The daily crescent., 1849-04-11
Supreme Court Of Louisiana.

Condensed Decisions-NEw ORLEANS April g. 1s49
The deficiency Of price at sale Ia foHe enchere canno
be recovered unless the terms of that sale the
as those of the fat sale.
J. A. GUILLoTTE &C. BRowN, SUBRoGATED) Us.
JAMES K. JENNINGS. Appeal from the Fifth Dis
was an action to hold defendant liable for de-
fciency in the price of certain property sold for
his account and risk, la folle ench6re. AT the sale
to the defendant, made on the 23d May, lS43, the
terms were that the purchaser should assume the
payment OF a note for S640, due in June, 1874 and
the balance cash. The property then brought
S1375 at the Jfolle enchere it brought only $500,
the terms being cash. Per curiam The remedy
through the medium of the .foLle enchere has been
properly characterized as summary and severe,
and from this consideration the conclusion is fairly
derived that it ought to be confined to cases clearly
coming within the provisions of the law, and in
which the acquisitions have been complied with
See Municipality No. 2 as. Hennen, IA L. r. $50
The art 25S9 Z. e., seems TO us to contemplate
that the terms of the folle enchere should be the
same as those of the first adjudication. But when
the terms are changed. new element is introduced
to affect the result. For daily experience teaches
us, that in consequence of the deficiency of capital
and the necessity of the buyers reliance in some
degree upon the efforts Of his future industry sales
of real estate are made more advantageously, in
point of price, upon credit than for cash. We can
not say that the discrepancy in the present case
was not, in sometlegree owing to the difference of
terms; and the infexibe standard of the folle en-
chere, by which we are called upon 10 measure the
defendants liability is consequently in the present
case, unsafe and untrue. Had the remedy been
pursued according TO the acquisitions of the law
Judicial discretion would have been excluded by a
conclusive legal presumption. As it was not, the
legal standard has not been created and there is no
basis Tor the present suit The judgement of the
lower Court was accordingly reversed and judge
me mt rendered against plaintiff as in case Of non
suit, plaintiff to pay costsln both Courts.
SUCCESSION OF MARY JOHNSON, PETER DoHER-
TY, TUTOR, AND L. b. COLLINS, UNDER-TUToR
as. }. DORSEY & Co., USE OF BYRN a. BURNSIDE
Appeal from the Sepenh judicial District Court
@artsh Of West Feticiana. h. .SLIDELL j.. :. 1t was
uecreed that the judgment upon the opposition of
johnson, Dorsey 4 Co., be reversed, and that upon
said epposlnon there be judgment in favor of said
minors, the costs OF said opposition in both Courts
to be paid by the opponents
]. RoGrLLrs AND S. M. Bryan rs. Heirs OF
JOHN SWIFT. ...APpeal from The Sepenh judicial
Distr,a Court, Parish of West Feliciana. .EUsTIs
&. J. In this case the doctrine was re-afirmed.
that where party defendant died. pending |, suit
in the District Court, under the judiciary system
prevailing priofio the Constitution of ls45 the suit
should be sent TO the Court of Probates where the
succession was opened. The authorities cited were
2 L. r. 256; 10 Z. r. 2l9; ii L. r, 800. The
judgment Of the District Court was reversed and
judgments rendered against plaintiffs as in case of
non-sut, with costs in both Courts.
ALGERNoN JONES, EFT AL, HEIRS OF SARAH
JONES Us. ELISHA CRoCKER. Appeal from the
Fifth District Court of Ne1p Orleans. :. .RosT.
Judgment affirmed with COSTS
ELLIS AND VALLETTE u.s. owners OF STEAM
RoAT BELLE CREOLE. Appeal from the Fourth
! D.sf.ct CouFt 9 Ne,o Orleans. .SLIDELL, j..
The judgment of the lower Court was reversed.
evidence material to sustain the plaintiffs case
having been improperly admitted, and the case re-
manded for further proceedings. plaintiffs to pay
The cost Of this appeal.