New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-07-06
THE COURTS.


privileged creditors.
The court said-There is no doubt that
the law gives to the above creditors privi-
lepe but the law also saws that, in order to
exercise such privilege in preference to
other creditors, their bills or evidence Of in
debtedness must be recorded in the mort
gage office. None Of the opponents have
complied with this requirement.
1t il true that DR.. DeyrOn bad his bill re-
corded in the mortgage office after the
death Of the deceased, but this step came
too late; no mortgage or privilege can be
recorded by any creditor after the death Of
the debtor, TO the prejudice Of those cred
itors who had complied with the provisions
of the law TO secure their rights. The
maxim that the law protects the vigiiant
applies TO the case at bar. The doctors and
nurses who attend the last illness of de-
ceased person are better posted than any
other creditor to know the time to record
their bills by approximation. DISPOSITIONS
dismissed.
T, NJ Brady Va. Succession Of J. w. Zach
arie This case eaIne up again upon a new
trial granted to ths defendant. The court,
in passing upon the case, says: The argu-
ment and the authorities cited by defend
ants counsel have not Changed or modified
the former Judgment rendered by the court
on the first trial.
|, therefore, maintain the grounds and
reasons upon which the former Judgment
was rendered, and adopt its decree in the
same.
It is ordered, adiudged and decreed that
the plaintiff, T. II. Brady, do have and re-
cover from the succession of j. w. Zacharie
the sum of $Sl 80, with five per cent interest
per annum from January Is, 1867, till paid,
and $40 Sc clerks costs, and S75 As sheI ifs
costs, the same to be paid in due course of
administration.
Eighth District Court.
The Strauss warrant as litigation has at
tracted considerable attention. We pre-
sent Judge EmersOns recent decision in
the last phase of the case:
The defendant sued ont a mandamus to
compel the State Treasurer to recognize
certain warrants as valid debts against the
State. For cause against the writ the At
tOrney General charged that the warrants
were false, fraudulently issued, forged and
void. Gu this issue the parties went to
trial. The Auditor testified that the war
rants were presented to him for adjustment
under the floating debt act, and that when |
he discovered that they we're not entered in |
the Auditors books, he declared them to be |
counterfeit and spurious, and wrote the |
word counterfeit" across the face of all /
them. The relatOr proved that the warrants |
were dated in 1868, and the others in 1869, |
while Wicklitte was the accredited Auditor: /
that they were all drawn by him; that they /
were in the prescribed form, and were /
drawn to order and against specific apprO- |
prations. He also proved that they were
received by him in the ordinary course of
business, and that be paid fair considera-
ton for them.
Considering these warrants as negotiable /
paper, and that the State was responsible
for tho acts of its authorized and accredited /
agents to the same extent that individuals
would be, / held that even if the bonds
were fFaudulently issued by Wickliffe the
State was responsible for them in the hands
I'D 41ok
teenth of May, 1872, Judgment was render
ed and signed in favor OF the relator.
On the seventeenth of May the Attorney
General presented petition for a suspen-
sive appeal, which was granted the same
day.
On the eighteenth of the same month
Messrs. Semmes a. Mott, as special attOr-
neys for the State, under an appointment
from the Governor, moved for and obtained
another suspensive appeal from the judg-
ment, without noticing or abiding to the
appeal already taken By the Attorney Gen
eral.
subsequently, after having fled the tran.
script in the Supreme Court, they obtained
from that tribunal a writ Of prohibition
forbidding the relator from proceeding to
the execution of his judgment until fur
Their order of the court {
On the fourth of June the same attor-
neys, assisted by Messrs, Hay g. New, act /
ing as special attorneys under act No. q of i
1872 filed petition to annul the Judgment 6
on the ground that it was fraudulently OBJ ]
tanned by the relatOr upon false, fraudulent
and void documents, traudulently issued {
by Wickliffe; that relator knew them to be ]
so, and suppressed the truth and evidence G
Df the fact. 8
remark here that there is no law, or rule L
Of law, requiring litigant to allege in his T
petition or to prove that which would de- S
feat his action. The plaintiff prayed for t
an injunction to restrain defendant from a
executing his Judgment. Afidayits were a
lied by both parties. u
Defendant excepted first, that as the ! a
State was not party to the original suit, it g
could not maintain an action OF nullity; b
second, that the State can only act herein b
through the Attorney General and nor by o
special attorneys; third, that the judgment d
ordering peIemptOFy mandate is final and Fl
res j1tdicata. 1t was CLAIMED by defendants G.
in argument that act No. q was Il
so far as it relates to the fl
appointment of special attorneys, because
that object Of the law is not expressed in Il
the title. Il
1t is clear that if the allegations Of the 81
petition are insufficient, OF if the plaintiff eI
has been guilty of laches, or if the court is a
with out jurisdiction, the suit must fail. il
II valid suspensive appeal has been Il
taken from the mandamus Judgment, as is \
claimed by plaintiff, this court is without c
jurisdiction either to revise OF annul it. c
The allegations charging fraud, forgery, il
etc. IN the procurement of the Judgment. o
are precisely those contained in the answer n
to the mandamus, and do not suffice to sus-
tain an action OF nullity. Rob- 49, Nor f
ris VS.. Fristoe, an. GAG; an. 799; Is an 273. a
But it is alleged when relator offered the f
warrants in evidence he knew they were I
spurious, and had been fraudulently issued /
He offered them with the word counterfeit s
written on each Of them in large letters {
SO far there was no concealment and no h
fraud. The Auditor by thus stamping +
them had placed them out of the reach Of {
commerce and destroyed their negotiable e
", put not the responsibility of the State in j
e hands OF an innocent holder. The fact | i
~ bsrel OF the reiator in suits subse- 7
~ ~ la-lght against him, declaring them \
inconsistent fraudently issued ySas MOI :
against the state, his right az reoa,-ar, E
That part Of the tn, recovery
Wh4eh authorizes the Govetbe act No o.
special attorneys, is in these wortsa annoivt :
And TO define the duties and pow,
- the Governor, the Attorney General. tlGl Z
district attorneys, and the courts Of the I
State in certain cases.
dramatically analysed, the duties and !
powers mentioned relate to duties and now |
ers already imposed and conferred, and not /
TO new and additional duties and powers |
and il would be difficult for q person on /
reading the title alone, without knowing |
the text of the act, TO understand that |
authority TO appoint attorneys to assist or |
take the place OF the Attorney General was |
intended to be conferred. 1t was new
and additional duty not embraced in the |
constitution or former laws, and in my view |
80 ~