The New Orleans crescent., 1869-02-25

II is only in SO far as by necessary intentmeut
the front proprietors are held TO the city for
twothirds OF the cost. and the contractors subro-
gated to the city's rights relieving the city from
inability pro tdnto, and privilege on property
created. that the ordinance and action under it
can be declared void.
The plaintiffs are amply secured and protected
by the remainder Of the Judgment appealed from.
1t is. therefore ordered and adjudged that said
judgment as to such portion thereof as declared
the nulliy and illegaty Of the ordinance in ques-
ton be reversed and that in all other respects the
said judgment be affirmed, the defendants to pay
tho costs of the court below, and the appelees TO
pay the costs of this court.
BY ASSOCIATE JUSTICE HOWELL.
No. 20n. Lewis E. Showers Va. succession d.
F. Blackburn and @. A. Blackburn.
Appeal from the District Court, Parish Of Car
roll.
This is an appeal from judgment rendered on
default against the succession OF ID. +. Blackburn
deceased, and Mrs. c. A. Blackburn in solido, for
$4,000 with 81 per cent. interest from lst Jan.
usry 1860, on the following note:
"sl .0e0.-0n the first (lst) day of January,
1861, we or either Of us promise to pay l.. e. Stow
ers ten thousand dollars with ten per cent. inter-
est from the LIST day of January next for money
loaned. D. F. BLACKBURN,
&C. A. BLACKBURN.
December 10th, 1859.
Ge % z. Ssa9sy 10
aud dollars, with ten per cent interest.
&C. A. BLACKBURN.
endorsed Lake Providence, Ls., December
18Th, 1861 acknowledge the within note TO be
correct. G. A. BLACKBURN
Service was accepted as follows:
"Iscknowledge service Of the foregoing peti.
ton and note-sued on and citation. as executrix,
ard in y my individual capacity; this september
The prescription of FIVE years is pleaded in this
court, and is urged only on behalf of the sncces.
sion on the theory that the acknowledgment made
on tie 18th December, 1865, was made by Mrs.
Blackburn, individually, and the suggestion that
the has gone into bankruptcy.
Both parties admit that the promise written at
the foot of the note, the individual assumption
by the lcidOtr, OF the note sued on although for
different sum and payable at different date, and
the question ia, whether or not the acknowledge
menI on 18th December, 1865, interrupted per.
scTption as to the succession represented by Mrs.
Blackburn as executrix. To sustain the atlirma.
tive, il must be held both that the obligation sued
on is not SOLITARY one, and that Mrs Blackburn
did not n axe said acknowledgment as executTiX.
LIST. 1t is not shown that she was bound IN
SClidO as maker Of the note, and hence her lia-
bility for the debt can rest solely on her subse-
quent promise TO pay. But it is contended, and
we think successfully, that this promise does not
create the solidarity contemplated By the Code in
determining the effect of an acknowledgment by
one Of the codebtors IN solid0. Solidarity exists
by the Code when several persons bind themselves
towards another for the same sum at the same
time, and in the sane contract. 1t cannot be pre-.
sumed. There being no priVity nor reciprocity
between the provisions, nor express stipulation OF
solidarity in this case, the defendants are not
debtors Ia solido, and consequently the acknowl.
edrment Of 18th December 1865, if made By
Mrs. Blackburn individually did not interrupt pre-
seription as to the succession. &C. c. 2072, 2077,
2OS6, Z, s, 2092, 35l7 ; II R. 1888; IL A. 1851 II
is unnecessary 10 decide whether or not the exc
cutriX cannot create q solidarity Obligation
against the succession.
%. The question whether she made the &C.
knowlt dRment as executriX is one of inference
and upon the pleadings and evidence before Us is
one of cons deTsble doubt.
AS the plaintiff might have added evidence on
this point, or otherwise shown an interruption of
prescrilsion, if the plea had been fled ia the
lower court, we think the ends of justice will be
subseTved by remandiDg the cause as requested
by the appellee.
We cannot disturb the judgment as to Mrs.
Blackburn, as upon the admission Of counsel, she
is IN bankruptcy.
Ii is therefore ordered that the Judgment of the
district court against the snecassian of D. r
Bsckburn, deceased, be reversed, and the cause
es to said succession be remanded upon the cues.
lion of prescription, costs of appeal to be paid
by appellee.
MI. Wyley recused.
-
bi ASS0OiAiS '0Sii'A ho"hhA'
No. 2Ol5-A. Ledoux VS.. John r. Buhler.
Appeal from the district court parish of West
Baton Rouge.
Fsvrot L Lemon for plaintiff and appellants.
Barrow < Pope for defendants.
Tbisis an action on a promissory note made by
John Buher on 10th May, 1862 at West Baton
Rouge, for 1890, payable TO the order of Menard
q Vignsud, twelve months after date, at their Of
fee in New Orleans, with per cent. interest after
6ue The defendant, who accepted, purely and
simply, the estate Of his deceased father, John
Butler, fled a peremptory exception, alleging
that, at The date Of executing the said note, the
maker resided within the Confederate military
lines, and the payee within Federal military lines
and consequently the contract was null, being 10
violation Of law, prohibiting all commercial inter
course or transactions between said parties, of
which facts the plaintiff had notice.
The plaintiff then fled an amended answer. de.
claIipg that said note had been given IN renewal
Of an obligation existing as far back ss 1859, orig
nslIy for $4,000, several times renewed and re-
ouced BY payments to the amount OF the note
sued on, and that in 1866 the defendant aeknowl
edged the correctness and validity OF said oblga-
ton and promised to pay the same.
TIE defendant excepted to the hling OF THIS
amended Petiuon ior tne lessons .nat % ~ "o9lu
ensnge paahan srounu u @ acaou, .nas we org
na oSs moa y, onu snas ooe p
oi ueienoan. !" o.ieS es - Vi "Hi0n
"Sre piope.iy oseilseI ',S.in.;o,, dor.ua
~, .n. ~ &c th onaSad as,;
GIaDeeo " s.I ~, VI s9e ~. po.ion