ፒ. SEIGNOURET & Co. in itself a violation of the principle of natural justice, that no one should be GARDANNE AND permitted to enrich himself at another's expense. To prevent it, the law has WIFE. accorded a privilege to the vendor as long as the property remains in the possession of the vendee. I do not think this privilege can be defeated, in the case of purchase of movables by the husband during the community, by his transfer of the property to the wife in payment of her dotal right. The actual possession continues as before in both of them, and their liability for the debt is the same. Nothing but the title has changed, and their acts in that respect ought not to be permitted to destroy the fair and just claim of the vendor to be paid for his property. The transfer having been effected by the form of a judicial sale, does not render it different from a dation en paiement, which the parties might have resorted to, if they had chosen. Considering the relation between husband and wife, and that their possession is a joint one of all the objects belonging to the community, I consider that no adverse title, during the marriage, can ever be set up in the wife to defeat the vendor's privilege on an object purchased by the community and unpaid for. There should be judgment, in my opinion, against the husband, with privilege on the furniture sold. JOHN ALEXANDER . SECCOMB, BROOKE & ADAMS. The plea in compensation is in the nature of a demand, and should set forth as explicitly the manner in which the party, who claims the benefit, acquired his right, with every circumstance of time, place, &c., as if the matters offered in compensation, were the subject of a direct action. AP PPEAL from the Fourth District Court of New Orleans, Reynolds, J. J. CAMPBELL, J. This suit was brought by John Alexander against the late firm of Seccomb, Brooke & Adams, on their promissory note for fifteen hundred dollars, dated January 1st, 1848, payable to the order of W. Martin & Co. and by them endorsed, without recourse. Seccomb only was cited, and answered for himself alone. Admitting the signature of the note, he avers that it was originally given to W. Martin & Co., the payees and endorsers; that at its maturity, and while it was still in the hands of payees and owned by them, the respondent, as liquidating partner of the firm of Seccomb, Brooke & Adams, held and owned a check drawn by W. Martin & Co. in New York, for one thousand dollars, and protested for non-payment; that compensation took place for so much of the note sued on as said draft amounted to; that subsequently, respondent was induced to believe, by the representations of W. Martin & Co., that they had transferred said note to the Canal Bank, and, acting under their fraudulent representations, he, in error, accepted a dividend of thirty per cent. on the draft drawn by Martin & Co. As a further defence, respondent avers that, about the 2d of February, 1850, he made a full settlement with the Canal Bank of all claims held by them against the firm of Seccomb, Brooke & Adams: that the note sued on was then in the possession of the bank, was embraced in the settlement and thereby extinguished. ALEXANDER v. & ADAMS. Judgment was rendered in favor of the plaintiff for $827 54, being the amount claimed, less the demand of defendants in compensation, which was SECCOMB, BROOKE allowed. From this judgment, after an ineffectual attempt to obtain a new trial, plaintiff has appealed. Our attention has been directed to a bill of exceptions to the opinion of the judge, overruling the objections of plaintiff to the testimony of M. Lindo, a witness called to testify in relation to a draft drawn by Warrick Martin & Co. The testimony of this witness was objected to on the grounds, that the dates and the names of the parties to the assignment offered in compensation, were not set forth in the answer; that the answer was too vague and uncertain; and that testimony could not be introduced in relation to a draft, when a check was declared upon. We think the court erred. It has been repeatedly held that a plea in compensation, being in the nature of a demand, should be accompanied with a specification of the particular amount expected to be compensated, of the manner in which the party who claims the benefit, acquired his right, with every circumstance of time, place, &c., which ought to be given in other demands, as fully and explicitly as if the matters offered in compensation were the subject of a direct action; otherwise, no evidence will be admissible under it. The plea filed by defendant is deficient in most of these essentials. The name of the drawer is given, and the amount; but we have no specification of the time when drawn or payable, or the name of the drawer or payce, nor of notice of protest to the drawers; or an averment that notice of non-payment was given to the drawer. The plea, we think, was two vague and uncertain, and the defendant should not have been permitted to offer evidence under it. See C. P. 367. McMasters v. Palmer, 4 A. 381. White v. Moreno, 17 La. 372. Smith v. Scott, 3 R. 258. Wilcox v. His Creditors, 11 R. 347. Beall v. Allen, 2 An. 932. We are further of opinion, that the court erred in overruling the objection of plaintiff to the introduction on the part of defendants, of the insolvent proceedings in the matter of Brooke v. His Creditors, to prove that Brooke had been discharged from the payment of the note sued on. The answer contains no such allegation. Conceding next the discharge was granted, non constat, that the defendant did not assent thereto. A party cannot be thus surprised by the proof of what is not alleged, or of which no notice has been given. Respondent has failed to establish his plea, that the note sued on was extinguished by settlement made with the Canal Bank. Indeed, it is conclusively proved that the note was not included in the settlement with Voorhies. The conclusion to which we have arrived, renders it unnecessary to examine the bills of exception taken by defendant. The signature to the note sued on is admitted, and the defences set up have failed. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed. And it is further ordered, adjudged and decreed, that plaintiff, John Alexander, do recover from the defendant, E. Seccomb, a member of the late firm of Seccomb, Brooke & Adams, the sum of fifteen hundred dollars, with interest thereon from January 1st, 1848, and costs in both courts. And it is further adjudged and decreed, that the demand in compensation be dismissed without prejudice. BANK OF AUGUSTA v. SAMUEL JAUDON, JR. 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. A PPEAL from the Fourth District Court of New Orleans, Reynolds, J. Thomas Hunton, and Moise & W. M. Randolph, for plaintiff. E. L. Goold, for defendant. Lamb and George Eustis, Jr., for Sturtevant & Co., one of the attaching creditors and appellant. SLIDELL, C. J. The Bank of Augusta and L. Sturtevant were both attaching creditors of defendants, and the present controversy arises on a rule taken by the Bank of Augusta on Sturtevant, & Co., to show cause why the bank should not be paid by preference out of the property attached. The defendants in rule allege, that they should have the preference, on two grounds: First, because, they say, the attachment in their case was served before that of the Bank of Augusta; and, secondly, because the agent who made the affidavit and signed the attachment bond in the bank's case, had no authority to do so. The first ground involves merely a question of fact, which was decided by the district judge in favor of the plaintiff. An examination of the evidence has not satisfied us that his conclusion was erroneous. As to the second ground, there is no evidence to establish or impeach the authority of the agent, and the plaintiff relies upon the ruling in Gibson v. Foster, 2 An. 507, where it was held that in cases of attachment, irregularities in the proceedings anterior to the judgment, except an entire want of citation, are to be corrected by some direct proceeding before the same court to set them aside, or by appeal; and that their validity cannot be drawn into question collaterally. We think that authority conclusive in the present case; and that the plaintiff could rest on his judgment maintaining the attachment, and was not required to prove the agency. Judgment affirmed, with costs. FEARN, DONEGAN & Co. v. L. MALTBY & Co. Until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator. C. C. 2443. But where the buyer's agent places the thing purchased in an exposed condition and it is damaged, the purchaser cannot recover. A PPEAL from the Fourth District Court of New Orleans, Reynolds, J. Mott and Frayser, for plaintiffs. Hamner and Hays, for defendants and appellants. OGDEN, J. The defendants purchased from the plaintiffs a crop of sugar, to be delivered at the plantation of Dr. Webb, the owner, on the Bayou Lafourche. They sent their clerk to the plantation to have the sugar weighed, and instructed him not to have more of the sugar taken out of the warehouse than could be covered, as they did not wish it to get wet, and were uncertain when a boat could be sent for it. The sugar was weighed; a receipt given for it; & Co. v. MALTBY & Co. and the whole lot was hauled from the sugar-house to the side of the bayou, FEARN, DONEGAN where part of it was store l in a warehouse, and there not being room enough for all, a portion was left on the river bank, where it was injured by exposure to the rain; and the question is, upon whom the loss should fall. The seller was bound to guard the sugar as a faithful administrator until its delivery (Art. 2443 of the Civil Code); and it would have been his duty to keep the sugar housed until the delivery to the steamboat, if the defendant's agent had not undertaken himself to have it removed to the river bank. To excuse himself for the violation of his principal's instructions, and justify his leaving the sugar in that condition, the agent says that Dr. Webb told him he did not believe there was any danger of rains, and that he wanted to get the sugar out of the sugar-house, and would protect it from the weather if necessary. On the other hand, Dr. Webb's overseer testifies that it was proposed to the defendant's agent to have all the sugar that could not be stored at the river bank, either left in the sugar-house or hauled to a work-shop near, but that the agent preferred having it placed on the levee to be ready for the boat. The boat did not call for it for four or five days, and there being much rain in the mean time, the sugar was necessarily exposed to the loss and damage suffered. It having been placed in this exposed condition by the act of the agent of defendants, to whom it belonged and upon whom it depended how long it should remain there, the injury must be considered as arising from the want of due care and precaution on the part of their agent, who, without sufficient reason, departed from his instructions. We are not satisfied from the evidence, that there was any such gross neglect on the part of the vendor as to render him liable for the loss; he may have supposed there would be no rain, and advised that it would be safe to leave the sugar on the bank, but did not take the risk on himself. In the conflict of testimony, it is uncertain what advice may have been given by the seller to defendant's agent, but it is certain that the defendant's agent was not required or forced to take the sugar from the sugar-house until a boat could be sent for it, and that his voluntarily doing so, gave rise to the loss. We cannot, therefore, consider the damage to the sugar imputable to want of care of the vendor. Judgment of the court below is therefore affirmed, with costs. EULALIE AND HER CHILDREN v LONG & MABRY. A slave may acquire a prescriptive title to his liberty under Article 3510 of the Civil Code. AP OGDEN, J. The petitioner sets forth that she is a free negro woman, over sixty-five years of age, and the mother of some and grandmother of others of the plaintiffs named in the petition, sixteen in number, who all join in the 9 9 45 1443 CHILDREN v. LONG ET AL. EULALIE AND HER prosecution of this suit; that for the last forty-five years she has been in the full enjoyment of her freedom in the Parish of Pointe Coupée, as also her said children and grandchildren, until about the close of the year 1852, when they were forcibly taken from their homes in said parish, at night, by certain armed persons to them unknown, and transferred to the custody of the defendants, who retain them, thus deprived of their liberty, averring that they are slaves and belong to them as such. The defendants rely on an exception, that the matters and things alleged and stated in the manner and form as they are set forth in the petition, exhibit no cause of action against them, and no right on the part of the plaintiffs to be free, or to be declared free. On those pleadings, a judgment has been rendered by the court below, sus taining the exceptions and dismissing the petition of the plaintiffs; from which judgment the present appeal is taken. The exception taken, admits the truth of all the allegations in the petition, and its legal effect is not weakened or impaired in any manner by the protestation contained in the plea, that the defendants are ignorant and innocent of any act of violence towards the plaintiffs. The question then presented is, whether a woman who was once a slave, but for forty-five years has, with her children and grandchildren, lived in the peaceable and quiet enjoyment of liberty, can, by violence and force, be reduced to the condition of slavery, without the right of questioning the title of one who assumes to be the owner. The affirmation of this proposition, so repugnant to the natural dictates of reason and humanity, is supposed to be the consequence of the peculiar legislation of the State, prescribing certain rules for the emancipation of slaves; and it has been argued that a slave cannot, by our laws, acquire a prescriptive title to his liberty, notwithstanding Article 3510 of the Civil Code, which declares, “if a master suffer a slave to enjoy his liberty for ten years, during his residence in the State, or for twenty years while out of it, he shall lose all right of action to recover the possession of the slave, unless the slave be a runaway or fugitive." This provision of the Code, we are told by counsel, is merely idle, without meaning or applicability, and can in no way affect the right of the master to reduce his slave into actual possession at any time. We would not feel ourselves at liberty, under any circumstance, to disregard such a clear expression of the legislative will as is contained in that article, and we see nothing in the relation subsisting between master and slave, or in the laws which undertake to regulate the status of the slave in reference to his rights and privileges as a freeman, incompatible with the prescriptive title to freedom which he may acquire under that law. The law recognizes this as one of the modes in which a slave may acquire his right to freedom, for if the master is denied a right of action to recover possession, after suffering his slave to enjoy his liberty for a certain length of time, there is no principle on which a resort to violence, in order to reduce him again to slavery, could be justified or tolerated by any one. The State is interested in disposing of such persons after they have acquired their right to freedom, and, by several laws, the right of the slave to his liberty, even when he has gained the consent of his owner, has been qualified with a view to the interests of society at large; but, although ever since the formation of the government, the power of emancipating his slaves, either by act inter vivos or by testament, has been conferred by law on the master, there has never been |