FINK vs. LALLANDE ET AL. day of the exe to sell after the return of the V. The writ was returned on the 5th December, and the EASTERN DIST. sheriff's sale took place on the seventh; he had then no writ December, 1840. in his hands, since the next execution was not issued until the 12th of the same month. This court has held in the case of Aubert vs. Buhler, 3 Martin, N. S., 196, that if a levy be made under a writ of execution before the return made, within or If a levy be day, the sheriff may proceed to sell afterwards. In our sis- before the return ter states, under the common law system, a writ of venditioni cution, the sheexponas is generally issued after the return of the fi. fia. under riff may proceed which a seizure has been made; but this proceeding is wards, even after unknown to our laws, and still, according to our jurispru- writ. dence, the sheriff may proceed to selling the property seized, although in making said sale, he cannot be considered as deriving any authority from a writ which has expired, whether kept by him or returned after the return day. We are not ready to say that the fact of the sheriff having returned the writ under which he had made the seizure, would in itself be sufficient to invalidate his sale, unless there resulted a clear violation of the law, which on the contrary, as it then stood, is silent on this subject. We think, therefore, that, although the most proper and safe course would have been to take out an alias fi. fa. in order to make a regular return of his proceedings, the sheriff might legally proceed to selling the property seized under a former writ, which he had thought himself bound to return for want of time. terial, in a sheriff's sale on The appraiseVI. The appraisement was perhaps irregularly made; ment is immabut as the sale was made at one year's credit, for whatever price should be offered, the appraisement became immaterial; this point might have been of some importance, had appraisement complained of been the basis of a cash sale. the VII. The property appears to us to have been sufficiently described in the advertisement; it is in conformity with the return of the sheriff; it has not been shown that the purchaser ever mistook the lot which was adjudicated to him, and the present controversy has convinced us that the locus in quo is not the real matter in dispute between the parties. VIII. The advertisement is dated the 23d November, and the sale took place on the 7th December, giving fourteen days, twelve months' property credit, when the must be sold for whatever it will bring FINK vs. LALLANDE ET AL. EASTERN DIST. (one inclusive and the other exclusive) as required by the December, 1840. English text of the then existing laws, passed before the constitution of the state was adopted. It is true that the French text says fifteen days, but as the two texts cannot be reconciled, we must say that a compliance with either ought now to Before the be considered sufficient; and it is well known that at that adoption of the constitution, a remote period, both texts having equal force, the two populacompliance with tions of Louisiana were in the habit of observing the laws as lish or French they understood them in their respective languages. either the Eng text of the law was sufficient. After a lapse riff's acts; and On the whole, we are of opinion that after a lapse of more than twenty years, as this court has held in the case of Brosnaham et al. vs. Turner, ante, 433, lately decided in the Western District, the legal presumption must of twenty years, be in favor of the sheriff's acts. If otherwise, there would the legal presumption is in be few ancient sales which could be maintained; as it favor of the she would be almost impossible to produce the appraisements, of the legality advertisements, and other proceedings relative thereto. and validity of a sheriff's sale. Plaintiff has shown in this case, a judgment, a writ of execution, and a regular deed of sale from the sheriff; he and those under whom he claims have had the civil possession of the property in dispute for at least twenty-two years, within the knowledge of Jean Gravier; they always paid the taxes on it, and have had every reason to consider the premises as their own. The silence of Jean Gravier, the defendant on whom they were sold, during such a lapse of time, shows at least an acquiscence on his part almost equal to a tacit ratification of the sheriff's acts. Under our present system, the formalities required in forced alienations, are so well defined and pointed out in our Code of Practice, that there could be no excuse for not pursuing them strictly, but we do not think that the proceedings had under the former laws of the state, ought to be scrutinized with the same degree of rigidity; and we therefore conclude that the sale made by the sheriff to Wirtenbacken, in 1814, under which the plaintiff claims title, is valid; and that Jean Gravier having then been divested of his title to the property in dispute, the same could not be sold as belonging to his succession. With this view of the case, it becomes unnecessary to EASTERN DIST. examine the question of prescription relied on by the plain- December, 1840. tiff, and our judgment must be in his favor without any reservation or restriction. The judgment of the lower court must, therefore, be amended, inasmuch as it does not decide on the question of title, definitively in favor of the plaintiff; and as it disregards the admission made by the parties of the amount claimed for improvements made on the property in dispute, by the defendant, to wit: four hundred and ninety-five dollars, from which the plaintiff must necessarily be benefited. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled avoided and reversed; and this court, proceeding to give such judgment as ought to have been rendered by the lower court, it is ordered, adjudged and decreed, that the plaintiff be forever quieted in his title to and possession of the property described in his petition, as against defendant and his warrantor; that the sale from the estate of Gravier to said defendant be annulled, and set aside, and that the defendant recover of the plaintiff the sum of four hundred and ninety-five dollars, with legal interest from the date of this judgment, until paid; and that the costs of the lower court be paid by the defendant's warrantor; those of this court to be paid by the plaintiff and appellee. PATTERSON vs. GARRISON. PATTERSON vs. GARRISON. APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS. Where there is no evidence of the rate of interest, in the state where the obligation sued on was made, it must be assumed as the same rate of legal interest in this state. EASTERN DIST. This is an action on two promissory notes executed by the December, 1840. defendant, in the State of Maryland, the 21st October, 1837, payable in one and two years after date, to the order of the plaintiff. PATTERSON v8. GARRISON. Where there The defendant admitted his signature to the notes, but denied that he ever received any consideration therefor. He prays that the suit be dismissed. Interrogatories were propounded to the plaintiff, touching the consideration, who declared on oath, that it was for money loaned and advanced to one John Gooding, for the purpose, and applied to the improvement of defendant's property, in the vicinity of Baltimore, and that the latter guarantied the re-payment of it, at the time, &c. There was judgment for the plaintiff, allowing 6 per cent. interest, without proof of the rate of interest in Maryland. The defendant appealed. Eggleston, for the plaintiff. Jennings and Penn, contra. Martin, J., delivered the opinion of the court. The defendant is appellant from a judgment on his two promissory notes. He did not deny his signature to the notes, but relied on a want of consideration. He made an unsuccessful attempt to probe the conscience of the plaintiff, by propounding interrogatories. The answers to which fully establish the consideration, and charges the defendant. There was other proof of his indebtedness. The notes were given in Maryland, and bear upon their is no evidence of face legal interest. The judge a quo allowed interest, at the per cent. per annum. There being no evidence in where the obli- the record, of the legal rate of interest in the State of Mary the rate of inter- gation sued on was must be assumed made, it land, the judge ought to have assumed that it was the same as the same rate as in this State, to wit, 5 per cent. of legal interest in this state. It is, therefore, ordered, adjudged and decreed, that the judgment be annulled and reversed; and it is further ordered, adjudged and decreed, that the plaintiff do recover from the defendant the sum of eighteen hundred dollars, with five EASTERN DIST. per cent. interest, from the 21st of October, 1837, until paid; December, 1840. the plaintiff and appellee paying the costs of the appeal. HART & MERRITT vs. DAHLGREEN &co. HART & MERRITT US. DAHLGREEN & co. APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS. Where the answers of a garnishee are not explicit or responsive to the interrogatories, on his failure to make proper answers, the interrogatories will be taken pro confesso, and the garnishee held liable for the defendant's debt. This is an action by the drawers, against the acceptors of a bill of exchange. Twenty bales of cotton was attached, alleged to belong to the defendants, in the hands of Samuel Wright, who bonded it, and intervened, claiming it as his property. Interrogatories were propounded to the garnishee, requiring him to state if he had not received, and then had cotton, produce or property of the defendants in his possession. He answered that he had received cotton from the defendants, for account of other persons, which had been duly appropriated according to directions received with it, previous to the attachment or garnishment in this suit. "That no credit remained to the defendants, as the same had not been received for their account." The attorney appointed to the defendants, stated he had been instructed to say the defendants had a good defence, but as no property was attached, he declined stating it. He also pleaded a general denial, and prayed that the suit be dismissed. Wright intervened, and claimed the cotton as his property, alleging that it was shipped to him by one Ellis, in Mississippi, to cover advances made to him; and that the defendants acted as his agents in sending the cotton. |