The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-12-01

it, to compel the sheriff to pay over said funds,
which amount to less than $500, and the rule was
made absolute.
VIM. 8. Benedict. appellee, presents q motion
to dismiss this appeal, the ground that the
amount involved is less than $500. and this court
has no jurisdiction. 1t will be unnecessary to
consider the other points presented IN this case,
If we conclude this motion to be well taken.
For the reasons assigned in the decision Of Ny
VS.. Mitchell IL Is therefore ordered that the ap.
peal in this case be dismissed at the cost Of the
appellant the city of New Orleans.
BY ASSOCIATE JUSTICE J. G. rALLIAFERo.
No. l349-John Bird vs.. the heirs of Henry
Doyal, deceased-Appeal from the Sixth District
Court of New Orleans.
The plaintiff seeks to render the defendants
liable as heirs of the lare Henry Doyal under his
alleged Endorsement of promissory note for
$500, drawn by r. A. Stewart on the 28th Jan.
usTy, 1859. and made payable twelve mon rs after
date, with interest at eight per cent. per annum
from date of the note. The defense Is, that hav.
ing no knowledge of the existence of suca note
they can neither admit nor deny the signature OF
their ancestor, but they dscsim all liability what
ever to the plaintiff and bold him to strict proof.
The defendants had Judgment in their favor and
the plaintiffs appealed.
We consider me Endorsement Of Doyal fully es-
tsbsbed The main question in the case is as to
the sufiiciency of the notices Of protest to bind
the indorser or his heirs. The note was drawn
payable TO the order of Henry Doyal and by him
Endorsed before maturity, and IL seems for the
accommodation of the drawer. IL was made pay.
| able az the Citizens Bank in New Orleans, be-
cause the property of John Bird, of Missouri
whose agent, Abram Bird living 10 the parish OF
East Baton Rouge, in this State, placed it Ia the
branch of Louisiana State Bank at Baton Rouge
for collection. Pike, the cashier of the branch
bank. transmitted it to the parent bank in this
city, and when due il was duly protested for non
payment. The notary's certificate sets out that
| the notices Of protest "were served on the par
| ties respectively in the following manner. viz I:
| On r. A. Stewart, drawer, II. Doya, A. Bird and
VIM. S. Pike, cashier. all inclosed to the address
of the latter in Baton Rouge. La, and put in the
Postofce of this city on the date OF said protest
| in time for the first mail thereafter. Duplicate
notices for H. Doya, indorser, left at the office Of
Mr.. Phil. Rotchiord, his attorney in fact, with
| Vim. S. Brown, as directed by .. A. F. Rondeau,
| cashier" II is in proof that Henry Deyal
died on the 10th of January, 1859, one
year and two days before the date Of
the protest. That suits were instituted against
/ bis executors, in one case on the 10th OF Feb.
ruaiy, 49, and in another on the 10th Of Sep
| TENDER OF the same year that the large com
| mercial house of Rotcbford, Brown Co., of New
| Orleans we're tnc FACTORS OF by. Doyal for many
years, and up TO the time of his death, receiving
and disposing of his sugar crops of four large
| plantations. and furnishing them with all needful
supplies that the same house continued TO do the
business Of these plantations after Doya's death,
/ doing the business of the executors that z.
| Rotchford, the principal member OF the firm, was
appointed by Doya his agent and attorney in fact,
with general and special powers, by notarIal act
| executed in ls45, and that he continued TO act
under this procuration during poyals lifetime,
some fourteen years or more. This act authorizes
Phillip Rotchford to draw and indorse promissory
notes in the name of by. Doysl. and to make notes
payable to the order OF p. Rotchford either for
the use of said p. RotchfOrd or for Hy. Doysl to
1 draw and indorse bills Of exchange, domestic or
| foreign, and generally to do and perform all and
every other act that may be requisite and neces-
sary touching the premises fully and efsctually
as the said Doysl himself might or could do"
Henry Doyal lived in Ascension parish, and his
postoffce was at New River. These facts seem to
have been well known in New Orleans within the
| range of his business transactions. which appear
| TO have been quite large and extensive. The
| notary who protested the note appears to have
been ignorant both of Doysps postof6ce and of
/ bis decease. Pike, the cashier of the branch
bank at Baton Rouge, to whom the notary inclosed
notices for the parties to the note testes that he
has distinct recollection Of receiving any notice.
| The court then goes on in the examination of the
| different points as to the probabilities of serving
| the notice and the necessity 0fmakiDg the proper
| service, and concludes as follows:
We consider IL well settled that the holder OF q
bill or note is required to show the use of reason
able diligence 10 find out the residence OF the IN
dorser when it is unknown to him. LIST N. D.
32S, Chatty on bills 267 and 275, IL M. 81.
The evidence in the record satisfies Us that the
| exercise of a moderate degree of diligence
would have put the notary IN possession Oh the
fact of the decease of the indorser long before
and the names and residence OF his executors.
| /. il therefore ordered. sdjudged and decreed
that the Judgment of the district court be affirmed
with cosis in both courts.
| BY associate JUSTICE J. G. TALIAFERRo.
| No. 6l6-J l.. Warner Co. VS.. Alfred shaw
sheriff, and ]. NJ. Peterson-Appeal from Sixth
District Court New Orleans.
This was en- Injunction sued out by the plaintiff
TO re strain the sheriff from selling as property o.
Bsrbot & Warner, a lot of ground and improve
| ments thereon which plaintiffs allege belong u
| them. Judgment was rendered in favor OF de
| fendant with 20 per cent. damages 10 favor o
| Jas. M. Peterson on the amount OF the Judgmen
| epioined In the suit and cost OF suit.
The plaintiffs have appealed. We find no brie
| of either party in the case. careful exsmina
| ton of the record has not enabled us TO see tina
the plaintiff has in any degree sustained his a
| legations and conclude that the judgment OF tn
low er court was correctly rendered. II 49, there
fore, ordered, sdjudged, and decreed that th
Judgment Of the District Court be affirmed, wit
costs in both courts.
BY ASSOCIATE JUSTICE TALrAFERRo.
No. lO7s-Nrs. Armide e. Fitz widow vogel
| vs. A. Reichard ct als.-Appeal from the Six,
| District Court of New Orleans.
, The plaintiff, in her capacity of natural tutrix
her minor daughter Alice, brings this suit agan'
| the three defendants, Reichard, kruttschnett an
| Schmidt an sOlido, commercial partners OF "a
| firm of Reicbard d Co., which expired by its ow
| limitation on the 18th July. 1861.
She claims s224l 30. with interest running frol
different dates in separate portions OF that amour
The defendants severed in their defense aud hle
| general denials.
The plaintiff had judgment in her favor an
| defendants have appealed.
Judgment affirmed with costs in both courts.