The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-06-20
SUPREME COURT DECISIONS.

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BOAT COMPANY.
BIZ Manning, G. J.-There ara two kinds or
forms OF Injunction; that called the remedial,
which PROHIBITS or restraints one from doing q
certain act; and that termed the judicial or
mandatory, which commands q certain act to
An Injunction can be Issued IN kinaine, on the
en- pnrte application OF the complainant, only
In the pr0hibitOry or remedial form. The
judicial or mandatory Injunction can Issue
trOversy.
NO. 7434-J. A. HERNANDEZ, EXECUTOR, VS..
EDwARD MoRPHY
By Manning, G. J-When printed briefs are
not filed in support OF an application for re-
hearing, as required by the rule Of court, the
rehearlng will be refused.
NO. 725-AMEDEE TEsTART vs.. HYPoLITE Be
LOT ct AL.
BIZ Mnnninn, c. J.-Where a man and wife
conceal the relations and hold the latter out
to the world as o femme sole, they cannot at
tack q mortgage granted by her upon prop
erty purchased In her own name on the ground
that the property really belonged to the COM
thorized to execute that mortgage.
Though one Of the contracting parties In q
simulated conveyance cannot assail the verify
OF the contract by parol evidence, but only by
a counter-letter, his creditor Is not hampered
by the same restriction. s
Thus when a simulated sale has been made
and the pretended vendor subsequently mort
Cages the property to q third person, such
person can, in proceedings to foreclose the
mortgage, prove by parol the stimulation and
falsity Of the sale, and that the real title was
In his mortgage at the date his rights ac-
crued.
Such parol evidence is admissible not only
against the ygendee, at the simulated sale, but
likewise against subsequent purchasers Of the
property, who have acquired 1t with aknoWl-
edge OF the stimulation of their vendors title.
No. 5~760-BARNEY GOLDEN VS. RI
MORGAN.
By Mar, IAN employer is not liable
for damages suffered by one OF his employees
through the negligence Of another, unless, 1t
BIZ shown that the employer was to blame for
not providing proper machinery and appli-
ances, or for not retaining competent work.
men.
The fact that a railroad train ran off the
track does not create such a Drimn facie case
Of negligence n want Of skill in the engineer
as to throw the burden OF proof on the en-
.ployer to show the use of proper skill and
prudence.
NO 7434-J. A. FERNANDEZ. EXECUTOR, VS..
ONWARD MoRPHY.
By Mar. 1.-THE acceptance by a lessor of
the lessee's note, endorsed by a third person.
for the amount Of rent due, does not create a
novation of the debt, or destroy the right Of
pledge given by law to the lessor.
5838-W. A. BARTLETTE VS.. G. J.
Err AIS.
BIZ Mar, 1.-THE court within whose juris-
diction the property OF an absentee is situated
alone has the power to appoint q curator ad
hoe to represent him, and judgment rendered
enthusiastically with the curator may be exc
cuted On that property.
A curator I'D hoe may validity acknowledge,
In his ~plead'ngs, service of petition and cita-
ton, and such acknowledgment brings the de-
fendant into court.
When the defendant, prior to the signing OF
a Judgment rendered contradictorily with the
curator appointed TO represent him, moves to
set aside the judgment for want OF jurisdic-
ton Jon such sue lap appearance pea cata,eoc cures the defect IL
The order dismissing that rule Is res adju-
dicntn against q subsequent action for the
nullity Of the judgment for want Of iurlsdic-
ton.
NO. 1862. i. SMITH VS.. r T. N. POOL.
By De Blanc, J.-Actual delivery Or nova
bles transferred under . dntiog en- p15eaaestis
essentially necessary To validate thsseontract
as aHainst third persona.
AS long as the movables thus given In pay
ment are mixed with and not separated from
others Of q like character, and bearing the
same marks which belong to the vendor, they
against him by a third person.
NO. 7298-w. p. o'HERN vs.. HIBERNIAN IssUR-
ANCE COMPANY EFT AIS.
By DeBlanc, Upon the dissolution OF an
Injunction which enjoined the execution of 8
money judgment bearing interest at the rate
of s per cent, not more than IL per cent In ad-
dition to that interest can be allowed as DAM
ages, In the absence of proof that a greater
amount Of damages has been suffered by the
wrongful Issuance OF the Injunction.
NO. 7332-sUCCEssIoN OF HUGH M'CLosKEY.
By DeBtanc, J-When several pieces of
property belonging to a succession are sold
upon the condition that the taxes due the
I'D xx ~Hn 1n --- 1920
chasers, the mere acceptance by the city from
one OF the purchasers OF the proportion of
taxes due by him annot be construed as a
consent to q novation of Its claim, or as an
abandonment OF the right which it has to en-
force payment, as to the balance due, upOn the
cash proceeds OF the sale.
The right OF the city to demand payment of
the taxes due by a solvent succession Is not
confined to the proceeds OF the property sub
ject to It's tax liens, but may be exercised
against any funds not affected by q privilege
superior to its own.
No privilege for taxes due, but not recorded,
at the date of the sale of the property upon
which they are assessed, can affect the pur-
chaser Of the property.
The city has no claim against the owner Of
property who has paid the taxes due thereon
to the sheriff, In satisfaction OF writs issued
for their collection, though that officer have
not accounted for the sums so paid him.
The action against the sheriff and his sure
ohS ~ VI AIoBVy lSCClSCu NY
the former in his official capacity, and not &C.
counted for, Is q personal action, which is
barred by the prescription Of ten years and
not by the two years prescription provided
for in sections 2S16 and 5546 of the Revised
Statutes.
The sureties Of a sheriff are liable for the
value OF property which, being In the sheriff's
custody under a writ of attachment, he de-
hvers to a claimant without an order of court
authorizing such delivery.
The sheriff not being authorized by law to
receive In cash the value Of the property
seized by him under attachment, is alone per-
cash deposit, and his sureties cannot be held
liable upon his failure to return it to tbs de-
position.
NO. 7351-MRs. MAR i. BosLEY VS.. D. II
HAYES Ell AL.
By Spencer, J.-When the answers Of de-
feDdants in hypothecary action admit pos
session and refer specially to their titles, any
defect or want of description of the prODert,v