New Orleans Republican., 1873-05-04
COURT RECORD.
SATURDAY, MAY 3, 1873.
Superior District Court.

SATURDAY, MAY 5, IS'.'
Superior District Court.
Thomas Pyo VS.. New Orleans, Mob.,e
and Texas Railroad Compa1y.-Suit eI-
tered for s. l49 damage for non-dehvery oi
box containing Photographic instrumer:,
clothing, etc.
James Todd VA. acknowledgements to-
plaintiff for $3.50 80.
New Orleans Printing akd Publishing
Company VS.. N. C. Folger.-Peti.ion for &r
Injunction restraining defendant from co.
lecting tax on assessment of SlOG. G.OOO. IL.
court said it appeared to be an error IL as
sessing the establishment at such cum.
This court has taken cognizance OF sucn
errors. 1t appears there is no remedy, as
the government is constituted, except IL
court, and the Supreme Court has so nd
Gated. ] regard the organization OF me
stock company as merely a change OF OWL
ers. The establishment dates from 49,.
1t is ordered that the rule MISE be MADE
absolute il SO far as it restraints the defend
ant from collecting taxes on any amoupJ
over and above an assessment OF S.O.oor,
ard costs to be paid by the plaintiff.
First District Court.
State w. Clara Wood.-Breach OF irust
and e1rbezzlement Plea Of not guilty.
State VS.. George Mason and John kee.-
False imprisonment of A. Laine. Plea u
not guilty.
State vs. Philip Rosier.-Assault with
dangerous weapon. Plea OF not guilty
State vs. George Steiner.-Assault and
battery. Plea OF not guilty.
State vs.. John Reilly.--Assault and BAG
terry. Plea OF not guilty.
State VS.. Louis Torre.-Mallcious n,.e-
chief. Plea of not guilty.
State VS.. Charles Predesque.-lAssaG--
and battery. Plea of not guilty.
State VS.. Jane Oscar.-Larceny- Plea c;
not-guilty
State vs.. Thomas keenan.-AssauIt WIN
dangerous weapon; -four charges. Plea q
not guilty.
S;ate vs. Thomas O'Connor.-Larc ceny.
Plea Of not guilty.
State VS.. Jose Dominique and Ant"n-o
Pitt.-Murder. On trial.
Fifth District Court.
James H. Handy VS.. Banker q EenaU.p.
Defendants seized and sold certain goods
which had beeI delivered to plaintiff il pay
ment OF u debt OF one Mentz, on a judgment
against the firm of Mentz & Co.
Judge Cullom's opinion concludes a. t0,-
| lows:
IL answering to the merits of this sui;
| the defendants plead the general issue.
| They set up neither fraud nor stimulation
| in the sale and delivery of the goode hy
| Mentz & Co. to Judge Handy.
| An allegation of fraud would not have "a
| lieved them under the evidence before The
coart, because there was an actual delivery
! uf the merchandise, and the debt uue HaL-
| DIV is shown to have been Just. keV. {. G.,
| 1888.
| The remedy then of Banker & NeDabe
was al action to annul the sale to Handy,
provided it could have been made to appear
| that Meutz s. Co. had not sufficient prop
erty to pay their debt. Rev. {. C., f@10,
| 1871, 1877, 1873. Aud the case of SCHNEIDER
& Zuberber vs. N Dreyfrs, Letchtord ~,
| i,,tnr An o T
that case Associate Howell said p. @7,i:
| The correct rule we consider to be this: a
| creditor may. at his peril seize unCaI any
of the writs authorized by law. ard Il d
third possessor shows that he holds under :.
real contract, the sezng creditor viii he re
| quired 10 desist Except where the proceed
| ing may be specially permitted by law
| and resort to the revocatOry action. lie
| only question that can be examined cDi!a.
orally in such cases is that of stimulation.
In this case the right to seize was pred
Gated solely OF the vendors lien, and ae
there was a real sale, and delivery v&s
made prior 10 the seizure the lien wde
thereby lost &C. c., 3i9I, and the aunulling
| Of such sale for fraud could not restore the
privilege and thus maintain the sequestI.-
tion, but would subject she property irauc
| ulentty transferred to tae payment of the
plaintiffs &C. c., 1929. The Code cortelr-
plates that contracts made in fraud OF cree
ltors shall be annulIed by the revo'at0Ey
action and this only when the debtor has
not property sufficient to pay the complain
ing creditors. We must conclude that the
plaintiffs could not in this indirect mode
sot aside a sale although fraudulent, ard
subject the property to their writ OF Sc
questration, and that the judge q gro did
not err i'll refusing to try the question O.
fraud on the intervention. He did not re
strain them from proving simuils4on.
| he he nv. <
ent case no stimulation was alleged onC
none shown | am not called upon to say
whether there was fraud or NOT as this is
not an action TO annul the sale from Mentz &
TO. to Judge Handy. The goods seized
and sold by Banker & Vena6le, found in
the possession of Judge Handy, and shown
to have been sold to him for an a, know
edged debt of Mentz to him. were proved
to have been worth $40, at wholesale
prices, and as they have taken them from
hin without due process of law, they mus-
necessarily account to him for their value
with legal interest thereon from tie date u.
seizure, and pay such costs as may have
accrued from these proceedings.