the proof that one has been written instead of the other, by the clerk who filled up a deed. Under this ruling of the Court, the defendant proved, by the Deputy Sheriff who cried the property, that he was the identical person to whom the lots were adjudicated, and who paid the price. This testimony was fully corroborated by two witnesses who were present at the Sheriff's sale. It is also proved that defendant did acts of ownership upon the lots, such as filling up and fencing them in, shortly after the sale. Indeed the form of this action, (petitory,) admits the possession of the defendant. The plaintiff has proved that the taxes of 1848 and 1849, were paid by the attorney of the succession of Perin Boulard; after the bill had been presented by the tax collector to the defendant for payment, who refused to pay, saying that the name in the tax receipt was not in his name. We do not consider this refusal to amount to a disclaimer of property in the defendant. The evidence establishes to our satisfaction, that the defendant is the owner of the property in controversy, and that his name was misspelt in the Sheriff's deed. There is no conflict of evidence in relation to the circumstances of the Sheriff's sale. It does not appear that the deceased, Perin Boulard, ever sat up any claim or pretension to be the owner of this property, although he lived several months after the date of the Sheriff's sale; and this negative circumstance is received by us as corroborating the positive and direct evidence given by defendant's witnesses. Judgment reversed; and judgment rendered for defendant, with costs in both Courts. ROBERT v. BOULAT. WARDENS OF THE CHURCH OF ST. LOUIS v. J. P. KIRWAN & Co. et al. 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. A PPEAL from the Second District Court of New Orleans, Lea, J. Benjamin & Micou, for Plaintiff. C. Roselius, for defendant. BUCHANAN, J. This is a suit for the rescission of a building contract, and for damages; the ground of the demand being bad workmanship and materials. Defendant, Kirwan, reconvenes for the price of work and labor done, and for damages caused by the acts of the plaintiffs. The District Court gave judgment rescinding the contract, condemning the defendant Kirwan to pay nomi. nal damages to plaintiffs, and rejecting the reconventional claim. From this judgment, the syndic of Kirwan has appealed. It appears from the evidence that Kirwan, a builder, entered into a contract with the Church wardens to make extensive repairs and alterations to the Church and its tower; that by contract he was to work according to the plans, and under the superintendence, of an architect employed by the Church wardens; that many complaints were made of the manner in which Kirwan was executing the work; that the tower, after being carried to a considerable CHURCH OF ST. WARDENS OF THE height, fell down; that this accident was attributed by the architect to the fault of the builder, who, on his part, contended that it was owing to defective plans of the architect. LOUIS v. KIRWAN & Co. ET AL. The parties, however, compromised their disputes by entering into a new contract on the 5th of April 1850, by which the sum necessary to repair the damages resulting from the fall of the tower, and to complete the whole work, was ascertained and agreed upon. The parties further agree that the expenses of repairing the damages caused by the accident should be borne one-half by each party. The price of the contemplated work being fixed by this contract of the 5th of April, 1850, as well as the terms of the payment, the counsel of the appellant is right in the position that this contract is the measure of the obligations of the parties, and that it becomes immaterial to look behind it. But we think, with the District Judge, that the evidence has established the allegations of the petition filed in this case on the 26th of April, 1850, asserting a failure on the part of Kirwan to comply with the obligations of the last contract. The plaintiffs had consequently a right to finish the building as they have done. Allen v. Wills, 4th Ann. 97; Hale v. Wills. 3d Ann. 504. And it is proved that they have paid about $13,000 to finish it, over and above the price of their contracts with Kirwan. We cannot, therefore, see what cause Kirwan has to complain of the judgment which has been rendered by the District Court. On the contrary, it would seem that the Church wardens might, with great show of justice, have recovered of Kirwan a much larger sum than the nominal damages (five dollars,) against him by the judgment of the Court below. But they do not complain of that judgment, which is therefore, affirmed with costs. FRANKLIN SHAW v. JAMES GANDOLFO & Co. FACTS-Partnership in an adventure. A PPEAL from the Fourth District Court of New Orleans, Reynolds, J.- lants. VOORHIES, J. (BUCHANAN, J., and OGDEN, J., concurring.) The plaintiff seeks to recover of the defendants the sum of $4095 43, as one-half of the loss which, he alleges, resulted from a mercantile adventure, founded on the following instrument, viz: F. Shaw, Esq. New Orleans, "NEW ORLEANS, May 6th, 1850. Dear Sir: We acknowledge the receipt, on consignment and for sale on your account, of six hundred and fifty bales 4-4 bro. sheetings, as per marks and numbers at foot, under the following terms and conditions, viz: We agree to sell said goods for which you have advanced the cost, in cash, whenever you and ourselves think best. You are to get them insured at good offices in this city, for the benefit of whom it may concern, the cost of which to be charged to the goods. SHAW 0. We agree not to charge any commission for purchasing or selling, and to allow you six per cent. interest per annum for your money, advanced, out of GANDOLFO & Co. the proceeds of said goods. The profit or loss which may result from this operation, to be equally divided. 'Bought of F. H. Petitpan, JAMES GANDOLFO & Co." LMC 150 bales 4-4 Laurence bro. sheetings, 115,920 yds. at 7c. $8,694 00 Bought of Whiting, Wright & Co. 11,307 39 In support of his demand, the plaintiff relies on this instrument and the testimony of Amos Horn. The substance of the testimony of this witness is, that the parties being unable to find sales in New Orleans, Dr. Shaw, and Appleton, one of the defendants, agreed to ship the goods to New York for sale; both engaged the freight of the goods; Appleton himself engaged the drayage, as he could procure it for a lower price than Shaw. The consignment was made in the name of the plaintiff, to Holbrook & Nelson, of New York, and sold by them for his account. It is shown by the testimony of one of the consignees, that the goods were sold at the current rates, or full market value, in New York-the net proceeds of which amounted to the sum of $32,541 63. The alleged loss is the difference between this amount and that of the invoice of the goods, including interest and charges. The account made out between the parties, including interest to the 15th of December, 1850, by the witness, Horn, shows the exact amount of that difference. It is not shown, however, that the defendants ever had any knowledge of this account, approved it, or consented to pay any part of the loss thus stated. The record shows that the plaintiff introduced in evidence, two documents, purporting to be the original bills of the merchandize purchased of F. H. Petitpan, by the defendants, one dated the 3d and the other the 4th of May, 1850. But these documents do not appear to be either written or signed by Petitpan, and even if they were, we are uninformed as to the object of their introduction. Under this state of facts, are the defendants liable? Whether the agreement between the parties, evidenced by the written instrument, be considered as an agency, or as a partnership, quoad the particular transaction, we do not think it is necessary for us to determine. 8 N. S. 174. Viewed as a partnership, the aspect most favorable to the plaintiff, we think it is clear that the contract terminated by the shipment or consignment of the goods to Holbrook & Nelson. It is obvious that the consignment could not have been made under the same contract. How could the stipulation in relation to commissions on the contemplated sales in New Orleans, which were to have been considered by the parties as profits, be reconciled to the charge of commission against the defendants on the New York sales? If the parties intended to extend the agreement to the sales in New York, it seems to us that SHAW 2. this change necessarily superinduced the necessity of another agreement. In GANDOLFO & Co. the absence of any other evidence, we do not think the mere consent of the defendants to the consignment, amounted to such an agreement; on the contrary, we infer from it, that it was the intention of the parties to abandon their contract. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment in favor of the defendants, rejecting the plaintiffs demand, with costs in both Courts. SLIDELL, C. J., (with whom concurred CAMPBLL, J.) dissenting-thought the original agreement clearly created a partnership in the adventure, and that the change in the place of sale from New Orleans to New York, to which change, according to their view of the evidence, the parties agreed, did not change the relations of plaintiff and defendants, as partners in the adventure. 9 34 45 281 GEORGE B. PRINDLE V. SARAH A. WILLIAMS, his Wife. Unless a party has some property or interest in the State, upon which the jurisdiction of the Court is to operate, the appointment of a curator ad hoc, to represent such party, cannot be legally made. There are only two cases in which curators may be appointed to represent absent wives, in suits instituted by the husband; one, when the wife has committed an infamous crime and fled from justice; the other, where the husband sues for separation from bed and board, on the ground of abandon ment. A PPEAL from the Fifth District Court of New Orleans, Buchanan, J. M. C. Dunn, for plaintiff and appellant. John B. Robertson, curator ad hoc. OGDEN, J. This is an action of divorce by the husband against the wife, on the ground of adultery. It is alleged, that the wife fled from the State with her paramour, and that the plaintiff is ignorant where she lives. The appointment of a curator ad hoc, to defend the wife, was made under the prayer of the petition, and the cause put at issue by his answer, containing a general denial of the allegations of the petition. After hearing the evidence, and the cause being submitted, the District Judge came to the conclusion that the appointment of a curator ad hoc to represent the wife was unauthorized by law, and that consequently she had not been legally cited. A judgment of nonsuit having been rendered, the plaintiff has appealed. The only general provision contained in our laws for the appointment of a curator ad hoc, to defend an absentee, is Arts. 57 of the Civil Code, and 116 C. P. After many conflicting decisions of our Court, as to the correct interpretation and true extent and meaning of the articles, it has been held in several of the later decisions, that the article presupposes something upon which the jurisdiction of the Court can properly be based. See cases of Dupuy v. Hunt, 2 Ann. 562: Peterson v. McRae, 3 Ann. 101; Augusta Ins. Co. v. Muton, Ib. 417. We think our predecessors, in those cases, gave a correct construction to those articles of the Codes, and that unless a party has some property or interest in the State, upon which the jurisdiction of the Court is to operate, the appointment of a curator ad hoc, to represent such party, cannot be legally made. The petition in this case represents that the parties were married in the State of Ohio, and afterwards came to this city to live; there is no allegation that they either brought with them, or have acquired any property since their removal to this State. Our law views marriage in the light of a civil contract. A judgment rendered in favor of husband or wife, pronouncing a divorce, by which the marriage is dissolved, rests on the same principle on which all contracts may be dissolved by reason of an active or passive violation of the obligation of the contract by either party. But the mode of proceeding, and the particular rules by which the parties must arrive at their rights, are defined by our laws on the subject of divorce and separation from bed and board. Looking to those rules, we find it is correctly stated in the reason for the judgment of the Court below, that there are only two cases in which curators may be named to absent wives in suits instituted by their husbands—that of divorce on account of defendant having committed an infamous crime and being a fugitive from justice, and that of separation from bed and board claimed on the ground of abandonment. It follows, that the appointment of a curator ad hoc to the absent wife, under the circumstances of this case and allegations of the petition, was unauthorized by any of the rules the Legislature have thought proper specially to exact for proceedings in this particular class of cases; and the appointment is not justified by the general provision referred to, providing for the appointment of a curator ad hoc to absentees, any more than it would be in any other case of a suit brought to set aside a contract between parties, without their being any property of either party within the State to be affected by the judg ment. It is therefore ordered, that the judgment of the Court below be affirmed, with costs. PRINDLE v. WILLIAMS. GEORGE PATTERSON v. J. B. D'AUTRIVE et als. Rights of voters, under the Act "to regulate Elections in the Parishes of Orleans and Jefferson," approved January 25th, 1847. Commissioners of election who refuse to receive a vote, in consequence of their belief that the residence of the applicant does not entitle him to that right, cannot be held liable for damages on account of such refusal. Where a person offering to vote shall be challenged, or the commissioners shall be in doubt as to his qualifications, they shall administer the oath prescribed by law; if he take this oath, it is the test of his qualification, and his vote must be received, unless perhaps the falsity of the oath be estab lished. If the commissioners reject the vote and, on demand of the applicant, refuse to tender the oath, they are liable to him in damages for such refusal. Campbell, J., dissenting. A PPEAL from the District Court of the Parish of Jefferson, J. Calvitt Clarke, J. Jourdan & Warfield, for plaintiff and appellant. Marks, for D'Autrive. Upton, for Waters. Purvis & Dugué, for Boutté. SLIDELL, C. J. The vote of the defendant was rejected on the ground that he was not a resident of the Parish of Jefferson. There was no doubt as to the locality of plaintiff's dwelling, but the question was whether the locality was within the boundary line of the Parish of Jefferson. If the commissioners really believed that it was not, we do not think they can be held liable in damages to the plaintiff. When we find the District Judge deciding on evi |