If the obligation be considered an alternative one, or to pay a certain amount in Grand Gulf notes, or in cash, then the judgment should have been in the form settled in the case just quoted. The judgment of the court was pronounced by EUSTIS, C. J. Thomas M. and E. D. Newell have taken an appeal from a judgment rendered against them in the Court of the Tenth District sitting in the parish of Tensas. Gordon, against whom judgment was also rendered, filed his petition of appeal, but has given no bond; the judgment against him is consequently final. There is a motion to dismiss the appeal made by the counsel for the appellee, on the ground that the appeal bond is not for a sum sufficient to operate a stay of execution. The bond being for a sufficient sum to cover all reasonable costs, the appeal stands with the right of the plaintiff to take his execution, in the event of the bond being insufficient in amount to stay it. Ralph v. Hoggatt, 2d Ann. 462. Lewis, Executor, v. Splane, 2d Ann. 755. The motion to dismiss therefore fails. It appears, that on the 21st June, 1844, in the late Court of the Seventh District sitting in the parish of Tensas, the plaintiff's having recovered judgment against the defendant in this suit, the Grand Gulf Railroad and Banking Company, took a judgment against the appellants, who were garnishees. By this judgment, a privilege on certain debts due the defendants by the garnishees was decreed, which were ordered to be sold, to satisfy the judgment against the defendant; it then went on to decree the garnishees to be indebted to the defendants in certain sums payable in notes or obligations of the banking company, and that the notes by which the debt to the bank was created be held subject to execution, or other order of the court. On the 20th of March, 1849, the district court sitting in the parish of Tensas, rendered the judgment from which the present appeal is taken. By this judgment the plaintiff recovers from the appellants and their co-garnishee Gordon "in solido, and in current funds," the sum of $5400, with interest at eight per cent, from May, 1838, and costs; he was subrogated to the rights of the banking company in a certain mortgage, by which the notes of the appellants were secured, and the property mortgaged was ordered to be sold to satisfy the plaintiff's debt. This judgment was rendered against the appellants on an order of court nisi, that they pay or deposit in court the amount of their indebtedness to the banking company, or in default thereof, that the plaintiff recover from them the amount of his debt, with privilege on the property attached. We know of no warrant of law for a judgment by which a plaintiff is decreed to recover in current funds a debt; the formula is entirely without precedent, and inadmissible. The proceedings of the plaintiff are under the original garnishment, and must be conducted according to the laws regulating attachments. The article 265 of the Code of Practice provides for the remedy of the attaching creditor against property attached, and the power of courts over garnishees, withholding attached property, is certainly adequate to the full enforcement of the creditor's right. The plaintiff has his judgment of June, 1844. The garnishees have the right to require his proceedings in garnishment to be regular, and in conformity with law. It is therefore decreed, that the judgment of the court below be reversed, as to the said appellants Thomas M. and E. D. Newell; and it is further decreed, that unless within thirty days after the present decree becomes final in this court, the said appellants, or either of them, shall produce and file in the court MARSHALL v. GRAND GULF MARSHALL below notes or obligations of the said Grand Gulf Railroad and Banking Com V. AND BANKING GRAND GULF pany, to an amount equal to the sums following, to wit, the sum of $10,538 41, RAILROAD and the further sum of $3070 with interest on said last named sum at the rate of eight per centum per annum, from the 8th day of June, 1838, until paid and costs of this suit, the said plaintiff have leave forthwith, after the expiration of said delay, to issue execution against the said Thomas M. and E. D. Newell in solido, for the sum of $5400, with interest at the said rate of eight per centum per annum, from the 8th June, 1838, until paid, and costs of this suit in the court below; the said principal sum, interest, and costs, to be made and collected in lawful money of the United States; and it is further decreed, that the plaintiff pay the costs of this appeal. MUNICIPALITY NUMBER ONE v. ADAM YOUNG et al. The act of 3d of April, 1832, for the opening of streets, authorised the expropriation of pro- By the act of 8th of March, 1836, for the division of the city of New Orleans, the centre of A PPEAL from the First District Court of New Orleans, McHenry, J. Preaux, for the plaintiff. Collins, Blache, Lockett and Goold, for defendants and opponents. The judgment of the court was pronounced by EUSTIS, C. J. This is an appeal from a decree of the Court of the First District of New Orleans, dismissing their oppositions to a tableau of assessment and estimate made by the commissioners appointed for the opening of Esplanade street, under the act of 1832, entitled an act regulating the opening, laying out, and improving streets, &c. Acts of 1832, p. 132. This act conferred the power on the old corporation of New Orleans, under certain judicial proceedings, to appropriate land for the public use for the purpose of laying out and opening streets, squares, and public places. On the division of the city in 1836, the middle of Esplanade street was established as the dividing line between the First and Third Municipalities; so that the jurisdiction of the First Municipality does not extend beyond that line. It is plain, that the act of 1832 can only be carried into effect by a corporation whose jurisdiction extends to both sides of the street to be opened, and which has the power to receive the abandonment of any lot not exceeding four acres, part of which may be taken for the public use. The right to abandon such whole lots is guaranteed to the owner by the 5th section. The power to assess the property, or to receive the abandonment of lots situate on the eastern side of the street it is not pretended the First Municipality possesses. It is impossible to proceed under this act, unless the power to carry out its guaranties and requisitions is complete in the corporation seeking to appropriate private property to public use. Whether the union of the two municipalities in proceedings for the opening of this street could be maintained, is a question not before us. The judgment of the district court is therefore reversed; and it is further ordered, that the proceedings against the property of the opponents and appellants be dismissed, with costs in both courts. PIERRE BOULAT v. MUNICIPALITY NUMBER ONE. Where, under the act of 3d of April, 1832, for the opening of streets, &c., the owner abandons a lot and claims the assesed value, and the proceedings are afterwards homologated, the property belongs to the corporation, which has a right to take possession of it, and the former owner is a judgment creditor for the value assessed. A The PPEAL from the Third District Court of New Orleans, Kennedy, J. Budd, Castera and Barthe, for plaintiffs. Preaux, for defendant. judgment of the court was pronounced by EUSTIS, C. J. The plaintiff is the owner of a lot fronting on the Carondelet walk. In the judicial proceedings instituted by the municipality for the opening of the said walk, a portion of the petitioner's lot being necessary thereto, the whole of the petitioner's lot was appraised at the sum of fourteen hundred dollars, under the act of 1832, for the opening of streets in New Orleans. Under the 5th section of said act, the said plaintiff abandoned his lot to the municipality. The tableau of assessment was afterwards homologated, and the judicial proceedings closed. In those proceedings, the plaintiff prayed for judgment against the municipality in conformity with the law; and although the tableau has not been brought up before us, we presume that the proceedings were in conformity to the statute. Under this section of the act, by virtue of these proceedings the lot became the property of the corporation, which was thereby put in the place of the owner, who becomes the judgment creditor of the corporation. The corporation had a right to take possession of the lot, which the petitioner had thus transferred; and as it is the act complained of by the petitioner in this suit, he has no action against the corporation on that account. The other parties made defendant in this suit not having appealed, no change can be made in the judgment against them. It is therefore decreed, that the judgment of the district court against the appellant, Municipality Number One, be annulled and reversed; the plaintiff's petition, as to the appellant, being dismissed, with costs in both courts. CANAL BANK v. HENRY HOLLAND et al. Where the charter of a company directs the mode in which stock in it shall be taken, and stock is issued by the company in contravention of the regulations imposed by the charter to a purchaser who executed his note therefor, when sued on the note he cannot set up as a defence the violation of the charter in the sale to him. If other stockholders do not complain of the sale to him he cannot set up his own wrong in his defence. A PPEAL from the Fourth District Court of New Orleans. Strawbridge, J. E. A. Bradford, for plaintiff. J. Gedge, for defendant. Miles Taylor, for Mexican Gulf Railroad Company. E. L. Goold, for warrantor. The judgment of the court was pronounced by ROST, J. The defendant, Holland, subscribed a note for the sum of $5000 payable twelve months after date to the order of the comptroller of the Mexican v. CANAL BANK. Gulf Railway Company, for value received in stock. That note was discounted HOLLAND. by the plaintiffs in the usual course of business. It was protested for non-payment at maturity, and notice of the protest was given to the company. The object of this suit is to recover the amount of the note from the drawer and endorsers. The railway company made no defence. Holland admitted his signature to the note, but averred that it was null and void, on the following grounds: 1st. That the note was obtained by fraud and false representation, without any consideration. 2d. That the railway company proposed through their agent or broker that he should take shares, representing that the railroad should be carried to a point at least twenty miles beyond its then terminus, and that the stock should be a stock paying eight per cent. 3d. That it was agreed that he should make his note for the amount of stock he should take; that it was to be paid in twelve months, and should be renewable for six and twelve months longer; and that it should then be null and the agreement cancelled if these promises and conditions were not fulfilled and performed. 4th. That Conrey, the president of the company, and Gordon, one of the directors, combined to procure the note for their own use and benefit. The defendant prayed that the railway company, Peter Conrey, and the Executors of Alex. Gordon, who had died before that time, might be cited and made parties to the suit; and should judgment be rendered against him, that the same judgment might be rendered in his favor, and in solidum against these parties, reserving all his rights for damages against them. Peter Conrey and the Executors of Gordon filed general denials; the railway company also filed a general denial, and further answered that it is true they agreed that the note sued on should at maturity be renewed, one half for six months and the other half for twelve months, if the defendant desired it. But that he never notified them of his desire to renew on the terms agreed upon, nor did he tender the notes he was to give in renewal. The judgment of the district court was in favor of the plaintiffs, against each of the defendants for the amount claimed, and in favor of the Mexican Gulf Railway Company, Peter Conrey, and the Executors of Gordon, on the call in warranty, reserving all claims and rights of the defendant Holland for damages against all or any of them. Holland has appealed. We concur fully in the opinion of the district judge, that there is nothing in the record to show that the plaintiffs are not the bona fide holders of the note sued on, and that the negotiability of a note is not affected by the fact that it shows on its face the nature of the consideration for which it was given, provided that consideration be lawful. The defendant's counsel urges that the consideration stated in this note is unlawful, on the following grounds: 1st. That the charter of the railway company is a public law, of which the plaintiff cannot plead ignorance. 2d. That the 9th section of that act says, that the books of subscription for stock shall remain open during twenty days, and that this delay having expired when the stock in controversy was sold to the defendant, the sale was illegal and void. 3d. That the 4th section of the same act provides that two dollars per share shall be paid at the time of subscribing, and the remainder at such times as the president and directors shall appoint; provided that no more than ten dollars a share shall be called in at any one time; and provided also that thirty days notice in two newspapers printed in New Orieans shall be given for the payment of each installment; and that a sale of stock at twelve months' credit, renewable for six and twelve months longer, is in direct violation of this section. v. It is shown that there was stock already taken and in market when the sub- CANAL BANK scription books were re-opened; and the note does not, on its face, show for HOLLAND. which of the two kinds of stock it was given. But if it did, the informality complained of is one of which the other stockholders could alone take advantage; and they have not done so. The defendant is now in the undisturbed possession of the stock purchased by him, and has made no offer to return it. It would be against good conscience to release him from the obligation of his contract while he retains the consideration of it. If the charter of the company was a public act, he also is presumed to have known it when he induced the company to disregard its provisions. If the subscription, as made, was illegal, about which we express no opinion, he was the cause of the unlawful act, and cannot be permitted to take advantage of his own wrong. We adopt, also, the interpretation put by the district judge on the promise of the company to renew the note at six and twelve months. Under the common acceptation of this phrase, the note was to be replaced by two others, each for one half of the amount : one payable at six, and the other at twelve months. The defendant, not having tendered notes of that description, is bound on his original contract. The last ground alleged is in relation to the call in warranty. The defendant alleges that the company is liable to him on account of its misrepresentations as to the prolongation of the railroad and the value of the stock, and its promise to return the note if those representations were not verified. The evidence adduced, if it was properly before the court, and in itself satisfactory, does not support those allegations. The defendant and his witness seem to have considered Mr. Gordon as the railway company. He was merely a stockholder, and his representations cannot bind the corporation. There is nothing in the record to substantiate the charge that Conrey and Gordon combined to procure the note for their own use and benefit. The proceeds of it appear to have been applied to a debt of the company. The judgment is affirmed, with costs. EDMUND P. DWIGHT v. THEODULE RICHARD. The question of continuance cannot be considered by the Supreme Court where there has been no bill of exceptions taken to the ruling of the court of the first instance. A purchaser who knew, at the time of the purchase, of the existence of outstanding conflicting claims, cannot refuse payment of the price on account of those claims. C. C. 2535. Where a plat of a survey was annexed to interrogatories, and filed in the clerk's office, it is not necessary that a copy of the plat should also be served on the opposite party to render the evidence taken under the interrogatories admissible. Where an order of seizure and sale issued for the payment in cash of one of the installments past due, and for the installments to become due, and before the sale a second installment fell due, for the payment of which a second order of seizure and sale was issued upon both orders being enjoined, the court dissolved the injunction, and decreed that the property should be sold for cash, all the installments having in the meantime fallen due. A PPEAL from the District Court of Assumption, Randall, J. W. C. Dwight filed a brief for plaintiff in injunction. C. A. Johnson, for defen dant. The judgment of the court was pronounced by 5 365 44 190 |