The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-04-06
The Courts

So ~
The Courts.
FIRST DISTRICT CoURT.-The following sixteen
persons were yesterday selected by Judge Abel
to serve as grand jurors during the next quarter,
inclU ding the months of April, May and June: E.
Toby, foreman; W. B. Armstrong. v. Grosjean, P.
Moore. Chsa. Kuhn, F. Riceand, Peter Gaveno.
ditch, e. Boehler, Louis Hickman, Chss. LIE Bre-
ton, F. snser. VIM. Carter, p. Harvey, John Du-
rant and Jos. Sordas, the last five named being
Col. A. p. Field yesterday fled rule In this
court upon the attorney general, to show cause
why new trial should not be granted In the case
Of C. Gregor found guilty OF the killing of John
Collens, mate of the Governor. t..r
A nolle prosequi was entered In the case of
g. NJ Wickliis, charged with msfeasancs In Office
and q new Indictment filed ia the same matter.
which is reported elsewhere.
In the case Of Arthur Sauselle, indicted for
assault and battery, nolle prosequi was also
entered.
Mary Scott, charged with larceny, falling to
appear. her bonds were declared forfeited.
OF Auguste Hummel, alias Richard Hummel &C.
cused Of assault and battery.
sIxTH DISTRICT CoURT.-John Henry Va. Bank
Of Louisiana. Third opposition of DR.. Lambert.
The plaintiff having obtained judgment against
the defendant and caused the same to be recorded
and had some real estate belonging to the bank
seized. and was proceeding to eel 1t when the
by preference out Of the proceeds OF the sale. The
plaintiff is mortgage creditor, and the intervenor
and opponent bill holder. The question which
The plesdings present il, a. between the plaintiff
and intervenor, which should be paid by prefer
ence out Of the property Of the insolvent bank, o
mortgage creditor or bill holder.
IL Is proper here TO remark that the answer
fled By the commissioners OF the bank presents
queslonwhich must bedecded adversely to the pre-
tensions of both the plaintiff and the third oppo-
nent. These commissioners urge that no nna
judgment can be rendered In favor Of each Of the
above clsimants, because the bank. having gone
into insolvency, all ita assets must be surrendered
to the commissioners appointed TO liquidste its
affairs with the view OF general settlement In
concauso of all the creditors. n
This is quite true, but IL does not prevent
determination OF the relative rank Of the two
creditors before the court. This decision may
be useless In q cOncurs0 OF ell the creditors but
il s not for the court TO determine the practical
value TO tigsnts Of The relief which they seek. II
thorizes Their demand.
In the case of the State of Lousiana on the rule
taken by Becnsl W.. the Bank Of Louisiana, the
SEINE question as that presented by the present
pleading was before the court.
The question then was whether the commission
ers could be forced to receive the circulating
notes OF the bank In payment OF debts due by IL.
After very careful examination of the authorities,
the several acts Of l642 and lS43 In relation TO the
banks which had forfeited their charters by the
suspension of specie payment, and the interpre-
tstion given. to these statutes by our Supreme
Court, came to the conclusion the commissioners
were bound to accept the bills OF the bank 10 pay
ment Of debts due TO It at the time Of the forfeiture
of its charter. IL bad any doubt Of the correct
ness OF that decision the fact that the delays for
suspensvs appeal from its having elapsed without
any appeal being taken, would confirm my opin
ion, as It would chow that the courts themselves
concurred In its legal propriety.
II appears to me that the principles OF that de-
cision determine the present controversy. II is
useless to ssy that privileges are "sticti juris,"
that they cannot be extended by implication or
analogy etc., etc. These are familiar principles,
and whenever there Is any doubt whether the law
maker intended TO confer privilege or right of
preference, they have their good effect Bat in
this matter there car be no doubt that the legisa-
ture intended that the bill holders should be paid
by preference over oil other creditors. This nen-
ton evidenced by the provisos Of the several acts
Of 1923 on the subject Of the liquidation Of the
banks, making the reception of the circulating |
Dotes Of the insolvent bank obligatory not only
by the insolvent corporations but by all other |
banks In this city which had forfeited their |
charters and had been relieved from the efsct OF
this forfeiture by the act Of lS42. In the act re-
wing the charters ofihese banks the reception Of
the notes OF an insolvent bank il made one OF the
fundamental conditions Of the revival.
This policy Of the law seems to have been dc |
lated BY proper sense Of justice. The circula-
ton Of the banks was sanctioned by and author
lied BY the law, and 1t was the duty OF the law
maker to provide, as far Is be had power. for the
security OF those Who trusted to the solvency OF
institutions created by the law. Having by its |
permission originated the evil II was but equity to
provide against its consummatlon into positive |
Injury.
Bot even II the acts Of lsi7 did not establish a |
preference In favor of the bill holder over all |
other creditors, the Constitutions of 1852 and |
1864 certainly did. As the plaintiffs and the In.
terveDor's claims seemed to have originated |
during the existence Of one of these Constitutions,
their provisions must govern the relative rank Of
the creditors. Article l20 of the Constitution Of |
1852 reads % follows:
" In case OF insolvency Of any bank or banking |
association, the bill holders thereof shall be en-.
titled TO preference in payment over all other |
creditors OF such bank or association"
Art LIZ, Constitution Of 1864, Is to the same |
effect. |
The application Of this article as governing the |
matter In issue In this Is resisted on vari- |
ous grounds by the mortgage creditor.
1. Its considered violation of the Constitution |
OF the United States, because It mpsirs the rights
OF the Bank OF Louisiana under the charter, which |
dated long anterior TO the Constitution OF 1851;
and also because 1t impsirs the rights OF the |
mortgage creditor.
II Is not easy to perceive In what manner the |
articles 40 Of the Constitution OF 1852 and 1872 OF
the Constitution OF 1864 impair the chartered /
rights OF the Bank OF Louisiana, for the simple |
resson that they neither add 10 the obligations |
originally enforced upon the bank. nor subtract |
from any Of the rights or franchises conferred |
upon IL. So far as the rights, franchises and OBJ
legations Of the bank are concerned, they cannot /
be affected by any subsequent law governing the |
rsnk or the manner In which the creditors Of the |
bank shall be paid. Indeed, the articles In Ques-
ton are applicable only 80 between the creditors
20 determine the order OF their payment.