New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-11-07
NEW ORLEANS FRIDAY, NOVEMBER Z 1873

Wenck for the account of the plaintiff her
IN by one George Aintz, the president
the New Orleans Rife Club, made garnishe
IN said suits. The aggregate amount {
the Judgments rendered against said plail
tiff and his co-def-ndents being for a sui
OF 1894 2o in capital, the sum collecte
from George Aintz by means OF a garnisl
ment process Is more than sufficient to sa
! lsty plaintiffs vlrile share Of the severs
concentrations pronounced against him an
his co-defendants, with the interests an
the Judicial costs, which virle share is bu
S9o 81 in capital. Besides the sum pai'
over by the garnishee, as above stated
there are two writs of execution in the re
cords on file, indorsed by the constabl
with the words money made
| NO writ OF execution, whether an ala
herl taclas or piuries alias tieri tacias, Cal
legally Issue IL any case unless the previeu
execution has been duly returned. In tn
several suits mentioned in plaintiffs pet!
.lon, executions having been issued agains
him and his cOdetendants which have neve
been returned into court, the execution
subsequently issued, and particularly tn,
execution issued October 3, 1873, are invalid
and of no legal effect 1t Is therefore or
dered that the writ of Injunction herein is
sued be perpetuated as prayed for, with the
costs Of suit.
Fourth District Court.
The following decision was rendered By
Judge Lynch:
Mrs. e. Gayarre vs. Hernandez ct ais
This is rule for new trial taken by
the detendants-the securities on the offica
bond OF the late Sheriff Bienvenu, agains
| the plaintiff, in favor OF whom Judgment
Was rendered against the defendants fol
certain moneys received but not paid ovel
| by said sheriff, he claiming the same as his
| fees in a certain case. The grounds on which
a new trial is sought were all presented by
| the defendants during the trial on the
merits, and were then ably and torcibly
argued before the court. ! deem it neces
sary to re-e1amine the question of prescrip
| ton only.
On the nineteenth Of June 1866. rule
was taken by the plaintiff on tho said sheriff
| to compel him to pay over money, the pro-
J ceeds of a forced sale which he had made at
! the suit OF judgment creditor, to whose
interest the plaintiff had been subrogated
! A judgment making the rule absolute was
rendered October %, IS66, and the sheriff
was condemned to pay. Au appeal was
| taken, and on the thirteenth of April 1863,
! the Supreme Court affirmed the Judgment
rendered by this cours ON the said rule.
The present action vas commenced Septem-
| Der %, 1868.
1t is clear that more than two wears had
elapsed from the nineteenth of June, 1866.
| when formal and Judicial demand was
made on the sheriff for payment to septem-
Der y, 1868, the date OF the inception Of
| this suit against his securities. Section ten,
page 524, Revised Statutes of 1856, re-enact-
ed in article 35i6, Revised Statutes of 1870
provides that ''sheritfs and their securities
shall be able to prescribe against their acts
OF misteasance, nOnteasance, costs, otienses
and quasi OtteRseS alter the lapse of two
years from the day of the commission Sf
the acts complained Of
Plaintiffs counsel contends in one part of
his brief that the sheriff could not properly
be said to have been in default or 10 have
been guilty of any omission of duty until
the amount OF his costs hssi been settled by
the decision os the Supreme Court This
proposition is palpably untenable. The
judgment of the Supreme Gourt declaring
liability on the part OF the sheriff had, OF
course, Vterence to his autscedent action
in failing to make payment when a demand
was made upon him. If the sheriff was in
default only from the date OF the judgment
rendered against him by the Supreme Court
why did the plaintiff bv the rule itself
charge him with being in default The
plaintiff, on thc nineteenth of June, 1866,
averred that Bisnvenu was then in default,
and owed the money Ill question, and now
1t is argued that he became a Gefaulter only
on the thirteenth OF April, 1853. This
theory woald have made the Supreme
Court only board of experts TO liquidate
and report upon certain accounts between
the parties. If the rule had no, charged
the sheriff with default and indie debtedness
when it was filed, the matter could not
have gone before the Supreme Court at all
But we are not without authority On this
point Our Supreme Court. in a similar
case-that of Kohler VS.. J, Z. Walden ct
ais, % Annual, page 2J9, says The pre-
scrlption began TO run from the date of de-
mand by the judgment creditor and non
payment by the sheriff Sec also Ia Au-
nual. 2l6.
Plaintiff holds that the acts of omission
referred to in section 3546 Aforesaid, relate
solely to actions against sheritfs for dam
ages ior failing to seize property, or to ar
rest debtor, or to execute the process of |
the court, or from neglect OF duty; that it |
was never intended 70 exempt the |
sheriff trOm the payment OF money |
he had collected for plaintiff |
in a suit. and that this was expressly de. |
cided by a unanimous ccurt in the case Of /
spalding & Rogers ys. John P Walden ct |
ais. 23 An 474.
have carefully examined that decision |
and have not been able % find il basis or [
authority for the toregeing doctrine In
5he report Of that case there Is Che following
head note: - suit To recover from the
sheriff money made by him IN q judicial
Is not an action against g sheriff
or msteasAnce or nonfeasanc% in office. !
md is not therefore prescribed by two
Tears.' this note or syllabus is not an alb |
tract or statement OF the decision on the
point referred TO, and the reporter who pre- |
liked 1t as syllabus found no authority for |
{ in the decision OF the court. The note }
eferred to is therefore no authority what |
,ver. What the court decided was, that a |
ult 20 recover money from a sheriff. who
lad SOLD the property OF an absentee under !
IN attachment process in 1862, not for
money but for unlawful Confederate cur
sncy, aud without the consent of the
defendant, 10 not an action against
lie sheriff for msfeasance or non
easance III office, and is not therefore
prescribed by two years The case against
Walden and his securities in the last cited |
eclsion is quite different from that against |
he securities Of Bienvenu, the present case |
he act Of Sheriff Walden in taking illegal !
Confederate money was neither rnistea-
ance nor nonfeasance, but malfeasance.
3 An, 1872 1t was not an act embraced |
y article No. 1916 aforesaid. which could be
rescribed against in Two years. The
leritf, in the case at bar, sold property for |
awful currency. I have shown that he was |
ut in default by the demand made on him
y rule on the nineteenth Of June, 1866,
indeed he had not bee1 in default even
ON the day Of sale. Nonieasance is de-
ned by Burrill as: "A not doing; an omls- I
on to do something thar ought 70 be done: {
le not doing Of that which i was party's
uty or contract 20 do The act of Bien-
enu III withholding the money from the I
aintlh after demand was, in my opinion,
le OF nonfessance-asu omission 70 perform ! I
bcunden duty.
In the case OF James Hugh VS. Jo- !
pl Hernandez, decided recently BY
,e Supreme Court-a case against
le same parties who are herein |