Rogers v. Walden

23 La. Ann. 474

• Court: Supreme Court of Louisiana
• Decided: May 15, 1871
• Docket: No. 2206
• Status: Published

Opinions

Wyly, J.

In September, 1861, David Bidwell, claiming- to be a creditor of the plaintiffs, who. were citizens, the one of New York and the other of Pennsylvania, xsued out an attachment against them in the Sixth District Court of New Orleans, under which was seized their steamboat called the Banjo, which was sold by the defendant, Walden, then sheriff, under a preliminary order of court, on the twenty-fourth day of February, D62, for $2000 cash.

After the occupation of the city by the United States forces, in 1862, the attachment was released, and the court ordered the proceeds of the sale of the steamboat Banjo to be paid over by the said John P. Walden to Spalding & Rogers, the defendants in the said attachment suit. Having failed to do so, the present suit was instituted by the plaintiffs against him and the sureties on his bond as sheriff.

The defense urged in the brief is that the currency at the time of the sale was Confederate treasury notes; that such currency could only have been expected at the time of the sale, and that the sheriff was bound to hold the same until the parties agreed to the distribution. In support of this position, the case of Harvey, syndic, v. Walden et ais., lately decided, is relied on. In the case cited, the plaintiff obtained from the court an order of sale, and placed it in the hands of the sheriff in 3862, and under the writ the sheriff sold the property for Confederate treasury notes, which he deposited in bank, and the proceeds of the sale were not called for by the plaintiff till August, 1863, and it was proved that the sheriff was roady and willing at all times to pay over the currency received by him. In that case the court held that the plaintiff, residing in the city of New Orleans, must be presumed to have known that there was no other currency in circulation except Confederate money at the time he placed the writ in the hands of the sheriff, and by placing the writ in the hands of the latter to sell the property of his debtor, he authorized him to receive Confederate treasury notes for the price.

The theory of that decision was that by requiring the sale at the time he knew it could only be effected for Confederate money, the plaintiff in execution authorized the receipt of that unlawful currency by the sheriff, and should not be permitted to take advantage of the latter in a proceeding sanctioned by himself.

In the case at bar, however, there is entirely a different state of facts.

The defendants in the attachment suit, the plaintiffs in this suit, can not be presumed to have authorized the sale, or in any manner to have sanctioned the proceeding, being at the time absent from the city, and residing, one in New York and the other in Pennsylvania.

It would be unreasonable to presume that these citizens of loyal States, whose property was attached in rebel lines, authorized the sale thereof under a preliminary order of court for Confederate treasury notes, or that they sanctioned the receipt of said notes by the sheriff for the sale of their property.

We think the judgment of the court below in favor of the plaintiffs is correct.

Judgment affirmed