The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-04-19
Supreme Court of Louisiana.
Condensed Decisions-Nrw ORLEANS. April Is.

Supreme Court of Louisiana.
Condensed Deeisions-NEw ORLEANS. April i6. 1919
An objection that the initials of the name OF Comms
sioner, before whom dispositions taken under CON-
mission. incorrectly stated, be made specially
before the crossiDtenogatoes fled otherwise the
irregularity will be considered having been committed
by both parties. and be taken advantage of by
neither.
SAMUEL G. FRIERsoN Us. PATRICK IRWIN.
Appeal from the Second District Court of Ne,v Or
leans. EUsTIs, c.. j.. The principal point in
this case was in relation TO the rejection of certain
testimony taken under commission. On the trial
below, plaintiff offered in evidence the dispositions
of witnesses taken under commission, executed
by Robert ]. Clyde, of Tuscaloosa, Alabama. The
commission was directed to two Justices of the
Peace, or to e. X. Clyde, Esq, at Tuscaloosa,
and was returned as executed by r. J. Clyde, Com
missioner The Court below sustained defendants
objection that r. j. Clyde had no authority to take
the dispositions, the commission having been di-
rected to E. r. Clyde. When the objection was
made plaintiffs counsel rendered his affidavit to
the effect that he well acquainted in Tusca-
loosa and with r. J. Clyde, the Commissioner; that
Z. J. Clyde the person intended to execute the
commission, because he, the plaintiffs COUNSEL on
the issuing of the commission enormously gave the
name of E. r. Clyde for K. j. Clyde. The depo-
sitions were rejected and plaintiff took bill of ex
ception Per Curaam The designation of the
per,on to execute the commission by his name
Clyue Is tndl upon winch the COurt Is authorized
to act. The addition of the initials merely of the
christian and middle name is an irreguarty almost
necessarily leading to mistakes, which the defend
ant ought to have objected TO specially before the
cross-interrogatores were filed. Plaintiff counsel
states, in his affidavit not only that the person exc
cutting the commission was the person Intended, but
that there is other person living in Tuscaloosa
of the name of Clyde, and that if there were he
thinks he should have known it. We think the
Court erred in refusing to admit the dispositions
taken under the commission The irregulariy of
designating the Commissioner by the initials of his
christian and middle name must be considered as
having been committed by both parties and can be
taken advantage of by neither" Judgment re-
versed and case remanded, with directions TO the
Judge below to receive the deposions in evidence,
the plaintiff and appellee to pay the costs of The
appeal
security against whom has been rendered for
the non-appearance of the principal before The late
Criminal Court of he First Judicial District be
relieved by afterwards surrenderng the body of the prin
cipal to the Sheriff. open Court unless application
msdet to that effect within ten days aef the rendition
OF the Judgment.
The STATE OF LOUISIANA Us. JOHN FARRoN
ALIAS FARRA AND J. F. D'HEBECoURT, SEcU-
RITY.. Appeal from the First District Court Of
New Orleans. ~. .EUsTIs, c. Appeal by d He
beeOurt from judgment discharging rule taken
BY him on the Attorney General to show cause
why certain judgment against him as security on
forfeited bond for Farron's appearance before the
late Criminal Court OF New Orleans should not be
set aside The judgment on The forfeited bond
was rendered June 10. 1914. The rule was taken
on the Goth March, 1913, the ground of it being
that on the 17th of that month he had made for
NAL surrender of the body of the principal to the
Sheriff in open Court, and that no notice of the
Judgment had ever been served upon him. The
decision of the lower Court was founded on the
opinion that he had no power to release surety
from judgment of the late Criminal Court, on a
~, Thn ,,,Jr tha
security had been recorded in the mortgage office,
and the Supreme Court said that the appearance
of the defendant and his application for relief from
the mortgage resulting from the judgment fully
justified the District Judge in his conclusion that
every thing had been done in accordance with law
in the late Criminal Court, independent of the pre-
sumption which the law implies to that effect.
The application should have been made within ten
days after the judgment had been rendered, under
the Act of 1887. The Supreme Court intmated
that d 'Hebecourt might be relieved by an action
of nullity, on proper application to the Legsla-
ture. Judgment affirmed with costs.
When vessel is seized under writ of provisional seizure
the defendant take rule to set aside the seizure.
SALTER AND MARCY Us. STEAMBOAT WAVE
AND OWNERS. Appeal from the Fourth District
Court Of New Orleans. .SLIDELL, j.. Action
for work and materials done and supplied for the
owners of the Wave. A personal Judgment was
claimed, and also decree of privilege upon the
vessel. A provisional seizure was obtained, which
upon rule the District Judge dissolved, the testi-
mony dsproving the alleged intention to remove
the vessel. Plaintiff took a bill of exception to the
admission of the testimony on the ground that there
is no law authorizing defendant in such a case
to disprove in this summary manner the plaintiff g
declaration under oath. Per curiaa The rule
taken, and the testimony addnced, did not go to
the main action but simply TO the plaintiff right
to conservative process, by which he desired to
protect an alleged accessory of his claim. Con-
sderng the severe nature of the proceeding, which
anticipates the ordinary course of the law, and de-
prves the defendant of the possession of his prop
perry before Judgment, upon the &c pdrte showing
of his adversary, think it is proper to grant
summary hearing upon rule and to relieve the de-
PENDANT from the seizure " here the apprehension
of the plaintiff is clearly proved to be mistaken or
unfounded The main action is undisturbed and is
left to be tried in the ordinary form. Judgment
affirmed with COSTS This decision is in accord
ance with the doctrine relative to sequestrati0n
laid down by the present Supreme Court IN Craw-
ford u.s. Jones, An. S26, and overrules the oil
Macarty Us. Lepaullard, Rob. R. 1851
Where fe1 Intervention in the suit of C, and
the trial of the the counsel of absent and
Judgment rendered in favor of against C, with
privilege and preference certain property which had
been attached and of which claimed to be the
held. that the principal demand having been tried,
could not afterwards proceed with his Intervention
ALLEN JONES u.s. T. P. LAWRENCE, T. p
| SMILEY INTERvENoR. Appeal from the Fourth
District Court Of NeW Orleans. .RosT, J.
| Plaintiff sued out writ of attachment against de-
| PENDANT whereby slave was seized. Smiley Their
| interviewed, claiming the slave under deed o.
| trust executed in Tennessee by Lawrence and his
| wife, before the institution of the suit. He wa:
| represented by Messrs. Edwards and Barker, the
defendants counsel. On the trial, the defendant;
counsel were absent; plaintiff proved his case, and
| had Judgment, with privilege on the property at
had oftart.r rdc