9 Rob. 535 | La. | 1845
This suit is instituted upon a bond given by the defendant, Barrow, in order to be allowed to keep in his possession the property sequestered in the case of Welsh v. Shields et al., decided last year by this court, upon which property the plaintiff claimed a privilege, which was subsequently recognized by us in our judgment. By the decree of this court, it was ordered, that the amount of the judgment rendered below against the defen- ■ dant Shields, be satisfied, by privilege, out of the proceeds of the properly sequestered in due course of law.
The condition of the bond sued on specifies, that “ if the said
The defence sets up that Shields, the principal defendant in the first suit, has paid to the plaintiff the amount of his seiwices as overseer, for 1841; and further states that the fact of payment came to the knowledge of the defendants since the trial in said suit; that Welsh and Shields had a full and final settlement of all indebtedness; and that respondents are not able to plead more specially, as their information is derived from the declarations of the plaintiff, who did not state the tune, when the payment was made, &c.
It further appears that, before the case was fixed for trial, on the motion of the plaintiff’s counsel, the judge & quo ordered the whole of the defendants’ answer setting up payment of the amount sued for to be stricken out, and that the case was fixed for trial instanter. The defendants’ counsel excepted to this opinion of the inferior court, but the bill of exceptions not having been brought Up with the record, the counsel have agreed on a written statement of the point in controversy, as it was presented below on the trial of the motion.
The plaintiff obtained judgment against both defendants, in solido, for the amount of the judgment rendered in the first suit, with the interest and costs accrued thereon; from which, after a vain attempt to obtain a new trial, said defendants have appealed.
It seems to us that the motion of the plaintiff’s counsel to strike the defendants’ plea of payment out of their answer, and the order rendered thereon, was rather an extraordinary and irregular proceeding. It is true that the answer did not state the time at which the alleged payment was made ; and that, if it was made before judgment in the first suit, this defence, perhaps, would not have benefitted the defendants, unless they were really ignorant of it; but this is no reason why the defendants
But there is a fatal objection to the plaintiff’s maintaining this action. It is this : this suit is brought upon a bond taken by the sheriff in lieu of the property sequestered. Although it
It is, therefore, ordered and decreed, that the judgment of the • District Court be annulled and reversed; and that ours be for the defendants, as in case of nonsuit, with costs in both court.
In the cases of Peter G. Creiger v. John Goodin, William D. Leland v. Thomas Barrett, John Walsh v. Francois Pralon, and TJlger Lauve v. George Guih, from the Commercial Court of New Orleans, the judgments below were affirmed on appeal, in New Orleans, with damages, during the period embraeed by this volume.