The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-03-30

The following decisions were delivered BY this
ceurt yesterday, q full bench present:
BY ASSOCIATES JUSTICE HOWE.

IL
BY ASSOCIATE JUSTICE HOWE.
No. 2o74-Cbas. Week VI. H. v. Babin. ex.
sheriff and others. Appeal from the Fifth Judicial
District Court of East Baton Rouge. s. 2. Greves,
Foqua Callhsn, for appellant; A. 8. Heron,
Fsvrot Lsmon, for appellee.
In 1861, the sheriff Of the parish OF East BATON
Rouge, as tax collector. seized and sold certain
property Of g. W. Roberts, for the purpose OF
making therefrom the amount OF state license.
Laws of 1855. psge 5l4, section 90. The sale
was made on twelve m onths credit, snd tae pu,'
chsser gave rs security on twelve montns .pono'
P. A. Kugltr and P. d. Hardy.
On this twelve months bond fl. ia. issued, and
in May. 1866, certain real estate, the property OF
P. A. Kugler, one Of the sureties, was seized ana
offered for sale for cash, but not bringing its ap,
praised value, as required BY the then existing
law. (Acts of 1856, page 9O,) was onered on
twelve months credit. IL was thus sold on the
4th Of August 1866. and P. A. Kugler, the surety
and owner bid !. 10; ana gay gave Twelve m0u'n'
In August, 1867, after the maturity OF the last
bond, writ of fl. ia. was issued on IL, and the
sheriff seized property Of the plaintif, who there
upon sued out the Injunction now before Us.
There was Judgment for defendants dissolvng the
Injunction, and plaintiff has appealed
We find no authority In the law for the second
sale on credit and the taking of the second bond.
II We .concede, on behalf Of defendants, tns'
the first bond was valid 1t should have been exc.
cuted by sale for cash. O. p. 720 and act OF
9TH April. 1926, amending the same. The second
section Of the act of March 2, 1866, in force in
august aSss qs e i SaSs
that upon such sale the property should De APP
praised and realize In cash its appraised value.
Without expressing, then, any opinion upon the
validity of the second bond as an obligation to
be enforced uid 0rdindrid. We think 1t clear that
it cannot be collected in the summary manner IN
which the defendants eDdesvored TO proceed.
Such summary process, requiring no order OF
Judge and in this respect swifter even than exc
n
considered STRICT js1-ls, and permitted only
where it 10 clear that the bond which the oblgees
acknowledge to have the force of final judg-
%ent is one given IN 10 pursuance Oh 'A~ Pro-
We have been referred by defendants to several
cases in which it has been held by this court that
the surety on Q twelve months bond cannot,
while his principal retains the property, be nearo
to allege any Irregularities on the sale. La,
800 R., 1S5 /; IL R., FOG Ann, 542. This
rule is well settled, and might be invoked against
an attempt to eDjoin the first bond. But We ap..
prehend that il cannot be applied to the second
bond, now before rs, given In proceedings not
Authorized by law.
For the reasons given, 1t is ordered and ad-
Judged that the Judgment appealed from be
avoided and reversed. 1t is further ordered that
the plaintiff have Judgment against defendants
perpetuating the injunction issued herein on the
oath August, 1867, with costs In both courts.
BY ASSOCIATES JUSTICE HOWE.
No. l434-John W. Barry vs. VIM. 8. Pike. APP
peal from the sixth District Court OF New Or
leans. Cooley q Phillips for appellee; John ID.
| New for appellant
This suit was instituted upon the following
note: -
| "s3s57 OF. BATON RouGs, March u, 1862. Six
months after date we promise TO pay to the order
| Of W. ID. Phillips. Esq, and at the branch OF the
| Louisiana State Bank, Baton Rouge, thirty three
hundred and fifty.seven dollars and seven cents in
full for ninety bales of cotton purchased this day.
| IS. N. HART q Co."
| The note was indorsed by its psyee and trans
ferred TO plaintiff long after maturity and the case
/ IL therefore to be decided as If the suit mad peen
| brought by the payee.
| The answer admits that the defendant twas q
| member OF the firm of s. M. Hart Co., which
in the year 1851, the failure Of the Legislature
State penitentiary at Baton Rouge. was appointed
| by Governor Moore agent of the State to cenduc,
| said pententary, and to perform such acts anC
| make such purchases as were necessary TO keef
| the convicts therein employed and thus save tns
| State the expense Of their maintenance. Tnat a.
| such, some cotton was purchased OF W. ID. PM
lips, of Baton Rouge, and the note herein sued OF
given ss an evideAce of claim against the Stat'
| of Louisiana.
THAT Phillips, resident of Baton Rouge, wa
well scuuainted with all the facts; that IN selling
! saidcotion he knew that S. NJ. Hart and responder
were acting agents OF the State Of Louisiana II
| purchasing the same, and that credit was given q
the State and not 10 8. NJ. Hart 4 Co., and that 8
| NJ Hart & Co. In no way held themselves out
| principals, but in all respects conducted them
selves as agents, and that If the note In question
| ia not signed as agents by &. M Hart Co.
was due TO clerical error, and with no intention
of executing any other obligation than one agains
| tie State of louisiana" There was judgment TO
plaintiff, and defendant has appealed.
1t appears in evidence that at the same time the
note was executed, the psyee, Phillips, signed tn
| following bill and receipt:
"S. M. Hart Co.. agents Louisiana Penitentiary
to W. D. Phillips, for ninety bales cotton, 80 40
pounds al Sc, So 1851 o. commission q per cent
"Received, Baton Rouge, March 9th, 1862, o
s. M. Hart & Co., agents Louisiana Penitentiary
their note at six months for the sum OF tbiftS
three hundred and ffty-seven dollars and seve
cents, being for amount OF above DILL W. u
| Phillips.n
The commissions in this bill were inserted b
| way of memorandum in keeping the account be
tween s. N. Hart & Co., purchasing agents, as b
the terms of their employment they were TO n
| in the amount of the note.
The defendant has introduced evidence to sho'
| that the firm of B. NJ. Hart q Co. was establishe
solely for the purpose OF acung as agents ior IN
department Of the Pententiary, and had no othe
| existence or purpose that the fact was we
known in Baton Rouge that Phillips was an int
mate business and social acquaintance OF defer
dsnt that the cotton in question was purchase
| for account and use of the State, and so charge
| on the books of the agents, and was manufacture
} into Gotten goods for account Of the State.
As stated by counsel on both sides. the mai
| question In the case is, to whom was the cred
; gwen in this transaction! Upon the strength {
| the bill and receipt signed by Phillips at the tint
| and other evidence on the record, the defendsi
, | ssenuously contends that the credit was given
| the State and that the holding Of s. M. Hart U
to personal liability on the note did not emit
into the contemplation of the parties at the tin
| the note was made.
| In the case of Delaroderie vs.. Hart. 30 Ann,
1861 it was held that where the defendants,
agents for the Penitentisry, contracted WI
. plaintiffs for lot of lumber to be used In movir
| the machinery, and the bill for the price OF Il
| lumber was made out against them as agents, tbs
could not be held personally liable, the plaintiff
' having admitted their agency and dealt with the
; | in their representative capacity
We do not perceive that this case differs fro
' that, except in the fact that the note was give
and It cannot be doubted that the origin and col
( sideration OF that note may be inquired into,
, the hands of the plsintiff who took IL some thrs
or four years after 1t fell due. We think the 10
e has been well settled In this State since the ca
!. | of Kournbaar vs. Ludeiing. 3, Martin 644 that
|. | the defendant maker Of note, shows that he vi
; | mere agent throughout the whole transactio
}. | and that within the knowledge of the plaintiff