sec. 21 and 22; 1 Chit. Crim. Law, 459. 2.

It has been decided again and again that titles even may be affected by parol testimony, and in cases a thousand fold stamger than the one before the Court. Por instance — where a purchaser is sued to compel a compliance with a sale, and avers that he is not bound by it, evidence is admissible to show that he offered his note at long dates. 10 La. 60.

<p>Under tlie Act of March 18th, 1847, a creditor, who would arrest a non-resident debtor, must make the factof absconding appear l)y his own oath. It is not competent for an agent or attorney of the arresting creditor to take the oath.</p> <p>To entitle a creditor to the benefit of the writ of arrest under the 10th section of the act of 1840, for abolishing imprisonment for debt, the grounds on which he claims the writ should be verified by</p>

<p>It is inequitable to decree a specific performance where the intention of the parties is doubtful. A Court is not permitted to make such a decree on conjecture; and where it finds no certain contract it has no right to frame one for the parties etc eguo et bono.</p>

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

<p>ON an application for a mandamus to the Judge of the Sixth Judicial District Court of East Baton Rouge.</p>

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

<p>APPEAL from the District Court of the parish of Terrebonne, Dole, J.—</p>

<p>The rule excluding a party to the record as a witness cannot be extended to a case where defendants might have been sued separately.</p>

<p>A strict compliance with the law and police regulations must be shown, to legalize a sale of land made to pay for work done on roads; and such proceedings must be closely scrutinized.</p> <p>Plaintiff built a road on the land of a non-resident, under a contract with defendant. Plaintiff showed that in consequence of the neglect of the parochial authorities to notify the non-resident, a proceeding against him would have been ineffectual. Held: — That as the proceedings against the land would be nugatory, he might proceed at once against the Police Jury.</p>

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

<p>APPEAL from the fourth District Court of New Orleans, Reynolds, J.</p>

Counsels for defendants have most mind of the court from this issue, by ingeniously endeavored to divert the quoting the following authorities, viz : 6 Cowen, 118, Ohapmanv. Lathrop, 6 Wend., 8, Lupin v. Marie, and 22 Wend., 664, Bussell v. Minor. Do these authorities fairly meet the issue tendered?

The great and important question before alluded to, recurs, what was the effect of the retrocession of the property by Stewart to Paclmood so far as the rights of the community are concerned ?

<p>Arbitrators, before examining the difference to them submitted, shall take an oath before a Judge of Justice of the Peace, to render their award with integrity and impartiality in the cause. C. O. 8078. Parol evidence is incompetent to eke out an award, deficient in the essential formality of an oalh or the arbitrators.</p>

<p>The transitas of goods is not atan end when they are in the hands of an agent for transmission to the vendee, and on the insolvency of the vendee, the vendor may retake them, although they may have been attached by a creditor of the vendee.</p> <p>There were two suits brought by the plaintiffs, one of which was for only $157 and interest. Held: considering the manner in wich the parties thought proper to try them in the Court below, virtually consolidating them, the motion to dismiss as to one of the suits should not be entertained against the appellants.</p>

<p>Parol evidence, if objected to, cannot be received to prove title to a slave.</p> <p>A judicial admission by an universal legatee can in no manner whatever affect or impair any rights which may be acquired by legacy under a particular title.</p> <p>O. C.. 2255.</p>

<p>APPEAL from the District Court of the parish of Madison, Bichao'dson J.</p>

<p>In an action by an endorsee against the maker of a promissory note a judgment by default was con* firmed without proof of the signature of the maker, and the endorser who was payee. Ilclci: that the proper judgment is one remanding the cause for further proceedings and not one of non-suit.</p>

<p>An heir who lias taken the benefit of the Bankrupt Act is not thereby discharged from liis obligation to collate the advances received by him.</p>

<p>On the death of a subject of the King of Sweden, an administrator of his succession was appointed, whom the Swedish Vice Consul sought to supercede. Ueld: the right claimed is not sustained by any law, or treaty stipulation.</p>

As to plaintiff’s right to a second appeal, the judgment was rendered in the court of the first instance, on the 31st day of December, 1852. The order for this appeal was granted on the 28th of March, 1853. Petition and citation of appeal was served on Micajah Courtney, on the 6th of April, 1853 ; on Demid Barrow, Executor, on the same day, and was served on the same day — 6th of April, ’53 — on Samuel J. Powell, Curator ad hoe.

<p>Lesion is no ground for the rescission, of a judicial sale.</p> <p>The irregularities of a judicial sale are cured by monition.</p> <p>C. 0. 1863 — 25T2.</p>

<p>Where the quantity of land is not mentioned in the title and no boundary is given in the rear, the sale cannot be considered as one per a/oersionem, except so far as to entitle the purchaser to take all the land between the boundaries designated on the front; and the plaintiff cannot, under a title which calls for “ twenty-five arpents or more in depth,” extend the rear line.</p> <p>A record of a suit between other parties is not properly admissible to prove » ipsam, when it has no important connection or bearing on the case.</p> <p>C. C. 850.</p>

1st. When the boundaries of a confirmed claim are vague and uncertain, and are to be fixed by the operations of the surveying department and before the survey or location, the government sells a part of the land not necessarily embraced within the tract confirmed, the title of the purchaser will prevail. Lott v. Proudhomme, 3 Rob. 298. Faheyv.

<p>The 1st section of the Act of March ISth, 1852, entitled “ An Act to suppress more effectually trade and bai'ter with slaves,” provides that “ any person or persons who shall buy, sell or receive of, to or from any slave or slaves, any corn, hay, fodder, meal, spirituous liquors or other produce or commodity whatever, without the consent of the master, owner, overseer or employer of such slave or slaves, shall be guilty of a high misdemeanor.” The indictment under the section charged the defendant with having sold spirituous liquors to a slave, and negatived the fact of the consent in writing of the master, owner, overseer or employer, following literally the language of the statute, in so far as it describes the offence. Held: That the indictment sufficiently set forth the offence.</p> <p>The accused elected to be tried by the court rather than by a jury, on a charge of selling liquor to a slave. On the trial the prosecution proved that the slave entered the store of the accused, which was shut behind him; that it was afterwards opened, when the slave came out with a jug of whiskey in his hand. The accused excepted to the introduction of the evidence, lleld: That by electing to be tried by the court, the accused has placed it out of his power to present this question to the Supreme Court; it could have been presented if the trial had been by jury, by asking instructions of the court; the question, might then have been brought up by exception, but for anything that appeared direct proof of the sale of the whiskey by the accused, might have been made.</p>

For-rad', J. Mrs. Mary Ann Smith, being a widow in community, and claiming to take under the will, is a common debtor for all the community debts, and cannot claim and take out of the common stock her separate and paraphernal property, until all the debts are paid.

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

<p>APPEAL from the District Court of the parish of Points Ooupée, Fa/i'rar, J.</p>

<p>Where a nuncupative testament by public act does not mention that the three witnesses who signed it, reside in the parish where the will is executed, parol testimony can not be given to supply the omission.</p> <p>Plaintifls brought suit to annul a will; defendants pleaded the prescription of five years. Held: that the Judge correctly charged the jury that they were at liberty to infer the absence of plaintilTs from the State for the five years following the death of the testator,» from testimony of their absence after the expiration of those five years.</p> <p>C 0.1571,1587.</p>

<p>where the description of the land is by reference to the adjoining tenements, and it is sold from boundary to boundary, no action can. be maintained for a diminution of price on account of a deficiency of quantity. 0. 0. 2471,850.</p>

Defendant, under his plea of the general issue, offered to prove on trial the sale of the flatboat and lumber by this hand to him, defendant. Held: “ That under the plea of the general issue, the defendant had a right to show that the plaintiff had no dawn at all, or a lesser one than that set up.

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

<p>A Parish Ordinance of Iberville authorizes every inhabitant, proprietor of land, in the Parish to arrest all wild and mischievous animals, and requi? es the owner to give one dollar for the prize. Held: That remuneration can be recovered only on proof that the animals were wild and mischievous.</p> <p>A stray is an animal found in an unusual place for such an animal, or an animal that has roved for some time in a certain place, whose owner is unknown. '</p> <p>A person who takes up a stray has no right to retain possession of it until the damages and charges are paid ; for these he has a direct action.</p>

<p>APPEAL from the District Court of the Parish of Iberville, Robertson, J.,</p>

<p>A receipt for money paid is not conclusive between the parties, but open to explanation by parol testimony</p> <p>Parol testimony is admissible to prove fraud.</p>

Defendant denies her personal responsibility, and claims that only the estate of her husband is responsible, on a note in this form. On this point we refer' to the following authorities: Balletic. Gaor, 3 M. 496; Russellv. Cast, 2 L. 188. The affidavit was insufficient, because made by the attorney — the absence of the party from the parish not being shown or suggested. Paine v. Tourni, 2 E. 98; Penne Y. Tourné, 2 La. 677 : Lizardi v. Arthur, 16 L. 577.

<p>The 25th section of the Act incorporating the Union Bank, permite a wife to bind herself jointly and in soUdo with her husband, in all hypothecary contracts or obligations with the bank.</p> <p>An individual renunciation of prescription cannot be implied from an acknowledgment of the debt as administratrix.</p> <p>*0. 0. 8517.</p>

<p>APPEAL from the District Court of Assumption, Randall, J.</p> <p>cited Folletín v. Dwpré, 11 Rob. 454. Nicholson v. Marden, 3 Rob. 3J)_2. Oanal Go. v. Barrow. 2 Ann. 326. Bird v. McGalop, 2 Ann. 351. New Orleans and Carrollton Bank v. Patton, 2 Ann. 352. Harris v. Alexander, 9 Rob. 151. Mechanic's Bank v. Gompton, 3 Rob. 4. "</p>

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

<p>Ihe defendant agreed to become security for a purchaser of property at a sale on twelve months’ credit; he refused to comply with his promise; no act affecting his interest was done by the creditor on the faith of the promise. Held: Defendant contemplated a written contract, and until it was signed, he had a right to recant.</p>

<p>The patent for lands issued under the authority of the United States, is conclusive evidence of their severance from the public domain, and of the divestiture of title from the United States, which may have remained in them notwithstanding a sale and receipt of the price by its officers. But the issuing of the patent does not affect any rights subsisting between third persons and the patentee, growing out of contracts in relation to the land covered by the patent. The patent, to whomsoever issued, inures to the benefit of the party to whom the patentee is bound to convey it, or for whose use he ought in law to hold it.</p> <p>The vendor being without fraud — the vendee cannot resist the payment of the price for defect of title, when he himself has perfected the title by improper and deceitful means — the object of which was to prevent the recovery of the purchase money. Under such circumstances, the ven-dee is only entitled to a credit for the money paid by him to perfect the title.</p> <p>It is true there is a statute of the United States against the survey and settlement of the public lands, by individuals, passed in 1840. But since that period, the policy of the government on this subject, has been entirely changed, and has tended to encourage actual setlers on the public lands; and the several preemption Acts, and those for the relief of settlers, are in this sense, and the whole legislation of Congress is in that direction. It seems to be a necessary consequence of this policy on the part of the government, that courts, in determining on the rights of individuals under it, should act concurrently with it.</p> <p>C. C. 8417, 8420, 8488, 8487, 8465, 8466.</p> <p>Under the Spanish law, property could be acquired by prescription against the crown. At least, we find no exception in its favor, nor any principle which prevents the operation of the laws of prescription. Under our Code we find no express exception in favor of the State.</p>

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

J. In the suit for partition among the heirs, the plaintiffs pray — “ That in the judgment for a partition, the following expenses only be allowed, which have been necessarily incurred by the former curators and distributed equally among the said heirs according to their proper proportion of the estate : One thousand dollars to John Frost, as attorney fee; one thousand dollars to General Thomas, as paid; two thousand, to George S. Sawyer, by written contract, not paid.”

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

<p>A confirmation by an Act of Congress amounts only to a relinquishment of all claim on the part of the United States, leaving the title as it would have been under the former government.</p> <p>Until a patent issues, the title of the United States is not divested, but is still under the control of the land department, which may cancel a sale or set aside an illegal entry, and its action cannot be revised by a State court.</p> <p>Defendants objected to the introduction of copies of certain notarial acts of sale, on the ground of the inadmissibility of the recitals therein contained, and for want of registry of said actsinthe proper recording office, accompanied with the signature of the recording officer. Held: The objection only went to the effect, and not to the admissibility of the evidence.</p> <p>Defendant objected to the validity of the plaintiffs’ derivative titles, on the ground that the transfers som sevng privé had not been duly acknowledged, by either parties or subscribing witnesses, previous to their registry, and could not therefore affect the rights of third persons. Held: The provisions of Articles 2250 and 2¿17 are parcels of our system of registry law, and are not applicable to this contest upon independent adverse titles. In such contests, the question is whether the act offered in evidence, is binding between the parties to it. Those articles are for the protection of creditors of the vendor, l?ona fide purchasers from him, and other persons claiming under or through him; they constitute no objection to such acts availing as links in the chain of conveyance in a contest between claimants of public land — one under a confirmed grant, the other under an entry.</p> <p>In order to acquire prescription by the possession of ten years, founded on a just title, it is necessary, among other requisites, that the natural possession, which must be acquired bythe actual and corporeal detention of the property, should have preceded that of the civil possession. "Where a person has once acquired the natural possession, the mere intention of possessing, suffices to preserve the civil possession in him, and this intention is always presumed.</p>

<p>Motion to dismiss an appeal on the ground that there was no judgment or sentence. Held : The appellate jurisdiction in criminal matters, under Article 62 of the Constitution, only extends to cases where the punishment has already been pronounced by sentence or judgment of a court; otherwise there is no foundation for an appeal.</p>

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

<p>!£he rule “oontra non'oal&ntem agerij* cannot avail the plaintiff, when prescription has been acquired before the debtor absconds.</p> <p>A promise to pay a debt upon a condition, which has been fulfilled, amounts to a renunciation of prescription.</p>

<p>'íhe appellee Will not be mulcted m costs on account of small errors in calculation in the judgment appealed from, which could have been corrected, if brought to the notice of the court below.</p>

<p>After argument of an exception, but before judgment thereon, plaintiff claimed the right of making proper parties by amendment, in case the exception should be sustained. Held: Plaintiff had not the legal right to qualify the submission of the exception to the decision of the court.</p>

<p>Defendant owned a cotton plantation in the parish of Livingston, where he resided. In 1852, he re moved to Baton Rouge with his family *, purchased a dwelling, and continued to reside in that parish until the institution of the suit. He also opened a law office and practised his profession in Baton Kouge. jffdd: That an action could be brought against him in Baton Rouge, O. P. 106.</p>

<p>EAL from the District Court of the Parish of Carroll, PerMns J.</p>

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

<p>APPEAL from the District Court, of the Parish of Point Coupee, Parras', J.</p>

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

Defendants contend that the estate of Groves acquired a good title to the land in controversy, by the adjudication at the Sheriff’s sale. The notices of seizure, advertisements, sheriff’s deed and return, are all correct as to the description of the land. But the sheriff committed a clerical error in his description of the number of acres in the tract, and led the purchaser into the same error. It is not disputed, that all the parties acted in. the most perfect good. faith.

<p>A sheriff sold property under a fi. ; H* purchased it, and* alleging that he was owner of the judgment, the sheriff credited the writ with the amount of it, and made him a deed. The assignment of the judgment had not been made of record, and no order of subrogation had been entered, and eventually it was adjudged to be invalid. jffiaintiflV attorney, before the sale, warned the sheriff if H. should bid off the property, not to enter a credit on the writ, but to exact the money.</p> <p>Held: That the conduct of the Sheriff in the premises, was a breach of his official duty, for which both himself and sureties were liable.</p> <p>A Sheriff, who illegally credits the writ with the amount bid, when in fact no money was paid to him; is liable to the plaintiff in execution; but where there is a special mortgage on the property, outstanding at the time, he will only be liable for the amount bid, less the amount of the special mortgage.</p> <p>A judgment against a Sheriff is not res judicata against his sureties, nor does it conclude them as to the amount of the Sheriff’s liability for which they are to respond.</p> <p>Judicial pursuit of the principal, interrupts prescription as to the sureties. O. C. 8518.</p>

<p>Person receiving a quit claim, does not thereby acknowledge the party grantingitto be the true owner ot the property; and where it does not appear that the latter was the owner, a judgment against him, not recorded at the time of the quit claim, will not affect the property abandoned,</p> <p>a 0. 8926.</p>

<p>APPEAL from the District Court of East Baton Rouge, Robertson, J. The will has the following clause : “ It is my request that my executors set my girl Jam free, and give her the money of two notes I have, each of one hundred dollars.”</p>

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

<p>The hypothecary action may be prosecuted by resort to the executory process, in those cases in which it is allowed, and where the property can be directly seized in the hands of the third possessor, but if it cannot be seized because the third possessor refuses to deliver it up, the hypothecary ere ditor may proceed by an ordinary action to compel him to deliver it up, or pay the amount for which it stands hypothecated. O. P. 08.</p> <p>In the hypothecary action, if the plaintiff prove that the property subject to the mortgage was once in the defendant’s possession, it then rests on the defendant, in order to discharge himself from the obligation of either delivering it or paying the debt, to show in what manner he has parted with the possession — if he has sold the property, he is no longer liable, and the creditor must pursue itin other hands; but, if it continues in his possession, or under his control, he must either pay the debt, or deliver it up.</p>

<p>Justices of the Peace who preside over the trial of slaves, have the power to grant and refuse new trials.</p>

<p>Where the wife is alone interested in the suit, she must be a party to the appeal bond, or her appeal will be dismissed.</p>

<p>APPEAL from the Eourth District Court of New Orleans, Reynolds, J.</p>

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

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

<p>Defendant being sued on his promissory note, pleaded two accounts for work and labor done In compensation and payment. Meld: The Court below properly rejected the evidence offered on part of the defendant to prove that the work was done, and the prices charged were reasonable. C. G. 2205.</p> <p>O. C. 212T.</p> <p>Defendant cannot compensate a debt due by note, by an account for work, where there was no agreement to pay a fixed price for the work and no acknowledgement of the correctness of the account.</p>

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

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

<p>The circumstance that a slave is not a cook does not constitute a redhibitory defect,, unless that quality -was the principal motive for the purchase. 0. CM 250T.</p> <p>Parol evidence is inadmissible to prove that a slave sold was represented as possessing qualifications not mentioned in the act of sale.</p>

<p>The reinscription of a mortgage as prescribed by Article 8,838 of the Civil Code, is indispensable to the enforcement of the mortgage against third persons. The institution of a suit on the mortgage or a litigation in respect to it does not dispense with the reinscription.</p>

from the District Court of the parish of East Feliciana, Sterling, J. The bank being a stranger to the contract between Qanjle and the defendant the consideration of that contract as to her were res inter alios acta, and she cannot be affected by any of the equities that may exist between the parties to the contract. In support of this proposition the plaintiff relies on the case of Amoue v, Dacern et al. in the 18 La. p. 42, and the case of Lejeune v. Herbert, 4 An. 60.

First. — The first point, upon which the plaintiffs rely, to sustain the illegality of the proceedings is, that the husband, Ghaodes Eubbs, not having appeared in the suit for partition, an order of court, authorizing his wife to appear was necessary before she acquired the right to stand in judgment; and that any decree of judgment rendered against her, until she obtained the authority “ legitiman standi in judieio persona/m,” Was illegal and void.

<p>R. B. & Co. obtained judgment against <3-. issued an execution under which the Sheriff seized a tract of land an X advertised it for sale on a day stated. By consent of the parties the day of sale was postponed; <3-. died, and his administrators sold the land which had been seized. Held: that as there was nothing to show that the property continued to be under the operation of the seizure until the opening of the succession the seizing creditor had no lien on the proceeds of sale.</p>

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

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

<p>A judgment dissolving an injunction which restrains an execution, relieves the execution of the restriction, and the property being already under seizure, no further notice of seizure is necessary. An error in the advertisement not calculated to mislead, affords no ground for an injunction.</p> <p>A judgment rendered between the parties, dissolving a prior injunction, is a bar to any enquiry into the grounds for injunction existing anterior to that judgment, and of which the party might then have availed himself.</p>

<p>A party applying for a new trial cannot prove by witnesses the charge of the Judge to the jury. Objections to the charge of the Judge should be made before the jury retire.</p> <p>It is sufficient if the indictment, in charging the offence, states all the facts and circumstances comprised in the definition of the offence as given in the statute, so as to bring the defendant clearly within its provisions.</p>

<p>A mortgage granted by one of the heirs on his individual share of the property belonging to the succession, cannot effect the right of the other heirs to demand a sale of the property to affect a partition.</p>

<p>APPEÁL from the District Coui't of the Parish of Carrol!, Perldns, J.</p>

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

<p>Whatever right or title a person, may have to property which he sells as the agent of another, passes by the conveyance as completely as if it were sold in his own name.</p> <p>Property sold under a twelvemonths’bond maybe adjudicated for whatever it will bring, but if there are anterior special mortgages, such mortgages form an essential part of the price and there can be no adjudication unless the amount bid is sufficient to discharge such anterior mortgages; but an adjudication for less than the prior special mortgages is a relative nullity and one who was neither the owner of the property nor had any real right in it, must show fraud, and injury to him resulting from such fraud to entitle him to annul it.</p>

This cause was tried by a jury before Sterling, J. on the point of malice, cited 2 Starkie on evidence, 912, 913, 915, 916, 918, 921, marginal page; Grant v. Deuel, 3 R. R., 17; S A. R., 713 ; 12 R. R., 162; C. C., 2294; 4 A. R., 377. The question of damages for false imprisonment, and in fact, all questions sounding in damages, are the exclusive province of a jury to determine. They are selected from the vicinage.

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

<p>APPEAL from the Sixth District Oourt of New Orleans, Ootton, J.</p>

<p>The defendant, in a petitory action, is estopped from setting up the irregularities in a Sheriffs sale, after a formal recognition of tlie title of the plaintiff’s vendor under that sale.</p>

<p>Proof of the signature to a private writing cannot be dispensed with by establishing the signature and death of the subscribing witness, the absence of the party who made the act for a great length of time from the parish, and that his signature could not be found in the records of the parish.</p>

It is never presumed, and the intention to make it, must clearly result from the terms of the agreement. C. C. 2186. Grain v. Robert, 8 N. S. 145. Mande v. Bowers, 4N. S. 95. Nolte v. His Creditors, 6 N. S. 176. Kempe v. Hunt, 4 L. R. 488. See also 9 R. R. 276. 11 R. R. 43. 2 Ann. 188. 4 Ann. 509. 5 Ann. 505.

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

<p>The curator of a vacant succession is prohibited from purchasing by himself or by means of another any property entrusted to his administration,</p> <p>A purchaser at a probate sale, can not be compelled to take property and pay the price, where he can show that the title to the property is not good.</p> <p>C. P. no, m.</p>

<p>The summary moc}e of proceeding against delinquent tax payers by advertisement in lieu of citation as provided by the Act of 1852, No. 11, gee. 85, applies only to the collection of taxes assessed subsequent to the Act.</p>

<p>Where during twenty years the plaintiff remained silent as to a claim, although there were frequent dealings and accounts between her and the alleged debtor, during the interval, the demand will be considered stale and presumed to have been paid.</p> <p>Where the existence of a legal consideration is put at issue and doubt or suspicion cast on its reality, it must be sustained by proof.</p>

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

<p>APPEAL from the Sixth District Court of New Orleans, Cotton, J.</p>

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

<p>The plaintiff, a resident of Louisiana, sued the defendant, a resident of Kentucky, to rescind the sale of slaves sold him by the agent of defendant, on account of redhibitory defects. The defendant signed an agreement to arbitrate the matters in dispute, but the arbitrators did not act.* JTdcl: That it was not a proper case for the appointment of a curator, ad koe, to represent the defendant.</p>

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

<p>APPEAL from the District Court of the Parish of Plaquemines, Rousseau, J.</p>

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

<p>The founders of the town of Carrollton, when they caused the original plan of the McCarty plantation to be made — dividing it into squares or portions of land, numbered and bounded by streets and avenues — and offered ifc'at auction to the public, clearly intended to give it the character and destination of suburban property, and no one holding squares and pieces of ground described in his title with reference to this plan, which has been the subject of legislative recognition, can consistently with his own title, the manifest intention of his authors, atrd the rights of other citizens who have bought on the faith of the same declared intention and appropriation, dispute the public character of the portion of the land so reserved for streets and avenues, whenever the corporation of Carroll-ton shall consider the proper time has arrived for having them opened. The plaintiff must be considered as having bought his property with reference to this ultimate exercise of power.</p>

Translation from Boileux” on subrogation. On Art. 1251 N. 0. and 2157 L. 0. Legal subrogation takes place without the consen t of either the debtor or creditor. Held: that subrogations, whether legal or conventional, cannot extend to any other cases than those enumerated by law. No. 74. Even before the publication of the Civil Code, one who not being a creditor, had paid a mortgage creditor, could not be subrogated to his rights, except by special agreement. No. 87.

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

<p>The Supreme Court will not issue writs of prohibition and mandamus, where the party has an adequate remedy by appeal.</p>

<p>Though the person hired is entitled when discharged 'to wages, for the time he has served, he is liable for damages which may have resulted from his wrongful acts, and these damages may be deducted from his wages.</p> <p>In an action for wages by an overseer, who has been discharged by his employer for good cause; it is competent for the Judge to enquire not only into the character of the wrong complained of by the employer, but also to include in his estimate the inconvenience to which he was subjected until he could get another overseer.</p> <p>The general rule that the inexecution of contracts gives rise to a claim for damages, laid down in Article 1921 of the Civil Code, is applicable to the contract of hiring.</p> <p>Where the objection to the introduction of a receipt was that it contained interlineations in a paler ink which were not accounted for, but it was not alleged that the interlineations were alterations of the instrument, or that they were in a material part, or that its language or meaning was thereby changed, and there was nothing in the record from which the court could ascertain what the interlineations were. Held: Under these circumstances the court could not -say that the Judge erred in receiving it.</p> <p>The defendant, in an interrogatory inchief, enquired of Ins witness; “I>id or not plaintiff state to you that he had shot the boy Alfred, the week previous ?” The plaintiff on cross-examination, enquired: “ If the plaintiff told you he shot the negro boy, state what he fold you induced him,” &c. The defendant moved to strike out the answer to the cross interrogatory, inasmuch as it contained the statement of the plaintiff of his reason for shooting the boy made out of the presence of the defendant. Held: The admissions of defendant touching the fact to which he was interrogated must be taken together, and can not be divided against him.</p> <p>Where a party, en a former tidal, obtained from his witness testimony of the declarations of his adversary in the cause, that adversary shall not be permitted to introduce the .testimony on a subsequent trial.</p>

<p>An artisan has a right to' retain the thing which he has repaired, until payment of the price of the repairs,. Art. 8184 0. 0. gives to the artisan not merely a privilege, but a right of retention.</p> <p>"Where testimony is received without objection, the court will not be restricted to the issues presented bf the pleadings; but must decide the cause as presented by the proof.</p>

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

<p>The direction of the testator in his will, that his property should be divided in kind among his forced heirs, that the portion going to his grand-son should be paid him by his co-heirs in money, and that the property contained in his lot be transferred to them in proportion to the amount they contribute to its purchase, is not legally binding..</p>

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

Your honors will bear in mind that the question presented in this case comes before your honorable Court upon a motion to dissolve upon the face of the papers: consequently the fraud so strongly referred to in the argument before the Judge a quo cannot for a single moment enter into the mind of this Court, and your honors will and are bound to decide the matter upon the allegations of the petition.

<p>APPEAL from the District Court of the parish of St. Tammany, Watterston, J.</p>

<p>When the Act'of incorporation contains no provision for the liquidation of the affairs of the company, and the charter has been forfeited, it is competent for the Legislature, by subsequent enactment, to make such provision.</p> <p>The plaintiff held the appointment of the Governor, of liquidator of the Clinton and Port lEudson Railroad Company. An exception to the competency of the petitioner to hold the office was taken. 'Held; The court will not go behind the appointment, and upon a collateral issue scrutinize the qualifications of the person appointed.</p> <p>In an action by the liquidator for a contribution to pay the debts of the company, against third possessors of property mortgaged- for the payment of the stock, the amount, assumed by him, necessary to be contributed, by each share of the capital stock, need not be fixed with mathematical precision, and can only be enquired into on a trial of the merits.</p>

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

<p>Steamers are more easily managed than sailing vessels, therefore it is the duty of the masters of the former to adopt such precautions as to avoid collision with the latter; and, where a collision occurs, unless it be shown, on behalf of the steamer, that the accident was unavoidable, with due precautionary measures onits part, the loss will fall on its owners.</p>

<p>APPEAL from the District Court of West Feliciana. This cause was tried by a jury, before Sterling, J.</p>

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

Landry, Overton, J. We contend, 1st. That the only damages that can be allowed, in this case, where no had faith is charged and where none exists, are such as immediately result from the defectiveness of the machinery and the cost of repairs, and cannot include consequential damages, such as the loss of cane, &c. Pothier Ob.

<p>Where the defendant is but a nominal purchaser-with notice of the plaintiff’s claim, he mustbe regarded as occupying the position of bis pretended vendor, and parol evidence should be received to establish simulation Tvítli respect to the title between such vendor and other persons.</p>

<p>Abstracts of certificates of entry, attested by the register of the land office to be on file, and agreeing with the register of sales and records of his office, if admissible in evidence, are insufficient to form the basis of a petitory action; and where such was the only evidence of title exhibited by defendant from the United States, and there was no location shown of land thus claimed, under the proper officers of the Government; Held: That defendant had not a title translative of property which would sustain the plea of prescription of ten years.</p>

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

The owner of a lot in a town has a right to the free use of a street. Held: had, and enjoyed. The free and common use of these convenient streets were easements, and privileges annexed to the fee simple estates of the purchasers of lots, running with the title to the lots, belonging also to the tenants under the proprietors of lots, belonging to all “ the freeholders and inhabitants” of this town, as amply…

In the interpretation of testaments, the intention of the testator is to be ascertained, C. Code., Art. 1705 ; 2d vol. Domat, book 2, tit. 1; sec. 6, No. 5; 7 Rob. Rep.,, p. 425, Oxley v. Clay, ex’r. A correct knowledge of the testator’s intentions in this case is necessary to a correct decision of it; not because their execution can bo enforced under the will per se, but because the parties have made those intentions their law, and have voluntarily executed them.

<p>Practice. fry ¿/ic Court. — Though this Court, with the view of relieving litigants from trouble and expense, has sanctioned the practice of omitting in the transcript of appeal such Records as are already on our files, and is willing, with consent of parties, to consult them, it will, in no instance, do so, unless the record shall have been introduced at the trial in the court of the first instance.</p>

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

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

<p>Sale of land from 1?. to B, in which it was stipulated that “ this sale is made udder the express stipulation and condition that the said F. shall not be bound by the vendor’s warranty of title $ and that he does not guarantee said purchaser against the existence of any defects of title, or incum-brances whatever, but such as may have arisen by his own acts; but the said 3. F. nevertheless agrees, in case the purchaser should be evicted, to return him the principal of the consideration, but nothing more.” The purchaser alleged disturbance but not eviction, and it was urged by the plaintiffs that there was no warrant against any thing but actual eviction. JBy the Coiort — We understand the restrictive words in the clause of non warranty to be “but nothing more,” and that they have relation to claims which the vendee might have beyond the restitution of the price, e. g. the fruits and revenues, the costs of suit, or other damages for which he might be liable. Agreements which parties make for themselves in derogation of the general law should be construed strictly. The agreement to refund in case ef eviction added nothing to the legal objection, nor did the exclusion of warranty preclude the legal consequences of the sale, except as specially provided for, and it is no less a legal consequence of the sale that the vendee may suspend the price in case of disturbance, than that the vendor shall refund it in case of eviction. O. 0. 2481, 2585.</p> <p>The only evidence of disturbance was the admission of parties that a suit was instituted by defendants against W. for a portion of the land. JBy the Court. — We think that to avail themselves of this objection opponents should have proved that W. claimed to hold under an adverse title having its origin before the sale from F. to B., or that his possession commenced before that time. That the warranty should have existence, it is necessary the adverse right shall have existed before the sale; and if this right was before the sale an imperfect one, and afterwards perfected by the negligence of the buyer, he has no claim for warranty. 0. C 2478.</p>

<p>F. died, leaving a will, by which he constituted Mrs. 3?. his executrix and univeral legatee. She qualified as executrix — but took no other judicial proceedings* — subsequently as heir, she sold to J. her interest in the estate, warranting the title to the property; J. covenanting to pay the debts, and gave him a full power of attorney to administer and sell. At a sale of the property provoked by a mortgage creditor, H. & H. became the purchasers, for $66,000. The executrix opposed the sale. By the Omri. — It does not appear that the succession is insolvent, and the debts to the unpaid creditors appear to amount to not more than $4,000. None of them are personally parties to this controversy, nor does the evidence satisfy us that their interests would be promoted by opening the sale. Under these circumstances, we think it would be inequitable to permit the sale to be questioned by the executrix.</p>

<p>Insufficiency of demand of payment of promissory note to bind the endorser.</p>

<p>Plaintiff sued out execution against the heirs of Poydras, A rule was taken by the relator to set aside the execution on the ground, that execution could not be granted against a succession belonging to minors — accepted by the minors with thebenefit of inventory. The rule was dismissed, and the District Court refusing a suspensive appeal, a manclwmis was prayed for. By the Coivi't: The right of the plaintiff to execute the judgment which he has obtained for a sum of money can only be suspended upon a petition, affidavit and bond given for injunction. 0. P. 29S.</p> <p>The laws of 1S81 and 1838, relative to injunction of execution, afford a direct remedy against the securities in injunction bonds, which is not accorded in case of appeal bonds, i\t<mdmnus refused.</p>

<p>Suit against executors involving title to land — Held: The universal legatees should have been made parties.</p>

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

<p>The law requiring the keep'ers of coffee-houses to pay $6T for a license, is constitutional; it operates uniformly upon all persons of tlie same class, to wit, keepers of coffee-houses,</p>

<p>The widow having contracted a second marriage, without being continued in the tutorship by a family meeting, the tutorship is forfeited, and she cannot be reinstated as natural tutrix, but must give bond as dative tutrix.</p>

<p>Witnesses for* the accused to contradict a witness for the State who had denied, on cross*-exammation, having sworn to certain statements, cannot be heard after the testimony on the part of the defence is closed, and after the District Attorney has offered testimony to sustain the character of the State’s witness, but which he had withdrawn upon the defendants’ counsel stating that he had no intention to impeach the character of the witness.</p>

<p>Holmes and Jones agreed to purchase a schooner on joint account. Holmes gave Jones his note for one-half the purchase money to be delivered to the owner of the schooner, which note Jones converted to his own use. Held: This was a breach of trust under the Statute of March 8th, 1845.</p>

<p>A man’s concubine is a competent witness in his behalf.</p>

<p>APPEAL from the Eourth District Court of New Orleans, Beynolds, J.</p>

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

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

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

1st. An assault with a dangerous weapon, is one offence, and carrying concealed weapons is another, and they are distinct crimes and differently punished. See Acts 1829, Feb. 7, Bullard & Curry, 270. 2d. In all criminal proceedings in the Criminal Court of the First District for crimes and offences, punishable by not more than two years hard labor, the proceedings may be by information.

<p>Change of residence by the maker of a promissory note will not interrupt prescription — where such change is known to the plaintiff — and where the collection of the note has not been shown to be impracticable.</p> <p>Case of Boyle v. 4 Ann. 418 — too broadly stated.</p>

<p>Parties who did not contract marriage under or with reference to the laws of this State, cannot, in our tribunals, base an action for divorce on matter's which occurred in another State before they had acquired a domicil in this. Although it may be competent in a suit here to offer evidence of such matters, as tending to establish the habit of which complaint is made.</p>

<p>Defendant, an attorney at law, was fined and imprisoned for filing an argument in the Supreme Oourt, which was held to be indecorous and disrespectful to the court and to one of its members.</p>

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

<p>APPEAL from the Sixth District Court of New Orleans, Cotton, J.</p>

<p>Simulated sale set aside. Attempt by fraudulent vendor to screen his property from his creditors, will avail no person who is party to the fraud.</p>

The Act of 1852, is “ to provide a homestead for the widow and children of deceased persons.” Now, this Act does not give her or them a homestead, that is, the dwelling house where they lived, but… Held: that all laws according preferences to one class of creditors over another, are to be construed strictly, as being in derogation of the general principle of our jurisprudence.

<p>The signature of the husband to the appeal bond is sufficient authority for the wife to appeal.</p> <p>A sale of property, for a fixed price, based on a calculation of interest greater than that allowed by law, where there is no fraud or error, will not be regarded as in violation of the usury law.</p>

<p>The amount due for rent on a lease executed during the community, is a debt of the community, and the lessor has a right to demand an account from the administrator of the deceased wife.</p> <p>The registry of a judgment obtained against the husband, after the death of the wife, does not create a mortgage on the share of tine deceased wife in the real estate of the community — but it does on the husband’s share.</p> <p>And a mortgage on the husband’s share cannot be canceled in a proceeding in which the judgment creditor is not represented.</p>

<p>Where some of the members of a corporation have been excluded by others from their rights and privileges as corporators; in an action to be restored to the enjoyment of those rights, the corporation must be made a party to the suit — and the court should so order and not dismiss the action.</p>

<p>It is settled at the common law, that service on all the members of a commercial firm individually, is necessary to bring the parties into court, whether the institution of the suit was before or after the dissolution of the partnership.</p> <p>In an action against the members of a commercial partnership, where only one member was served with process, and the attorney employed by him appeared for the defendants generally, and judgment was rendered against all of the defendants — Relé : That such a judgment in Mississippi was regular, and could only be inquired into by the defendants who were not served with process making affidavit of that fact, and that they never employed the attorney, and on showing also that they had a good and legal defence to the action of which they might have availed themselves if notice had been given.</p>

<p>The charter of a bank determines the powers of the directors and as regards the corporation the rights of the public.</p> <p>The charter of a bank and the subscription constitute a contract between the corporation and its stockholders by which their mutual rights and obligations are fixed, and directors have no power to change it without the consent of the stockholders; and as by the amendatory Act of incorporation of the Atchafalaya Bank in 1886, it was provided, that the balance of its stock on each share should be paid on the first Monday in March, 1888; miless otherwise ordered by the Directors, to be paid at longer peHods of túrne, or in less proportions at different times, and as the Directors did not prolong the payments or change the proportions before the first Monday in March, 1838, their control after that date ceased, and* each stockholder was on the first Monday in March, 1888, the debtor of the corporation for the whole amount of his subscription.</p> <p>Under the Act of 1812, commissioners we.e appointed to take charge of the assets and to liquidate the affairs of the Atchafalaya Bank, and all judicial proceedings by its creditors against the corporation were stayed. The duties of the commissioners, in all matters not specially provided for were assimilated to those of syndics of insolvent estates, and the proceedings were to be the same as those in cases of voluntary surrender by individuals. Held: that although the creditors could not sue the cerporation, nor sue the stockholders directly, yet they had the right to compel the commissioners to sue the stockholders; therefore, a commissioner can not iu reply to the plea of prescription set up by a stockholder avail himself of the rule, contra non njalentem agere, non cwr-Ht prescripts.</p> <p>The Act approved March 14,1S89, entitled “ an Act to relieve such of the banks of this State, whose charters may have been forfeited by a suspension of specie payments, from such forfeiture,” must in order to be operative, have been accepted by the stockholders, or at least a majority of them.</p>

<p>When a judgment has been rendered by the Supreme Court, it is too late to plead in the interval between the day on which it was rendered, and that on which it becomes final, prescription under Art. 902 C. P.</p>

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

<p>The views expressed in the same case, by the late Supreme Court, in 2 Ann. 502, maintained.</p>

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

<p>The Supreme Court refused to issue a mandamus to a District Judge to grant an injunction to restrain the execution of a judgment, it appearing that the judgment was for less than $300.</p>

<p>APPEAL from the District Court of the parish of Plaquemines, Rousseau, J.</p>

<p>ON an application for a mandamus to the Judge of the Sixth Judicial District Court.</p>

<p>The grandfather is called to the tutorship of his grand children, upon the death of their parents, in preference to all other 'persons, unless the surviving parent shall, by 17111, have appointed a tutor; the causes of incapacity for, and exclusion from tutorship, are specifically enumerated in Articles 322, 823 of the Civil Code, and to say that the grandfather can not be appointed unless a resident, would be to extend the cause of incapacity for and exclusion from tutorship, by implication beyond those Articles, which can not be done</p> <p>Where the parents died without appointing by will, a tutor to their children, and the grandfather made due application for the tutorship, gave bond and took the oath prescribed by law, and formally declared his intention of continuing his residence in New Orleans, where it was stated he then resided, although he was but a short time previous a non resident. Held: that the District Judge erred in refusing to grant him letters of tutorship.</p>

<p>The following agreement is sufficient as a confession to authorize a judgment against the obligors and dispenses with service of citation and petition: “We waive citation and service of petition, and confess judgment according to the prayer of the petition of M. Y Babin within, for the sum of three hundred and thirty-five dollars and ninety-two cents, with interest thereon at the rate of eight per cent, per annum, from the 1st of January, 1849, until paid, and costs of suit, with stay of execution until the 1st of December, 1849. March 16, 1849. (Signed,) James 0. Dawson, Mart Ann Dawson ”</p> <p>The wife is bound to support the household expenses, and the expenses of the education of their children alone, if her husband has nothing. 0. 0. 2409.</p>

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

<p>A notice of seizure under attachment, served on a garnishee who has possession of a bill of exchange belonging to the debtor, and against which a third .party has equities, does not destroy those equities. The seizure affects the interest which the defendant has in the bill, and nothing more. The seizing creditor does not acquire such a right in the bill as the debtor might have conveyed to an endorsee for value anti without notice.</p>

<p>APPEAL from the Pifth District Court of New Orleans, Livingston, J.</p>

There was no property under the control or within the jurisdiction of the court, or upon which the judgment of the court could be made effective for the intervenor.

<p>Until notice is given of the transfer of a claim, by the transferree to the person on whom it is given, the assignment is incomplete and a creditor of the transferrer may legally seize and appropriate it to his own debt. O. C. 2613.</p>

<p>Parol evidence of an auctioneer is not admissible, when objected to, to establish a title derived through a syndic’s sale made in the course of judicial proceedings. There must be some written evidence to support such a title.</p>

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

<p>There is no law nor usage, nor is there any obligation in its charter, making it obligatory on the New Orleans Canal and Banking Co. to keep a railing along the margin of the canal.</p>

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

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

<p>APPEAL from the Fourth District Court of New Orleans, Reynolds, J.</p> <p>The amount in dispute being only $02 70, this case does not come within the jurisdiction of the court. “ which extends only to cases where the matter in dispute exceeds $300.” Constitution of 1845, Art. 63. Constitution of 1852, Art. 62. C. P. 874, 875. Copley v. Ross, A. R. 310. Frellsen v. Copley, 2 A. R. 911; and the exceptions pointed out by those instruments in relation to the legality or constitutionality of taxes, &c., or to fines, &c., imposed by municipal corporations, are clearly inapplicable here.</p> <p>It is contended, that there is another exception in all succession cases ; but this is clearly a mistake. The succession cases may be divided into two classes : 1st, those in respect to the appointment or removal of curators, administrators, &c. ; and 2d, those in which some property or right of property is litigated.</p> <p>On the cases of the first class, in which the parties are merely contending for the administration of the estate, the jurisprudence was during many years unsettled — not as to the basis of $300 giving jurisdiction, on which all agreed— but as to the way of fixing that basis; thus it was contended on one side that the amount giving jurisdiction was the total value of the estate to be administered upon, while, on the other, it was contended that it was only the value of the commissions which those curators, &c.., were entitled to. This uncertainty, however, was done aw'ay by the promulgation of the Code of Practice, declaring that the amount of the estate was the true basis.</p> <p>Besides, it must be observed: 1st, that, in this case, the appellant is now acting in his personal capacity, the judgment a quo being rendered against him personally; 2d, that this case has no relation whatsoever to the appointment or removal of the executor.</p> <p>The claim of the appellees was less than $300 — but this matter was in the nature of a concurso, and the whole estate exceeds $300. This court, therefore, has jurisdiction. See O. P. 1049, 1050. L. O. 1152. 8 L. R. 166. 11 L. R. 462. 3 Rob. 5. 12 Rob. 415. 2 An. 189.</p>

<p>Unless expressly included by the statute, Sunday must be excluded when a certain number of days is allowed to a defendant in. a criminal case. Therefore, under the 435th section of the Statute of 1805, which requires that a copy of the indictment and list of thejury be delivered to the prisoner at least two entire days before he shall be tried, the prisoner is entitled to two entire days exclusive of Sunday.</p>

1. The non-payment of interest will be resisted, because it is said, neither the code nor the statute law of the State make any provision for the payment of interest by executors, administrators, curators, or persons who occupy a fiduciary relation, except in the case of tutors; and because, if interest could be charged ordinarily, it ought not to be charged in this case, as the fund in the executor’s hands arose principally from notes collected, which had from one to ten…

The reference of the Chief Justice to the opinion of Judge Lea, for a further illustration of the subject before the Court, renders it proper to give that judgment an insertion in this place. It is as follows : The issues between the parties in these proceedings are presented somewhat irregularly. The alleged heirs have hot yet been recognized, and the only evidence in support of their claims consists in the admissions of the widow, which are binding only upon herself.

The following opposition to the account was filed on behalf of the State Treasurer: In 1833, the appellant Jean TMopldh Ga/oelier was appointed curator to the vacant succession of the late Marrie Brangoise JD’Aquin. All the property of the deceased was sold, and after paying her debts, there was a balance of $698 20J cents, left in favor of the succession. This is not disputed, and it is also a matter of record that the payment alluded to was made prior to the year 1837.

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

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

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

<p>A commercial firm in New Orleans, styled “ Caldwell & Hickey” and composed of Jolm Caldwell and Daniel Hickey, was dissolved in 1841, when the partners removed to Baton Rouge, where they afterwards resided. They established a planting partnership in East Baton Rouge, under the same name, “ Caldwell & HickeyIn 1848 Caldwell obtained an advance from a factor, which enured to the benefit of the planting partnership, and gave a note signed “ Caldwell & Hickey,” with McCalop as surety. Stewart, the executor of McCalop, who, as surety, had paid the note, sued CaldAoeU <& Hickey as commercial partners. There had been no published notice of the dissolution of the New Orleans partnership, but its members had wholly withdrawn from mercantile business and never used the old mercantile name, as such, subsequently to its dissolution. McCalop, who resided in West Baton Rouge, not far from the residence and planting establishment of the defendants, never dealt with the New Orleans firm, or looked to it with any view of responsibility; therefore held: That Hickey was only liable, as an ordinary partner, for one-half of the amount.</p> <p>If one of the members of an ordinary partnership, without authority, sign the partnership name to a note, the partner, who has knowledge of its existence, and does not object, and to whose benefit the consideration for which it was given enures, is jointly bound, but where the partner signing the firm name had no authority to give the note, the copartner who had no knowledge of its existence, and neither ratified nor received any benefit from it, is not bound.</p> <p>An instrument in this form : “We jointly and severally promise,” and bearing the signatures of Caldwell & Hickey,” an ordinary partnership, and of “James McCalop,” exhibits on its face two debtors in solido, to wit: one solidary debtor, the firm of Caldwell & Hickey, and another solidary debtor, James McCalop.</p> <p>0. 0., 2696, 2697, 2843, 3023.</p>

<p>A steamer was sequestered, and released on bond. In an action against the sureties on the bond» they pleaded that the steamer had been, subsequent to the sequestration, seized and sold by another creditor, and the proceeds, to the knowledge of plaintiff, paid into court and distributed among the creditors. By the Cowi't: The creditor was not bound to resort to the fund in question, and thereby involve himself in a litigation'with third persons, which, for aught that appears to the contrary, might have been fruitless, and which resort he was not requested by the sureties to use»</p> <p>0. 0. S018»</p>

<p>P. & L. having obtained an order dissolving an injunction which had issued in favor of Mrs. GoVb^ she took a suspensive appeal, which the Supreme Court dismissed, but when the case came up on its merits, it affirmed the decree dissolving the injunction. P. & L. sued the sureties on the appeal bond of Mrs. Cdbb% for damages resulting from the injunction which she had obtained. Held: the sureties were not liable — their obligation being only to satisfy the judgment in the case appealed, and not one which might afterwards be obtained in another suit in the shape of damages occasioned by an injunction,</p> <p>C. 0. 2207.</p>

There is nothing more familiar in our law, than that, if a minor receives, after coming of age, the proceeds of his property, illegally sold during his minority, he ratifies the sale. 8 Toullier, 707. ó. C., Arts. 2252, 1778, sec. 6, 1809. 2 A. R. 367. 9 La. R. 304. 2 R. R. 20. 3 R. R. 256. 10 R. R. 129. 4 R. R. 127. The first point is, that the family meeting was not composed of the nearest relatives — that relatives were excluded and friends taken in their place.

<p>APPEAL from the Second District Court of New Orleans, Lea, J.</p> <p>The ordinance of the Second Municipality establishing said ferry, fixes her landing on the other side at “a point opposite her place of starting,” the defendants had no right to change the same, and that said ferry should make that landing to a point at right angles to the Levee, and perpendicular to and opposite the street from which it starts. Municipality No. 2 v. Municipality No. 1, 17 La., 576. All of which has been recognized and acquiesced in, by the defendants, as appears by the ordinance of said Police Jury, of July 6th, 1846, (p. 22,) which was in force when the other defendants acquired their ferry privileges.</p> <p>A concurrent power in two distinct corporations to regulate the same thing is inconsistent in principle and impracticable in action. NcOollogh v. The State of Ma/ryland, 4 'Wheaton, 487. That to conclude, that the State law conferred concurrent power on two independent corporations to regulate and control the same thing, to pull down what one had a right to build up, to destroy what the other had a right to establish and preserve, would be to conclude an absurdity. In the words of Justice McLean in the case of Smith v. Turner, 7 Howard, 399: “A concurrent power in two distinct sovereignties, [Corporations] to regulate the same thing, is as inconsistent in principle as it is impracticable in action. It involves a moral and physical impossibility. A joint action is not supposed, and two independant wills cannot do the same thing. The action of one, unless there be an arrangement, must necessai'ily precede the action of the other, and that which is first, being competent, must establish the rule.”</p>

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

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

<p>The proviso to the Act of 8d March, 1811, declares that until the final decision of Congress thereon, no tvact of land shall he offered for sale, the claim to which has been in due time and according to law presented to the Recorder of land titles in the District of Louisiana. A claim to the land in controversy was made in 1886, and prosecuted until 1844, when patents issued. The plaintiff’s claim rested on entries made in 1839. Held: That under the proviso of the Act of 3d March, 1811, no entry of the land could be made, a claim for it being then pending. And 7>y the Cornet — The entries made in 1889, in which, the floating claims of the plaintiff originated were in violation of law — null and void. And as floating claims are liable to the same disabilities as the original pre-emptions from which they are derived, the nullity extends to them.</p>

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

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

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

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

<p>APPEAL from the District Court of the parish of East Feliciana,-,* J.</p> <p>The property was productive, and of the kind which would bear interest by the operation of law.</p> <p>The debt was for a single sum, which became divisible into installments only by reference to the terms of sale. No notes or other obligations were given, and all parties looked to the procos verbal' of the adjudication for their protection.</p> <p>Toullier would have inquired,- whether the payments would extinguish any one of the credits, and imputed it so that the creditor should not receive his pay in small sums upon each credit. 7 Toul. 183.</p> <p>We contend,, however, that each adju lication was a single debt,, due,, it is; true, by installments; and that all of them were equal; and that the payments should be imputed first to the interest due on the whole debt, and then to the principal.</p> <p>Article £160 of the Civil Code declares, that the debtor cannot impute to the payment of the capital, any payment he may make when there is interest or rent due. 1 N. S. 571,. 3 Rob-.- 362.-</p> <p>Each adjudication was a distinct debt,, which bore interest as the installments fell due as an entire thing.- It was a single obligation, maturing by installments ; and the debtor, who neglected to pay by installments, could not refuse to apply the payment to the interest first. I-n potestate ejus est, qui ex pluri-bus contractibus pecunism debet, tempore solutionis ex primere in quam cau-sain reddat. Quod si debitor id non facit, convertitur electio ad eum qui accepit. Si neuter voluntatum suam expressit; prius in usuras id quod solvi-tur, deinde in sortem aecepto feretur. Codex., viii, p. 43, const. 1. The text, the court will observe, applies to the interest due upon a number of contracts.</p> <p>It is contended by the defendant, that each obligation contains three distinct debts — thirty-three in all; and that,, being of like nature, the imputation must he made to the one first falling due or the most ancient. I think it has been sufficiently shown in reply, that there is but a single obligation in each case, and that, all things being equal, the imputation of payment should be made proportionably to each obligation, and covering first the interest. C. 0. 2162. 3 Ann. 352, Adams v. The Barilo of Louisiana.</p> <p>The English text of Article No. 2162, has modified the Article No. 156 of the old Code, which read, that the imputation should he made to the most burdensome debt. The French text in both Codes is the same. Giving- weight to the English text, under the Constitution of 1812, and there is no difficulty in making the proportioned imputation of payment.</p> <p>But, there is a dictum, not a decision, in 6 N. S., which is based on Toullier, who reiers to the Digest, 1. 46, t. 3, 1. 89, sec. 2, relied on by the defendant, which says, that the most ancient debt is the one which first fell due. By reference to the place cited in the Digest, it will appear that there were two different contracts, bearing different rates of interest; and that it wag stipulated, that one should be paid before the other; and it was decided, that it was more in accordance with custom to extinguish the debt first due, bearing the least rate of interest. The -creditor stipulating this had an interest, and a right, that the debt bearing the least rate of interest should be first extinguished. Whether the amendment of the old Code contained in No. 2162 of the new Code, is a blunder, or not, it is very like this conclusion of the ancient juris-consult.</p> <p>No imputation is made by either plaintiff or defendant at the time of payment. The law then must make it. It will impute them to the installments in the order of their maturity- — -to that first due — because it is clear that this was the debt which the debtor had at the time most interest in discharging. C. C. 2162; Hennen’s Dig., vol. 2, p. 1162, § 3. If the French text of the latter clause of this article is to prevail, (and it is in accordance with the Code of Napoleon, and the corresponding Article of the old Code,) the payments are to be so imputed, because the installment first due is u la plus ancienne.” 6 N. S., 113; Lanusse v. Lamia. The English text of this clause seems clearly erroneous — it is in direct opposition to the first clause of the same Article — for the debt which the debtor has the most interest in discharging, cannot be, under any circumstances, the least burdensome. It is a direct contradiction in terms. The English text of the old Code reads, “the most burdensome;” which is in harmony with the rest of the Article — though we think the French text is undoubtedly the correct reading.</p>

<p>Afrom the Eirst District Court of New Orleans, Larue, J.</p>

<p>Plaintiff must apply for or cause a fi.fa. to issue against his judgment debtor before he can proceed against the garnishee, under the Act of March 20th, 1889.</p>

The only question in this case is, whether the city of New Orleans is liable for the misfeasances of her police, who in the exercise of their functions use an undue degree of violence, and while in the service of the city, destroy the property of the citizen. The District Judge decided that she is so liable.

<p>A personal action for damages for a tort, does not expire with the person who instituted the action. C. P. 1, 21, 22, 118, 120, 90T. O. C. 86T, 1994, 22T1, 2294.</p>

We submit that a judgment of nonsuit, even when voluntarily taken, is neither a discontinuance nor an abandonment. A discontinuance is a matter entirely within the discretion of tha party. O. P. 491, 492. The court can have no control over it. 3 L. R. 282. 6 Rob. 354. 14 L. R. 280. 1 Rob. 393. 17 L. R. 310. The whole range of authorities go to show that the discontinuance is a matter entirely within the discretion of the party, and with which the court can have nothing to do.

Good faith, saith Lord Mansfield, in the “Swartwoufc case,” 4 Bur. 1986, is not alone sufficient to protect the agent against personal liability. He puts the two cases as exceptions to the general rule. 1st. Where the agent is under timely notice, 2d. Where the agent has acted mala fide. This limitation of the general rule was also approved by the Supreme Court of the United States, 10 Peters, 156, See, also, Hearsey v. Pruyn, 7 John., 182-3 ; Garyv.

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

<p>APPLICATION for a Writ of Prohibition to the Judge of the Fourth Dis-</p>

<p>The plaintiff sued the defendants as joint proprietors of an adjoining lot, for one-half the cost of a party wall. Held: Where the defendants purchased the lot after the wall had been reconstructed and paid for by plaintiffs, and their vendor testified that he made no arrangement either with his vendor, or with the defendants about the payment of the party wall, and there was no evidence before the court that the defendants had subsequently used the party wall thus reconstructed, there should be a judgment as of nonsuit. By the Court — It is unnecessary now to decide whether a privilege would arise upon the adjoining proprietors using a party wall reconstructed before he acquired the adjoining estate; or whether, if his vendor had used the reconstructed wall before selling, there would be a privilege following the property sold into the hands of such vendee.</p>

1st. The amendments made to the original petition were as to the form, and not the substance of the action, and did not require either answer or a judgment by default to be taken.

<p>The verbal acknowledgment of the debtor which, in general, would be sufficient to interrupt prescription as to other debts, does not suffice to do so in relation to overseer’s wages and hire of</p> <p>slaves. The formal written recognition of the claim in a com/pte arrUé is indispensable Oode 8503.</p>

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

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

<p>The principle is settled beyond controversy, that an attorney has no authority ’to release his client’s debtor without payment; and that an agreement by an attorney at law to receive payment of a judgment in any thing but the legal currency of the United States, will not be binding on his client without the consent of the latter.</p>

<p>The illegal seizure and sale of another’s property, is a quasi offence — and an action for damages for such seizure and sale is prescribed by one year.</p> <p>Code 2294, 2295.</p>

<p>APPEAL from the District Court of the parish of Avoyelles, Cushman, J.</p> <p>1. At the death of the husband, it is necessary for the widow to take an oath as tutrix previous to her being vested with legal authority to represent their minor children. C. C. 328. C. P. 950. 12 R. 637. 11 R. 504</p> <p>2. The mother is ipso facto deprived of the natural tutrixship of her minor</p> <p>children if she enters into a second marriage without first calling a family meeting to retain her in the trust. 0. 0. 272. 10 L. 459. 9 R. 138.</p> <p>3. The grandfather,, as the nearest ascendant, the father being dead and the mother having forfeited the tutorship, has a right to the tutorship without the recommendation of a family meeting. O. C. 281. 6 N. S. 455.</p> <p>4. When the minor is without a tutor, it is the duty of the under tutor to have one appointed. C. C. 303. 2 A. 242.</p> <p>I. Tile depositions marked D should have been ruled out. 0. P. 436, and amendments 1826, 1828 and 1839.</p> <p>2. No authority is shown to institute this suit. C. P. 1015, 1016. 9 R. R. 113. 10 L. R. 84 12 ibid 577.</p> <p>3. The marriage being null, no necessity existed for calling a family meeting to be retained in the tutorship. C. C. 95, 115, 133, No. 3, ibid 12. 4 Toullier p. 223, sections 493, 495, 496, 516, 517. Story Conflict of Laws 2d edition, see. 113. Note I, p. 108, under sec. 116. 2 Kent, p. 91, 92. C. P. 20. 2 L. R. 139, ibid 385. L. C. 115, 1885, 1886.</p> <p>4 The tutrix does not forfeit her functions as such by failing to call the family meeting as provided by L. 0. 172, 0. P. 950, 951, if her first marriage be a nullity, and she has a right to use this as a defence without first instituting a direct action of nullity. 0. P. Art. 20. 2d L. R. 139, 385. C. C. 95. 12 R. R. 472.</p> <p>5. If her first marriage had been legal and she had forfeited her tutorship by failing to call the family meeting provided by Articles C. C. 172 and 250, 950, C. P., she still ha 1 the preference in the appointment by calling the family meeting, 3 R. R. 390, 4 Ann. 523, 5 Ann. 696, and complying with the other requisites of law. V. C. C. 288.</p> <p>6. No appointment of a legal tutor to the minors can be made while the father or mother be living, and they are willing to accept it. 3 R. R. 390 and cases cited.</p> <p>7. If the father or mother refuse to accept, the court must appoint with the consent of a family meeting a dative tutor, and in such case the grandfather has no preference. O. C. 288, 281, 282, 283, 284. 4 Ann. 523. 3 R. R. 390.</p> <p>8. The court therefore erred in appointing the grandfather as tutor without the intervention of a family meeting. This formality must be observed, or the appointment is a nullity.</p> <p>9. The natural tutrix cannot be deprived of her tutorship if she fails to take the oath. The only cases where such forfeiture takes place, are unfaithfulness and notoriously bad conduct. C. C. 326. 2 Ann. 751. 5 N. S. 29. 6 R. R. 488. 6 L. R. 354.</p> <p>10. The failure of the natural tutrix to take the oath only prevents her doing any act which can bind the minor. It suspends, but does not operate a removal. The distinction is manifest. C. C. 328. 3 Ann. 562. 11 R. R. 503. C. P. 949. She might at any time take the oath.</p>

cited C. 0. 2258. 2 R. 212, 328. 1 La. 206. 12 La. 166. 13 L. 216. To prove the lost instruments, the affidavit of plaintiff is annexed to the petition, and three consecutive advertisements in the newspaper published at Marksville, 13th January, 1853, were offered in evidence.

<p>A mwidamus will not lie to compel a clerk to issue an execution for arrears of alimony, where it does not appear that an application and a proper showing has first been made to the Judge who rendered the decree for alimony.</p> <p>O. P. 629, 641, 884.</p>

<p>APPEAL from the District Court of the Parish of Natchitoches, Ohaplin, J.</p>

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

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

<p>APPEAL from the District Court of the Parish of Sabine, Bulla/t'd, J.</p>

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

<p>THIS case was tried by a jury before Gushman, J., holding sessions in the</p>

<p>A tutor is entitled to commissions on the net and not the gross amount of the proceeds of sales of crops made on the minors’ plantation, under Art. C. C. 342.</p>

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

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

<p>Mandamus against defendants to compel them to levy a tax to an amount sufficient to pay plaintiffs’ judgment refused. And, by the Cow't — However general and comprehensive the disposition of Art. 830 of the Code of Practice may be, we assume that the power of courts to issue the writ of mandamus must be restricted to the cases in which their authority can be vindicated by the enforcement of the process. We are unable to perceive how this can be done in this case.</p>

<p>APPEAL from the District Court of the Parish of Avoyelles, Gushman, J.</p>

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

<p>APPEAL from the Eirst District Court of New Orleans, Lamie, J.</p>

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

<p>A person dealing with a known agent in a matter within the scope of his agency, gives credit to the principal.</p>

<p>The Supreme Court will not grant a writ of certiorari, when the amount in dispute is below its jurisdiction.</p> <p>The Supreme Court derives its jurisdiction from the Constitution, which declares it to be appellate, and it can exercise no control over the proceedings of inferior tribunals in causes in which no appeal would lie to it, and can only Interpose its authority when necessary for the maintenance or in furtherance of its appellate jurisdiction.</p>

<p>The plaintiff charged in his petition, that defendant u had debauched a young woman who stood in the relation of daughter and servant to him, by means whereof he lost her ser vices and was put to great expense.” There was no allegation that either violence or craft was used by defendant. Held-: The nature of the title by which the plaintiff sued, was not disclosed with sufficient clearness.</p>

<p>Where an appeal is evidently taken for delay, the appellee is entitled to damages.</p>

<p>APPEAL from the Eifth District Court, Augustin, J.</p>

<p>An accommodation acceptor has no right of action against the drawer until the maturity of the bill and payment by the acceptor.</p>

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

<p>Where one by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time.</p>

<p>In the First District Court of New Orleans, it is customary for jurors to serve from term to term, the terms beginning on the first Monday of each month.</p>

<p>The privilege of a commission merchant or consignee for advances, does not attach, until the property on which the advances are predicated comes into the possession, actual or constructive, of the party claiming the privilege.</p> <p>The transfer of cotton on the black book of a cotton press, is a symbolical delivery.</p> <p>By the usage of the cotton presses in New Orleans, the destination of a lot of cotton transferred on its black book, cannot be changed without the consent of the transferree.</p>

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

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

<p>A prospective insolvency affords no ground for proceeding by injunction and sequestration against a debtor.</p> <p>The remedy of sequestration being a rigorous one, cannot be extended by implication to cases not contemplated by the law maker.</p> <p>C. P. 158, 275, 808.</p>

<p>APPEAL from the Sixth District Court of New Orleans, Cotton, J.</p>

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

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

<p>¿Syndic of pledgor alleged, that bills receivable were pledged and delivered to defendants for simultaneous advances. He neither impeached the good faith of the transaction,, nor showed any injury to creditors, but merely objected to an informality in these pledges, by reason of an omission to endorse the bills receivable, as prescribed in the Art. 3123 0. 0. Held: That the syndic cannot, upon a mere formality of this sort, disturb the pledge.</p>

<p>The rights of a vendee are not affected by a notification of an adverse claim, after the sale is completed, and he has paid his money and issued his note.</p> <p>Under the Act of 1843, the Parish Recorder is fully authorized, to erase from his books a mortgage after its peremption, and in the absence of fraud one is not bound to look beyond the certificate given by the recorder to that effect.</p> <p>Where title is set up under a Sheriff’s sale for taxes, it is essential to show an assessment according</p> <p>Such a description of property in a Sheriff’s deed, as “ square No. 19, situated in Bloomingdale,” is insufficient.</p> <p>A prayer for general relief may be available in certain cases, for instance, it may be aptly called in aid to explain vague and obscure allegations or averments, but for no other purpose.,</p> <p>Jp. a petitory action, it is not necessary for the plaintiff to show any act of possession.</p>

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

<p>A marriage contract must have full force and effect between the parties to it, unless vitiated by</p> <p>It is the duty of a husband who administers his wife’s separate property, to render her a faithful account of his stewardship.</p> <p>The verdict of the jury was for $4000, “ the value of paraphernal property,” and the decree of the court was: That the plaintiff recover of the defendant $4000, “ being the amount of her parapher-nal property received by him and in his possession.” Held; The judgment is a substantial compliance with the requirements of the law, and is sufficiently responsive to the verdict.</p>

<p>The inaction of a creditor for many years after his debtor had made a ees&io Tjonoi'wn, and who was placed on the bilan, and notice to him was placed in the post office, directed to his place of residence, afford a strong presumption that the creditor received actual notice of the proceedings.</p>

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

<p>Plaintiff’s slave went on board of a steamship to sell milk to the steward of the cabin. The planks which constituted the staging slipped, the slave fell into the river and was drowned ; the plaintiff sued the owner and master of the vessel for the value of the slave as damages, on the ground that they neglected to have a proper means of communication between the steamer and the shore. Held: The master and owner were under no legal obligation to provide for the slave the means of ingress and egress to and from the vessel.</p>

<p>The furnisher of materials who has contracted with the undertaker, has no action against the owner who has paid the undertaker. The mere fact that the proprietor has accepted and paid orders drawn on him by the undertake.* in favor of the material man, does nothing him beyond his actual acceptances.</p>

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

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

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

<p>APPEAL from the Sixth District Court of New Orleans, Colton, J.</p>

<p>A purchaser at a judicial sale, who, before paying the price or entering into possession of the thing purchased, discovers illegalities in the proceedings which have led to the sale, calculated to throw a cloud upon his title, may refuse to execute the purchase. But the burthen of proving the illegalities will be upon him.</p> <p>The vacancy of the office of tutor, by death or amotion, does not vacate that of under-tutor; on the contrary, it is the duty of the under-tutor in such cases, to cause another tutor to be appointed. O. O. 303.</p> <p>"Where there are several minors interested in ^ petition, there should be a tutor appointed to each. O. 0. 1291.</p>

<p>The city of New Orleans has the right to sue for the tax imposed under the city ordinance passed in conformity with the Act of the Legislature, of the 12th of March, 1852.</p> <p>The provision of the Constitution of 1845, which forbids the State to subscribe to the stock of any corporation, or joint stock company, does not extend to such subscriptions by municipal corporations,</p> <p>Decision in Police Jury v. McDonogh's Succession, 8 Ann., affirmed.</p> <p>The case of the Police Jury v. McDonogh's Succession, was elaborately argued and carefully considered, and (by Slidell, & J.) upon the faith of that decision we may reasonably presume that manifold contracts have been entered into, and large advances of money made, the railroad enterprises then initiated being of great magnitude. To overthrow the decision of a question of such moment would involve a responsibility most grave, and which a court of justice should not assume without the most clear and unqualified conviction that its former conclusion was erroneous. A vacillating jurisprudence in a grievous evil. It would be, especially deplorable with regard to constitutional questions embracing a wide practical range.</p> <p>Article 121 of the Constitution of 1845, which provides that “ the State shall not become a subscriber to the stock of any corporation, or joint stock company,” takes from, the Legislature all power to authorize a subscription by a municipal corporation to a corporation or joint stock company. Buchmim^ J., dissenting.</p> <p>As the municipal corporation is the creature of the Legislature, so is the Legislature, in its turn, nothing but the creature of the will of the people, as expressed by the Constitution. When that will has imposed a restriction upon the legislative action in any particular direction, the power to legislate in that direction not existing, any attempted delegation to a corporation of a power of that nature is a manifest evasion of the Constitution, and an usurpation of the most dangerous kind. Buchcmcm., J., dissenting.</p> <p>The Statute of 13th of March, 1852, is general, and applies to every police jury and every municipal corporation in the State. Now, it is belived, that every foot of ground in Louisiana, is within the territorial jurisdiction of some police jury, or some municipal corporation. Therefore, the statute has an operation co-extensive with the State, and is, in substance, though notin semblance, a statute to authorize the whole State to become subscriber to the stock of corporations. Buchcmon, J., dissenting.</p> <p>The violation of Article 121 of the Constitution, would not be less real, although it would not be so palpable, had the statute authorized but oue subscription by one municipal corporation or police jury. The nullity, the radical vice of want of authority in the party authorizing the subscription, would have equally existed in the case súpposed. Buchwicm, J., dissenting.</p> <p>That which the Legislature cannot do constitutionally itself, it cannot constitutionally authorize a municipal corporation to do. Buchcma/n¡ J., dissenting.</p> <p>The Act of 15th of March, 1854, authorizes the city of New Orleans to subscribe to the stock of certain railroad companies, directly, in lieu of the tax convertible into stock by the tax payer, imposed by the ordinance passed under the provision of the Act of 12th of March, 1852. The Act requires the couucil, under certain conditions, to repeal the ordinance — but contains the following proviso: “Provided the repeal of said ordinance shall not be so construed as to relieve the city from its liability to collect and pay over to said railroad company, that portion of the railroad tax imposed under said ordinance, for the year 1853, which has not yet been collected and paid over to said company.” By the Goimt: This proviso immediately follows a peremptory requirement by the Legislature, of a repeal of the ordinances of the 18th and 17th of May, 1852. The analysis of these ordinances has shown that they imposed taxes on all landed estates, collectable one-sixth each year, through six years, 1853,1854,1855,1856,1857 and 1S58. The repeal of the ordinances, then, abolished the whole tax — the one-sixth payable in 1853, as well as the five-sixths payable in the five subsequent years. The injunction to repeal is entire — reserves no portion of the taxes. Under these circumstances, the proviso is simply unmeaning. BuchaAicm, J., dissenting.</p>

In B. v. Woodslanton, 1 Bott, 010, (cited in Dwarris on St., 714,) the distinction between directory and compulsory statutes was applied to st. 43, El. c. 2, s. 5, which enacted that male apprentices should be bound out by the parish till the age of 24; yet a binding till 21 was held to confer a settlement— for the statute is only directory in this respect.

<p>By the Act of 1850, all property belonging to charitable institutions is exempt from taxation.</p>

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

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

<p>Decision in Taylor v. Ifollender, 4 N. S. 535, affirmed.</p> <p>Where a proceeding was had by rule to annul an execution, and no objection was urged in the court below, it is too late to make it in the Supreme Court.</p>

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

<p>l'he policy of insurance, and the adjustment of losses thereon, even if subscribed by the party to be charged, are not negotiable. If they are assigned, the assignee takes them subject to all equitable defences against the assured.</p> <p>An adjustment signed by the insurer in ignorance of frauds practised by the assured which would avoid the policy, may be set aside.</p> <p>Where fraud is set up to avoid a policy, the better practice, probably, would be to specify the mode and circumstances of the fraud with particularity.</p>

<p>APPEAL from the District Court of the Parish of Madison, Perkins, Jr., J.</p>

<p>Where property has been set apart for public use and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an * stoppeH^jpais, which precludes the original owner from revoking such dedication.</p> <p>The decisions in Livaudais v. Municipality JSTo. Two, 16 La. 509 ; Livaudais v. Municipality JLo. Two, 5 Ann. 8; Xiques v. Bi0ac, 7 Ann. 517; and Livaudais v. Municipality Jib Two, 9th Ann, were based on the principle that the designation on a plan of a space for the erection of an edifice which might be the private property of an individual, or a corporation, could not be considered as a dedication to the public use.</p>

<p>The mere fact, or circumstance of a commission merchant having made advances to a planter, on which the usual commissions and interest are charged, is clearly insufficient to authorize a charge of commission on such portions of the planter’s crop as maybe consigned to other factors, in the absence of any agreement to that effect.</p>

1. The seizure of the judgment of Rightor v. Slidell, by the United States Marshal, by service on Slidell, the debtor of the judgment, of the notice copied into the statement of facts, was a good,… Held: that when third persons seek to annul a judicial sale on account of informalities, it is essential for them to show they have been injured by the sale, otherwise tljey have no right to interfere with it.