The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-01-26
BY ASSOCIATE JUSTICE W. G. WILEY.

lett for sppellees, Cooley and Philips ior appei-
ants.
plaintiffs sued out writ of sequestrstion against
eight bales of cotton raised, they aege, oy tne
defendants in the parish of Pointe Coupee, on
which they claim privilege for advances and sup
plies furnished the defendants.
The sequestration was levied by tue sneriu Oh
9Th December, ls6F, and on 18th December, iooi'
released and delivered 10 plaintiffs, tney nav
ing given bond therefor as ordered Oy the court.
On the 3lst December. 1867, the cotton was
sold by the plaintiffs at lSlc. per pound, amount.
ing to s497 IS; after deducting charges, the nes
proceeds amounted to 1891 Is.
On the 2Sth March. 1868. there was Judgment
against the defendants I" with privilege aad pre-
ference on the cottpn sequesrated herein or lt3
proceeds."
/ On the 9th Decerhber, 1867, W. NJ. Perkins, adj
minstrator of the Estate of T. G. Mcintyre, fled
petition of Intervention. claiming a lessons
privilege on the cotton seized.
The citation snds copy Of petition of interview
ton was not servedon plaintiffs till 18th January,
1865, long after thereease of said cotton by the
sheriff to plaintiffs, and after it had been sold by
them.
On the 18th November, 1868. there was judg-
ment Diminishing the Intervention of W. N. PER-
kins, administrator, and frou that judgment he
has appealed.
This appeal must be dismissed. (Ses the case
Of Myers VS.. Mitchell, lately decided, and article
"a Of the Constitution of 1861
II is therefore, ordered and decreed that the ap-
peal in this case be dismissed at appellants costa
No. l426.-Alfreds Penn, appellee, vs.. Kearnys
Blois d Co., appellants. VIM. Fl. Hunt for appel
lee; George l.. Bright for defendants and appel
lsnts. Appeal from Second District Court of New
Orleans.
This suit is brought to recover s6ls4 9S for rent
of warehouse and adjacent lots, let by plaintiff
to Alfred kearny. "A portion of the property
was destroyed by dIs, and defendants asked 10 be
released from the oh gations of the lease on that
ground by paying rent up to the date of the fire.
agreeing to remove the property in reasonable
time.
The she'd was rebuilt about 25th February, 1867
seven months elapsiDg from the time of the fire TO
the completion of ghe new shed; that the jury
allowed the dimnutIon at the rate Of 500 per
month, a sum apparently about equal to the pro-
portion Of rent tor the whole lot on which the she'd
stood.
The defendants gave their notes in their firm
name for portion Of the rent, up to November
lst. 1861, and four Of those TentnOtes amounting
with interest, costs Of protest. to Sl4o9 IS. form
part of the sUm sued for. The balance, $500, IS
for rent from November lst 1861, to November
LIST, 1862. The defendants, admitting the eXecu- =
ton of the lease and rentnotes sued on, acknowl-
edged an indebtedness of S6l5 81 for rent TO Au-
gust "a, 1861, and DEPOSITED that sum in court.
The court, after citing authorities and giving
reasons, decides. Fer the reasons given il is ord
cred aud sdjudged lhat the judgment appealed
from be affirmed with COSTS
BY ASSOCIATE JUSTICE W. @. WILEY.
No. l432. A. eileen, appellee, VS.. Thompson
and Barnes. appeIls. nts. Chas. e. Fenner for
plaintiff and appellee. L. W. Huntington for de-
fendsnt and appellants. Appeal from the Fourth
District Court of New Orleans.
This action is based upon two prOmissory notes
made by defendants. The defense Is general
denial that plaintiff u not the true owner of tbs
notes sued on, and that defendants have paid
sl3l0 73 on these notes. On the trial, defendants
offered an account fbr $751; for goods sold the
plaintiff, as an Offset which was allowed without
objection they also offered an account of s277 81
for goods sold DR.. j. W. eileen, as agent OF A.
eileen, as an Offset. There was Judgment Ia favor
of painiif for the amount claimed, subject TO q
credit of $lSl, and the defendants have appealed
Defendants claim in this court that the account OF
S277 GA for goods sold by them to DR.. J. W. eileen,
agent of plaintiff, should be allowed, as an Offset
or credit. There is no other defense set up.
The court decides We think the district Judge
very properly refused to allow this account OF
1877 GA, as credit, and that the appeal in this
case is purely frivolous.
II is therefore ordered and deereed that tho
Judgment appealed from be affirmed with costs,
and that plaintiff recover OF defendants 800 dam
ages for frivolous appeal.
BY ASSOCIATE JUSTICE HOWELL.
No. l226-Succe ssipn of VIM. SAmuels. Oppo-
sition OF G.. Heaton under tutor appellee. Buoh-
anan q Gilmore for appellant, Breaux Il Fenner
for appellee. Appeal from Second District Court
of New Orleans.
On motion of q. HeatiOn under tutor to ac-
count OF natural tutriX.
A rehearing has been granted In this case to the
under tutor on that portion of the former decree
of this court which condemned him TO pay the
costs Of his opposition In the lower court and
those of appeal.
In the case of Lacey VS.. Lanaux, 10 A, 1873, tho
rirciple recognized that under tutor -
not responsible for tile expenses Of litigation with
a tutrx in behalf OF minors, unless he act in bad
faith, but that the minors or their estate must
bear expenses. In this case no bad faith exists
on the part of the under tutor. On the contrary
the opposition made by him seems to have re-
suited somewhat to their advantage.
In 10 10 IN IN g.
cree rendered herein by this court on the 18th
May, 1865 ss condemned &c. Heaton, under
tutor, TO pay the costs of the opposition below
ard those of appeal" be set aside and that said
costs be paid BY Mrs. M. A. Marsden and her hus-
band. j. S. Marsden. in their capacity as tntrix
and cO-tutor, and that in other respects said de-
cree remain undisturbed.
BY CHIEF JUSTICE LuDELNG.
No. 1902 Succession of Jacob Weigel, sppo- {
| sition OF Helena Betz to the inventory. w. o.
| Deneere and w. 7. Scott for appeees, and Hy-
man and N. Commander for opponents aud ap-
| pelants. Appeal from the Second Judicial Dis
| tIet Court, parish of Jefferson.
motion TO dismiss this appeal has been made
on the ground that all the parties interested IN
| maintaining the judgment Of the district court
have not been made parties TO this appeal. Inc
order for an appeal was granted IL open court
"The bond is in favor Of the succession OF jacob
Weigel, their executors, administrators and as
signs"
| made OF the property OF the succession, and
Helena Betz fled an opposition to the inventory,
claimed to be the owner of certain real estate
which had been placed in said inventory, and
| prayed that said real property be stricken from
the inventory. This case having been tried in the
| lower court, was brought before this court by
/ appeal and our predecessors remanded II back To-
the lower court, 10 order that the heirs might be
made parties.
The heirs. sll of age, having been made parties,
| there was judgment in their favor, recognizing
| them as the owners of the property In dispute,
| and from this Judgment an appeal was taken.
The bond IS defective in not naming the heirs,
| or using such terms as would clearly embrace
| them. An. 574, 10 An. 232, IL An. Il, ii An.
| 3l5, 6SS.
An administrator is the trustee Of the creditors.
| An. 923.
The heirs were necessary parties to the suit.
| c. P, 4 IT. 1913; G. c. l049. =
The appeal is therefore dismissed.
BY ASSOCIATE JUSTICE r. X. HOWELL.
No. I794.-Succession of Jas. Forsyth. Appeal
from Second District Court. On moti0n ID dis
miss this appeal on the grounds:
lst. That the appellant has acquiesced in aud
ratified the judgment appealed from by receiving