CONSTRUCTION OF STATUTES, (continued).
7. The legislative injunction contained in the 3d section of the Act of 1852,
to furnish to the commissioners of election a certified list of voters who
were landed proprietors, was imperative, and the furnishing of such list
a condition precedent to the holding of a valid election under the statute,
in default of which the ordinances subscribing to stock remained without
effect. Buchanan, J., dissenting.
Ibid.
8. If the clause of the Act of 1852, under consideration, was not a condition
precedent, the omission of which imported a nullity of the ordinances
by the terms of the statute itself, it was, at least, a condition subsequent,
essential to the validity of the election held under the ordinances. Bu-
chanan, J., dissenting.
9. Under the Act of 1852, the city is made the mandatary of the landed pro-
prietors, for the purpose of subscribing to the stock of railroad compa-
nies. Buchanan, J., dissenting.
1. The District Court refused to continue a cause, and was sustained by the
Supreme Court.
Turnbull v. Barrow, 135.
1. Kiran 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.
Wardens of the Church of St. Louis v. Kirwan, 31.
2. It is inequitable to decree a specific performance where the intention of
the parties is doubtful. A court is not permitted to make such a decree
on conjecture; and where it finds no certain contract it has no right to
frame one for the parties ex equo et bono. Burke v. His Creditors, 56.
3. A strict compliance with the law and police regulations must be shown,
to legalize a sale of land made to pay for work done on roads; and such
proceedings must be closely scrutinized.
Michel v. Police Jury of Terrebonne, 67.
4. It was agreed by public act between the parties, that defendant should
ship her crops of cotton to the house of plaintiffs, for sale, and that the
balance of proceeds, after paying her installments in bank and planta-
tion expenses, should be appropriated to the payment of certain notes,
as they fell due. Held: This stipulation did not impose upon the plain-
tiffs an obligation to ascertain at their peril the details of defendant's
accruing indebtedness for installments in bank and plantation expenses
and when so ascertained, to discharge them. By it, the plaintiffs were
bound to honor the draft of defendant in favor of the bank for install-
ments due, and pay orders for plantation expenses, to the extent of the
funds in their hands proceeding from the sales of defendant's cotton
crops.
White v. Rucker, 114.
5. The defendant agreed to become security for a purchaser of property at
a sale on twelve months' credit; he refused to comply with his promise;
no act affecting his interest was done by the creditor on the faith of the
promise. Held: Defendant contemplated a written contract, and until
it was signed, he had a right to recant. Sturgis v. Arcenaux, 136.
See LETTING AND HIRING-Taylor v. Patterson, 251.
See DAMAGES-Goodloe v. Rogers, 273.
See AGENT Cronan v. Peters, 463.
1. A by-law of a corporation which is contrary to a law of the State is void
New Orleans v. Philippi, 44.
2. Where the law enables a corporation to make by-laws or ordinances in
certain cases and for certain purposes, its power of legislation is limited
to the cases and objects specified, all others being excluded by implica-
tion.
Ibid.
4. When the Act of incorporation contains no provision for the liquidation of
the affairs of the company, and the charter has been forfeited, it is com-
petent for the Legislature, by subsequent enactment, to make such pro-
vision.
Haynes v. Carter, 265.
5. The right of the Carrollton Railroad Company of making a turn-out to
communicate with the depot on Nayades street, was a necessary inci-
dent to the use of the Railroad.
Knight v. Carrollton Railroad Company, 284.
5. The charter of a bank determines the powers of the directors and, as re-
gards the corporation, the rights of the public. Stark v. Burke, 341.
6. The charter of a bank and the subscription constitute a contract between
the corporation and its stockholders by which their mutual rights and
obligations are fixed, and directors have no power to change it without
the consent of the stockholders; and as by the amendatory Act of incor-
poration of the Atchafalaya Bank in 1836, it was provided, that the bal-
ance of its stock on each share should be paid on the first Monday in
March, 1838; unless otherwise ordered by the Directors, to be paid at
longer periods of time, or in less proportions at different times, and as
the directors did not prolong the payments or change the proportions
before the first Monday in March, 1838, their control after that date
ceased, and each stockholder was on the first Monday in March, 1838,
the debtor of the corporation for the whole amount of his subscription.
Ibid.
7. Under the Act of 1842, commissioners were appointed to take charge of
the assets and to liquidate the affairs of the Atchafalaya Bank, and all ju-
dicial proceedings by its creditors against the corporation were stayed.
The duties of the commissioners, in all matters not specially provided
for were assimilated to those of syndics of insolvent estates, and the
proceedings were to be the same as those in cases of voluntary surren-
der by individuals. Held: That although the creditors could not sue
the corporation, nor sue the stockholders directly, yet they had the right
to compel the commissioners to sue the stockholders; therefore, a com-
CORPORATION, (continued).
missioner cannot in reply to the plea of prescription set up by a stock-
holder avail himself of the rule, contra non valentem agere, non currit
prescriptio.
Ibid.
8. The Act approved March 14, 1839, entitled "an Act to relieve such of
the banks of this State, whose charters may have been forfeited by a
suspension of specie payments, from such forfeiture," must, in order to
be operative, have been accepted by the stockholders, or at least a ma-
jority of them.
Ibid.
9. A municipal corporation, in the exercise of power which it possesses for
public purposes, and which it holds as part of the country, enjoys the
exemption of government from responsibility for its own acts and the
acts of its officers deriving their authority from the sovereign power.
Stewart v. New Orleans, 461.
See PRACTICE-Haynes v. Carter, 265.
1. The appellee will not be mulcted in costs on account of small errors in
calculation in the judgment appealed from, which could have been cor-
rected, if brought to the notice of the court below.
Gamble v. McClintock, 160.
1. Article 2236 of the Code, which declares that counter letters can have no
effect against creditors or bona fide purchasers, is not to be restricted to
cases where there is an authentic act from which the counter letter is to
derogate. Therefore, where a counter letter shows that only a part of
the purchase money of a ship had been paid, while the bill of sale re-
gistered at the custom house recited the entire payment-Held: That
the counter letter could not prevail against a judgment creditor.
Slark v. Broom, 69.
1. Testimony of a preexisting enmity between the accused and the deceased,
on a previous quarrel or grudge, is admissible to prove malice.
2. As a general rule, it is incompetent for the accused, on an indictment for
murder, to offer evidence of the general bad temper and quarrelsome
disposition of the deceased.
3. The bill of exceptions stated that there was no direct proof who fired the
pistol, or who killed the deceased. Held: This submits a question of
fact, as a motion for the reversal of a verdict and judgment in a crimi-
nal case, &c., and it is not within the cognizance of the Supreme Court.
Ibid.
4. The record of conviction should show that the jurors were sworn.
5. The 1st section of the Act of March 18th, 1852, entitled "an Act to sup-
press more effectually trade and barter with slaves," provides that
"any person or persons who shall buy, sell or receive of, to or from any
CRIMINAL LAW, (continued).
slave or slaves, any corn, hay, fodder, meal, spirituous liquors or other
produce or commodity whatever, without the consent of the master,
owner, overseer or employer of such slave or slaves, shall be guilty of a
high misdemeanor." The indictment under the section charged the de-
fendant with having sold spirituous liquors to a slave, and negatived the
fact of the consent in writing of the master, owner, overseer or employ-
er, following literally the language of the statute, in so far as it de-
scribes the offence. Held: That the indictment sufficiently set forth
the offence.
State v. Porte, 105.
6. Justices of the Peace who preside over the trial of slaves, have the power
to grant and refuse new trials. State v. Slave Lethe et al., 182.
7. It is sufficient if the indictment, in charging the offence, states all the
facts and circumstances comprised in the definition of the offence as
given in the statute, so as to bring the defendant clearly within its pro-
visions.
State v. McClannahan, 210.
8. Holmes and Jones agreed to purchase a schooner on joint account.
Holmes gave Jones his note for one-half the purchase money to be de-
livered to the owner of the schooner, which note Jones converted to his
own use. Held: This was a breach of trust under the Statute of
March 8th, 1845.
State v. Jones, 307.
9. An assault with a dangerous weapon is punishable under the Act of 1849,
though there be no intent to kill.
State v. Lovenstein, 313.
10. Under the Act of 1829, it is not necessary that the weapon with which
the assault was made, should have been concealed.
Ibid.
11. Unless expressly included by the statute, Sunday must be excluded
when a certain number of days is allowed to a defendant in a criminal
case. Therefore, under the 35th section of the Statue of 1805, which
requires that a copy of the indictment and list of the jury be delivered
to the prisoner at least two entire days before he shall be tried, the pri-
soner is entitled to two entire days exclusive of Sunday.
See SUPREME COURT-State v. May, 69.
See JURY-State v. Gates, 94.
See APPEAL-State v. Pratt, 157.
1. 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.
2. 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 abandonment.
Ibid.
3. It is not competent for the District Court, on the death of the plaintiff, to
appoint a curator ad hoc to prosecute the suit.
Chartier v. Police Jury of Plaquemines, 42.
CURATOR AD HOC, (continued).
4. The plaintiff, a resident of Louisiana, sued the defendant, a resident of
Kentucky, to rescind the sale of slaves sold him by the agent of defen-
dant, on account of redhibitory defects. The defendant signed an agree-
ment to arbitrate the matter in dispute, but the arbitrators did not act.
Held: That it was not a proper case for the appointment of a curator
ad hoc to represent the defendant.
Stephens v. Graves, 239.
1. When it may be inferred that it entered into the contemplation of the par-
ties to a contract that a sugar mill and engine, which the manufacturer
undertook to put up within a given time, on the plantation of a planter,
were for the purpose of taking off a certain crop, a failure to put it up
in time to take off that crop, entitles the planter to recover damages
for his loss of crop, and extra wages paid in consequence of the delay
for alterations and repairs, in putting the sugar mill and steam engine in
operation.
Goodloe v. Rogers, 273.
2. An officer is bound to inquire into the authority of the court from which a
writ emanates, and is liable for damages for executing a writ issued by
a court without jurisdiction.
Lafon v. Dufrocq, 350.
3. Where cars pass their usual stopping place, and to avoid being carried
beyond his destination, a passenger, when they are in motion, jumps out,
and in doing so, sustains an injury, he cannot recover. Such an act of
imprudence relieves the Company.
Damont v. N. O. and Carrollton R. R. Co., 441.
See ELECTIONS-Patterson v. D'Autrice, 35.
See LETTING AND HIRING Taylor v. Patterson, 251.
See ACTION-Vincent v. Sharp, 463.
1. The decision in Liraudais v. Municipality No. Two, 16 La. 509; Livau-
dais v. Municipality No. Two, 5 Ann. 8; Xiques v. Bujac, 7. Ann. 517;
and Licaudais v. Municipaility No. Two, 9th Ann., were based on the
principle that the designation on a plan of a space for the erection of an
edifice which might be the private property of an individual, or a corpo-
ration, could not be considered as a dedication to the public use.
Sarpy v. Municipality No. Two, 597.
1. Where in answer to a rule to show cause why depositions should not be
read in evidence, objections are urged and no disposition is made of the
rule, the party objecting has a right on the trial of the case to urge his
objections to the introduction of the deposition in evidence.
Ferriber v. Latting, 169.
1. The caption of the depositions or answers to the interrogatories pro-
pounded to the witness showed that he was previously sworn; it ap-
peared also where, when and by what authority the deposition was taken;
Held: That this was a sufficient proces verbal showing the manner in
which the commission had been executed and that the witness had been
Ibid.
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