5. The proceeding to compel an insol- 6. Where an Insurance Company acvent to make a surrender of the property cepts a risk, by merely writing on the he has acquired since his cession of pro- application, "Taken at three per cent preperty, cannot be prosecuted by a rule mium," the company will be held to the against him taken in the original insolvent same liability as if a formal policy had been proceedings, but must be conducted as an executed. Ib. ordinary suit, by petition and citation in the court of the parish in which the insolvent is domiciliated. Florance v. His Creditors, 391. 7. Where a policy for tobacco shipped states that the insurers shall not be liable for damage or injury to goods by dampness, change of flavor, or by being spotted, dis caused by actual contact of sea water with the articles so damaged, it is incumbent on the plaintiff to show that the damage occurred in that manner. Leftwitch v. St. Louis Perpetual Insurance Company, 706. 6. Under the article 1980 C. C. insol-colored or mouldy, unless the same be vency may be proved as any other fact. Judson v. Connolly and Husband, 400. 7. Under the act of 13th of March, 1837, the functions of a syndic do not cease until the estate is finally wound up; and the homologation of a tableau filed by the syndic does not operate his discharge so long as there are funds which are not distributed. Whether or not there be such funds in the hands of the syndic, is a matter to be determined from the evidence. Williams, Syndic v. Heirs of Nicholson, 719. INSURANCE. 1. Where a house is destroyed by a riotous assemblage, and there is a clause in the policy excepting a loss of that character. the insurance company is not liable for the loss. It is, in such a case, immaterial that the rioters assembled originally for a lawful purpose, but afterwards were guilty of a riot. Dupin v. Mutual Insurance Co., 482. 2. It is not necessary, in order to exempt an insurance company from liability for loss by a riot, that the guilt of the rioters should have been first established by a criminal prosecution. Ib. 8. If the underwriters be responsible for a partial loss, it is with reference to the market value at the port of departure. Ib. IMPUTATION OF PAYMENT. INTEREST. 1. A factor cannot charge a commission of two and one-half per cent for advancing, and eight per cent interest on the money advanced. The charge for the commission is usurious. Lallande v. Breaux & Matherne, 505. 5. An agreement to pay eight per cent interest on a draft from date if not paid at maturity, is legal and binding on the party promising. lb. 3. Usury forfeits the whole interest. Ib. 4. An agreement to extend a draft for a certain time upon usurious interest, does not forfeit the right of recovering the lawful interest which the draft originally drew. Ib. 3. An insurance on account of whom it may concern, is limited to those who have an insurable interest in the property, and 5. A written approval of an account upon may be lawfully insured, and must further which interest is charged at eight per cent, be restricted to those for whom it was in- estops the party from disputing that item; tended, under their prior authorization, but such an assent does not amount to an or subsequent adoption. Frierson v. Bren-agreement to pay interest at the same rate thereafter. lb. han, 540. 4. Where A. had purchased a steamboat at sheriff's sale, and subsequently had run her for several years as his own property and on his own account, insured her for account of whom it may concern, it will be presumed he did so for his own benefit, and he will be entitled to recover the insurance, although there may be a contest as to the validity of his title to the vessel. 1b. 5. Where an Insurance Company seeks to avoid liability for a loss, upon the ground that the lost merchandise was included in the policy by mistake, the mistake must be made out by the clearest evidence. Woodruff v. Columbus Insurance Company, 697. 6. A factor is not allowed to charge two and a half per cent for a cash advance, and eight per cent interest. Patterson & Co. v. Leake & Tucker, 547. plantation for $100,000, payable in twenty 8. There is no distinction as to whether them in solido, a subsequent recognition by interest be usurious or not, between the a party of its solidarity, will sanction that interest stipulated upon the price for which interpretation of the judgment. Bonaffe & property is sold and the interest which may Co. v. Lane, 225. be stipulated for the loan of money. Ib. 9. Usury is a violation of law and is not to be presumed. Where an agreement to pay interest is subject to two constructions, one of which would make it usurious and the other not, the court will adopt the latter. Succession of Johnson, 682. 10. The rule by which partial payments are to be credited is, to calculate interest on the debt to the date of the partial payment, and deduct the payment from the aggregate sum, allowing the balance to bear the stipulated interest. This rule applies only when the payment exceeds the interest due. Estebene v. Estebene, 738. INTERROGATORIES ON FACTS AND ARTICLES. See EVIDENCE OF PARTIES. INTERVENTION. See PRACTICE. JUDGMENT. 1. In the absence of any evidence, either impeaching a judgment obtained in the State of Pennsylvania, or going to show that it had not, under the laws of that State, the effect of a final judgment, the court is bound to consider it as having the force of the thing adjudged. Rowland v. Jarvis, 43. 2. Where the judgment of the court does not decide certain issues made in the pleadings, it will not support the plea of res judicata in relation to the matters embraced in those issues. Fink, Executor v. Martin et al. 103. 3. The reasoning and the opinion of a court upon a subject on the evidence there adduced, does not have the force and effect of the thing adjudged, unless the subject matter is definitively disposed of by the decree of the court. Pepper et al. v. Dunlap, 200. 4. If the sheriff's return of personal service of citation upon the defendant be proved to be untrue, it is sufficient ground for sustaining an action of nullity against the judgment thus obtained. Sloan v. Menard, 218. 5. A debtor upon a twelve months' bond, taken at a sheriff's sale, is not a judgment debtor. Perkins v. Bank of Louisiana, 222. 6. Where a judgment rendered in a common law State against two persons does not state that it is not rendered against 7. Where the judgment of the court dissolving an injunction and awarding damages is written out with all the necessary specifications, and the clerk only records on the minutes that the injunction was dissolved with damages, the irregularity of the entry on the minutes is not sufficient to annul the judgment. Robertson v. Travis, 401. 8. Where an account of a curator has been homologated, and he ordered to proceed with the administration, without the heirs having been cited, the judgment is not final between the heirs and the curator. Succession of McLean, 671. 9. A judgment in favor of heirs against their mother who was also their tutrix, is only prima facie evidence of her indebtedness to them, and does not bind her creditors if they can show the amount was not due. Timberlake v. Brand, 715. See also EXECUTION OF JUDGMENTS. JURY. When a sufficient number of the regular panel of the jury are not present, the court is authorized to direct the sheriff to summon talesmen and proceed with the trial of the case, notwithstanding attachments are out for the absent jurors. Barthet v. Estebene, 315. LANDS. 1. Congress has the full power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the Government in reference to the public lands declares the patent to be the superior and conclusive evidence of legal title. Until it issues the fee is in the Government. A State has no power to declare any title less than a patent valid against a claim of the United States, or against a title held under a patent granted by the United States. Foley v. Harrison, 75. 2. Instructions from commissioners of the general land office to registers and receivers, are not judgments binding upon any one. Ib. 3. A claim based upon a patent obtained from the State, under the act of 24th of March, 1844, must yield to a patent obtained from the government of the United States, under the preemption laws passed by Congress, approved on the 29th of May, 1830, and revived and continued in force in 1844. Ib. 12. Improvements on the public lands are not real estate. Broussard v. Dugas et al. 585. 13. A confirmation by act of Congress is a title upon which the claimant can maintain a petitory action. Morrough, Administrator, v. Moss, 601. 4. The act of the 4th of May, 1847, establishing an office for the sale of the State lands at Winnsborough, did not authorize at that office the sale of any lands which had not been previously located by the State. Williams v. Robinson and Ran-isiana from France, to protect the private dolph, 110. 5. An agreement under private signature, not recorded, between A. and certain other persons, that lands purchased by him in his own name are to be conveyed to them, can have no effect against third persons. The apparent title being in A., the property is bound for judgments recorded against him. Robertson, Trustee, v. Wood et al. 197. 6. The respective rights of parties claiming land under the preemption law of Congress of 4th of September, 1841, must be determined by the register and receiver of the U. S. land office, subject to an appeal to the treasurer of the United States. Courtney v. Perkins, 216. 7. The possession of a party under a certificate that he had filed proof of his right to preemption with the register and receiver of the U. S. land office, is not sufficient to maintain the possessory action against another person who holds a similar certificate of subsequent date, and who is in actual possession of the land. Ib. 8. Where one sells any right, title, or interest he may have in a claim of certain lands against the United States, without any warranty against third persons, the claim not being recognized by the United States, there is no law requiring the registration of such a conveyance in the office of register of conveyances in the parish where the land is situated. The land office of the United States for the district is the office in which such a claim should be filed or registered. Heirs of Bastable v. Curry, 411. 9. To sever lands from the public domain, their specific boundaries must be so designated by survey, or otherwise, as to enable the court to ascertain them. Ledoux & Co. v. Black et al. 510. 10. Lands in Louisiana not severed from the public domain under the Spanish Government, may be held by an adverse title, derived from the United States. Ib. 11. Until a patent issues the Government never so entirely divests itself of title as to be precluded from setting aside an entry which conflicts with private claims; and the court cannot revise the decision of the commissioner of the general land office cancelling a certificate of entry. Haydel v. Nixon, 558. 14. The Government of the United States was bound by the treaty of cession of Lou property of the inhabitants. This obligation was recognized by various acts of Congress. A claim to land held under the grant to Bastrop was property which the United States, under the treaty and acts of Congress, could not disregard until the claim had been finally disproved of by Congress, and a purchaser from the United States could acquire no rights by his purchase. Morrison v. Whetstone, 636. 15. Where a party bolds lands under a claim confirmed by act of Congress, he will be protected from a claim under a certificate of the receiver of the land office, showing an entry of a date subsequent to the original claim; and the party in possession under such a claim may plead prescription. Copley v. Edwards et al. 647. 16. Where both parties claim title to land from a common author, the only question which can be inquired into is, in which of the parties is the title of their author vested. Cotton v. Stacker, 677. 17. A defendant in possession, under a just title for a valuable consideration, may title of his adversary. Chewning v. Johnavail himself of any radical defect in the son, 678. 18. Where the consideration of a promissory note was the sale of improvements upon the public lands, it will be presumed, unless the contrary be shown, that the vendor was a settler to acquire a preemption, and the consideration is good. Price v. and not a trespasser upon the public lands, Curran, 686. 19. The sale of improvements upon the public lands, where the vendor is in a situation to acquire a preemption right, is a good consideration for a promissory note. Norman and Trousdal v. Ellis and Wright, 693. usual to surround cities with walls and for20. At the period of history when it was tifications, to prevent their uses as defences from being interfered with, it was customary to leave an open space outside of the walls, which was not allowed to be granted as private property. This custom was ob served in the founding of the city of New Orleans. Heirs of Villars v. Kennedy, 724. 21. The decisions of the Spanish Governors of Louisiana upon questions of title, as they were vested with judicial as well as LAW.-LETTING OF LABOR, &c.-MANDATE, I. 789 executive powers, were final judgments, bargain he has made by paying the underwhich sustained the plea of res judicata. taker for the expense and labor already in 16. LAW. 1. Courts do not notice the revenue laws of foreign countries, and contracts having for their object the violation of those laws may be enforced. Kohn v. Schooner Renaissance, 25. 2. Where the English and French texts of a law differ, the English text must pre vail. Williams v. Robinson and Randolph, 110. See CONFLICT OF LAWS. LEASE. 1. The taking of a portion of the premises leased, for the construction of a levee, entitles the tenant to a reduction of the rent. David v. Beelman, 545. 2. The lessor has a privilege as well for rent not due as for rent due, and is entitled to that privilege in preference to a creditor who has made a seizure upon execution. C. C. 2675. Robinson v. Staples, 712. 3. The lessor is entitled to have the lease annulled if the lessee does not pay the rent. Hennen v. Hayden and Kelly, 713. 4. The lessor is bound for the expense of such repairs as decay renders necessary; but the lessee has no right to have such at his repairs made expense, unless the lessee has first put him in default. 1b. 5. The lessor's privilege extends to the horses and carts kept by the lessee on the leased premises. Bazin v. Segura, 718. 6. A contract by which a party is to pay an annual rent of six per cent on the cost of a building, with the privilege of becoming the owner on paying the price, creates the relation of landlord and tenant. Municipality No. One v. General Council, 761. LEGACY. See SUCCESSIONS. LETTING OF LABOR OR 1. Where a party takes upon himself the selection of a person to do a certain job of work, he takes upon himself the risk of skill if the contractor employs the person thus selected. Le Duff, f.m. c. v. Widow Porche and Carmouche, 148. 2. Under article 2736 C. C. the proprietor has the right to cancel at pleasure the curred, and such damages as the nature of the case may require. This authorizes the allowance of the profits the undertaker might have made by completing the work. Forrest and Crocker v. Caldwell and Hickey, 220. 3. Where the value of the services of slaves for a long series of years is claimed, the expenses of rearing the children are to be considered in reduction of the amount. Marcos, f. w. c., v. Barcas, f. m. c., 265. 4. Where the contractor fails to complete a building within the time specified in the contract, the owner, after putting him in default, may proceed to finish the building, and the money remaining in his hands after paying for the completion, is a fund out of which the privileged claims of material men, &c., may be paid. Jorda v. Gobet, 431. 5. The owner of a building being evicted under a contract, has no right to pay the contractor in anticipation of the term stipulated in the contract; if he does so, he renders himself liable to the claims of material men, workmen, &c., who have given him the requisite notice before the time expired. Ib. LEVEES AND ROADS. Under the act of 7th February, 1829, concerning roads and levees, the plaintiff, who furnished hands upon the requisition of the inspector, is entitled to compensation for closing a breach in defendant's levee. Williams and Savage v. LeBlanc, 125. LICENSES. LITIGIOUS RIGHT. MANDATE. I. Factor. 1. Where third persons permit an advance to be made to A. upon a consignment by him of their property, on his own account and risk exclusively, and the proceeds of the sale of the property have been applied by the consignee with the assent of A. to his credit, on a previous debt, such third persons cannot recover from the consignees the proceeds of the sale, upon the ground that the property in fact belonged to them. Duncan v. Blood et al. 11. 790 MANDATE, I. II.-MARSHALL OF UNITED STATES. 2. Where a party receives paper which a special authority; and a payment so made, it was his duty to collect, and places the is no bar to the principal's right to recover same for suit in the hands of a competent the amount from the debtor. Carter & Co. attorney at law, he will not be responsible v. Wade, 157. for the opinions or directions of the attorney. Joor, Curator, v. Sullivan, 177. 3. A charge of two and one-half per cent for accepting a draft is consonant to usage and is legal. Lallande v. Breaux and Matherne, 505. 4. Where a planter obtains supplies from a factor, upon a contract to send the factor his crops for sale, and then violates his contract by sending his crops to another person, the factor is entitled to his commissions upon the value of the crop. Ib. 5. A planter who orders supplies to be shipped to him by a factor, without ordering them to be insured, must bear their loss, unless he can show that it was customary for factors to insure goods so shipped. Patterson & Co. v. Leake and Tucker, 547. 6. A factor who receives a promissory note in settlement of a debt due to him, will not be allowed to charge a commission for endorsing the same. But if the note had been negotiated for the drawer's benefit through the factor's credit, a commission would be allowed for the endorsement. Ib. 7. A factor, under the act of 23d March, 1843, amending C. C. 3184, has a privilege upon the crop of a planter for supplies furnished to him; and this privilege takes precedence of a seizure by a creditor on an execution. Richardson v. Weiner & Co. et al. 646. 8. It is not of the essence of mandate that it be gratuitous. The right of an agent to receive compensation may be inferred from the nature of the services, without any proof of an express agreement to that effect. Waterman v. Gibson, 672. II. Mandate Generally. 9. Although a contract be made with one in his own name, if it be afterwards discovered that he acted as agent for another, the principal will be held responsible. Carlisle v. Steamer Eudora, 15. 10. The liability of municipal corporations for the acts of their agents is a general rule of law too well settled to be seriously questioned. Johnson v. Municipality No. 1. 100. 11. A power of attorney authorizing an agent to bring and carry on a certain suit, does not give that agent the power to represent the principal in a suit against him for damages for the wrongful issuance of an attachment in the first suit. Barnes v. Profilet, 117. 12. Anagent cannot take property in payment of a debt due to his principal, without 13. A public notice in the newspapers directing"Any person having business with me during my absence will call on Mr. A. who is authorized to attend to my business during my absence," does not authorize the agent to bring the principal into court as defendant, and a judgment obtained by service of citation upon such agent may be annulled. The principal will not be considered as having acquiesced, even if he neglects to appeal after being notified of the judgment, but may resort to the action of nullity. C. P. 608, 606, 604. Christine v. Chaney, 219. 14. Where the cashier of a bank grants an extension of time to the principal debtor, upon the payment of a portion of the debt, and thereby discharges a surety, the bank, having received the money and the benefits of the acts of the agent, will be considered as having ratified them. Perkins v. Bank of Louisiana, 222. 15. Where the principal was present and acquainted with the acts of an agent, and a sale was made with the knowledge and consent of the principal, the agent who acted in good faith is not responsible to the principal for damages resulting from the transaction. Barrett, Administrator, v. Zacharie & Co. 253. 16. It is requiring too much of an agent who has acted in good faith to oblige him to determine, at his peril, difficult questions of law which have not been adjudicated in this State, and upon customs not judicially recognized. Ib. 17. Principals are responsible for the damages caused by the neglect and misfeasance of their agents. Courmes v. Cavelier, 276. MARSHALL OF THE UNITED 1. No sheriff or United States marshal has the right, on an execution in favor of a third person, of taking away property on which the landlord has a privilege for rent, and selling the same, pending an injunction taken out by the landlord, without paying the rent for which the privilege exists. Robb v. Wagner, 111. 2. When the United States marshal has seized property, upon which a landlord has a privilege for rent, in a suit by a third per son, and the United States Court has no jurisdiction of a third opposition of the case, on account of the citizenship of the parties, the landlord may proceed against the mar shal in the State courts. Ib. |