Volume 9 — Robinson's Louisiana Reports

<p>To entitle a third person to appeal from a judgment between others, he must show that he is aggrieved by it.</p>

<p>Appeal from tbe District Court of St. Mary, Boyce, J.</p>

<p>Service of citation of appeal on an agent of an attorney-at-law representing an absentee, is insufficient.</p>

<p>A letter from plaintiff’s attorney to defendant, offered in evidence by the latter, is inadmissible, where the attorney is in court, and willing to be examined as a witness.</p>

<p>No appeal lies to the Supreme Court whore the amount in dispute does not exceed! three hundred dollars. The value of property seized by a sheriff to pay taxes, the sale of which was enjoined by plaintiff, cannot give jurisdiction, where the amount of taxes due is less than three hundred dollars.</p>

<p>Where the purchaser of a tract of land knew, at the time of his purchase, that a suit would be necessary to evict the parties in possession, he cannot recover from his vendor the costs of the suit.</p> <p>The notice required by art. 735 of the Code of Practice, to be given by a creditor hr possession of an act importing a confession of judgment, before proceeding against a debtor or his heirs, is to be served by the sheriff; hut it is not necessary that it should be signed by him. The notice may be made out by the clerk of the court in which the petition is filed. The object of the notice is to accord a delay to the debtor before issuing the writ, to enable him to appeal, or protect his rights by any other mode. If_ the delay be given, the form of the notice is immaterial. Service of a copy of the potition on the debtor, is not necessary. ■</p>

<p>Notarial acts relative to immoveable property, will be without effect as to third persons, unless duly recorded in the maimer prescribed by sect. 7 of the act of 24th March, 1810.</p>

<p>Appeal from a final judgment of the District Court of St. Landry, confirming one taken by default, King, J.</p>

<p>Appeal by the defendants and intervenor from a judgment of the District Court of St. Mary, Boyce, J.</p>

Mary, Boyce, J. The judgment below was in favor of the plaintiffs as against McMillan, and the suit was dismissed as to the other defendant, Brashear. From the judgment of dismissal, the plaintiffs appealed.

<p>In an action against an architect or builder, under art. 2733 of the Civil Code, for damages on account of the badness of the materials or work in a house built by contract, plaintiff must establish that the bad condition of the building resulted from the character of the materials or workmanship. Under the Code Napoleon, art. 1792, the undertaker is liable where the building cracks, or falls in consequence of a defect in the soil on which it was erected. Miter, under the Civil Code of this State</p>

Martin, King, J. This was an action on a promissory note, in the following words: St. Martinsville, ce 5 Novembre, 1842. $585: Le premier de Mars prochain, je promets de payer á P. P. Briant, ou á son ordre, an bureau d’escompte de la Banque de l’Etat de la Louisiane á St. Martinsville, on .félis mon domicile á cet effet, la somme de cinq cent quatre vingt cinq piastres, vaIeur reque. Alcide Fuselier. (Endorsed) Pay to Louisiana State Bank, or order, value received.

<p>Appeal form the District Court of St. Martin, Boyce, J.</p>

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

Landry, King, J., perpetuating an injunction obtained by the plaintiff, and quieting him in the possession of the land claimed in his petition.

Appeal- from the Court of Probates of St. Mary, Dumartrait, J. urged: That all the rights and property of insolvent pass to his- creditors by the surrender, whether on the schedule or not. 2 Rob. 137. 11 La. 531. 12 La. 109. That the minors represented by the tutor are good witnesses for plaintiff, because called to testify against their interest. 3 Rob. 227. 2 Rob. 338. 3 Mart. 73-. 4 Mart. 471. 6 Mart. 256.

<p>Where slaves brought into this state from another in which they are regarded as chattels, have remained for many years in the possession of a citizen of this state, he will be presumed to be the owner of them; and a bona fide purchaser from him, without notice of any title in another, will be protected. Otherwise, where the purchaser had notice of the claims of a non resident owner.</p>

<p>A married woman, under twenty-one years of age, cannot make a valid renunciation of her privileges and mortgages on the property of her husband, in favor of his creditors. Act of 15 March, 1835.</p> <p>Emancipated minors cannot, except under certain restrictions, and to a limited extent, dispose of their property, or renounce their rights. C. C. 376,377.</p> <p>It is not necessary to record the mortgage or lien given by law to secure the paraphernal property of the wife, in order to give it effect against third persons.</p>

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

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

<p>Where the bond executed by an appellant is for a smaller amount than was required by the judge, the appeal will be dismissed.</p>

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

<p>Ah?eal from the District Court of St. Martin, King, J.</p>

<p>One bound as surety on the twelve months’ bond upon which a fieri facias was issued, is not disqualified from becoming surety in an injunction bond to arrest its execution.</p> <p>A sheriff is authorized to perform the duties of his office, until his successor is duly qualified, though the term for which lie was appointed has expired. So, in case of reappointment, he may continue to act under his first appointment, until duly qualified under a second.</p> <p>Under a fieri facias, issued on a twelve months’ bond, the sheriff may seize at once, but the defendant has a right to point out other property, not specially mortgaged in the bond, within three days, or until the property seized has been advertised; but not afterwards.</p> <p>Notices of a sheriff’s sale were affixed " at the court house door, and at two other conspicuous places in the same village, in a parish of sixty or seventy miles in length, in which it was shown that there is another village, nearly as large, about eighteen miles below, and a post office about the same distance above: ” Held, that this was not a compliance of the act of 6th April, 1843, chap. 135 $ that the Legislature did not intend to confine the notice to a single village in an extensive parish, but to give general publicity to sheriff’s sales, without incurring the expense of publication in a newspaper.</p>

<p>During the existence of the partnership, the partners may be sued in the parish in which they carry on their business, although one of them may be domiciliated in a different parish. C. P. 165, § 2. Otherwise, after the partnership has been dissolved. Each partner then becomes separately bound — in a commercial partnership, for the whole debt, and, in an ordinary one, for his proportion; and each may probably claim the privilege of being sued in his own parish.</p> <p>No action can be commenced or prosecuted against the syndics of an insolvent in any other court than that before which the proceedings were pending. C. P. 165, § 3. Act 20 February, 1817, § 37. The creditors are interested in eon-testing each other’s claims, and it is only on a tableau of distribution that their validity and relative rank can be finally settled. Though it may be necessary, under art. 2080 of the Civil Code, to make the syndics parties to an action instituted against a co-obligor with the insolvent in a joint obligation, in order to obtain judgment against the latter, it does not follow that a judgment can be rendered against the syndics.</p> <p>The creditors of a partnership do not lose their preference on the partnership property, by being compelled to establish their claims in the concurso, contradictorily with the other creditors of a partner who has made a surrender of his property.</p>

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

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

<p>Appeal from the District Court of St. Mary, Xing, J.</p>

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

Mary, Boyce, J. The inferior court illegally refused to allow other sureties to be substituted on the injunction bond, that the original surety might be examined as a witness. 1 Mart. N. S. 185. 6 Ib. N. S. 673. 10 La. 447, 449.

<p>Where the purchaser at a sheriff’s sale voluntarily stipulates not to avail himself of all the rights he acquired by the sale, and permits one of the former owners to occupy a part of the land with a view to perfect his right as a pre-emptioner under the laws of the United States, and the latter, on an attempt by the purchaser to dispossess him, subsequently institutes legal proceedings to be quieted in his possession, it is not such a disturbance of the purchaser as was contemplated by the warranty, and will not authorize him to withhold payment, until security be given for the title.</p> <p>One who has succeeded in obtaining the dissolution of an injunction, cannot recover an attorney’s fee as special damages, where the evidence does not show that any fee was actually paid, but only the value of the services of the counsel employed to defend such a suit.</p> <p>Where a sum improperly allowed as special damages, is remitted by the counsel of the appellee before the argument of the case on the appeal, and the judgment ef the lower court is affirmed in all other respects, the appollant will he condemned to pay the costs.</p>

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

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

The defendant appealed from a judgment of the District Court of St. Mary, Boyce, J. The homologation of the tableaux filed by the curator, was res judicata as to the plaintiffs. See 4 La. 173. 11 La. 569. 12 La. 121. 14 La. 241. 19 La. 84.

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

<p>Art. 678 of the Code of Practice, which requires where land, slaves, or other objects susceptible of being mortgaged, are to be sold by the sheriff, that he shall read a certificate obtained from the Register of Mortgages in the parish where the sale is made, to show whether there exist any privileges or mortgages on the property offered for sale, contemplates such a certificate as will exhibit to bidders the situation of the property in relation to existing incumbrances, whether created by the actual owner or previously, so far as the records will enable the Register to ascertain them. C. C. 3357.</p> <p>The vendee of a purchaser at a sheriff’s sale, though expressly subrogated to all the rights and privileges acquired by his vendor under the sheriff’s sale, has no right of action against the Recorder of Mortgages for having given an imperfect and erroneous certificate, in consequence of which his vendor was induced to purchase property charged with incumbrances not made known at the time of the sale. Per Curiam,: Such an action is not a real one, following the property; nor one accruing to the purchaser at the sheriff’s sale, by virtue of the sheriff’s deed; but is a personal one, arising from acts preceding the sale, and which entered into the motives for the purchase. The gist of the action against the Recorder, is the error into which the purchaser was led by the false certificate ; and to such an action it would, perhaps, be a good defence, that the purchaser was fully aware of the existing incumbrances, though omitted in the certificate. To make out such a defence, the Recorder would be entitled to all legal evidence, and especially to resort to the conscience of the plaintiff by interrogatories ; and of these means of defence he would be deprived, by permitting an action in the name of the vendee of the purchaser, between whom and the Recorder there is no privity.</p>

<p>A purchaser cannot complain of a disturbance, which-was the result of his own violation of his contract, and neglect in defending his rights, to the prejudice of his vendor.</p>

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

<p>Nicholas and Edward Leblanc appealed from a judgment of the District Court of St Martin, King, J., in favor of the plaintiffs.</p>

<p>One who seeks to render an endorser liable under the act of 13th March, 1818, relativo to the election of domicil with regard to promissory notes made in favor of the banks of this State (no opinion being expressed as to whether that statute be still in force,) must show notice of protest, in due time, at the place indicated by the maker as his elected domicil, which, by legal intendment, becomes, pro hacvice, the domicil of the endorser, unless, under the third section of that act, he shall have elected another domicil above his signature. Where a bank relics on a constructive notice, and a notarial certificate to prove it, in a ease in which the banking-house was the elected domicil, it must appear from the certificate that the notice was left at the .banking-house, and addressed to the endorser at that place. A certificate that the notice was served by leaving it with the cashier of the bank, is insufficient; it does not show but that the notice may have been given to him at some other place than the banking-house, nor does it show how it was addressed.</p>

<p>Where a judgment has been rendered in favor of a plaintiff, the whole judgment, including the costs, is his property. He is supposed to have advanced, or is liable for the costs, and the sheriff must look to him for their payment. And where the property seized and sold for cash to satisfy the judgment, has been purchased by the plaintiff, the sheriff has no right, on the refusal of the plaintiff to pay his costs, to resell the property. Such a sale will be void.</p>

<p>Appeal from tbe Court of Probates of St. Mary, Dumarirait, J.</p>

<p>Decision in Fanehonette v Grangé, 5 Rob. 510, affirmed.</p> <p>Where the plaintiff offered in evidence a duly certified copy of a notarial act, purporting to have been made from a complete and perfect original, together with the record book of the parish judge, acting, ex officio, as a notary, in which the act appears to have been recorded several years before the trial, and evidence to show that, at the time of the judge’s death, his office was in great confusion, that many acts were found incomplete, and the originals of many others lost, an original will be presumed to have existed, and the copy be received as evidence; and this, though an incomplete original of the act of which the copy was offered, may have been found among his papers.</p>

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

<p>Afpeal from the District Court of Lafayette, King, J.</p>

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

<p>The action for the marital fourth, given to the surviving spouse by art. 2359 of the Civil Code, pre-supposes a liquidation and final settlement of the succession of the deceased husband or wife. It is only after such liquidation has been made and the real situation of the estate ascertained, that the right of action accrues, and that the court, to which the application is made, can determine as to the existence of the two essential faGts required by law to be established, to-wit: that the deceased died rich, and that the survivor is in necessitous circumstances. To maintain such an action the survivor must, consequently, show, either a regular settlement of the estate of the deceased spouse, or that the heirs have received a specific amount of money or property of the succession, which they detain without having made any such settlement.</p>

<p>The _ affidavits of parties by whom proceedings had been instituted for the removal of the clerk of a court, made on commencing the prosecution, cannot be read as evidence on the trial, where they have not attended, nor afforded the accused an opportunity of cross examining them.</p> <p>The act of 19th February, 1825, relative to the recording of judicial proceedings, was intended to provide more effectually for the preservation of the evidence of ju- . dicial decisions; and it is as much the duty of clerks of court to comply with its provisions, as to perform any other official duty for which they are allowed a fixed compensation.</p> <p>Prescription is not interrupted by the mere filing .of- a petition, but by the service of process subsequently issued.</p>

<p>Appeal from tbe District Court of Catahoula, Willson, J.</p>

<p>Where in an action on a joint note, it is shown that defendant signed it as surety, he will be liable for the whole amount, though on the face of the instrument, as a joint debtor, responsible only for half.</p>

<p>An action for the removal of a tutor or tutrix, cannot be prosecuted, eVen by the under-tutor, without authority from the Probate, Judge. Per Curiam: The under-tutor, like any other person, must communicate to the Judge of Probates the fact which may render it necessary to remove the tutor, and the judge is to determine whether there be sufficient ground to commence an action. C. P., 10X5, 1016.</p>

<p>Appeal from the Court of Probates of Natchitoches, Greneaux, J.</p>

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

Court of Carroll, Willson, J. The petition in this case alleged that the plaintiff intermarried with the defendant, about 1 August, 1837; that during the marriage she received 15000 as a donation from her father; that her husband, the defendant, appropriated the amount to his own use'; that she has a legal and tacit mortgage on all his property, for the restitution of all her paraphernal and dotal rights ; that the defendant is much embarrassed, and the petitioner exposed to…

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

<p>Where there has been a settlement of accounts between partners, and a note given by one to the other for the balance found due, on an allegation of error the former may go into an investigation of the accounts, and show that the note was given in error; but the settlement will be presumed to be correct,, until the contrary is shown by the party alleging it. Receipted accounts embraced in such a settlement, will be admissible in evidence, subject to the right of the opposite party to show that they were erroneously allowed.</p> <p>Where an account lias been settled between the parties, and a balance struck, the account must be regarded as an entire thing, subject to proof of errbr, and the debit side cannot be given in evidence without the credit side.</p>

This is an action against Kerr, the maker, and Margaret Barker, as universal heir and legatee of one Harding, the endorser of the note. The facts of the case are recited in the opinion of the court. The court below gave judgment against the maker, but in favor of Margaret Barker; and from the latter part of the decision the plaintiffs appealed.

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

<p>Appeal from tbe District Court of Caddo, Campbell, J.</p>

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

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

<p>Appeal from the District Coui*t of Ouachita, Willson, J.</p>

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

<p>Compensation does not take place, where either of the debts is unliquidated. C. C. 2205.</p>

<p>Where a mother, the tutrix of her children, marries without having applied to the judge to have a family meeting called to decide whether she shall be considered as tutrix, she will, ipso facto, without any sentence of a court, be deprived of the tutorship ; and she cannot afterwards enforce, or receive payment of debts due to the minors. C. C. 272, 2140.</p> <p>Where a succession has been opened here, a guardian of the minor heirs, appointed in another State, cannot take out execution on a judgment for a debt due to the successsion. As a succession can only be accepted for minors with the benefit of inventory, (C. C. 346,) an administrator must be appointed; and he alone can sue for, or receive debts due to it.</p> <p>The tutor of the minor heirs cannot administer the succession by virtue of his office as tutor; he must be appointed administrator, and give the security required by law.</p>

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

<p>A wife has no privilege on the moveables of her husband, for her paraphernal property. C.C. 3182.</p> <p>Where the judgment enjoined bears interest at ten per cent a year, the interest will not be increased on the dissolution of the injunction ; but whatever may be right, will be allowed as damages.</p> <p>A suggestion of the death of the appellee before the commencement of the action, made by the appellant, will not be noticed, where the opposing counsel declares in open court, that he is authorized to appear for the representatives of the deceased, and waives the right to have them called upon to defend the cause. Per Curiam: The objection, to have any weight, should have come from them.</p>

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

<p>Appeal from the District Court of Ouachita, Wilson, J. The defendant appealed from a judgment annulling the sale of a slave.</p>

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

<p>Where the record furnishes no proof of the laws of the State in which a note sued on was executed, they will be presumed to be the same as our own.</p> <p>A notice of protest directed to a party at the post-office from which he receives his letters, being the nearest to his residence, and deposited there, is insufficient under the second section of the act of 13th March, 1827. The notice must, in addition, be addressed to him at his domicil, or usual place of residence.</p> <p>Under the general commercial law prevalent in most of the States, the post-office is to be used as a means of conveyance, not as a place of deposit for notices of protest; and a notice directed to a party at the nearest post-office, and the one from which he receives his letters, and deposited there, would, under its provisions, be insufficient.</p>

<p>No appeal will lie to the Supremo Court from a-judgment on apromissory note for three hundred dollars, which bore no interest, though interest was claimed in the petition from the maturity of the note, and allowed by the judgment from judicial demand. To authorize an appeal, it must appear that the matter in dispute exceeds three hundred dollars; and as no interest was due at the time of citation, the claim cannot be said to exceed that sum. Constitution, art. 4, sect. 2. C. P. 874.</p>

Mere possession of a bill or note, after special endorsements, is not evidence of title from the previous parties. See 2 Mart. N. S. 254. 6 Ib. N. S. 45. 2 La. 193. 15 La. 266.

<p>Decision in tho case between the same parties, ante, p, 130, affirmed.</p>

<p>Where the original protest of a bill or note was produced in evidence on the trial below, without objection, the fact that the record does not show that the protest had been recorded by the notary, pursuant to the act of 14 February, 1821, is immaterial. In the absence of any proof that it was not recorded, it will be presumed that the notary complied with the law.</p>

<p>Where justice requires it, the verdict of a jury will be set aside, and the case remanded for a new trial.</p>

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

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

<p>An injunction cannot be issued to stay an execution, on grounds which might have been pleaded in defence before the judgment.</p> <p>To authorise one against whom fi. fa. was issued, to enjoin it, for the purpose of pleading in compensation a note of the plaintiff’s in execution, the former must show that he acquired the note subsequently to the date of the judgment on which the execution was issued.</p>

<p>The appellee is not entitled to a dismissal of the appeal, where the bond is not equal to the amount required for a suspensive appeal, but is sufficient for a devolutive one.</p> <p>Where a succession has been opened here, a guardian of the minor heirs, appointed in another State, cannot take out execution on a judgment for a debt due to the succession. As a succession can only be accepted for minors with the benefit of inventory (C. C. 346), an administrator must be appointed, and he alone can sue for, or receive debts due to it.</p>

<p>A fufa, having been levied on a note, drawn by a third person, payable to another or bearer, as the property of the defendant in execution, in whose possession it was, the latter wrote his name on the back of the note, as he stated at the time, for the purpose of identifying it. The name of the latter was not mentioned in the description of the note in the sheriff’s advertisement of its sale, nor alluded to in the deed from him to the purchaser. That officer testified, that he did not consider the defendant in execution as guarantying the payment of the note; that he sold it as the property of the latter, according to the terms of the advertisement; that the defendant in execution was not present at the sale, and gave no notice that he did not consider himself liable on it; and that, he thinks, the purchaser bought it on the faith of the endorsement of the defendant in execution. An assignee of the purchaser having pleaded the amount of the note, in compensation of a claim sued on by the defendant in execution: Held, that the endorsement was made only to identify the note; that the note was neither advertised nor sold as secured by the endorser’s liability, but was seized and sold as his property; and that his own endorsement cannot be considered as making any part of the property on which the execution was levied.</p> <p>One sued as the make# of a. promissory note, has no right to atrial by jury, unless ho annex to his answer pretying, for it, the affidavit required by the twenty-fourth section of the act of 20 March, 1839.</p> <p>A motion for a new írial on the ground of newly discovered evidence, will be overruled, where the' affidavit does not name the witness, nor show that he is competent to testify.</p>

<p>A defendant, interrogated as to whether she had refused to pay the note sued on, may add to her answer stating that she had so refused, the reasons which induced her to do so. A party interrogated as to a particular fact, may state other facts qualifying the answer he is called on to make, provided they be closely linked to that about which he was questioned. C. P. 353.</p> <p>Where a defendant in an action on a promissory note alleges in his answer that the note was obtained by the plaintiff by fraud and deception, that he signed it only as surety, and that it was to have been signed by two or three other persons, evidence is admissible to prove that he signed it as such, and that it was to have been signed by others as alleged.</p> <p>A written promise to pay a certain rate of interest, signed by a married woman, without her husband’s consent, is of no validity (C. C. 124,127), nor can it serve as the consideration of any subsequent obligation.</p>

<p>A motion for a new trial on the ground of newly discovered evidence will be overruled, where the affidavit does not state that the evidence is important or material, nor that the party had used due diligence to procure the necessary testimony.</p> <p>The absence of counsel, where the cause of it is not shown, or his neglect to attend to a case, is no ground for a new trial.</p>

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

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

contended that the sheriff can only proceed against property after having first seized it, and taken it into possession, if it be such as can be taken possession of. Code of Practice, arts. 643, et seq., 657, 659. That after seizing he must give notice to the debtor. Ib. art. 654. That three days after having given notice of the seizure of the property, he must advertise it. Ib. art. 667.

<p>Where the defendant denies that any consideration was given for a promissory note on which he is sned, the plaintiff must prove the consideration, or he cannot recover.</p>

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

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

<p>Appeal from the District Court of Ouachita, Willson, J.</p> <p>cited 3 Mart. N. S. 453. 6 La. 656. 10 La. 530. 3 Robinson, 130.</p> <p>cited Code of Pract. art. 608. 3 La. 245. 6 La. 377, 656. 11 lb. 108.</p>

<p>Arts. 604 to 613 of the Code of Practice, authorizing actions to annul a judgment, confine them to the parties to the judgment, and restrict them to the court beforo which they have been previously litigating. But where a creditor seeks to annul such a judgment, the action must be brought before a court of ordinary jurisdiction. Such an action to annul a judgment for fraud and collusion, is a revocatory action, of which probate courts are without jurisdiction.</p>

urged that the judgment must be reversed as to Sarah Y. Tew, she being a married woman, and not having been authorized by her husband, or the judge, to defend the suit; citing Civil Code, arts. 123,126. Code of Pract. 106, 118. 10 La. 574, and the cases there referred to.

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

<p>Where the administrator of a succession, of which the heirs are present, the administrator himself being the only creditor who had presented himseif, permits the property to remain in the hands of the widow of the deceased, as the natural tutrix of the minor heirs, for their support, and she illegally alienates it, he will not be responsible to the minors. C. C. 268, 271, 272, 273.</p>

<p>A motion to dissolve an injunction on the ground of the insufficiency of the allegations in the petition, is in the nature of a demurrer, and admits all the facts alleged to be true, however improbable.</p> <p>Where a party gives his notes, secured by mortgage, for a certain sum, to a third person, for a title from the latter to a tract of land, in ignorance of his right, under a subrogation from another vendor, to claim a title from such third person, for a smaller sum, such an error in relation to his legal rights, will entitle him to an injunction to stay any proceedings under the mortgage notes.</p>

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

<p>One who purchases land at a sheriff’s sale, with a full knowledge of the difficulties he may encounter from the claims of a third person, buys the title such as it is, and cannot suspend payment of the price, because of any disturbance resulting from the possession of the person of whose pretensions he was aware. C. C. 2535, 2598. Nor can he, until evicted of his title, claim the expenses to which he may be subjected in asserting it. C. C. 2599. C. P.711.</p>

<p>It matters not in what way the debtor is informed of the transfer or assignment of a debt, provided it be shown that he knew that his former creditor is divested of all right to the debt assigned, and that such knowledge is derived from the transferee, or his agent.</p> <p>The definition of notice in the 23d paragraph of art. 3522 of the Civil Code, does not apply to notices of the transfer, or assignment of debts.</p> <p>Notice of the transfer of a debt secured by an endorsed note, given to the last endorser, is sufficient. The liability of several endorsers cannot be transferred to different persons. Per Curiam: The endorsers are each bound for the whole of the debt; and if the last endorser' should pay, he would have his recourse against the endorser immediately preceding him, which is inconsistent with a right to transfer the liability of different endorsers to different transferees.</p>

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

contended that this being a petitory action, the plaintiff can only recover on the strength of his own title. Code of Practice, art. 44. 9 Mart. 267. 5 La. 178, 183. 8 La. 234, 241. 10 La. 351.

<p>Appeal from the Court of Probates of Concordia, Dunlap, J.</p> <p>The Probate Court is without jurisdiction, ratione materice. Code of Practice, arts. 345, 346, 902. 1 La. 318. 2 La. 121.</p>

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

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

<p>Where a sale of slaves is annulled, at the suit of the creditors of the vendor, on the ground of fraud, the purchaser will not be responsible for their hire pending the suit. Per Curiam.- All that is required^ by art. 1972 of the Civil Code, is, that the property, or its value, shall be. applied to the payment of the debts of the plaintiff. That article is silent as to the hire of the slaves, or the rent of the property jn dispute.</p>

<p>Appeal from the Court of Probates of Natchitoches, Greneaux, J.</p>

<p>The plaintiff in an action not submitted to a jury, may discontinue at any time before judgment is rendered by the court. C. P. 491.</p> <p>Where a receipt given by an attorney for certain notes transferred to his principal in settlement of a debt due to the latter, does not specify or describe the notes, the evidence of the attorney who made the settlement, will be admissible, in an action by his principal on the notes, to prove that the party who transferred them agreed to guaranty their payment. The testimony does not contradict the receipt.</p> <p>The fact that certain notes, endorsed by the defendant, and transferred by him in settlement of a debt due to the plaintiff, were past due, and were transferred to pay a debt for which the defendant was liable, renders it improbable that the plaintiff agreed to release the defendant from his previous responsibility, and is a sufficient corroborating circumstance, taken with the testimony of one witness, to establish an agreement on the part of the defendant to guaranty the payment of the notes so transferred, though for an amount exceeding $500.</p> <p>A surety is not discharged by forbearance, or delay in suing his principal. Is is only when the creditor, by giving time to the debtor, deprives the surety of the means of insisting on immediate payment, in case he pays the debt and is subrogated to the rights of the creditor, that the surety is discharged.</p>

The judgment below, discharging Read, is correct. Notice of protest should have been forwarded to the office nearest the residence of Read. Civil Code, 42, 43, 46. Toullier, Brass, ed. of 1829, Nos. 362, 363, 364, 367, 372. Story, Conflict of Laws, sections 41, 43, 44, 45, 46. 11 La. 178. 1 Rob. 107. 3 Rob. 4. The protest is defective, for the want of the signatures of the witnesses. B. & C.’s Dig. 41, 43. 5. Mart. N. S. 511. 19 La. 449.

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

<p>A judgment rendered by a court of the United States against a curator of a vacant succession, cannot be executed by the seizure and sale of the effects of the succession by the marshal of that court. The effects must remain in the hands of the curator, to be applied to the payment of the debts of the succession in due course of administration. The judgment can be satisfied only by presenting it for classification and payment to the Court of Probates, under the direction of which the succession is being administered. Any sale of the property of the succession, by the marshal under process from the United States court, is a nullity.</p>

<p>Appeals from the District Court of Natchitoches, King, J,</p> <p>No other counsel appeared on the same side.</p>

<p>To entitle the maker of a promissory note to plead a debt due to him by the payee as an offset, when sued by a Iona fide endorsee, the maker must prove that the note was transferred after maturity.</p>

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

<p>Appeal from the Court of Probates of Natchitoches, Greneaux J.</p>

<p>Where a mortgage contains the pact de non alienando, the mortgagee may proceed at once against the land, without making any demand of a third possessor of the mortgaged premises, or giving him any notice such as is required in ordinary hypothecary action.</p> <p>One subrogated to all the rights of his vendor, may exercise any recourse in warranty ( against the party from whom the latter purchased, or any action resulting from a failure of title to the property sold ; and so may one, who purchased at a sheriff’s sale all the right and title of the subrogated vendee.</p> <p>No possession, however protracted, can confer on the occupant a title to any part of the public domain of the United States, as against the government. It may be otherwise, where the government becomes the owner, for military or other purposes, by purchase, of lands within the limits of a State, already private property. In such a case, an adverse possessor may acquire title by prescription.</p> <p>Until a patent has been issued for a portion of the public lands, the title of the United States is not divested, and the whole matter is under the control of the Land Department.</p> <p>Where the vendors of real estate are shown to have had no title, a regular eviction, by judicial authority, is not required, to entitle the purchaser, who has paid part of the price, to relief.</p>

<p>Appeal from a judgment of the District Court of the Frst District, Buchanan, J., rendered on a rule taken on the bail of the defendant.</p>

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

This was an action to recover the balance of an account, shown to be due by a statement made and signed by Brown, the clerk and book-keeper employed by the defendants. The latter denied that the account sued on was approved by them, or signed 'by any one authorized by them to sign it. It was established that the person by whom the account was made out and signed, was the book-keeper, or clerk of the defendants.

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

<p>The proceedings under the 11th section of the act of 10th February, 1841, before the court to which all the suits and claims against the property of a debtor have been transferred, where a conflict of privileges has arisen between different creditors, are in the nature of a concurso, in which all the parties are plaintiffs and defendants. Where a particular claim has been opposed by one creditor, it is for the benefit of all the others. The evidence introduced by an opposing creditor may be used by the rest; and they will be bound by that introduced in favor of the claim so opposed. A creditor cannot take advantage of part of the evidence of another opponent, ai\d reject the answers to interrogatories drawn from the creditor whose claim is opposed. Each opponent may introduce further evidence, bpt that spread upon the record cannot be divided.</p>

contended that the Parish Court of Jefferson is limited in its jurisdiction to personal actions, when the amount in dispute does not exceed a thousand dollars. Act of 1813, B. & C.’s Dig. 209. Act of 1835, B. & C.’s Dig. 211. That the amount in dispute greatly exceeded that sum; and that the case was a necessary exception to the rules of the Code of Practice; Citing Terry v. Terry et al., 10 La. 68. The District Court is without jurisdiction.

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

<p>Where, in an action to rescind the sale of a slave, it is proved that he ran away within two months after the sale, plaintiff will not be required to show that the vice existed before the sale, nor to allege or prove that the slave had been less than eight months in the State. Act 2 January, 1834, §3. It is for the defendant to allege and prove that the slave has been more than eight months in the State.</p> <p>In an action of rescission by the purchaser of a slave, plaintiff must prove a tender of him to defendant.</p>

This was an action against Ballard, for the sum ot $4,000, with interest, from the 10th of March, 1841, on the following obligation, annexed to the petition: “ New-Orleans, January 9, 1841. “ We, R. C. Ballard and Robert Slaughter, promise to pay to Henry Clay, Esq., the sum of five thousand dollars, to wit: Rice C. Ballard paying four thousand dollars, part thereof, and Rpbert Slaughter paying one thousand dollars, the balance there'of, in addition to his fee already…

<p>A party, within the verge of the court during the trial, may he called on to answer, instanter, interrogatories, as to matters requiring no recurrence to accounts or written memoranda.</p>

The petition alleges that the plaintiffs had paid to the Second Municipality of New-Orleans, between the 11th July, 1842, and the time of instituting their suit, the sum of #393 45, as a tax on goods, wares and merchandise, received by the petitioners from different western states, on their introduction into the said Municipality, and upon goods so received and subsequently exported by them from the port of the Municipality to foreign parts, or to other states, which tax, it…

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

<p>The master of a vessel is authorised, under his general powers, to make a contract of affreightment, and the owner is bound to perform any lawful agreement he may enter into, relative to the usual employment of the vessel.</p> <p>Where a general power is confided to an agent, a party contracting with Mm will not . be bound by any limitation which the principal may affix, at the time or afterwards, by distinct special instructions, unless knowledge of them be brought home to him. So, where a power of attorney has been revoked, the rights of one who has contracted with tho agent, in ignorance o£ the revocation, will not be affected thereby.</p>

<p>A citizen of another State can only be proceeded against in a District Court of this State, by citation personally served on him within the district, or by attachment, or by the appointment of a curator ad hoc.</p> <p>Original process from a District Court does not run beyond the limits of the district, except in eases specially provided for by the Code of Practice.</p> <p>An action of rescission, instituted against the plaintiffs’ vendor and the holders of notes given for the price of the property sold, is not a case of joint obligation on the part of the defendants, in which the Code requires the joint obligors to be sued together, and forming, where the co-obligors reside in different parishes, a necessary exception to the rule requiring a party to be sued before the court of his domicil. Per Curiam: There is no separate, independent cause of action against the holders of the notes; the relief asked against them, depends upon the success of the plaintiffs in annulling the sale.</p> <p>One who has not acquired a political domicil under the statute of 7th March, 1815, may yet have such a residence in a particular parish as will exempt him from being sued out of the judicial district in which such residence has been acquired.</p>

<p>Art. 2522 of the Civil Code places the action quanti minoris, and that of redhibition, on the same footing; and a plaintiff in the former is bound to establish every fact necessary to support the latter. The purchaser may choose between the two remedies, and in a redhibitory action the judge may decree only a reduction of price.</p> <p>Where the defects or vices of the thing sold are sufficient to entitle the purchser to a rescission of the sale, the vendor will be answerable, under his warranty, even where such defects or vices were unknown to him. His good faith may exempt him from damages, but not from the obligation to return the price. C. C. 2450,2509.</p> <p>Where the sale of a slave, made for cash, is rescinded, the defendant cannot claim to deduct the value of his services from the price. The interest of the purchase money may be considered equivalent to the services of the slavo.</p>

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

<p>In proceedings to remove an executor, curator, or other administrator of a succession, notice or citation to the defendant is indispensable ; without it, the proceedings will be null ab initio. The mode of removal has not been altered by the act of 16 March, 1842, chap. 120.</p> <p>Under the 5th sect, of the act of 16 March, 1842, where a testamentary executor or other administrator of a succession, shall suffer ten days to elapse after his appointment, without having qualified, or caused an inventory to be begun, the judge of Probates must, ex officio, notice such default, and take forthwith legal steps to notify those interested, and to make a new appointmeut in the same manner as in the first instance. He is not to wait for a complaint, but must notice the fact ex officio. This act imposes a new duty on the probate judge ; but it has not relaxed any of the securities which those interested in the publicity of the proceedings are entitled to.</p>

contended that this estate was one of those subject to a tax of ten per cent, under the act of 26 March, 1842, sec. 4. The act of March 26th, 1842, is posterior to the opening of the succession of the late Augustin Deyraud, who died on the 9th of May, 1841, and is applicable only to successions opened since its promulgation.

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

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

, sustaining an exception to its jurisdiction, on the ground that the action could not be prosecuted before any other court than that by whose judgment the Bank had been put in liquidation. The plaintiff, as executor, demanded interest on the deposits of money of the estate of his testator, which the Bank refused to allow him. He brought this suit to establish his right to the same, to be paid in the course of administration.

The plaintiffs allege that they are ship-wrights, having a ship yard at Duvergsberg, on the Mississippi river, in the parish of Orleans; that they were the owners of the hulk of a vessel which was attached to their ship yard, and fastened to the bank of the river, where it was used for heaving out and repairing vessels; that the ships Delaware and Sheffield, belonging to the defendants, were moored alongside oí the said hulk, in so negligent and careless a manner, as to…

These appeals were brought up from the District Court of the First District, Buchanan, J. The appellant, Price, having a judgment against Tyler & Jacks, on the 10th August, 1844, levied a fi.fa. on all the effects in their shop. Tyler, on the 13th of the same month, made a cessio bonorum, both for himself and the partnership of Tyler & Jacks. The cession was accepted, and Tyler regularly appointed syndic of the creditors.

<p>Where a'party to a contraot acknowledges his inability to comply with his obligation, it is unneeessai-y to put him. regularly in mora. C. C. 2042.</p>

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

<p>In a contest between an intervening party and the plaintiffs, attaching creditors, the evidence of an agent of the intervenors, to whom bills of lading of the property at tached had been delivered, is admissible to prove statements made by the debtor as to the purpose to which the property was to be applied. They are part of the res gesta.</p> <p>The statement of a witness that a judgment had been obtained in an action between certain parties, and had been assigned to a third person, is inadmissible. The record of the judgment and the written assignment, are the best evidence. Inferior evidence cannot be received, until it is shown that the best cannot be obtained.</p> <p>Where the evidence discloses that a written agreement must have existed, the testimony of a witness as to his impressions of its contents, cannot be admitted. The agreement should be produced, or accounted for in some legal manner.</p> <p>The affidavit of a party that “ he had handed over a certain letter to his counsel for perusal, and that the said letter has been lost or mislaid, he not being able to find the same in his office, after making diligent search for it,” is insufficient to justify the introduction of secondary evidence.</p> <p>Whether a party is bound by the admissions of statements in a letter, the contents of which are offered to.be proved, is a question which goes to the effect, and not the admissibility of the evidence.</p>

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

<p>A debtor whose property is attached cannot divest himself of it, so as to defeat the rights of the attaching creditor.</p> <p>The obligation of a vendor, under his warranty, to defend the title of his vendee, constitutes a sufficient interest to enable him to enjoin a sale of the property, attempted by a third person</p>

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

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

Milly, Alexandria, Louisiana, aU leged to be the property of one Von Wagenan of New York.

The defendants were bound, as consignees, to retain the goods until a bilí of lading, or order was presented for them. 3 La. 229-30. Ostrander v. Brown» 15 Johns. 39. Magill v. Potter, 2 Johns. Cases, 371. Chickening v. Fowler, 4 Pickering, 371. The defendants having misdelivered the goods, and plaintiffs having been forced to pay for them, the foi-mer are bound to indemnify the latter. Civil Code» 2971, 2972. Story, Agency, 190,210, § 201 and 217. 8. Taunton202.

<p>One who hag contracted for the building of a house at a fixed price, will be responsible for the value of extra work, where from the evidence it is clear that it must have been done with his consent.</p>

<p>The bidder to whom property is adjudicated at an auction sale, becomes, eo instanti, the owner of it. C. C. 2586. C. P. 690, 695. If the conditions of sale be not complied with in ten days, the vendor may take measures for a sale á la folie enchere i but the failure of the vendee to comply with the conditions, does not revest the title in the vendor.</p> <p>The administrator of a succession is responsible for any loss sustained by the estate through his neglect.</p>

<p>The power of special taxation in the manner pointed out by the act of 3 April, 1832, regulating the opening and improvement of the streets and public places of the city of New-Orleans and its suburbs, can only be exercised by the Municipalities of New Orleans, in the cases and for the purposes provided for, by that act, that is, when lands or premises are required for the purpose of openin'g, extending, enlarging, straightening, or otherwise improving any street or public place. No tax can be legally assessed under that act in any other case, or for any other purpose.</p>

<p>The Council of the Second Municipality of New Orleans, having authority to alter, or repeal the twelfth section of the ordinance of the City Council of the 18 March, 1817, prohibiting the establishment of any private hospital, or house for the reception of the sick, within the city, or its incorporated suburbs, may, without repealing that ordinance, grant permission to one or more individuals to erect a hospital within the limits of the city. Such a permission will be considered as a modification of the ordinance.</p> <p>The legislature of this State, unlike the Congress of the United States which can do nothing which the Federal constitution does not authorize, may exercise any power not prohibited by the State constitution.</p>

<p>Title to real property can neither be destroyed nor created by parol.</p> <p>The adjudication at an auction sale, of itself, transfers the title of the property to the purchaser. Although in such sales of real estate an act of sale is to be passed, the procés-verial, or certificate of adjudication prepared by the auctioneer, is as binding on the parties as a written agreement to sell. A consent to annul such a sale can only be proved by evidence that would annual a written sale of real property. C. C. 2255, 2415, 2584 to 2588.</p> <p>A purchaser at an auction sale cannot be compelled to accept an encumbered title, when it is not shown that he had notice of the encumbrance.</p> <p>Art. 2535 of the Civil Code, which only authorizes the purchaser who is, or has just reason to fear that he will bo disquieted in his possession, to withhold the price until he receives security, applies to a buyer in possession, who has accepted the sale, and not to one who discovers a defect or encumbrance in the title of his vendee before accepting a deed or possession. The latter may refuse to execute the act of sale until a good title is tendered to him, and must be released if his vendee is unable to give one; a liter, as to judicial sales. C. P. 710.</p> <p>A purchaser of property, entitled to require a good title before signing the act of sale, will not be liable for the price stipulated to be paid, when the property fell greatly in value before the vendor caused the encumbrances on it to be removed.</p>

<p>Appeal from the District Court of the First District, Buck-a,min, J.</p>

<p>Though a purchaser of real estate who has given notes for the price, payable at a future day, and bearing interest from date if not punctually paid, may be authorized by the agreement of the parties to delay their payment until the erasure of a mortgage existing on the property, he will be bound to pay interest during any delay . in making such erasure. Per Curiam : The defendant might have relieved himself from interest, by depositing the amount of the notes; but not having done so, and being in the enjoyment of the property, he is liable for the interest. He cannot enjoy, at the same time, both the price, and the thing sold. C. C. 2531,2535,2537.</p>

<p>As a general rule, whenever the mail is resorted to as the means of conveyance of a notice of protest, the notice must be sent to the post office nearest to the residence of the party, addressed to him at his domicil, or usual place of residence.</p> <p>Where a member of a partnership causes the share of his partner to be seized and sold to satisfy a debt due to him individually, and becomes the purchaser, he must be presumed to have known of the claims against the partnership, and to have purchased the property, subject to the rights of its creditors, to exact the payment of the partnership debts ; the latter cannot be prejudiced by any acts of the partners between themselves. C. C. 2794.</p>

<p>"Where a note, taken in the ordinary course of business, before maturity, for full value, and without notice of any equities, is sold at a sheriff’s sale, under a fi.fa. against the holder, the purchaser will acquire all his right, title and interest; and this, though public notice may have been given at the time of the sale, of equities existing between the original parties to the sale. Such a notice cannot prevent the purchaser from being subrogated to all the rights of the defendant in execution, nor vary those rights in the slightest degree. C. C. 2598, 2616.</p>

<p>Appeal from, the District Court of the First District, Buchanan, J.</p> <p>cited, as to the amount of damages to which the plaintiff is entitled, Civil Code, art. 1928. Angelí and Ames on Corporations, 319, et seq. 13 La. 229.</p>

<p>Where a husband and wife, married in another State, removed into this, the laws establishing and regulating the matrimonial community of gains, will operate upon the property acquired during their residence here; and where they subsequently remove from this State, its laws will not operate upon property afterwards acquired here, such acquisitions becoming the property of the party to whom they may belong according to the law of the new domicil of the spouses.</p> <p>The executor of the will of one who was domiciliated and died in another State, deriving I his powers from a Probate Court of this State, administers only on the property of the deceased situated here; and that part of the estate of the testatrix only is under the control of the courts of this State. Property belonging to the testatrix in another State descends, and must be administered under its laws.</p> <p>Where the husband and wife remove into another State, the former will still retain the right of administering property acquired by the community during their residence in this State; and he will continue to be entitled to enjoy the fruits of the dotal property. The removal into another State does not vest in the wife any distinct and separate title to one half of the community property. On her death, one half of the community property acquired in this State, will vest in her heirs, subject to the payment of the debts contracted by the husband during the marriage. Till that time the husband retains entire control of the property, subject to the restrictions imposed by the Civil Code on his power of alienation, when in fraud of the rights of the wife.</p> <p>•The law establishing and regulating the matrimonial community of gains isa real statute, operating, where the parties were not married in this State, only on property acquired here.</p> <p>As a general rule personal property has properly no other situs than the domicil of the owner, and its disposition or transmission, by contract, or inheritance, depends upon the law of the owner’s domicil, saving the rights acquired by creditors by attachment,, or otherwise, before delivery or notice. This is especially true of debts which follow the person of the owner or creditor</p> <p>The deceased and her husband, having removed from this State, resided in another at the time of her death. A part of a crop raised on a plantation belonging to the community in this State, having been sold by an agent here before the death of the wife, was deposited to the credit of the husband in a bank in this State, and tho proceeds subsequently remitted to him in negotiable certificates of deposit. Held, that the produce of the plantation, no longer existing in kind, but having merged in a debt due from the bank, could not be identified; that the amount deposited became the property of the husband, at the place of his domicil; and that its distribution, or inheritance, depends on the law of that place. Had the crop remained on the plantation, unsold at the death of the wife, it might have been otherwise.</p>

<p>An heir cannot he compelled to accept the payment of his share in the succession, in depreciated notes of a bank in which the executor had deposited the funds of the estate, where the deposit was made after the hank had suspended specie payments.</p> <p>Where the executor suffers funds of the succession, all the debts of which had not been paid, to lie on deposit in bank for more than two years, and until a suspension of specie payments, he will be responsible to the heirs for any loss occasioned thereby, on the ground of want of reasonable care and diligence.</p>

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

Yairin & Co., bankrupts, to recover $1288 74, as a balance of account due to the bankrupts. The proceedings were commenced by attachment. The defendants answered by a general denial.

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

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

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

<p>Where a notice, published by defendants, who were ship owners, that they would not be responsible for any jewelry shipped in their vessels unless the value be disclosed, is brought home to the plaintiff, the owners will not be responsible where the nature and value of the articles were not disclosed, and they were shipped in a manner calculated and intended to conceal their real character. The mere publication of a notice in one or more newspapers, no matter for how long a time, of an intention not to he responsible for particular articles unless their contents and value be disclosed, is not enough to release the carrier from responsibility; the notice must be brought home to the shipper. But if the principal had notice, the ignorance of his clerk, or agent who actually shipped the goods, is no excuse ; and so if the agent had notice, but the principal had none, the carrier will be released. Where there is no notice, nor rule adopted, the better opinion seems to he, that the party who sends the goods is not bound to disclose their value, unless he is asked ; but the carrier has the right to enquire and to have a true answer ; and if he is deceived and a false answer given, he will not be responsible. If he make no enquiry, and no artifice is used to mislead him, ho will be responsible for any loss, however great the value of the articles.</p>

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

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

<p>In every appeal, the evidence on which the judge aete d must he brought up in the record, or the appeal will be dismissed. Per Curiam: It does not suffice that the judge should state in his judgment that “ due proof was made,” for this would enable him to deprive the party condemned of his right of appeal on questions of fact.</p> <p>A statement of facts may he required by a party intending to appeal, at any time before appeal.</p>

<p>Application for a writ of prohibition to the Judge of the Fourth Judicial District, and to the plaintiff in an action in which John Nolan is plaintiff, and the appellant, Pierre Paul Ba-bin, defendant.</p>

<p>A mortgage may be executed for endorsements previously made, and it will have effect as to any notes or bills given in renewal of those originally endorsed by the mortgagee; but the amount of the endorsements must be expressed in the act, that third persons may have notice. C. C. 3259, 3277.</p> <p>Arts. 3259 and 3277 of the Civil Code, are not inconsistent with each other. The former provides that a mortgage may be given for an obligation not yet in existence, while the latter requires that the amount for which it is given shall be expressed in the act.</p>

<p>An agreement by a party to secure one against liability as the endorser of a note, in case the latter would not bid against the former at a iudicial sale, is invalid. C. C. 1841, §12.</p> <p>Agreements or securities executed for the price of the commission of a public crime, or for the violation of a public law, or the omission of a public duty, can neither be enforced nor confirmed.</p>

<p>Simulation is of two kinds. The first, where the parties intend that no engagement shall take place; the second, where a real contract prohibited bylaw, is intended to be entered into, under the form and appearance of another contract. In the latter case, under an allegation of simulation, a daiion en paiement may be proved.</p> <p>In an action by a creditor to annul a sale made by a debtor, alleged to be insolvent, in fraud of his rights, the vendees may plead in compensation of plaintiff’s demand, a sum alleged to be due to the insolvent, their co-defendant, though the latter have failed to plead it in time to prevent a judgment for the whole amount claimed as against him.</p>

<p>A copy of the clearance and manifest of a vessel, certified by a person styling himseli the deputy collector of the port for which the vessel cleared, is not the best evi dence, and should not be received, where the originals, and the person in possession of them, are within reach of the process of the court.</p> <p>A deputy collector is not an officer authorized to certify copies of documents in his official capacity, and to make them evidence.</p> <p>The admissions of a partner, previous to the dissolution of the partnership, are evidence against his co-partner: but when made after the dissolution, though in relation to a transaction commenced during its existence, and not completed when the admissions were made, they are inadmissible.</p> <p>Where it was stipulated in a contract that the vessel on which a cargo was to be shipped to the purchaser, should go to sea by a particular day, and she was ready to sail on the day, but detained by bad weather for a few days, the purchaser will not be released.</p> <p>Where a party to a contract is not put in default by the terms of the contract, nor by the operation of law, he can be put in default only by the commencement of a suit to compel a performance, by a demand in writing, by a protest made by a notary, or a verbal requisition made in the presence of, and proved by two witnesses. C. C. 1905-</p> <p>Putting the party in default is a condition precedent to the recovery of damages for the violation of a contract.</p> <p>The usage, on the neglect or refusal of a purchaser to come in a reasonable time, after notice, and pay for and take the goods, for the vendor to sell them at auction, and to hold the buyer responsible for the deficiency in the amount of the sale, is a fair one; but it is not the only mode of ascertaining tho damages, for a failure to comply with a contract.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>cited Amory et al. v. Boyd, 5 Mart., 414. Lobre v. Pointz, 5 Ib. N. S., 443. Williams v. Reynolds, 11 La., 235.</p>

<p>Where in an action against the maker of a note, defendant pleaded that he was a minor at the period of its execution, and plaintiff proved that he was engaged in trade at the time, and that the note was executed in relation to such trade, but adduced no evidence of his having been previously emancipated, there should be a judgment of non-suit. Per Curiam: The execution of the note being admitted, and the plea of minority relied on, it was incumbent on the plaintiff to bring his case within the exception of art. 379 of the Civil Code, which provides that the emancipated minor, who is engaged in trade, is considered of the age of majority for all acts relative to such trade ; and the omission of the plaintiff to establish the facts essential to make out his case, must produce the same effect, whether such facts be set forth in his petition, or their proof be rendered necessary by the nature of the defence.</p> <p>Replications being unknown to our practice, any facts which might be pleaded in reply to the defence, may be proved on the trial.</p>

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

<p>The costs of advertising a sheriff’s sale, if required to be paid in cash, must be advanced by the sheriff and charged with his costs, or he must call on the plaintiff in execution to provide him with the necessary funds. If not required to be paid in cash, the party will be presumed to have credited the sheriff who employed him, who signed the advertisements and sent them for publication, and who had a right to retain the amount of the charges out of the proceeds of the property, if sold foreash, or, if at a twelve-month’s credit, to refuse to transfer the bond to the plaintiff in execution until they were paid.</p>

<p>To interrupt prescription, the acknowledgment of the debt must be specific, and must apply to a particular debt. So with regard to the renunciation of a prescription already acquired, the renunciation being in the nature of the renewal of an obligation ; and although it may be made tacitly, it must result from a fact giving a presumption of the relinquishment of the right acquired by the prescription, and such fact must be necessarily and strongly connected with the debt intended to be revived.</p> <p>An allegation in an answer, “ that the plaintiff’s claim is neither just nor well-founded,” puts the justice of the claim at issue, and indirectly denies the statements on which it is based, throwing on the plaintiff the burden of proving his allegations.</p>

<p>An agreement sous seing privé as to the sale of land, may be referred to for the purpose of explaining any ambiguous clause of an authentic act of sale of the same property, subsequently executed by the parties, though it be declared in the latter that the previous agreement was null and void.</p> <p>The delivery of immovable property is always considered as accompanying the public act which transfers it; and every obstacle which the vendor may afterwards interpose to prevent the corporeal possession of tho buyer, is a trespass. C. C. 2455.</p> <p>The mere danger of eviction will not authorize a purchaser to withhold the price of the land sold, if security or indemnity be offered by the vendor. C. C. 2535.</p>

<p>Prescription acquired by the vendee, or donee of one since deceased, may be pleaded against his succession.</p> <p>Art. 1989 of the Civil Code, according’ to which prescription runs against the syndic, or other representative of the creditors, from the day of his appointment, cannot affect vested rights previously acquired by purchasers,_or doneeain whose favor the. prescription was completo. '</p>

<p>Where the jury have omitted to act on a reconventional demand set up by the defendant, he will be entitled to a new trial.</p>

<p>In the absence of any adverse claimant, a purchaser will not be permitted to dispute his vendor’s title, or to show its inferiority to that of another. If disquieted in his possession, or if he have reason to fear that he will be, he may require security against eviction; and, if that be furnished, he cannot withhold the price. C. C., 2535.</p>

<p>Appeal from the District Court of Ascensión., Nicholls, J.*</p> <p>cited Domat, lib. II., tit. 7, sect. 1, § 8. Civil Code, art. 2427. Code Nap. 1599. Barfield v. Hewlett, 4 La., 118. Perryman v. Demaret, 11 La., 347. Russell v. Favier et al, 18 La., 584.</p>

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

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

<p>Á party sued as the maker of a promissory note, cannot plead in compensation laW costs paid by him in suits, riot yet decided, commenced against persons disturbing Mm in the possession of land sold to Mm by the plaietiff, and for which the lattfer may be ultimately responsible under his warranty as vendor. The costs arc not yet due. C. C. 2495.</p>

<p>A sheriff’s sale of moveable effects, or rights and credits, is not valid, unless it has been preceded by an appraisement of the property seized, according to the rules laid down in the Code of Practice ; and under those rules such property cannot be adjudicated for cash, unless it brings two-thirds of the appraisement. C. P, 671, 675, 676, 680.</p> <p>Laws in pari mataría must be construed together, to ascertain the meaning of the legislator.</p>

<p>■A plaintiffhas no right to have an allegation stricken from the answer, which, if well founded, Would destroy his action, or, if unfounded, would be rejected on the trial on the merits. C. P. 330.</p> <p>Where a bond is taken under a particular law, it must be construed by it; and the casual insertion in such a bond of an additional condition, not Contemplated by the legislature, Will not bind the surety.</p> <p>Where a third person, in possession of property against which a sequestration has been issued in a suit against another, executes what was intended and received as a sequestration bond for the delivery of the property after judgment, but binds himself to pay the amount of any judgment that may be rendered in the case, it will be considered as intended only to secure the delivery of the sequestered property; and where the judgment afterwards obtained in the suit declares that it is to be satisfied by privilege out of the proceeds of the property sequestered, the plaintiff cannot proceed at once against the parties to the bond, personally, for the amount of the judgment, before taking the steps necessary to procure the delivery of the property. He must take out execution against the defendant in the action, to be levied on the property sequestered, when, if not delivered on due demand, he will be entitled to an action on the bond. This is necessary to put the obligors in default. C. J\, 279, 280. C. C., 2113, 2122. If the property is not in their hands, the plaintiff must show the fact by the return bn the execution; dr prove that to ibsue an fekecution would be inefficient.</p>