New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-03-25
THE COURTS.
Important Decision.

Important Decision.
Powers of de facto Government-Opin-
ion of Judge Theard. Judge Paul E. Theard,
of the Fourth District Court, has rendered
an interesting decision, as follows:
E. H. Request & Co. VS.. Andrew DOYLE
On the twenty-sixth October, 1861, E. II.
Request & Co. brought suit against the
steamboat Sallie Robinson for supplies fur
nished to said boat, and caused her to be
seized under a writ of sequestration. On
the twenty ninth Of the came month, the
owners of the boat gave bond, with Andrew
Doyle as surety, to satisfy such judgment as
might be rendered against them; and there.
upon the boat was released and delivered
over to the owners.
The case came on for trial on the thir.
tenth April, 1864, and Request Co. OBJ
tanned judgment against the owners.
They have caused writ of fieri faclas to be
issued, but they have failed to find any pro-
perty on which they could levy their judg-
ment. They, therefore, now sue Andrew
Doyle, the surety, and pray for judgment
against him.
Doyle has entered an appearance. and, in
bar to the demand of RoQuest & Co., he
pleads that the judgment rendered on the
thirteenth April, 1864, is nullity, because,
he alleges, w. w. Handlin, who assumed to
be Judge of this court, and by whom the
and signed, was not legally elected or ap-
pointed Judge of this court, in accordance
with the laws and constitution of the State
of Louisiana in force at the time said Hand
lin assumed to act as Judge of this court.
Judge Theard says:
Judge Handlin was appointed Judge on
the third of November, 1868, by his EX-
cellency, General George f. Shepley, then
Military Governor OF the State OF Louisiana.
His appointment is, therefore, the act of
the de .fdctO government ruling at the time
and possessing the power to enforce its
authority.
For these reasons it is ordered that there
be judgment in favor Of plaintiff as prayed
for.
Seventh District Court
City of New Orleans VS.. c. Moseal ct al
In this case Judge Collens rendered the fol-
lowing decision:
Moseal was the lessee of the Dryades Mar
ket for the year 1869. For the rent he gave
monthly notes, with Gardeners Endorsement.
One of the conditions of the lease was, that
10 case of the non payment OF said notes, or
either of them, at their maturity, or any
neglect or failure Oh the part of said Moseal
| to comply strictly with the terms and con-
ditions of ordinance No. 974, new series, the
Common Council reserves the right to be
exercised or not, at it's option, to declare
this contract null and void, etc. Another
article of the law provides that in case the
| city of New Orleans, or the authorities
| thereof, at any time during the continuance
| of this contract or lease, desire to annul the
same, the right end privilege of SO doing is
accorded unto said city, upon giving one
| days notice IN writing to the SAID Moseal,
and upon returning or paying back to him
| the unmatured notes, or such pro rata of
| the unpaid installmeHts as shall not have
become due at the time Of said annullment,
| etc.
The note, which fell due in april, was not
| punctually paid, whereupon the Mayor,
| imagining that he could alone and without
| the advice aud consent Of the Common
Council, exercise the option between spe-
| cfic performance and an spnulmert of the
contract, notified Moseal that he the Mayor
annulled it. He carried this into practical
effect by appointing an officer to collect the
| revenues OF the market tor the city, and
causing the Commissary, backed by the
police, to exclude the defendant.
From that time the revenues Of the mar
ket have been collected by the commissary
appointed by the Mayor, and paid every
week into the city treasury.
1t is admitted that the city of New Orleans
has received the money. 1t is shown that
the funds were received into the treasury by
the Treasurer and Controller, with knowl-
edge OF their derivation, and were regularly
included in the Treasurer's weekly report,
officially made, etc.
The city now sues on the notes given for
the lease.
Judge Collens held that as the city had
collected the revenues of the market IL lad
no right to sue ON the notes.
Eighth District Court.
This court organized yesterday, about two
O'Clock in the evening, in the jury room of
the Seventh District Court. Hoe. Henry c.
Dibble, Judge, was sworn in by Chief Justice
John T. Ludeling, and Thomas Lynne was
duly qualified as clerk.
Injunction ON the Assistant Aldermen.
Thomas Ong Va. W. R. Fish ct al.-This is
a suit instituted yesterday in the Eighth
District Court-being the first case on the
docket of the court praying for an I'M unc-
ton restraining the Board of Assistant
Aldermen. in their official capacity, 'from
considering, entertaining, or adopting any
resolution for the sale or lease, or other dis.
position, of the City Waterworks to Frank
Wheaton; and from selling, letting or dis
posing OF, in any manner, said works, or
the interests, property management or con.
troll of the city, in or over the same" The
writ was issued by Judge Dibble and duly
served.
Sixth District Court.
Murdoch & Williams VS.. Citizens Bank
IN this case Judge Cooley rendered decis-
ion to the following effect: 1t appears that
the plaintiffs were depositors previous to the
war, and on the sixteenth of September,
1861, had to their credit the sum of SlO84 81.
The bank agreed TO pay such balances in
coin, and subsequent deposits in Confed-
crate currency. The plaintiffs continued to
keep a new account, &nd made deposits and
drew checks, but never trenched on the de-
post of S1084 SO, and On the tenth of Feb
ruary, 1868, new balance had accrued Of
1922 IL. The bank pleads that being holders
of two notes drawn by different parties, on
which Murdoch & Williams are endorsers
and protested for non-payment. it has the
right to appropriate the deposit to the pay
ment OF this note so endorsed, and they re-
fuse to pay the plaintiffs the amount sued
for. The court, in lucid and vigorous
opinion, denies the right of depository to
appropriate deposits which are confidential
and in trust, to the payment of debts due it
by the depositor, upon obligations acquired
by the bank in the course of its business.
and gave plaintiff judgment for the S1084 SO
in gold, at SO per cent premium, and for
1922 IL in currency. D. G. Labatt for plain.
tiff; A. Pilot for defendant.