pronouncing the opinion; the other because only of the eminent legal knowledge of the author. To the former belong the reports of cases decided by the several courts; to the latter, the elementary works.

When one comes to consider the weight to be given to a law book or any passage in one, this division becomes of vast utility. We are before one of the courts of Alabama, and in the argument of a cause a certain question arises. If you bring a decision of the Supreme Court of this State upon that point the court would be forced to follow that ruling, for the superior exercises a general directory over the inferior courts; and when the former says this or that is law, the latter's duty is to follow without question. If you bring to substantiate your proposition not a reported decision, but an elementary work, the court may regard it (and I am not sure but that it is its duty) only as the words of one wise in the law, which has as its only recommendation the likelihood of such a man being correct. emanates from no official source, and hence acquires consideration by force of its truth alone, unmixed with compulsion and unsustained by the strong arm of power.

It

An elementary work is more in the nature of a persuasive authority of the correctness of its proposition, while the decisions exclude the idea of persuasion since the tribunal that renders them has the power to command and enforce obedience. One decision by the Supreme Court before the Circuit Court is worth many elementary works on the identical point, even if they completely harmonize with each other.

Your opposing brother of the bar uses against you a decision on a given point, against which you have several elementary authorities holding to the contrary. If his authority stands yours must necessarily fall. You enquire then whether the point decided in his authority was really a question before the court, since the decision of a superior court is only binding upon an inferior when made upon a question necessary to be determined to a full and proper disposition of the cause. If the point relied upon was not necessarily involved before the court, then the decision is called dictum, and is binding on no inferior court more than any elementary work on the same question. As a legal proposition it is only persuasive authority since in its rendition the Judge was not the mouthpiece of the superior court, but at most only an eminent lawyer giving his opinion as to what is the law. Hence, if you can show to the inferior court that that decision on that point was dictum, it has no preference over eleVOL II.-NO IV.—5

mentary works, save, perhaps, that which the over-topping pre-eminence of its author may give it.

But all these rules are not to be understood as operating with a merciless and never yielding regularity, but like all other parts of a well developed mental machinery, is subject to exceptions. The circumstances of each case have much to do in determining justice where to strike her blow. Justice does not seek rigid rules that know no yielding, but with a consistent care adapts itself to the thousands of cases similar and yet different.

JAMES WYATT OATES.

Abbeville, Ala.

Rules Governing in Conservatory Proceedings and Appeals in Louisiana.

BONDS AND AFFIDAVITS.

In all cases of Attachment, Arrest and Sequestration, as also in Suspensive and Devolutive Appeals, the bond is made payable to the Clerk of the County issuing the process or granting the order, as the case may be; injunction bonds are excepted from this rule, and are still payable to the defendant in injunction, ut ante.

The amount of bond in arrests of the debtor and attachments exceeds by one-half the amount claimed, and in suspensive appeals, by one-half the amount covered by the judgment appealed from. The amount of bond in sequestrations, injunctions and devolutive appeals is not regulated by law, but is fixed by the Judge ordering the writ on granting the appeal, according to the nature and circumstances of the particular case. No bond is required in provisional seizures nor in injunctions predicated upon either of the following grounds enumerated in article 738 of the "Revised Louisiana Code of Practice:"

1. When the debtor alleges under oath that he has paid the debt for which he is sued.

2. That it has been remitted by the creditor.

3. That it has been extinguished by transaction, novation, or in some other legal manner.

4. That time has been granted to him for paying the debt, although this circumstance be not mentioned in the contract.

5; That the act containing the privilege or mortgage is forged.

6. That it was obtained by fraud, violence, fear or some other unlawful means.

7. That he has a liquidated account to plead in compensation of the debt claimed.

8. And finally, that the action for the recovery of the debt is barred by prescription.

The debtor may be released from arrest by complying with either of the requirements prescribed in articles 218 and 219 of the Code of Practice, and may cause the seizures effected in attachments, sequestrations and provisional seizures to be released on conforming

with the requirements of articles 259, 279 and 289 of the Code of Practice, respectively. He may likewise cause injunctions in certain cases, when the injury alleged is not irreparable, to be dissolved on complying with the provisions of article 307 of the Code of Practice.

It suffices in all cases for the issuance of conservatory writs in the absence of the plaintiff from the Parish, that the required oath be made by his agent or attorney-at-law, to the best of his knowledge and belief. The evidence of this absence, however, should appear by the affidavit and not aliunde; it is a condition pre-requisite to the granting of the order on the agent's or attorney's oath that there be a prima facie shewing that the principal is absent. Such oaths, whether by the plaintiff, his agent or attorney, may be taken indifferently before any Judge, Justice of the Peace, or Clerk of Court: Revised Statutes, $2567. The affidavits to be made for the issuance of these writs, should rigidly conform with the respective articles of the Code severally appertaining to the same; that is to say, the attachments, when the debt is due, with Article 243; not due, with Article 244; in arrests, if debt be due, with Article 214; if not due, with Article 221; in sequestrations, with Article 275; in provisional seizure, at instance of the lessor, with Article 287, and other persons, Articles 289, 290 and 291; in injunctions, ordinarily, with Article 304, and in extraordinary cases, with Article 739.

These extraordinary auxiliary remedies which the law allows to accompany the principal demand in particular cases, are rigidly confined within the limits assigned them; the party to avail himself of them, must bring himself strictly within the pale of the law, he must take the oath prescribed and give the bond required (when the latter is necessary) in form and substance, as the law provides, and leave nothing to be supplied by inference or construction. WILLIAM H. JACK.

Natchitoches, La.

ALTERATION OF NEGOTIABLE INSTRUMENTS.

DEFINITION AND EFFECT OF ALTERATION.

§ 1. Any change in the terms of a written contract which varies its original legal effect and operation, whether in respect to the obligation it imports, or to its force as matter of evidence, when made by any party to the contract, is an alteration thereof, unless all the other parties to the contract gave their express or implied consent to such change. And the effect of such alteration is to nullify and destroy the altered instrument as a legal obligation.

This principle of law is essential to the integrity and sanctity of contracts; and in England it has been extended to a degree which has not found favor in the American Courts. There it has been adjudged that a deed, bill, note, guaranty, or other written executory contract is avoided by any material change in the terms thereof, although that change be made by a stranger, upon the ground that the custodian of an instrument is bound to preserve its integrity, and as it would be avoided if altered by himself, so it should be avoided, if through his negligence, it were altered by another. And the like views prevail in Scotland.2

In the United States a more liberal view prevails as to the rights of the beneficiary of a written contract, and if a stranger without any complicity with him, intermeddles and changes its terms, he is deemed a spoliator, and the act is termed a spoliation being an infringement of the right of all parties; but it is considered more the misfortune than the fault of the holder that a third party should have trespassed on his property, and he is not, therefore, made the victim of his conduct. Therefore, the term alteration in this country is understood to signify a material change in the contract by a party thereto, and no spoliation will avoid a bill or note, (being the act of a stranger,) unless it be so great as to render the words unintelligible

1 Master vs. Miller, 4 Term R., 320; 2 H. Bl., 140, where the alteration was made by a stranger. Davidson vs. Cooper, 11 M. & W., 778; 13 M. & W., 243.

"Robinson's Practice (N. ed.) 137; Byles on Bills, (Sharswood's ed.) top p. 472; Murchie vs. Macfarlane, Thompson on Bills, 110.