New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1859-12-08

/ pineS = irelgnI-carfylng capacity WITH HSntneS
Of draught not achieved in any river steamer nth
crto built In good time, however, she will speal
for herself and tell the Southern public what the,
may look for hereafter in the way Of Louisville
boat building. G.
SUPREME COURT DECISIONS.
ctas. Il. Dauis, appellant vs.. Henry 9. MiAam
don, agent, appellee Appeal from Second Judicial
District Court of st. Bernard Judge Land delv-
cred the opinion of the Court-This is an injunction
suit TO arrest the execution Of an order OF seizure
and sale sued out for the collection OF mortgage
note given in part payment OF the price Ct plan
tation and slaves purchased by the Plaintln from
one Benjamin L. Millaudon. The grounds OF the
injunction are, the danger Of eviction BY reason OF
an outstanding title and deficiency n tne quantIy
minishes as alleged the value Of the estate IN the
/ sum of at least SIG 900.
| The first ground Of injunction was decided re-
Gently by this Court in the case of the plaintiff,
Charles II. Davis, ". Laurent Millaudon, and ad-
versely to his pretentions. It is consequently. only
necessary to consider the second alleged ground
for this Injunction.
the sale to the plaintiff was sale PEI, acesionen,
in which the quantity of acres mentioned is of no
importance, and pleads the prescription Of one
year to the plaintiff IS demand for diminuton of
price. In supplemental answer the defendant
pleads peremptory exception to the plaintiff pc
fition on the ground that his demand for a diminu-
ton Of the price is an unliqudated claim, which
cannot be pleaded IN compensation OF debt evil
dcnced by an act importing confession of judg-
ment nor can arrest q writ of seizure and sale
thereon. He further pleads that he purchased on
the 18th of July last, some two hundred and fifty
acres of land in the rear of that portion of the
plantation which lies on the right bank of the
bayou which he hereby tenders to said plaintiff to
be considered as forming portion and parcel of
his plantation
This supplemental answer was filed on the 9th
e II
lowing the plaintiff made an application for con-
tinuance, on the grounds of the absence of mate
rial Witness and that further time was necessary
to enable him to inquire into and examine the de-
lenses that he may have to the demand rendering
new lands in satisfaction of his claim for diminu-
ton Of price.
In our opinion, the District Judge erred. If the
vendor has the right to tender other lands in salts
faction of a vendee's demand for a reduction of
price, in consequence Of a deficiency in the guam
tity of land sod the tender should be of lands of
the same quality and value as those actually con-
veyed, and to which the vendor has good title in
law.
On the trial Of the cause, which took place on the
same day the plaintiffs counsel offered evidence
to prove all the facts necessary to sustain his de-
mand for a diminution of price, and the defendant
by his counsel, objected thereto upon the grounds
that the claim in dminution was not liquidated
demand which could be set off against an act inn
porting confession of judgment, or could arrest
the execution of writ Of seizure and sale issued
reason stated in the bill of exceptions-that the
plaintiff should resort to separate action. The
District Judge erred
It is contended that the claim for diminution of
price is prescribed by one year 1t is further con-
tended, that the rule OF the Roman law que tenn
po1dHd sunt dd dgendum stunt and ercepind,tm
peapetud has been repealed, and is no longer a
maxim of our jurisprudence. We find it has been
otherwise considered by our predecessors, and re-
cognized as maxim Of law which survived the
great repeating act of 1925 and are declared APP
plicable to q certain class of cases.
q We are, therefore, of the opinion that the ven
dee's claim for dminution comes within the opera
ton of the rule que tenapordid and being sued for
the price, may avail himself of the defense of
deficiency in the quantity Of land sold though the
action q.tdnts MINORS be prescribed. Judgment
reversed and cause remanded.
Jas. y. Carter VS.. 1tJts d obe7t.-Appeal from
the Fifth District Court of New Orleans Damages
for malicious prosecuton.-Judge Buchanan de-
livered the opinion Of the Court. The defendants
libeled the steamboat Ohio, belonging to plaintiff
in admiralty, for non-deyery of merchandise
shipped on said boat for transportation. Defend
ants alleged they were not table, as said merchan-
de ot au Dy peril # and
The present suit is for damages alleged to have |
been suffered in consequence Of said seizure and
detention.
The District Judge gave Judgment for the de-
the ground that there is neither ale
cation nor proof that the seizure of plaintiffs |
steamboat was made maciously or without prob |
shle cause. The learned Judge has reviewed the |
lecsion of this Court upon this point by which it
8 now settled that damages will not be allowed in I
louisiana against party for asserting right in |
our courts by the compulsory processes allowed by /
our laws, beyond the damages actually sustained,
Unless the circumstances of the case disclose a
want of probable cause for the action instituted,
md malice in the resort to compulsory process.
n the words of the District Judge, the defend
lnts had an apparent cause for what they did they
Icted upon state Of things produced by the
ratf
ract to bring merchandise to defendants" Judg-
hent affirmed with costs.
81. Paul r. q. Church, APPELLANTS, vs.. Giraud d
Ieacis, ct al, dppeNees.-Appeal from the Second
district Court Of New Orleans Opinion of the |
court by Judge Voorhees, Judgment of the Dis
riot Court affirmed with costs.
Maria Idte, appellee, VS.. d. armour, appellant
(. j. Frisby, acd,rdntor-A Appeal from Sixth Dist.
,ourt of New Orleans.--Opinion of Court by Judge
roorhies. The warrantor is not liable for the fees
osts in art 24s2 Civil Code refer to taxed costs.
Judgment of Lower Court amended in this in other
aspects affirmed
John A,romsn,itt appellant vs.. E. Fl. Du,7eR,
f the Ne,o Orleans Navigation Company, appel
e.-Appea from Fourth District Court Of New
of the Court by Judge Bu-
hanan. Judgment affirmed with costs.
Ann joyce, ,cife Of alexander Rogerson, duly
atto,ized, ETC., appellant, VS.. Jas W. Duplessis,
oastable, and Jas. ". Zac1arie, appellee. appeal
ON Filth DlStrlcG court OF New OrleanS.-Chlef |
ustice Merrick delivered the opinion of the Court.
Judgment of the Lower Court as to Zacharie re-
ersed, and Judgment in favor of the plaintiff Ann
oyce, wife Of Rogerson, against said Zacharie for
300 and costs.
Harriet Phelps ,cife of dug. s. Phelps, appellee,
]. ElizdJetl. Am Righton and husband ct al,
ppellaats.-Appeal from Fourth District Court of
ew Oreans.-Judge Buchanan delivered the opin-
N Of the Court-Jndgment reversed; and it is adj
ldged and decreed that the injunction herein issued
e dissolved, and that the defendants and appel
nts recover of Harriet Phelps and w. P. Sun
erland the principal and surety in the injunction
ond, $1,000. Damages and costs.
Vim. p. Ealer, appellee, vs.. Afc.4Nister G Co.,
ppeltdnts !; and Geo. G.. Edler, appellee, VS.. Nc
lister q Co., appellants. from Third
istrict Court of New Orleans.-Opinion of the
curt delivered by Judge Buchanan, and also by
hief Justice Merrick, concurring. Judgment
mended, by reducing rate of interest from six to
We per cent; in other respects confirmed, and that
le Sheriff of the Parish of Orleans hold the money
ade under these judgments subject to the de-
sion of the Fourth District Court of New Orleans,
pom attachment levied in the suit of Thos. H.
ones os. Henry A. Ealer, No. 1912.
The State Of Louisiana In the matter Of j. N.
Iaad,a, IN, retdtor praying for ,rrd of nadadd-
.us, appellee, VS.. The Crescent Mutual Insurance
ompany of Nen Orleans, appellant. ~ Appeal
ON Third District Court of New Orleans.-Chief
lstice Merrick delivered the opinion of the Court.
Judgment reversed, and case remanded for further
Ghds. T. Ka,abe ct ais, appellants, VS.. ]. B. Ter