The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-04-13
Supreme Court Decisions.
This ceurt met yesterday and delivered the 70
lowing decisions. q full bench present:

- L.
Appeal from the Sixth District Court parish Of St.
Tsmmsny. Alfred Hsnran for plaintiff and ap;
pel'ants and J. d. Thompson for defendant and
appelees. s.....,..a....
she Transcript Ia defective in net containing the
answer and Il. ia. Of another suit offered IN evil
deDce, and because the clerks certhcate 10 er-
roneous and lsgal in containing statements OF
matters outside of and foreign to the record.
On examination we find the answer In the record
and not missing, as avered By appellees.
II appears from the note OF evidence that plain
ts "ofered the entire record OF suit No. l065. en-
titled New Orleans Mutual Insurance Company
We understand the recosd Of . suit to meap the
petittion, answer, orders OF court and final judg.
ment. Revised Statutes, D. 81, section Is.
The note Of evidence does not show that the fl.
ia. was offered, and We do not. therefore, per-
ceive any diminution OF the record
The ex-oficio statement in the clerks certificate
we regard 50 q mere surplusage.
The motion to dismiss is, therefore, overruled.
On the Merits-Pisintns and the defendant, G.
perty Of W>. p~sisyy -a.'i-sst-~.s--pse. y.Sio5
J. II. Ruddock, was required, BY the deliberation
Of creditors, to sell the property Of the eedos
cash, without spprssebent. 1t was accordingly
offered, on the 7Ih September 1861. and duly adj
Indicated to Alfred Henpen. agent OF the New Or.
leans Mutual Insurance Company. for sl4OO, the
amount bid by him. The syndic demanded Of said
agent the amount Of his bid 10 cash. He refused
TO psy the cash. The syndc caused the property
to be offered again for sale on the same day. and
1t was purchased by the defendant, Chas. K.
Rsiley, for 5000, the amount bid by him. 49,.
Plaintiffs now sue to set aside the sec nd sale,
and to compel the syndic 10 pass bill OF sale and
deliver the property TO them.
The defendants answered separately. The syn
die Ruddock denied generally the allegations OF
plaintiffs, except that the property Of the ce
ding debtor was sold ss alleged, and that II was
adjudicated to the agent OF plaintiffs for sltoO.
II AYERS that he tendered titles to said agent he
woud nav in cash the amount OF his bid accord.
ing 10 the terms Of the sale. which he refused
and after putting him lin default he caused the
property 10 be again offered, when IL was pur-
chased, as alleged, by Chas. r. Railey, concur
rent mortgage.
His answer sets Nd D unconventional demand
against the plaintiff for $1,000, the difference be.
tween bis bid and the amount obtained atthe sec.
ond offering OF the propbriy.
The defendant, Chas. r. R.iey, pleaded gene.
raj denial, and averred that he ID the legal owner
of the property, having purchased It at public
sale of the estate Of VIM. Bsgiey, the ceding
debtor, and that be has. since had peaceable pos
session Of the same. -
The case was tried By Jury, and judgment was
rendered in accordance with their verdict In favor
Of the defendants and ordering the plaintiffs TO
nav the syDdic 1890. !
From that Judgment plaintiff, have appealed.
The evidence satisfied us that the property was
not adjudicsied to Alfred Hennen az agent for
both the concurrent mortgages, the plaintiffs and
the defendant, Chas. RI Rsiley. The latter was
represented at said salsby different agent.
In our opinion ii wasthe duty Of the agent Of
plaintiffs, to whom the property was adjudicated
to pay in cash the amob int Of his bid, according
to the terms Of sale. He could not retain the
price OF adjudication, Shere being another mort
gseee creditor OF concurrent rank.
Goodsle vs.. his creditors, s louisiana, SOL.
The question TO be considered ia, whether the
plaintiffs were put in Default and the property
legally reofered for sale!
This depends upon thb character of the sale.
In sales under 6nalljudgment IL 10 necessary to
put the adjudcatee formally In default; IL he re-
fuses TO pay the price, the sheriff must expose to
sale anew the thing settled and adjuge II to an
other person. G. p. 6Sp.
In auction sales the adjudIcatee must be put
formally In default. ard the resale must conform
to Art. 1859 OF the @. u.
The sale In question was evidently made at the
risk of the first lii was sale Ia foAe en-
chere.
The syndic claimed and recovered Judgment
against the plaintiffs for $780, the difference be.
tween the amounts bid at the first and second
offerings. This could not be doae under Art. $50
Of the Code of Practice.
The court reasoned ct some length. citing su'
thorities and decided IS follows IL is, therefore,
ordered that the judgment appealed from be
avoided and snnulled, and II Is now ordered that
the sale 20 Chss. r. Rsiley be avoided and an
DulIed, and that the syndc. J. II. Ruddock. be
and he is hereby required to pass deed
of sale to plaintiffs Of the property sd.
Indicated to them, and that the plaintiffs
pay over to said syndic. within ten days after
certified copy of this decree shall be filed in
the court a quo, $l4O0. the amount bid by them
for said property, and that the defendant, Chss.
r. Raiey. deliver possession Of said property to
the plaintiffs. 1t Is further ordered that the de.
PENDANT pay costa OF boih courts.
By ASSOCIATE JUSTICE HOWELL.
No. l29s-Mrs. L. j: holland W. Mrs. NJ. G.
Stirling. Appeal from tho District Court. parish
Of West Feliciana. Nickliffe Miller for ap.
pelle, VIM. Winter for appellant.
This suit Is brought on promissory note al
legged to be made by defendsnts agent to the order
OF and duly Endorsed by Mr.. G. +. McRse, to
which defendant pleaded the exception OF les
avs,Is aass su ssans; S her py Plan
This exception was Maintained by our prede.
cessors and on the application of the plaintiff
rebearing was granted.
As the suit Is one wsich could not, under the
act Of Congress 2sh Of July, 1866, be transferred
from the U. 8. Provisional Court and the Circuit
Court, being between citizens of this Stale, the
plea cannot prevail, AID il was therefore properly
overruled by the judge u quo. r- 80.
In the o. swer the defendant denies all the alle-
cations of the petition and specially the owner
chip OF plaintiff and Reimbursement Of the payee.
An examination of the Evidence 10 the record does
district judge who considered the authority Of the
agent TO make the note and the Endorsement OF
she psyee sufficiently established.
Judgment affirmed 80 sd
BIZ AssocIArs JUSTICE HOWELL.
No. 2el0-succession Of Widow A. d. Tursaud,
L. Gex, administrator Of r. Many, deceased, op.
Ponent. Appeal from the district court, parish Of
81. James.
At the partition soit Of the heirs Of agent
the district judge ordered ell the property (being
immovsble) Of the succession Of the Widow A. ID.
Tureasd, declared to be held 10 common by the
legal heirs, TO be sold in block. which brought
$l00 900. payable. according to the Decree 900
cash, and the balance in three equal instalments
each payment divided into as many nstes as the
administrator required for the purpose OF making
partition thereof among the heirs. After the
sale the administrator, one of the heirs. filed
final account Of his administration, showing
balance in cash Of $33 COO and notes amounting 10
100000 10 his hands for partition among the heirs,
OF which he made and aled along with the above
account, what he called "tableau Of partition
allotting sum Of slS,600 to each heir, and ne
prayed that public notice Of the fling Of beth,
with his prayer for discharge, be given; that the
heire be seyerally cited that after due proceed
ings the account and tableau be homologsted;
that he he authorised a soffIa IA haivo md