The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1848-06-03
Decisions of the supreme Court.



THomas fale, Appellee VS.. j. c. WIS, ct al
Appeal from the First District Court Slidell, j
The plaintiff contracted with the defendant Wills
for the erection of certain buildings Before the
completion of the work Wills became lnsolVent,
and plaintiff completed the buildings himself. After
the default of the builder, various persons who had
furnished materials and labor, delivered accounts
to the plaintiff awaiting themselves of the provs
ions of the act Of 1S44-page 81 The plaintiff then
instituted this action, in which he made the con-
tractor, material men, and mechanics, parties.
Plaintiff acknowledged that the last instruments,
which were to have been paid only on theGomple-
ton of the work. were yet unpaid, but he alleged,
that in completing the work himself, he had expend-
ed the sum of $3.50 81, leaving balance due by
him of Sl429 70, which sum he deposited in Court.
He PRAYED that all the parties interested be required
to itigae their respective rights in the distribution
of the fund deposited by him. and that he might be
discharged from all further responsibility. He sub
sequenty deposited in Court the further sum of
$3.50 81 but made reservation OF his rig ut to have
the last amount restored to him, such portion of
it as he might prove was necessarily expended by
him in completing the work. A Judgment was
rendered in the lower Court, rejecting the plaintiff s
claim for the sum alleged to have been expended IN
finishing the Notwithstanding the claim of Blame,
one of the defendants who had furnished materials
and distributing the balance OF the fund, after pay
ing costs, among the other creditors. The only
parties who did appeal were Hale and Blame. The
District Judge rejected the claim of Hale for $3.50 81
upon the supposition that the law does not authorize
the owner of partly finished building to complete
the same out of the money yet due to the contractor
in default. The lower Court thought that Blancs
claim was fully made out by the evidence, but re-
ected it because the Court was OF the opinion that
Blanc had failed TO deliver TO Hale an account duly
attesed under the statute OF 1914 above referred
TO. The opinion of this Court is very long and
able displaying great deal of legal acunen, par
ticuIary the law of contracts After an elabor-
ate review of the law and evidence, this Court
ordered that the Judgment of the District Court
should be reversed. And it was further decreed
that the plaintiff Hale out OF the sum de-
posted in Court, the sum Of 1921 H. And it was
further decreed that the residue of said deposited
sum be distributed among the creditors mentioned
| in a schedule annexed to the Judgment. And II
was further decreed that the defendants named IN
said schedule-except Bianc-shouid pay the costs
of this appeal
Francis Fl. Hatch, appellant, VS.. John A. Gil
more.-Appeal from the Fourth District Court
Slidell, J.. The defendant is sued as The endorser
| of a promissory note. dated at Vicksburg, Mlss
| Nav 2, 1885, payable q months after date. The
case turns upon the plea Of prescription; and the
facts pertinent to the plea are that, at the maturity
of the note-May 5, l837-the defendant resided in
| Vicksburg that he continued to reside there unit
the 4th of October, 1912, at which date he tc
Louisiana for the first time, where he has since
| lived The Court said: " In the absence OF evil
dence to the contrary 1t Is to be presumed that the
defendant endorsed the note in Mississippi" The
citation was served on the 22d of December, 1876
In avoidance of the plea of prescription, the plaintiff
relies on the MAXIM C9nra non yale ,i. gssrs
rule. says this Court, under the circumstances o
this case is the only point that requires our atten
ton. There was Judgement in the District Cour
for the defendant, by which the maxim, Contrt
non. etc, was overturned. This Court affirmed
that judgement, with costs. There is a variety o
reasoning found in the opinion of this Court on TIT
subject. This Court says: g The exception con
famed in the maxim, Contra non, ETC., SO far a
least as the class of contracts now III question L
concerned, rests not upon the code, but upon jurs
prudence From these considerations. 1t seems tt
us just conclusion that if the exception, Contr'
non talezten, is to be applied to cases where thu
code has declared no exceptions, it should be dom
with caution and only where the manifest inten
ton and spirit of the express law is violated.
Upon the subject of prescription, in connection witt
This opinion of our Supreme Court, inien'
making brief commentary; but as there is anothe
! case two before the Court this important pom
4 of law we will wait until the entire ground can b
at once reviewed with certainty,