New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-05-29

shall be exempt, but it does not extend the
cases in which this exemption should be
claimed.
This debt was contracted previous to the
passage of the act of 1872 and this act can
not exempt any property which was not
exempt when the debt claimed was con-
tracted.
The Civil Code lays down the general
doctrine that the property of the debtor is
to be considered as pledge to his creditors.
When contract is entered into, an obliga-
ton is created The understanding is that
that obligation extends to all the securities
which the law, as it existed at the moment
of its origin, gave to the creditor.
The rights granted by the law at the time
OF entering into the contract form part of
the obligation CT the contract; and those
laws bind as well the creditor as the debtor.
The obligation of the contract can not be
impaired by the repeating of these laws,
any more than it could be impaired by an
act declaring the contract to be null and
void. The act of the Legislature which
takes away from the creditor property which
at the time he entered into the relation of
creditor was subject to the obligation con-
tracted in his favor by the debtor, so far as
it takes away from him an amount of prop
erty which otherwise would be a guarantee
for his debt, is unconstitutional.
1t is no answer to this to say that act No.
49,, and all acts OF that nature, refer only to
the remedy and not to the obligation It
is a familiar, and probably vulgar, but at
the same time very expensive saying, that
there are more ways than one of choking
a dog. The Legislature may at their dis
erection regulate the remedy, but when
legislation on the subject of the remedy de-
stroys or impairs the partial value of the
obligation, 1t is as obnoxious to the consti-
tutional inhibition as if prOfessedly it re-
lated to the obligation of contract.
The rule to release the property provi-
siOnally seized must be discharged.
A. E. Ellis vs. Fisher, johnson g. Co..
The principal demand in this suit was dis
continued, and the case to be decided now
is on the unconventional demand made by
defendants tor commissions for the cOlIec-
ton of certain drafts.
The plaintiff claimed these services were
understood to be gratuitOus. The defend
ants claim that if the plaintiff had acted
hOnOrably and fairly with defendants they
would not have made a charge, but as the
plaintiff had invoked against them a claim
without foundatiOnin justice or equity, they
came to the conclusion to initiate his ex-
ample, and as they had legal right they
simply urged that right
person may not intend to urge a legal
right, but that does not divest him of it,
and he may urge it whenever he chooses to
do so. 1t is not to be presumed lawyers or
commission merchants will run around col
lecting notes, drafts, ETC., without com
pensatiOn. There must be judgment against
the plaintiff, and sustaining the recOnven-
tiOnal demand
Wright & Richardson vs.. the Sheriff
Plaintiffs obtained a Judgment against
Ivens 81 Co. While this Judgment was in
the hands of the Sheriff for execution Ivens
g. Co. applied to the Judge of the Fourth
District Court for a respite, who granted
it, and, ordering meeting of the creditors
of Ivens g. Co., also issued to the Sheriff an
order commanding all proceedings against
them to be stayed.
Plaintiffs IN this case ordered the Sheriff
to seize the property of Ivens 81 Co., but
that officer refused to do so, under the
order of the Fourth District Court, where
upon plaintiffs brought this action against
the Sheriff, to make him liable for the
amount of their judgment, averring that he
failed to make return within tie seventy
days allowed by law, and furthermore ar
gulng that it was his duty under the cir
cumstances to have acted in pursuance of
their orders.
Judge Cooley in rendering Judgment for
defendant remarked that the Judge of the
Fourth District Court was without au-
thOrity to issue such an order to the Sheriff
and that the Sheriff was not bound to Obey
it, 1t is only the creditors who can grant
respite to their debtor, but in the meantime
no order can be issued to stay pending pro
ceedings against that debtor
" However" said the court, +" in this case
plaintiffs do not appear to have sustained
any injury from the alleged neglect of the
Sheriff to make his proper return (which is
Of itself a doubtful question: and under
the act of 1926. renewed in 1870, it is clear
that the Sheriff is not to be punished for
the mere act of not making a proper return,
but it must be shown that his failure to do
so resulted in damage"
Seventh District Court.
John T. Michel VS.. Kaiser ct al. Plain
tiff instituted an action to be adiudged the
owner of the Magazine Street Railroad,
claiming that, although he bid $69, 900 at
the sale of the same, it was not adiudged
to him by the Sheriff, but to another party,
who bid only S68,0OO.
From the records in the case it appears
that the Sheriff did ndt choose to accept
the securities offered by plaintiff, and re-
jected his bid. Hence the suit.
Judge COllens, in giving judgment against
plaintiff, says in his opinion:
The plaintiff has waved the adjudication
made to him at the price of Sl49, 900, and
relies on the effect of the bid of $50 900,
which he made at the second crying.
He acquires no title to that bid, since
there was no adjudication upon it. It is
only an adjudication that could have vested
him with the title to the property. c. P,
$50.
The adjudication having this effect, was,
in fact, made to other parties at $6S,000 If
this adjudication was made contrary to
law, or in fraud, SO as to iDiure the owner,
whose property was sold, he could claim the
nulity of the adjudication and sale, and an
order for the resale of the property He
might, and probably would, in such case,
also have an action for damage against the
Sheriff and the illegal adjudicatee. So, also,
the judgment creditor would have an action
to annul an adjudication made illegally to
his injury or in fraud of his recourse.
The person whose bid was rejected would
also have an action for damages, but not
for the property itself, if, indeed, his bid
was illegally rejected. These damages
would be the loss suffered from not getting
the property for the amount of the bid, but
no such damages have been proved, and,
indeed, do not find the rejection of the
plaintiffs bid was illegal.
The acts of the Sheriff were in conformity
with article $50, Code of Practice. He had
the UndOubted right, and it is his duty to
ascertain the name and the solVency of the
securities Immediately at the time and
place Of sale, and also to require that they
should sign the bond on the spot, or at least
their written promise to do so. Then if the
ohered securities are not sufficiently solvent,
or the consent of solvent securities is not
then and there produced, it is his duty to
adludge the property to another person.
Colonel Forney is taking tho alarm, and
cOunsels prudence and mild language.
Abuse OF Horace Greeley or the Cincinnati
convention he discourages "a moor invest.
ment He closes his timely little homilv