New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-06-11
THE COURTS.
Eighth District Court-ExpIosfve Coal
OiI-What the Jury Thinks of 1t,

In the case of Nancy Lockwood VS.. K.
Vented ct al, in which some thirty thol
sand dollars were claimed, IN consequence
of a coal oil explosion, the jury has returne
4 a verdict, as follows
We, the Jurors in this case, find Verde
in favor of Nancy Lockwood in the sum 9
s439 S., without interest; also verdict i
favor of the minor children in the sum @
$4,000, also without interest.
In the case of John Spalding vs.. j. j
Kreider ct ais, in which judgment was ren
oered on the twenty-seventh of June, 1876
against plaintiff, the latter has filed pet
ton that devolutive appeal be grantee
him, returnable to the Supreme Court OF
the first Monday of November next. TIL
appeal prayed for was allowed
Fifth District Court-Judsment Agains
the Cify-Hnley, of Commercial Place
Sues for $4,000 Damages.
In the suit of j. N. B. Depouilly VS.. the
| city of New Orleans, Judge beaumont ha
| given Judgment in favor of defendant. De
pouilly sued the city for the sum of SIP;
for salaries due under special provisions o.
a certain city ordinance. Defendant had
occupied the position of Assistant City Sur
| veyOr, and was to receive yearly salary
| of $500. Defendant alleged that while
peacefully and Justly performing the duties
| of bis Office he was. without just cause
discharged by w. HI. Bell, who had been
| appointed by the Governor to fill the vacan
| cy occasioned by the death of Louis Surgi
Some time since a suit was brought in
this court by Patrick Higgins against c. C.
Haley, in which plaintiff sued to recover
certain moneys and control of the news
business then carried on by Haley, Higgins
alleging that the business was withheld
from him illegally The verdict of the jury
being against Higgins, Haley has now in
stituted suit against him fol $4,000 dam
ages in that he has suffered to that extent
III consequence of the proceedings above
mentioned. ~. apo
Seventh District COurt-DecisiOn by Judge
Collens.
In the case of Ernest Turpin vs. Michel
Bochet Judge Collens has delivered the
following opinion: 4 ....- ...... .
The defense relied on is prescription; and
the questions raised under that plea require
the court to decide what prescription is ap-
plicable to the demand, whether it was ever
interrupted, and if SO, when that Interrupt
ton ceased.
On the twentieth of June, 1861, Bochet
sued his creditors for respite and OBJ
tanned the usual order of court for meet
ing of creditors and stay of all proceed
ings against his person and property The
plaintiff is named on the schedule as an ac-
and the schedule is sworE to by the defend
ant. The proceedings, however, were not
carried any further-the creditors were not
notified specially, and the meeting did not
take place. The conditions imposed by ar
ticle 1854 has precedent to a respite but
were not all complied with. The action was
clearly abandoned.
The matter remained in this condition,
plaintiff making no attempt to inforce his
eli
ton the court set aside the order granting
the stay of proceedings. ThereupOn he in
stituted this suit to which defendant op-
poses the prescriptions of three and five
years.
This plea is objected to on several
grounds. The first is that prescription was
interrupted during the whole time from the
date OF the order granting the stay eff pro-
ceedings to the date of the order setting the
stay aside 1t is argued that the order
granting the stay, while it subsisted pre-
vented the plaintiff from enforcing his
claim judicially, and that therefore the de-
lay thus obtained by the debter can not be
counted in his favor as time during which
prescription was running. | do not think
the law sustains this objection.
The plaintiff was not cited or Summoned"
as required by article 1854, and was at IL
berty to sue, for the proceedings for a
respite had no effect against him without
such service.
The neglect of the defendant to notify his
creditors. and the consequent total failure
of the proposed meeting, render the whole
for since it is the duty of a
sutton TO cause the necessary process to be
issued and served, and since the omission of
the essential and necessary process, with
out which his proceeding could have no eff
feet, was chargeable to Boshet, it must be
as an abandonment of his petit
ton. and therefore act 1885 applies. But
even If this neglect to cite and this failure
OF the meeting had not of themselves the
effect of rendering the proceedings nuga-
tory, and that a revocation of the order
granting the stay was necessary before
creditor could sue, it is clear that he could |
have proceeded in July, 1861, as well as in |
January. 1871, to enforce his demand by |
motion to set the order aside. and since he |
lad an evident right to do then he can not |
say his right of action was legally pre-
vented. Evidently his silence and inaction |
we're voluntary, and article 1894 applies. |
The very action he brought last january
,ould have been brought nine years ago.
Then, even II we suppose the proceedings
we're regular. and had all the effect they
'ould possibly have had. there is the fact
hat they were only instituted to obtain
esplte, and that it was asked only for one
ear so that even had it been actually
,ranted by the creditors, they ALL at the
EXPIRATION of the year, would have had the
light to sue In no principle can an order
ranted on petition praying for a respite
+ one year be construed so as to give it
fleet beyond that time, unless the case had
een legally converted into cession of
rOperty, according to article 1865.
The second objection to defendants plea
; that it is the prescription of ten years
not those of three and tive) which applies
D plaintiff s demand. 1t is argued that by
utting plaintiff on his schedule as creditor
er bill, for five hundred dollars, and by
wearing to this Bochet put plaintiff in the
Ondition of a creditor who has ian account
and that, therefore, since
rticle 1903 saves such accounts from the
description of three years, there is no other
description applicable but that of ten years
nder article 1903. Here again l must con-
ude against the plaintiff. 1t is doubtful
neither or not the admission of debt on a |
'hedule presented for respite or cession
III be transferred to the creditors account
self, so as to convert it into an % account
in the sense of article 1903.
ut a decision on this point is unnecessary,
nee that article mas no reference what
'er to the kind of account the plaintiff had
yainst the defendant. Article 1903 relates
accounts for rent charge, annuities. ali
ony, hire OF things, money loaned, salaries
Id fees, and enacts that these shall be
described in three years, "unless there be
! account acknowledged" etc.
The plaintiffs account is for liquors, sold
I'd is prescribed according to the act of :
62, page 80; but this act is not an amend
ent of article 1903, which remains intact.
he act is an independent statute, and can l
It be read into the article. 1t stood by
'elf and apart from the article till the new
vii Code was enacted in 1870. 1t pre-
ribed plaintiffs account in three wears. {
thout any such extending clause or pro- ;