New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1868-12-30

| morS are generally manufactured, II MAJ
not be amiss TO illustrate the kind of basil
in fact there exists for such a rumol
as the above. Like most men who have
occupied high positions on the bench
Judge Durell was for many years coun.
sellor at the bar, and had IN charge much
| important business, and as concerned in
many leading cases. He would scarcely
have been deemed fitted for such an i'm
portant position as Judge of our Federal
Court if he had not, been thus engaged.
Would it not be strange if, in the course OF
a long legal career, he had not become in
terested, pro or con, in the famous case Of
Mrs. Gaines? Could Roselius, Randall
Hunt, Clarke, B4yne, Bradford, Lea,
E;nney, or any other eminent legal
individual be selected for an i'm
portant judgeship without inevitably
bringing about disappointment ola Judge
who would not be able to act in certain
cases on account of personal interest
Could Charles O'Conor, or James 7. Brady,
or William NJ. Evarts occupy the bench in
New York city without being embarrassed
in Important cases in like manner?
In 1886 Cavalier and Davenport obtained
judgments against certain parties who
claimed, through Clark's mother, to be
heirs of Daniel Clark. These judgments
were for warrantee in the sale oflands by
Clark in his lifetime, and amounted to
about $4,000. Lands belonging to Clark 5
succession were seized under these judg-
ments, or one Of them, and Mrs. Gaines
enjoined their sale. An agreement was
made, which may be seen in the Office OF
Joseph Cuvillier, notary public, deposited
April "a, 1874. The lands were sold, only
partially satisfying the judgments. In
1852 Hon. E. H. Durell, then counsellor
at-law, acting as the trustee of the Union
Company, of New York, purchased large
amount of the lands that were sold under
the Cavalier and Davenport judgments;
and also the unsatisfed judgments Of
Cavalier & Davenport and Boisfontaine
against parties claiming to be the heirs of
Daniel Clark, as also other lands of Daniel
Clark sold under the Boisfontaine judg-
ment,
He thus became the holder of the title
to said lands as trustee of the Union Com
pany. He also since became personally
interested in the judgment and lands to a
considerable amount, evidenced by judg-
ment against the company. The Union
Company claim that their judgments are a
judicial mortgage upon all lands of the
heirs of Daniel Clark, including the real
estate of Mrs. Gaines. A bill in equity
was filed against E. H. Durell by Mrs.
Gaines, being suit No. 2715 of the docket
Of the Circuit Court of this place.
Now, were Judge Durell to sit as Judge
of the Circuit Court in the cases OF Mrs.
Gaines, he must pass upon her heirship to
the estate of Daniel Clark. He is inter-
ested in the result of her cases. He is the
owner as trustee of the Union Company of
New York, having also direct personal
interest of the judgments of Cavalier &
Davenport. The Union Company claim
those judgments to be judicial mortgages
upon all the lands claimed by Mrs. Gaines.
If be decide in her favor, the land he ad-
Judges to her may come Immediately under
the Union Company's mortgages.
Judge Durell always took the highly
honorable position that he could not sit in
these cases. 1t is no fault of his that the
Circuit judgeship was not long ago filled.
But owing to the fact that for several years
past that position has been vacant, or occu-
pied by judges too infrm or unwilling to
come to New Orleans, and owing also to
the unwillingness of Congress to let
Andrew johnson fill the place by one
of his peculiar style of appointments, Mrs,
Gaines's cases have stood in allegiance, and
probably will until General Grant and
and Congress can get at the matter of the
Circuit judgeship. If their choice shall
fall upon a judge not unwilling to SIT at
New Orleans everything will have proper
solution. If it should fortunately fall upon
Judge Durell, promoting him from the Dis
trict to the Circuit Court, the statutes Of
Congress and rules of the Supreme Court
furnish proper means of the interchange
Of judges from Circuit to Circuit, in cases
where judges have personal interest and
can not sit, which is a matter Of no uncom-
mon occurrence elsewhere.
Judge Durell, as we have already said,
has always taken the highly honorable po-
ulsion that he could not act in these cases;
and Caleb Gushing, Mrs. Gainss's counsel
in Washington, knowing the facts, advised
q settleient between Mrs. Gaines and
the Uniors Company. 50 as TO ena-
bic them 70 relieve Judge Dursll,
from bis interest,". No conclusive result
tor a time to have been adjusted. With
that settlement Judge DurA bad nothing