Lawes v. Chinn

4 Mart. (N.S.) 388 | La. | 1826

Martial J,,

delivered the opinion of the court. The petition states, a separation of goods had taken place between the plaintiffs, and the wife had a judgment against the husband : in consequence of which, certain slaves of his were sold, and purchased by her, and the defendant has caused an execution he had obtained against him, to be levied on one of these slaves, who was sold and purchased by ihe husband, at twelve months credit, and she joined hi in as his sec urUy on lite bond, and execution has accordingly issued and is levied on die slave, whom ihe sheriff* is preparing to it

Ie ¿s0" ¿r, aui|oi*“y ¡^ñd. her bi|C'

The petitioner after an averment of the wife’s title to the slave, and of her incapacity legally to bind herself as security for her husband, prays for an injunction, which accordly issued.

The defendant, though cited, made default, and the injunction was made perpetual, lie appealed.

His counsel urges, the wife was not au-thoriseri by her husband to sell ; the defendant appears, by the petition, to be a resident of the parish of Feliciana, and was irregularly sued in that of Ascension—the judgment by default given on the 4th of May, was prematurely made final on the 7th of May; no proof was administered of the allegations. He had a right to his execution, and the injunction was improperly made perpetual.. The wife’s remedy was by an action of mortgage;, she was legally:bound as surety.

1st, The husband and wife being co-plaintiffs, his authorisation to her, clearly resulted ..... , ...» . . from his joining the suit, m winch be nad no 0t{ler interest than to assist her in asserting her right.

2d. The injunction was a remedial writ against the sheriff, to prevent an immediate injury, which could not otherwise be effectually-warded off and the plaintiff was necessarily cited to gainsay the allegations of the party and assert his right. Ex necessitate rei, it must have issued by the judge of the parish in which the execution was to be carried into effect. If an execution from Ouachita or Natchitoches, was levied on the parish of Terre-aux-Bceufs or Washington, on personal property, it might be sold and removed to a distance, if none but the judge of Ouachita could issue an injunction.

3d. The injunction was made perpetuabas the record shows, on the 19th May, a fortnight after the default was takes, although an entry, that the judgment in default was made on the 4th.. This entry was signed, and we conclude, that the making the injunction perpetual, was the final judgment.

4th. There: is no statement of facts, and we are bound to presume that the legal evidence : . , :: ... . . , . . required, was administered.

Watts ⅝* Lobdell for the defendant.

5th. The slave being the wife’s property, she had a right to resist the sale for a debt of her husband, and she was not driven to an action of mortgage.

6th. We having held in Durnford vs. Grog and wife, 7 Martin, 465, that a wife is not legally bound by a note jointly executed with her husband.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.