The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-02-09
Supreme Court Decisions.

court yesterday. Present: Associate Justce
Howell, Hove and wyley. Absent: Chief JUS
tice Ludeling and Associate Justice Taliaferro:
u sr BIZ ASSOCIATE JUSTICE WILEY.
No. -, Alceide Bouanchaud VS.. Chss. d.
Hebert, appeal from the Seventh Judicial District,
| parish Of Pointe Coupee.
The plaintiff, A. Bousnchaud, is the duly elected
judge of the parish of Pointe Coupee. and, as
| such. alleges that be is authorized and empowered
by the Constitution of this State to exercise and
perform all the duties appertaning TO said office,
and to collect and receive all the fees and emolu
ments spperfaining or belonging thereto, or
which are allowed by law for such services as the
law required the clerks Of the late district court
to render in succession cases. and such civil suits
as have been by the Constitution Of 1868 trans
| ferred to the parish court that these rights are
| given to- the judge of the parish exclusively by
article eighty-six Of the Constitution. The follow
ing is the decree Of the court below:
at is therefore ordered, adjudged and decreed
that the Injunction sued out by plaintiff in the case
be maintained. That the plaintiff. Alceide Bousn-
chaud. judge OF the parish court for the parish of
Pointe Coupee, be decreed to have the sole and
exclusive right to act ss clerk of his own court,
and to receive all the fees allowed by law for BUSH
In his court; and that the defendant, Charles
d. Hebert, clerk Of the district court, be and he Is
hereby perpetuaiy enjoined from acting clerk Of
said parish court or interfering In any way with the
business thereof, and from collecting or attempt.
ing TO collect any fees or compensation for or
account Of services rendered by him in his said
capacity of ex offcio clerk Of said parish court, or
done in said court II is further ordered that de-
feDdsnt pay Costs of suit.n
The judgment of the district court affirmed
Cooley 4 Phillips for plaintiff; F. H. Farar for
defendant.
The decision of the judge Of the Seventh Judi.
cal District was published in this paper on the
18th December, 1868.
BY ASSOCIATE JUSTICE W. @. WILEY.
No. 47s-Samuel Snodgrass. appellant, VS..
Ihos: A. Adams. appellee. appeal from Second
District Court of New Orleans. Geo. L. Bright,
for appellant, c. Roselius and A. Phillips, for sp-
pellee. fr 800.
On the 18th of February, 1862, plaintiff purchased
from the defendant 375 rolls of India bsgging, |
which had been imported by the defendant from |
a foreign country in the Spanish ship Monserrat, |
that arrived ct the port of New Orleans on the |
9Th of May, 1861. The duties thereon were col
lected by Mr.. F. H. Hatch, then acting as coIlec.
tor OF customs al this port for the Confederate
States, but he had been commissioned by the
United States. Plaintiff afterwards sold all the
lot OF bagging, except 120 rolls, containing IL 400
yards, which were taken possession of by the U. |
>. when the Federal forces captured the city. and
are detained for the duties claimed TO be due |
thereon to the u. s. government. On the Sch
December, 1862. plaintiff being informed of this |
seizure, notified the defendant thereof, and de. |
manded the return Of the bagging to him again
free OF all claims OF the United States, or the
smount paid by him for the l20 rolls to w.t. 90 1885,
and the defendant refused to comply with the de-
mand. |
fldlntH tnen instituted this suit Tor the recisiOn
OF the sale TO the extent of the 100 rolls and 70 re-
cover the amount paid therefor by him as afore-
said. ----- |
Defendant answered, averring that when the car.
go arrived at the Custom House. on 9th May, |
1861 II was regularly entered and the duties there
on Gully paid; and having sold and delivered 1t to
the plaintiff on 9TH Feb., 1862, 1t remained there
after at his rsk. |
On the trial in the lower court there was iade-
ment Of non suit and the plaintiff has appealed.
There is no dispute ss to the facts, The ques- |
ton for rs TO determine is whether the sale OF the
India baggDg at the time imposed upon the de. |
fendant an obligation TO warrant the purchaser |
against the payment OF the import duties of the
U. 8. thereon. |;
Had the sale occurred under ordinary circum-
Stances whilst the federal government in uu-
disturbed administration of its revenue laws at the
port of New Orleans it would have imposed the |
obligation of warranty on the vendor to maintain |
sold, against the claims OF the government for du-
ties thereon, and against the claims of all other
persons.
Being in possession Of foreign fabric at this port
peii no ~ The soveIumeus, sna me plain.
tiff who purchased it from him could have held
him liable IN warranty if evicted by the gov S
eminent. But on 18th Feb, 1862, when this sale 4
was made the vendor and the vendee knew that | !
they were contracting in an insurrectionary dis
trct; that at the time, and for twelve months pre-
vious, the administration Of the revenue laws OF |
the United States had been DISTRACTED aud the |
Custom House at this port was in possession of
the ocalled Confederate government which was n
the duties y
The parties are presumed to have contracted in
reference to the surrounding circumstances at the
time. As the duties not then being collected q
here by the United States account of the REBEL r
oD, the plaintiff is presumed to have purchased
the bagRing at his own risk, SO far as the claims
u the United States might extend for duties I,
hereon. -
Under the circumstances, the contract of sale ~
ITO not In our opinion, create the obligation of 4.
warranty as against the United States.
Plaintiff bought the property in a rebellious | nj
state, at time when the surrounding crcum- &
lad not been paid to the federal government. TIE "
PARTIES evidently contracted in view Of that fact.
We are of opinion that the district Judge did not
III in rendering Judgment Of non.suit p
tits, therefore, ordered that the judgment ap- D,
'ealed from be affirmed with costs. |
(Justce Howell recused.) There we're but | G.
hree judges on the bench. | II
BY ASSOCIATE JUSTICE HOWELL.
No. l946-The State Of Louisiana, ex rel JJ ..
,peote, Vs. the judge of the Seventh Judicial Dis 81
Ihis'is an application for mandamus to obtain
suspensive appeal.
1t appears from the answer of the judge that II
fter the order in the msndsmus proceeding COM Al
iained or the suit OF this petitioner contesting the
ght Of j. w. Creagh to the Office Of sheriff Of al
voyelles, was decided in favor of the former az
nd the judgment thereon has become final be- W.
Teen the parties and hence no useful purpose W
an be effected by the mandemus sought. .
1t is, therefore, ordered that the rule taken ln
erein on the l4th december, 1865 be discharged gr
itn costs. ha
BY ASSOCIATE JUSTICE R. K. HOWELL. -,
No. l943-The State of Louisiana e.. rel. J. W. | nv
reagh Vs. the judge Of the Seventh JUDICIAL Dis III,
let. The petitioner AYERS that J. j. Ducote, wi
egiDg himself to be the legal acting sheriff of !
e parish Of Avoyelles. obtained from the district bv
dge writ of mandsmus which was made alb. be
,lute, ordering petitioner who was then the duly tie
eeted qualified and acting sheriff Of said parish phi
surrender to said Ducote the Office room keys ior
ooks and papers of said sherfrs Office, thereby me
Jurlng petitioner, by compelling him TO vacate ali
s once whilst be held valid commission there
le SAID judge, he had given bend and gualIdsd ies
;cofolng TO law that be Immediately applied NO,
= q suspenslve appeal from said order which res
as refused and instead thereof deyolutve an. or
ss was granted; that the matter in dispute az. ".
EOS $1,000, and having complied with The lsx ~,
ar;, eS 70 snspensye sppesl, and he prsys