The New Orleans daily Democrat., 1880-04-16
SUPREME COURT DECISIONS.
NO. y77f-FELrx dRHEvEs VS., EXECUTORS AND
HEIRS OF BOUTrE.

no T77f-FELIx dREEvEs vs.. EXECUTORS AND
HEIRS OF BoUTTE.
/ By 1fdyr, Jan appellee cannot obtain the
dIgfniBgnl OF the appeal on motiOn buREesb-
Il Ing that some OF the appellants, whose aitida.
vtfs are annexed In support OF the motion, had
When the names OF some Of the parties
least In suit have, without their auth0riza,,
Etion, been Joined In petition ior an appear a..
z while they do not desire TO prosecute, they
can, on motion, dismiss the appeal as 10
themselves, and time to have them cited as
appellees will then be granted to the other
i appellants.
NO e32G-DEnpHINE DoLHoNDE. cURATRIx,
vs. N. p. LEMo1NE gr AIS.
m, DeIsInac. ,y.--Absence cannot OF itself be
considered as an incapacity to receive by do
II nations mortis cGusd. and unless the death of
ari absentee 10 whom such bequest has been
made Ia established as having occurred prior
4 III that al the teetator, the executors or the
latter have no right to transmit TO the pre-.
sumptive heirs OF the absentee his share OF
the succession. ..
THE wife OF an absentee who has been ap-
pointed % his curatrix, ls authorized to ac-
cept In his name and stead, legacy made to
I him and to sue, for the recovery thereof, the
presumptive heirs OF the absentee who have
been put In possession Of the legacy
NO. 7779--E. ,. GAY vs.. MRS NJ. NJ. SUTTON EFT
ALs.
Bp DeBidnc. J.-When by agreement be-
tween two seizing creditors tine property
seized is sold and the proceeds held by one oi
the creditors. subject to the Judgment to be
provoked as to their respective rights Jnere-
on, the creditor who thus becomes the de-
poeitary, upon the other being decreed the
owner of tho funds. cannot apply them, by
way OF compensation, to the payment ot q
debt due him by the deposftor.
NO. 7759-IN THE MATTER OF MoRaAN's RAIL
ROAD AND STEAMSHIP COMPANY PRAYING
FoHs COMMISSIONERS
BIZ Spencer, 1.-The right OF appropriation
being u legal one, It's exercise does not give
rise to any other than actual damages, and
consequential damages cannot, therefore, be
allowed.
When property sought to be appropriated
Ia encumberad by d lease, the person provok-
ing the appropriation is. In addition to the
value Of the land paid to the owner. liable to
the lessee for any excess In the actual value
of the leasehold for ths unexpired term over
the amount OF rent stipulated to be paid dur
Ing that period.
NO. 7y9O-HENRY WESTON vs.. CANAL STREET,
CITY PARK AND LAKE RAILROAD COM
PANY.
BIZ White, J.--When resolution OF the d.
rectors oil railroad company providing for
effecting loan and mortgage upon the road
ie silent as TO the purposes Of the loan, parol
evidence Is admissible to show the purpose OF
the borrowing, and IL 1t be shown that It was
for purpose authorized by law the mort
gage should be enforced.
NO. 7599-Aua. TH1nMAN VS.. aUEBLE 4 NIP
PERT BT AL
Bu White. 1.-THE liability as surety OF a
person who, not being on the face OF prom
Issory note party thereto, Ia sLed as an IN
dorser, can be- enforced despite the mistaken
designation In the pleadings.
When the payee OF promissory. note 10
a sued como mine as an indorser, evidence ad-
@ mitted without formal objection, that he was
n surety and not mere indorser, can, under
the general relief prayer, be considered and
WEiven effect.
NO. 7sII--PrERRE FTLLTAsTgE vs. A. ST. Ar
MAND.
Bg White, 1.-THE giving Of twelve month
bond as the price OF property sold under ex-
ecution does not before Its payment, extin-
seized debtor, its effect being merely to Gre
\ ate without novation O new debtor, and the
extinction OF the new obligation carrying with
IL the extinction pro tanto OF the old.
When property sold at the instance OF the
.solder of the fret mortgage is adjuttcated
on twelve months credit and the bonds. exc
cnted by the purchaser and delivered to the
upS,tt, not being paid, execution is issued on
one oil Cha bonds their several holders are
not entitled to claim the proceeds concur
rently, but must be paid In the order In which
their respective mortgages have borne upon
the property prioe to It's first sale, though
The doctrine that mortgages are trans
ferred to the proceeds OF q forced sale on
. twelve months credit does not obtain when
the seized debtor becomes the purchaser.
Such sale Ia considered mere prolOnga-
tion OF time with security, and the original
mortgages must be reinscrtbed, before pre-
emption, In order to preserve their rank.