of his business, the fact that he does not exclude persons from passing through it, or that, when the ground is within the limits of a town, he has represented it as open and unenclosed, as it really was at the time, upon a plan on which he has sold other town lots not necessarily connected with that open space, cannot, under any circumstances, be fairly considered as proof of a dedication to public use, of the ground thus left open. lb. 2. Where one of several co-proprietors of property, not partners, makes advances for the benefit of the common estate, without any contract with his co-proprietors, no joint obligations arises on the part of all the co-proprietors to pay an entire sun, but each is bound to refund according to his interest. Fuselier v. Lacour, 162. 3. Where a payment in kind is made, of slaves estimated at a certain sum, on account of a debt due by contract, and the slaves are reclaimed as an over-payment, the party to whom they were delivered will be liable merely for interest from the demand for restoration, and not for the value of the hire of the slaves. Davis v. Glenn, 444. 4. The soil of the roman viæ publicæ was public property; but the law in relation to those great works, which were designed to be as permanent as the labor of man could make them, cannot be applied, without modification, to an infant colony, such as Louisiana was while under the dominion of 4. One who transfers by delivery, withSpain, without population, and a portion of out endorsement, a bill for a sufficient conwhose soil only was beyond the reach of sideration, knowing it to be of no value, annual inundation, and where the roads where the assignee is not aware of its want were necessarily such as the changes in of value, will be bound to repay the money the rivers and future settlements would re-received, though there was no representaquire. Hatch v. Arnault, 482. 5. The principle established by the decision in Renthorp v. Bourg, 4 Mart. 97, that the soil of a highway is public property, cannot be extended to all highways or public roads in this State. Ib. tion of the solvency of the parties. C. C. 2619. Hewitt v. Waterman, 716. See BILLS OF EXCHANGE, &c., 11. RECISION. See SALE, 13 to 17, 25. RECONVENTION. See PLEADING, 12. PRESCIPTION, 32. 6. The Code of 1825 distinguishes between grands chemins or highways, and chemins publics or public roads. The former are of that class of public things, the property of which is vested in the whole nation (Code of 1808, b. 2, tit. 2, art. 6. Code of 1825 art. 444); while the latter may be made on land subject to private ownership. Stat. 12 March, 1818, s. 2. The Code of 1825 cannot be considered as altering the law on this subject, as it stood at the time of its promulgation, but as decla- See ratory of it. While it recognized the doctrine in Renthorp v. Bourg, to its proper extent, it established those reservations which became necessary as the country, in its settlement, was continually undergoing changes. The roads, old and new, in this State, are generally what are denominated in the Code public roads, hence it by no means follows, because a road is a public road, that the public has any right to the soil after it has been abandoned. Wheth er there are roads in this State of the class of via publica, it is not necessary to decide. Ib. QUASI-CONTRACT. 1. Money paid to a creditor, though paid by one who was not the real debtor, cannot be recovered, where the creditor received no more than was really due to him. Thomp. son v. Chrétien, 116. I. See PRIVILEGE, 1, 2, 3, 11 to 14. 1. An obligation by which the vendor of a butcher's stall in a city binds himself under a penalty not to sell, or cause to be sold, any meat of a particular kind within the city during two years, is not invalid as being in restraint of trade; and if the condition be violated the penalty may be enforced. Wintz v. Vogt, 16. 2. One who purchases a female slave af. ter a child of her's under ten years of age, examination. Salt in bags is not susceptible had been sold separately to a third person, of inspection and examination without much cannot claim to be the owner of the child, trouble and inconvenience. Ib. on the ground that the sale of a child separately from its mother is prohibited by law, where the child was sold at a time when the mother had escaped into a country where slavery did not exist, and her master never expected to recover her. Keller v. Fink, 17. 8. The vendor is bound, in case of eviction, to refund to the purchaser the whole amount of fruits and revenues which the latter has been condemned to pay to the true owner. Downes v. Scott, 278. 9. Where the purchaser was aware, at the time of the sale, that the thing sold be3. Where one who was the principal longed to another. article 2427, by implicaagent in effecting a sale of lands does not tion, refuses him damages in cases of evicinform the purchasers of the fact of his tion but it does not effect his right to recovbeing a part owner, such omission or coner the price. The right exists though the cealment, whatever may have been its mo- purchaser was aware that the thing sold tive, is not such a fraud as will avoid the belonged to another, unless excluded by excontract, where the purchasers have sus press stipulation, or unless the purchaser tained no damage in consequence, and noth-bought expressly at his own risk and peril. ing has happened in consequence of such C. C. 1960, 2481. Hall v. Nevill, 326. omission which would not have happened 10. Where a quantity of pork in hogswithout it. Slidell v. Rightor, 199. heads is sold, without any express stipula4. The sale of the property of another is tion or exclusion of warranty, and the purnull; and in such a case eviction by judicial chaser, after examining some of the hogsauthority is not required to entitle the pur-heads, on the assurance of the broker emchaser to relief. C. C. 2427. Hall v. Ne-ployed to make the sale that every piece vill, 326. 5. The sale of a preemption right, in contravention of a prohibitory clause in the act of Congress under which the right of preemption accrued, is null; and constitutes no impediment to an entry of the land by the party entitled to the preemption, who will, by the purchase from the government, acquire an absolute title, unaffected by the previous sale. Seaton v. Sharkey, 332. See TUTORSHIP, 4, 9. II. Warranty. 6. Where a broker, acting as the agent of the vendor of a quantity of salt stored in bags, represents to the purchaser that it had been in store only five or six months, when it had in fact been stored for fifteen or eighteen months, and the evidence shows that the statement of the broker produced the impression on the mind of the purchaser that it had not been stored longer than five or six months, the representation being as to a point material in judging of the condition of the article, and the vendor being bound by the representations of his agent, the sale will be rescinded; and this though the purchaser examined the salt before buying, for the misrepresentation might have influenced the character of the examination made by him. Millaudon v. Price, 4. 7, The general rule is that a vendor is bound to good faith, and if he knows the article offered for sale to be defective he is bound to state the defects. The exception to this rule is that, where the article is susceptible of convenient inspection and examination, the purchaser is bound to make and abide by such had been examined by an experienced and skillful agent and found to be sound, makes no further inspection, the vendor will be bound by an implied warranty as to the quality. C. C. 2497. And though an implied warranty may not extend to apparent defects, this exception cannot be extended to a case in which a representation was made calculated to quiet the vigilance of the purchaser, with regard to merchandize the inspection of which would be attended with inconvenience. Iluntington v. Lowe, 377. 11. Where a purchaser of a quantity of pork in hogsheads discovers, after the pur chase, that a part of it is unsound, he may retain the sound hogsheads, and return the unsound. The rule that the redhibitory vice of one of several things sold together gives rise to the redhibition of all, does not apply to such a case. lb. 12. Where a purchaser does not obtain such an article as he had a right to suppose that he was buying, and the inferiority is of a latent character, though there be no fraud on the part of the vendor, the purchaser will be entitled to indemity to the full extent of the difference between the value, at the time of the sale, of such an article as he had a right to suppose he was buying, and the value of such an article as he got. Slaughter v. McRae, 455. 13. The Code having provided (articles 3523, 3524) that, where the seller knows of the vice of the things sold and omits to declare it, an action of redhibition may be commened at any time, provided a year have not elapsed since the discovery of the vice, and that the discovery is not to be presumed but must be proved by the seller, au ་ Bonnabel v: First Muinci allegation by a plaintiff in a redhibitory ac- either before he is disturbed by the true tion instituted on the 30th March, that the owner. The right of a purchaser to have slave ranaway from him on the 16th of a sale rescinded under article 2427, must be March of the preceding year, will not re- limited to those cases in which the price has lieve the defendant from the necessity of not been paid. proving the time of the discovery of the pality, 699. vice. The fact that the slave ranawey on the day mentioned in the petitien, does not necessarily involve the knowledge of the pre-existence of the vice, which forms the basis of the action. C. C. 2505. Stewart v. Sowles, 464. 14. In an action against a vendor to rescind the sale of a slave on account of the vice of running away, and for damages, though it be proved that the defendant knew of the redhibitory vice and omitted to declare it, plaintiff can only recover such damages as would, at the time of defendants' refusal to restore the price, have indemnified him, that is the price with interest, the expense of advertizing the elopement and the costs of the act of sale; he cannot recover fees paid to counsel for instituting the redhibitory action. The expenditure of fees of counsel was the result of the refusal to restore the price. It was not such an immediate and direct consequence of the breach of the contract, as is contemplated by articles 2525, 1928 of the Code. ib. 15. Where the plaintiff in an action to rescind the sale of a slave on account of a redhibitory disease, and for damages for expenses incurred, presents a supplemental petition alleging that, since the commencement of the suit, he had sold the slave for a certain sum which was his full value, and reducing the claim for damages to that extent, the character of the action is not thereby changed; but, by disposing of the slave, defendant placed it beyond his power to comply with the only judgment which could have been rendered in his favor-for the return of the slave, on the reimbursement of the price with damages. Peterson v. Burn, 655. 16. Where a judgment has been rendered against a plaintiff in a redhibitory action, he cannot institute an action quanti minoris for the same cause. Nor can a plaintiff in a redhibitory action, who, by disposing of the slave affected with the redhibitory vice, has placed it beyond his power to comply with a judgment in his favor, change the action, by a supplemental petition, to one quanti minoris. lb. 17. Damages for injuries sustained by a purchaser in consequence of redhibitory defects in the thing sold, can be recovered only in a redhibitory action, or an action quanti minoris. Ib. 18. A purchaser who has paid the price cannot demand a restitution of the price nor security even during the pendency of an action to evict: a fortiori, he cannot do III. Obligations of Purchaser. 19. To suspend the payment of the price, a purchaser must allege and prove that he has been disquieted in his possession, or has just reason to fear that he will be disquieted. C. C. 2535. Snow v. Trotter, 268. 20. Payment of the price cannot be resisted on the ground that, the vendor has not complied with his agreement to survey and point ont the boundaries of the land, where he has not been put in default for his failure to do so. lb. 21. Where the purchaser was aware, before the sale, of the existence and object of a sait in which a third person set up title to the property sold, he cannot suspend payment of the price, nor require security against the danger of eviction. C. C. 2535. Bemiss v. Dwight, 337. IV. Sale Per Aversionem. 22. A sale of a tract of land, which is described by its name as containing a certain number of acres, is not a sale per aversionem, the property not being designated by adjoining tracts nor sold from boundary to boundary. Hall v. Nevill, 326. V. Pact de Réméré. 23. There can be no vente à réméré without a stipulation for the return of the price. A contract of sale, the validity of which is made to depend on the payment of notes which form no part of its consideration, is not a vente à réméré. Downes v. Scott, 278. 24. The purchaser of slaves under a vente à réméré does not become the owner of the children born of the slaves purchased during his possessiou under the contract; the vendor, when he exercises his right of redemption, is entitled to reclaim them as owner. So on the resolution of a sale of slaves, at the suit of the vendor, he is entitled to take back the offspring born since the sale. Boner v. Mahle, 600. VI. Recision for Lesion. 25. The action of recision for lesion beyond a moiety is personal to the original vendee, and cannot be maintained against a subsequent purchaser in good faith. Art. 1871 of our Code is substantially the same as art. 1681 of the Code Napoléon, from which our law on the subject of lesion beyond moiety was taken, with the exception that the provision in relation to third persons has been entirely omitted. Snoddy v. Brashear, 569. VII. Simulation. 26. It is only in case of a simulated sale, not intended to convey any property, that a creditor can disregard the title of a purchaser, and commence by a seizure. In other cases, the sale must be attacked by a direct action. Oglesby v. Drake, 640. See PLEADING, 14. PRESCRIPTION, VIII. Judicial Sales. 8. records of the parish where it was made, is one of which the heirs alone can avail themselves. Blanchard v. Maureau, 128. 31. A sale made by a sheriff, under an agreement of parties, and on terms different from those prescribed by law for forced sales, will not be viewed as a forced sale, but as subject to the rules of ordinary sales in which the vendor is bound to express himself clearly respecting the thing to be sold, under the pain of having any obscure or ambiguous clause construed against him. Moore v. Hampton, 192. 32. A purchaser at a judicial sale is not protected in the case of a mere redhibitory vice; but where there is a deficiency in the quantity of the land sold, the purchaser at a 27. The description of the property of syndic's sale is entitled to a proportional difered for sale, contained in the advertize-minution of the price. C. C. 2598, 2599. ment of a probate sale, is binding both upon the vendor and purchaser, and neither can insist on any thing said by the auctioneer at the time of sale which in any way varies from, or adds to, the printed conditions or description of the object offered for sale. No error, caused by representations of the auctioneer at variance with the printed advertizement, will vitiate the sale. Layton v. Hennen, 1. 28. Where one to whom property had been adjudicated at a judicial sale, fails to pay the price at the time required, according to a fair construction of art. 2589 of the Civil Ccde the second sale need not be advertized during more than ten days, provided that the customary notice be given within that time. The term of ten days fixed by the Code refers exclusively to the duration of the advertizement, and not to the period at which it is to commence; and in such a case the fact that the advertizements were published during a longer period than ten days, cannot affect the validity of the sale, the law meaning ten days or more. Duncan v. Armant, 84. His rights are not as broad as those of an ordinary vendee, who may have the entire contract rescinded in case of partial eviction, where the part from which he is evicted is of such consequence relatively to the whole that he would not have purchased without the part from which he has been evicted. C. C. 2487. Hall v. Nevill, 326. 33. Where a purchaser at a judicial sale of property sold under a mortgage retained by the plaintiff on a sale of the property to the defendant, takes a rule on the plaintiff to show cause why the sale should not be rescinded, on the ground of the existence of a lease made by the defendant and not made known at the time of the sale, the defendant, not having been a party to the judicial sale, need not be made a party to the rule. Michoud v. Dejour, 479. 34. A judicial adjudication of community property made to the surviving husband, under proceedings before a court of competent jurisdiction, in which the minor heirs were represented by their under tutor, will not be annulled for informalities anterior to the decree of adjudication. The 29. Where a tract of land is inventoried minors being represented by their under and appraised in the mortuary proceedings tutor, the judgment of adjudication is conas having a certain depth, and it is subse-clusive as to the facts on which it rests, quently adjudicated to one of the apprais- until corrected on appeal, or annulled in a ers, without any mention of its depth in the direct action. Orr v. Thomas, 582. procès verbal of adjudication, the omission 35. A sale made of property seized uncannot be taken advantage of to extend the der a fi. fa., pending an opposition by a title beyond the limit assigned to it in the third person, if the opposition be sustained, mortuaria. The legal presumption is that will be null. Ludeling v. Graves, 597. the officers entrusted with the sale did their 36. Where on an appeal from a judg duty, and sold according to the inventory and appraisement. In such a case parties claiming under the original purchaser by whom the tract was appraised, will be estopped from claiming any greater depth than he appraised. Pontalba v. Copland, 86. 30. The nullity of a probate sale of the property of a succession, resulting from the non-existence of any order therefor in the ment dismissing an application to homologate a judicial sale under the statute of 10 March. 1834, the record, though certified as containing all the evidence offered below, is silent as to the publication of the monition, the judgment of dismissal must be affirmed. Monition of Johnson, 656. 37. One who shows no interest cannot oppose the homologation of a judicial sale, applied for under the statute of 10 March, | questered, the plaintiff, and the sureties on 1. SEQUESTRATION. Service of a writ of sequestration on a sunday is in conflict with art. 207 of the Code of Practice; and where the evidence shows that it could have been served on any other day as well, it will be set aside. Foy v. Harper, 275. 2. It is not essential to the validity of a sequestration bond, that it should be executed before the clerk of the court in which the action is pending, or any other public officer. Foxworth v. Burckhalter, 365. 3. Where the surety in a sequestration bond removes beyond the jurisdiction of the court, the execution of another bond with a surety residing within its jurisdiction, will be sufficient. C. C. 3012. 16. 4. The surety on a bond given for the release of sequestered property cannot be proceeded against by a rule to show cause. He is not a party to the original action; and the right of proceeding summarily, expressly granted by law against sureties on bonds given in cases of arrest, attachment, or appeal, has not been extended to sequestrations. Stat. 20 March, 1839, s. 2, 3, 30. Baker v. Doane, 434. his sequestration bond, will, in case the se questration be adjudged illegal, be responsi ble for its restoration. Ib. SERVITUDE. 1. Though an adjoining tract of land be subject to the servitude of receiving the waters running naturally from the estate above, the proprietor of the latter is not entitled to enter at pleasure on the contiguous tract, without the consent of its owner, whenever it may be necessary to remove any obstructions to the enjoyment of the servitude; nor can he widen the drain by which the waters are carried off; such an improvement, if necessrry, can alone be made by the police jury, on making adequate compensation to the owner of the land subject to the usufruct, for the damage he may sustain thereby. The party entitled to the servitude must call upon the owner of the land which is subject to it to remove such obstructions, and may compel him by legal means to do so. Arts. 768, 770 of the Civil Code relate exclusively to conventional servitudes; natural servitudes are subject to different rules. Landry v. McCall, 134, 2. Two contiguous city lots, belonging to the same proprietor, were purchased by dif ferent persons at a judicial sale. On one of them there was a brick building, the foundation of one of whose walls projected under 5. A judgment, rendered in an action in the surface of the other lot, though the wall which a sequestration was obtained by the itself did not extend over any part of it. plaintiff, determining the ownership of the The purchaser of the latter having made property sequestered to be in the defend- use of this wall in the erection of a building: ant, is conclusive against the sureties on the Held, that the owner of the first lot was ensequestration bond as to the question of own- titled to recover of him one-half of the ership. In an action on their bond, no evi-value of the wall, and one-half of the value dence can be offered by them to impeach the ownership of the party in whose favor the decision was rendered. Jones v. Doles, 588. 6. In an action against the sureties in a sequestration bond for damages for the illegality of the sequestration, the plaintiff must show the value of the property sequestered, and such other injury as he may have sustained. In the assessment of damages, fees of counsel employed to defend the original suit may be included; nor is it material to show that such fees have been actually paid; it is enough that plaintiff has incurred a liability for them. Where defendants contend that the property sequestered has been restored since the judgment on the sequestration suit, they must show that fact, or that the plaintiff has otherwise gained possession of it. lb. 7. Whatever may be the responsibility of the sheriff for the loss of property se of the ground upon which it was built; and that the projection of the foundation by the original owner, does not impair the rig t of the purchaser to indemnity for the use made of his land and wall. Murrell v. Fowler, 680. 3. The fact that the owner of a lot had already built a wooden house on it, leaving a space for a passage between the house and the division line, will not deprive the owner of a contiguous lot of the right given by article 671 of the Code, to the owner who first builds in a city, town, or their suburbs, in a place which is not surrounded by walls, of resting one half of his walls on the land of his neighbor, provided he builds with stone or brick at least as high as the first story, and provided the whole thickness of the wall do not exceed eighteen inches, not including the plastering, which must not be more than three inches. Article 671 establishes a servitude with which urban pro |