New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-03-07
COURT RECORD.
SATURDAY, MARCH s, 1875.
Superior District Cour,.

First District Court.
SENTENCED.
aetty larceny - Michael Ryan, eleven
Mo oh' George Walker, one year; James
Aunan, ten days; A. Faclo. one day
Enterlns, etc-Noel Manuel, eighteen
,v Assault. etc.-Elna Clay, ono day; Bill
wilson, one month.
Second District Court.
ouccessiOns of Nicholas Welsch, Alexan.
urine Lassus. wife of Charles j. Leoarpen-
tier, Julia Edna Wolfe, John Davis and
Marian Stewart, his wife, opened.
Third District Court.
Judge Meuuier rendered the following
decision:
e. Hughes vs.. j. w. Tucker; f. F.
Virgin, surety on a forthcoming bond
Edwin Hughes having instituted two sepa-
fdte suits before the Seventh Justice Court
against one G. w. Tucker, his tenant,
caused the furniture and movable effects Of
anis latter to be Professionally seized.
Tucker, avaiing himself of the right CON
ierred upon him by the law, gave t. the
JUSTICE OF the peace bond as required by
article ll27 Of the Code Of Practice, with
r. r. Virgin as surety, and obtained the
restoration of the furniture aud effects
selzed In those two suits. Judgments hav-
ing been rendered by the lower court against
The defendant in the original suits, the
plaintiff, Edwin Hughes, caused two writs of
heri facias to issue, which were both return
ed by the constable nulia bona. The said
plaintiff then took two separate rules
against the surety, 4. F. Virgin. to show
cause why he should not be condemned to
pay the amount Of the two judgments rem
dered against Tucker. the defendant in the
original suit, say $54 for each Judgment,
with interest and costs. 4. +. Virgin, the
surety on the Release bond, excepted t. the
proceedings against him on the following
grounds: l. Because plaintiffs action
against him is premature, the delay for an
appeal from the jud gmeDts rendered against
the original defendant having not Yet ex-
pred. 2. Because there has been no valid
execution issued or returned against said
original defendant. g. Because the appearer,
surety on release bond, can not be brought
cOram JUDGE by rule or motion. 4. Because
appearer, If he has contracted any Obliga-
ton toward the plaintiff in the original
causes, that obligation is single and can not
be split up into two suits. 5. Because the
Seventh Justice Court is without uri-dc
lions rati0ne n,ate,itc, the amount involved
being above $lUO; and last, because the
bond is informal, defective and not in ac-
cOrdance with the law. These exceptions
being overruled by the lower court, and
judgment having rendered against the sure
ty, this latter appealed from SAID judgments.
/. After a careful examination both OF
the proceedings had before the court qua
aud OF the release bond signed by L. +.
Virgin IA surety, 1 am satisfied that the
wIIts of tieri tacias against the original
defendant, Hughes, have issued within
the legal delay; that is, after the two .dg
ments rendered against him had become
executOry; and that the same have been re-
turned into court in conformity TO the re-
quireHients OF the law. The release bond is
neither defective BOZ informal; having been
executed under the prescription of article
lI27 Ut the Code OF Practice, it il made pay
able to the justice Of The peace, aud is.
therefore, in accordance with the require
ments Of the law.
:! The defendant in the original causes
having given single forthcoming bond to
obtain the restoration of his property pro-
seized in two separate suits, the
plaintiff may enforce his right against the
surety on SAID bond in two separate actions
and claim frOru the latter, in each action,
the payment Of each Of the Judgments
which he had obtained against the original
defendant. The two Judgments rendered
against SAID defendant being only for an
amount OF 500 each, with interest and costs, !
and plaintiff 8 demand in the two rules
which he has taken against the surety being
but for Il like amount in each rule, the JUS |
tice Of the peace is not without jurisdiction
to entertain plaintiffs proceedings against |
said surety. The first, second, fourth, fifth |
and sixth exceptions seem to DO untenabie, !
and were therefore properly overruled by !
the judge q guD. As to the exception No. ). |
setting forth that the surety on fOrthcOnl- |
ing bond can not be brought cOram judicc |
by rule or motion, l am of tht opinion |
That the seventh justice of the peace erred !
n overriding that exception. Summary |
can be resorted to bnt in ca SEES |
expressly prescribed by law Being in dero-
cation to the rules which govern actions
as laid down in the Code of
he case expressly provided by tho law
uaker. G. p, articles 50. 10 and 75i; , a.
{ 434; II A. X. 1872, pol, 799. In the ease
# Thomas Va. Bourgeois, Rob, 43. the
supreme Court laid down this doctrine:
the right to proceed by rle or motion
IMPLIES the tendency of suit between the
PARTIES and is coufned to incidental! matters
which may arise in the progress Of the con-
estation, except in certain cases where
urinary proceeding is expressly allowed
" law" The surety on a bond given for the
elease of property professionally seized can
10 more be considered il any sense party
0 the suit than the surety on bond given
or the release of property that has been
The right To proceed sum'aa-
ily against sureties on bonds given iii cases
f appeals has been expressly conferred by
rticle $50 of the Code Of Prac .ice it has
lso been expressly conferred by tie act of
Iarch 20, 1899, in proceeding against
ureties on bonds given III cases OF arrest
nd attachment but it has not been ex.
ended by that statute, nor by any subse-
uent legslation, to cases OF provisional
eizure. In the absence of express legisa-
ion. the judgment creditor wishing to
,dically en- force his right against the surety
n a bond given for the release OF property
occasionally seized must resort to the oidl-
ary form of action as pointed out by law
IL is therefore ordered and decreed that
he two judgments rendered by the lower
curt against L. f. Virgin, surety on a re-
,ase bond. on the ,hirtieth OF July, 1874. ID
ne su;t of Edwin Hughes VS. G. W. Tucker.
-os. o76 aud 277 of the docket OF the Sew
nth Justice Court, be reversed. And 1t is
,rttpr ordered and decreed that the ex
,ption to tho proceeding by rule, herein
led by said Virgin. be maliita'ned; reserv
20. however, to the JUG gment creditor. u
nghes, his right OF action, ii any be las
,ainst said Virgin. surety on tho release
md. 10 be enforced according to the mode
,ovided for by law. the judgment creditor,
Hughes, paying costs IN bolh sults.
Fourth District Court.
Judye LYNCH rendered the following |
dgment: r
Heirs of John Siidell VS.. John NJ Hoye-
for plaintiff Alfred Slidell, tlarie
arearet Caroline Slidell. wife On Jacob
ntoino Henry Leodegas Charles LsTis
lev fer de Hydegs; Marie Rosine oIldei',
lie of Etienne Pierre jacques Henry ne
,rras ,,e Sr. Roman. aud Marguerite Ma
;iaa Sli6el!, wife of Emile d'ErlanGer and ,
ans. the defendants. John NJ. 1ioyle and
iwsrd IL. Chadwick, recognizing Fai4
aintifis as owners OF The square bounded
, Cnrtez. Gravier, s.. Johu and Julia
reefs, subject to the expropris'ion OF the
~ Of leo by $40 feet 10 inches, Tor the c
~ of the Poydras cauai, and ais" foT !
900. the proceeds of the price OF eyre
-, wi coa-S tina repDnVcn.lGntl de- | /,