New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-03-08
THE COURTS.

of New Orleans it was ordered that the de-
fault of the defendant be entered, and tue
bill of complaint taken pro Ontess0. Mar
tin, it will be recollected, enjoined the Dig
ging of canal from Julia street to CARROLL
ton avenue.
Judge Duvigneaud decided yesterday the
case Of the succession of Nancy Davenport.
Thomas Jorda, the executor of the de-
ceased, has fled an account OF MS auHlhis
tration The following oppOsltlons TO SAID
account were filed: oa, 70
|. The Sheriff of this parish of 81 80.
9. The attorney for the absent heirs
claims for his fee 500
8. p. Is. Fouke. public administrator, OPP
noses several items of the account on the
pprour6 that having petitioned this court
Tor the purpose of annulling the will OF the
deceased, he has as public administrator
the right to stand in judgment, because II
the will is set aside he is by law the admin
istrator of the estate the same becoming
vacant succession, no heirs known OF the
deceased being present in the State.
4. Michael Duncan has also filed an OPP
position, in which he joins the puoilc aI-
ministrator. and adopts his grounds. he
based his intervention on the ground that
on the nineteenth of February. 1871. the
deceased made a nuncupatlye VIII, IN
which will he was appointed universal
legatee Of the deceased, aud that IN SAID
caDacity he opposes the warrant, ana prayS
that the will made before A. Hero, notary
public on the seventh OF March. lo' l., re-
yokny the first will, be annnlled and SET
aside on divers grounds set forth IN said
opposition. -,
positions filed a peremptOry exception 10
the opposition, on the ground that they
have no interest in the case, ana are With
out right to stand in judgment herein.
The court is of the opinion that the PUB
lie Administrator has no interest IN TINS
matter. being neither natural nor lnstl-
tuted heir: as regards Michael duncan, the
residuary legatee OF the deceased ne can
not contest the validity of the last will by
an opposition to the account filed. by the
last executor: his remedy is by direct ac-
ton.
On the trial Of these OppOsitions and ex-
ceptions it has been agreed by the parties
in interest that the fee of the attorney be
reduced to $547 %, instead of $3.50, charged
ON the account, and that the opposition Of
the attorney for the absent heirs be fixed at
s273 30. instead OF 1926 claimed.
1t is therefore decreed that the account
be so amended as to reduce the tee of the
attorney of the succession to S3E -, and
TO place the attorney for the absent heirs
on thu, same for 1913 so. and the Sheriff for
81 So That the petition and opposition OF
L. B. Fouke, public administrator, be dis
missed. and also the opposition of Michael
Duncan, reserving, however, to the latter
the right of bringing direct action tor
annulling the last will of the deceased.
That in the meanwhile the executor retain
in his hands, subject to the order of court,
the amount of the legacies made in said
last will until the decision of this suit,
brought as the court has been informed.
bv Michael Duncan for annulling said last
will And it is further ordered that said
account as amended, and with the reserva-
ton as above set forth, be duly approved
and homologated, and the funds distri-
buted in accordance herewith
Judge Cooley. of the Sixth District
| Court. on a rule to compel the Sheriff to ex-
ecute a feri facas held that, the law having
| given the Sheriff seventy days in which to
execute a fieri iacias, he could not reason
| ABLY be compelled TO execute it before that
| time.
| Judge Colens. of the Seventh District
Court. has decided the following case OF
Dominique Durac against Widow j. b. Fer
rari. IN which the whole theory of RESPONSE
bility for deposits was developed.
1t is settled by the verdict in Ferrari vs..
| Durac, No. -. that the allegation of the pc
tition in that case are true to the extent
only of authorizing the conclusion. under
the evidence. that Durac was indebted to
| Ferrari 500, restitutible payable in gold.
1t is contended that the contract proved was
| not one OF deposit, in the technical sense,
| but only one of mandate" 1t was both. OF
rather one at one stage and the other at the
! other stage of its execution. Ferrari deliv-
cred 500 in gold to Durac, to be by him de
posited in bank. with his own funds, mixed
with the other funds of the bank, and resti
| tutbie by the bank, not in the specific gold
deposited. but in any lawful gold the bank
might be able to pay 1t in. 1t was to be
converted into credit for gold on the books
of the bank-it was to become d debt due b.
the bank payable to plaintiff in his gold
check. and the plaintiffs obligation was to
leave it there and not draw it out excep,
on check for that much gold drawn il
| favor of and delivered to Ferrari. In such
case, after making the deposit In bank
| and upon his leaving it there, as required
he would have been relieved from liability
as depositary, and all the risk of the i'll
solveucy or intidelity of the bank (if it haC
happened), would have been borne by
! FerrarI.
The bank was appointed to receive the
deposit agreeably to article 292O Civil Code
| which says:
The depository must restore the thin
deposited only to him who delivered it. Of
| in whose name the deposit was made, o.
| who was pointed out to receive it.
1t follows that at the moment Durac re
ceived the gold tor the purpose of depositins
it in bank he became a depositary OF thu
specific gold, and remained such unless h'
could show that he restored it, as directed
to the party appointed to receive IT, Untl
he did this he would be liable for the speci
tic gold handed to him. He could in no wis'
convert it to his own use, or to any othe
use whatever. He was bound to preserv'
| il intact for that purpose only.
Now it clearly results from the evidence
and verdict. and even from his own defense
that he did not deliver the gold to the bank
Indeed, he denied having received it at all
or to owe it as alleged.
Clearly in this state of the case articl
1927 Civil Code applies. He can not Otfe
the Judgment he has against Ferrarl as al
offset to her judgment against him for tn
deposit
Besides, and in the second place, even i
there had been no technical deposit, still
the offset could not be allowed. Ferrar
has a Judgment against Durac for gold
and Durac Judgment against Ferrarl ex
tinguishable in United States treasur,
notes. The Supreme Court OF the United
States has decided that gold contracts arr
legal, and must be specifically enforced
Hence. one who has a judgment for gold cur
rency can not be compelled to take any
thing else in satisfaction. He can not b.
required to enter into discussion or lnqur.
as to what amount ofpaper currency may b.
required to purchase the gold he is entitled
to. He can not be required to take pape
currency from the defendant and do tn
work of converting it into gold. This l
the duty and business of the debtor of tn
gold He must bring that to the sheriff @
the property seized will be sold for gold L
satisfy the judgment Tie two Judgment
| are not Of the same nature, and are no
compensate. They are not commensurate
| lilo lnurc HAN If Eer,n p; ha. al,t ne,