CONSTITUTION OF THE STATE.
1. The rules which govern in the construction of a statute, are applicable to
the Constitution, when supposed to conflict with an act of ordinary legisla-
tion. Nicholson v. Thompson, 367.
Art. 4, sect. 2. Supreme Court. Pujol v. Correjolles, 90.
5. Removal of Judges. Nicholson v. Thompson, 367.
11. Continuance of existing laws in force. Ib.
5, sect. 3. Impeachment. Ib.
8. Duration of Officers, &c. Ib.
Shedule, sect. 4. Continuance of existing laws in force. Ib.
I. Consent necessary to Form, and confirmation.
II. Joint contracts.
III. Illegal contracts.
IV. Proof.
V. Interpretation.
VI. Putting in default.
VII. Damages for non-performance.
I. Consent necessary to Form, and confirmation.
1. No obligation or right can result to any one from an act or contract, to
which he was not a party, until he manifests his intention to avail himself
of such right. Wiggin v. Flower, 406.
2. Where a contract is made for another, subject to his ratification, he will be
presumed to have ratified it, unless, on being informed thereof, he immedi-
ately repudiates it. Lartigue v. Peet, 91.
3. The voluntary execution of a contract, with the full knowledge of the
grounds upon which it might be rescinded, amounts to a ratification of it,
and involves a renunciation of the means and exceptions that might have
been opposed to it. Marigny v. Union Bank of Louisiana, 354.
4. There is a difference between the obligations of co-heirs, and of joint ob-
ligors by contract. The law apportions among the heirs, all the charges
of the inheritance, and each heir may, perhaps, be sued, separately, for his
virile share. C. P. 120. C. C. 1370, et seq; aliter as to co-obligors by
joint contract, all of whom must be sued together. C. C. 2080 et seq. In
the one case, it is a condition of his inheritance that each heir shall pay his
share of the debt; but, in the other, no one of the obligors can release him-
self at will. Duggan v. De Lizardi, 224.
5. In actions on joint obligations, all the original parties must be sued together,
even those who may have performed their part; no judgment can be pro-
nounced, unless it be shown that all joined in the obligation; any judgment
must be against each defendant separately for his portion, but, in solido, for
the costs, (C. C. 2080 et seq ;) and all the parties below must be made parties
to the appeal, though a part only have appealed, or the appeal must be dis-
missed. Those who have not appealed must be cited as appellees. Ib.
6. An obligation with an unlawful cause, can have no effect. The cause is
unlawful when forbidden by law, contra bonos mores, or contrary to public
order. C. C. 1887, 1889. Slidell v. Pritchard, 101.
7. Any contract or agreement between an insolvent and one of his creditors,
the effect of which is to secure to the latter an undue preference over the
other creditors, or to procure for him a renewed claim upon the future pro-
perty of the debtor, in consequence of which agreement, the preferred cre-
ditor's opposition is withdrawn, is illegal and fraudulent, and cannot be en-
forced. It matters not as to the nature of the opposition, if its withdrawal
be the consideration or cause for which the preference is given. Thus, an
agreement in consideration of the withdrawal of an opposition to the
sufficiency of the security offered by an insolvent, who had been appointed
syndic of his own creditors, though the opposition was made after the in-
solvent had obtained his discharge, of the benefit of which he could not be
deprived by any subsequent opposition, is illegal and void. It is sufficient
that an undue advantage is derived from it by one of the creditors. The
object of the law is, that the rights of all the creditors should remain in the
state they were in, at the time of the insolvency; that no change should
take place so as to favor any; and that the effects surrendered, and the pro-
perty subsequently acquired, should be equally divided between the insol-
vent's former and subsequent creditors, according to the nature, rank, and
origin of their respective claims at the time of the surrender, or of the
contracting of the subsequent debts. Ib.
8. Money paid to a creditor, in pursuance of an illegal agreement with an in-
solvent, who has been appointed the syndic of his own creditors, to secure
the payment of the creditor's claim, in consideration of his withdrawing an
opposition to the sufficiency of the security offered by the syndic, cannot be
recovered back, either by the debtor, or by an assignee of his property,
under a bankrupt law, suing for the benefit of the creditors, or by a security,
who may have paid the amount so reclaimed. Though the cause of the
agreement was unlawful, it originated in a natural obligation, on which no
action could be founded, but which sufficed to prevent the recovery of the
money back, when once paid. C. C. 2281, 2282. Ib.
9. No action will lie on a contract the consideration of which is prohibited by
law, or which originated in the violation of any statute. C. C. 1887, 1889.
Dickerson v. Gordy, 490.
10. Solidarity must be stipulated expressly. It cannot be presumed. C. C.
2088. So of surety-ship. Ib. 3008. Erwin v. Greene, 70.
11. The provision of art. 2256 of the Civil Code, that “parol evidence shall
not be admitted against or beyond what is contained in the acts, nor on what
may have been said before, or at the time of making them, or since," is not
confined to acts relative to the transfer of immoveable property or slaves,
nor to authentic acts. Knox v. Liddell, 111.
12. The owner of a building will be responsible for extra work done on it,
though it be not proved that he ordered it, where it is shown, that he was
at the building daily and must have seen it, and did not forbid it. If he did
not want the work done, he should have prevented its execution.
Percy v. Peyroux, 179.
13. Parol evidence is inadmissible to prove the cancelling of written con-
tracts. Such evidence is inadmissible against a written contract; and
proof that it was cancelled, is the strongest evidence that can be given
against it. Sharkey v. Wood, 320.
14. A clear case of error, or want of consideration must be shown, to release
one from an obligation who has, under his signature, acknowledged his in-
debtedness, and admitted a consideration. Dugat v. Comeau, 475.
15. The testimony of a single witness, unsupported by corroborating circum-
stances, is insufficient to prove a contract, not reduced to writing to pay a
sum of money where the amount exceeds five hundred dollars. C. C. 2257.
Derbes v. Décuir, 491.
16. Doubts as to the construction of a contract cannot avail one, who, not
being a party thereto, can base his right to sue in his own name, only on a
clear and unequivocal stipulation in his behalf. Mitchell v. Cooley, 240.
17. Offers to perform one's part of a contract are, according to the jurispru-
dence of France, either labial or real. The latter correspond to our tender,
which, when followed by a consignment, amounts to payment. An offer
may be made without a tender. Sewell v. Willcox-Rehearing, 87.
18. An offer by the plaintiff to perform his part of the obligation, is an indis-
pensable preliminary to an action for the rescission of a commutative con-
VII. Damages for Non-Performance.
19. A contractor who fails to complete a building within the time specified,
will be responsible to the owner for the damage sustained by his failure to
comply with his contract. Percy v. Peyroux, 179.
20. In general, where joint obligors or creditors unite in a common acquit-
tance, each will be presumed to have received his share, according to the
contract. Each stipulates only for himself. Marty v. His Creditors, 193.
21. In art. 2130 of the Civil Code, the word co-obligee, by an error of the
press, is used for co-obligor. Wiggin v. Flower, 406.
22. The provision of art. 2130 of the Civil Code, which declares, that
obligation may be discharged by any person concerned in it, such as a co-
obligor or a security," recognizes the right of a co-obligor, surety, or any
person, like them, concerned in the obligation, to pay, before his obligation
becomes absolute; and the subsequent clause of the same article, which
provides that payment by a person in no way concerned in the obligation
does not give rise to subrogation, virtually declares that payment by a co-
obligor, surety, or other person concerned in it, does create such subroga-
tion. Ib.
I. Courts Generally.
II. Supreme Court.
III. District and Probate Courts.
IV. Commercial Court of New Orleans.
V. Courts of the United States in Louisiana.
1. The judicial department does not pretend to the power of supervising the
proceedings or acts, of the other co-ordinate branches of the government;
it decides only on the rights of parties in controversies which have assumed
a judicial form. When the right of a citizen to enjoy the emoluments of a
particular office, is contested by another pretending to have a better right
under the constitution and laws, it necessarily appertains to the judiciary to
decide between them, according to the supreme law.
Nicholson. Thompson, 367.
2. To give to a court, in any case, jurisdiction of the person, the party must
have had due notice of the suit. McNairy v. Bell, 418.
3. The powers conferred on the Supreme Court, enable it to supervise the
legal opinions and judgments of the inferior Judges. They do not extend
to the correction of any intemperate language in which they may be ex-
pressed, or to the personal deportment of the Judges, while presiding in
their respective courts. Gove v. Breedlove, 78.
4. The 4th section of the act establishing the Commercial Court of New Or-
leans, so far as it attempts to authorize the Supreme Court to decide on
cases in the first instance, and to determine matters not decided on in the
inferior court, is unconstitutional. The Supreme Court cannot decide on
the merits of a case which has not been acted on by the lower court.
Gove v. Breedlove, 75.
5. The Supreme Court, as the guardian of the constitutional rights of the peo-
ple, is authorized to pronounce on the constitutionality of the acts of the
two other departments of the government; but no act of either will be pro-
nounced unconstitutional unless manifestly so, and the incompatibility with
the Constitution must be evident.
Nicholson v. Thompson--Application for Re-hearing, 383.
III. District and Probate Courts.
6. As a general rule, Courts of Probate have exclusive jurisdiction of all
claims for money against successions, administered by executors, curators,
&c. (C. P. art. 924, § 13); and when a defendant dies during the pen-
dency of a suit against him for a sum of money, the jurisdiction of the or-
dinary tribunals ceases, and the case must be transferred to the Probate
Court of the parish where the succession is opened, to be there proceeded
in. The object of the law is to bring before the Probate Court all the
claims which, being subject to classification, are to be paid by the adminis-
trators under the control and supervision of that court. But the law does
not extend to cases where the claim against the succession is set up by re-
convention or compensation, or in which the parties have instituted separate
actions against each other, which have been subsequently consolidated. In
such cases, the jurisdiction of the ordinary tribunals will be maintained,
where the original action was within their jurisdiction. The actions are
indivisible, and must be tried together in the same court.
Bayne v. Fox, 2.
7. Where a party has been put in possession of a succession, as testamentary
heir, by a decree of the Court of Probates, that court is divested of all con-
trol over the estate; and one who claims the property as the heir at law of
the deceased, must proceed before the courts of ordinary jurisdiction. Nor
is it requisite, before instituting such revendicatory action, that the claimant
should be recognized as heir by the Probate Court; this is only required
while the succession continues under the supervision of the court by which
the executor, administrator, or curator was appointed. Layre v. Pasco, 9.
8. Where a Judge of Probates has rendered a judgment refusing to homolo-
gate the proceedings of a family meeting, he cannot be compelled by man-
damus to do so. State v. Judge of Probates of Jefferson, 161.
9. Plaintiff having recovered damages in an action for a malicious prosecu-
tion tried by a jury before a Parish Court, defendant appealed to the Dis-
trict Court, which confirmed the judginent. There was no prayer for a
trial by jury before the District Court; but defendant moved for a new trial
in that court, on the ground, that the case could not be tried by it without a
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