New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1866-03-02

VIM. Mithotf Is, Byrne & vance-Roselus &
Peter Marcy vs.. Merchants Mutual Insurance
Company Buchanan L Gilmore. Durant 4 Hor-
nor, Pierce.
Peter Marcy vs. Citizens, Mutual Insurance
Company-Buohanan & Gilmore. Durant Hor-
nor, Pierce. 49, sf'as
D. G. Thomas VS.. Thompson 4 Barnes-Morgan
Annette Husson vs. Chas. trigant-Derbes.
Dufour
SUPREME eoURT-coNpENsED DECISIONS. -
Thomas Gatlan VS.. Belnlrd Kendig. Appeal
from the Fourth District Court Of New Orleans.
This is suit to resciud the sale of slave on ac
| count of the vice of running away, alleged TO have
been known by the seller and not declared to the
purchaser. The only question for our decision is
The sale was made on the 4th of July, 1885, the
| slave ran away the May following, and suit was
instituted on the Gath March, 1860. 1t is clearly
shown that the defendant was aware of the vice
| at the date of sale. 1t was incumbent on him to
prove that, when suit was commenced, more than
year had elapsed since plaintiff discovered that
said vice existed at the date OF or before the SALE
Art. 1924. c. c., expressly provides that this dis
| coyery is not to be presumed it must be proved
| by the seller Evidence shows that plaintiff be,
came aware only few months before instituting
suit. Judgment affirmed in favor of plaintiff. r.
K. Howell, judge. -g4 als..r-Z
monds, appellant, and Cotton & Baldwin. This is a
| suit by the payees against the drawer and accep-
tors dated April LIST, 1861 payable seven months
after date Judgment was given against the de-
the drawer, appealed. The appellants discharged
as drawer for want of timely presentment and pro-
test. 1t is matter of history that communication
with Louisville by plaintiff residence was restored
in the summer of 1862, and there is no proof of a
demand or presentment before the institution of
this suit in April, 1864 Action was not taken
within reasonable time. (Story on Bills, p. 365 y
Plaintiff, however, ayers that simonds was really
a partner in the firm of Cotton & Baldwin, and
that the sale of his interest July LIST, 1861 of his
pre- existing interest in the firm, was stimulation
and fraud upon his creditors, and consequently
he is liable for the amount. The evidence does
Simonds for making simulated or fraudulent sale
in 1860 or for concealing his interest in the new
firm. We think plaintiffs have failed 10 show that
he was member of the firm with whom they say
they contracted, and who are bound to them as
acceptors. The preponderance of evidence is in
favor ofappellant Ordered that Judgment against
j. s. Simonds be reversed and that there be judg.
ment in his favor. R. K. Howell, judge.
Louise King, testamentary executrix, vs.. j. A.
Baauie. This is suit for rent. There are two
questions presented: 1st. Was defendant dscharg-
ed as lessee by the agents of the lessor at the
time he made the transfer to Brauer & Schoufeld ?
18th Of February, 1860, P. G. Wartele leased a
property at the corner of Rampant and Julia
streets, to Baquie, at $1,000 per annum for five
years.. commencing LIST July, 1860 The property
was destroyed by fire in 1861, and the lease on
which this suit is based was annulled by O subse-
quent act between the parties. The property be-
ing rebuilt, the agents, J. W. Burbridge & Co., en-
tered into new agreement with the defendants
on the sth Of May, 1861, fact which the plaintiff
testamentary executrix of the lessor, seems to be
ignorant of as her action is based the first lease
only. However, this document having been intro
duced by defendant, to it, only, this court must
resort to ascertain the nature of the contract be-
tween Wartele and Baquie. Defendant contends
that he is discharged of all liabilities the latter
lease because on or about the 3Oth April, 1862
the. lease was transferred by him to Brauer &
schoafeld, and Burbridge Co. consented to the
transfer, and they received the rents from Brauer
u Schufoeld, who have always been considered
BY the agents as their tenants. Considering that
the allegation of defendant is not proved that the
transfer could not bind the lessor without
his written consent, or that of his agents,
as required by the lease; that the pretend
ed consent is based upon conversation
the evidence in relation to which is conflicting,
that the receipt given to B. & S., in their own
name does not operate discharge of defendant,
and that the notice given by the agents to B. S.,
18th July, 1865, was written after Burbridge had
made demand to defendant for rent, and had an
intimation from him that he wanted to put the
liability on Brauer& Schoufeld this ground of de-
tense must be rejected. In regard to the second
question, defendant contends that he paid every
cent he owed for rent to the 18th April 1862,
when it was agreed, that owing to the political
circumstances the rent should be one half of what
1t was BEFORE as long as the war lasted. This al.
legation is proved beyond doubt, and the defend.
ant isl consequently entitled to the reduction of
one half. : H.
Considering that the rent was paid up to the
18th April, 1862, that defendant had pleaded pre-
scription of three years to all claims prior to LIST
November 1862, he is consequently liable only for
two years and eight months at the rate of ss57 so
per annum, and that he is entitled to credit of
Brauer 81 Schoufeld, on the 18th July, 1865. Or
dered that there be judgment in favor of plaintiff
Louise King, widow Of Wartee, for sl7s6 66, with
legal interest and costs of suit. P E. Theard,
Judge. -