New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-03-31
THE COURTS.
Sixth District Court-MOsion to 6uspens
sheriff Maxwell.

sheriff Maxwell.
William Richart, ct al, vs.. Lew Lane ct
al. w. w. Fisher, transferee.-In these
cases it appears that plaintiffs obtained
judgments against defendants for the aggre-
gate amount of SIT 600, being for the value
of number of mules sold to respondents.
Tt seems that an order was issued from the
sixth District Court directing the Sheriff to
pay over the money to the parties plaintiff /;
but meanwhile appeals having been asked
by defendants, and refused by Judge Cooley,
| writs of mandamus had been issued by the
Supreme Court, directing that cause be
shown on the fifth Of April why peremptory
orders should not be issued directing that
appeals be allowed.
It is alleged that Sheriff Maxwell refused
to pay over the SIT eco i'll obedience to an
order of court, and proceedings were insti-
tuted as follows:
On motion of Woodbridge & Thomas, D. C.
Labatt and j. Aroni Of counsel for w. W.
Fisher, transferee of plaintiff, and on aver
ing to the court that an order issued herein
on the morning Of Tuesday, the twenty
ninth day of March, 1870, before the hour
of ten O'Clock, directed tC the Sheriff of the
parish, Thomas l.. Maxwell, Esq, command.
| ing him to pay W. w. Fisher or his attor-
ney, out of the proceeds Of the sale OF Ger
tain mules seized and sold in this suit, and
in suits Nos. IT'S and llS6, of the docket OF
this court, one sum of S7076, which order
WAS presented to the said Maxwell, Sheriff,
and J. F. Dick, ESQ.,, his chief deputy,
and demand made for compliance there
with; and on averipg that both said Max
well, Sheriff, and Dick, Deputy Sheriff,
neglected and refused to comply with said
order, to enable certain parties>tO obtain
proceedings to retain the sum of ST., 900 in
their hands. And ON further averlng that
20 bn hoe If fboir hpli of
| the said Maxwell. Sheriff, and Dick,
Deputy Sheriff, have illegally combined
and Confederated, and have instigated
proceedings in the nature OF an application
for mandamus in the Supreme Court for a
suspensive appeal herein, and in suits ll76
and ITS of the docket of this court, by
procuring Charles T. Howard to sign
the sum of SIT 600 in their hands fog the
length of time intervening between this
date and the trial in the Supreme Court.
1t is ordered by the court, the annexed
affidavit, the premises and the law COZ.
sidered, that Thomas j. Maxwell, Esq,
Sheriff of the parish of Orleans, and J.
f. Dick, ESQ.,, Deputy Sheriff of said parish,
do show cause, on Saturday, the second of
April, 1870, at ten O'Clock A. NJ, why they
should not be punished for contempt, by
fine and imprisonment, as provided by law
in such cases.
And it is further ordered that said Max
we'll do show cause, ut the same time. why
he should not be suspended from office as
Sheriff of the parish OF Orleans, as provided
in the fifth section of the act of the Legisla-
ture, approved September 20, 1868.
The papers were handed to Coroner
Roche to be served.
sixth District Caurt-The Eighth District
Court Question.
G. NJ. Frost vs. Southern Bank.-Tn this
case, wherein Judge Cooley delivered an
opinion on Monday, the twenty eighth in
slant, to the effect that the act of the six
teenth of March. 1870, creating the Eighth
District Court, was unconstitutional, con-
versation took place in court yesterday, be-
tween Judge Cooley and J. r. Beckwith,
City Attorney, in relation to bringing the
question as to the Constitutionality OF the
act referred to before the Supreme Court.
The Judge suggested that it was impor-
tant to the public to have the question at
issue settled by the Supreme Court at an
early day, and to that end he would recon-
mend that petition be presented to the
Supreme Court, asking for a writ of man
damus, directing that the papers in the
case be sent up to the Eighth Court, and
for a writ of prohibition, restraining this
court (the Sixth) from taking any further
action In the premises.
As the litigation in this matte locks mp
$50, 600 pending the suit, there is proba-
bllty compromise may take place, which
may prevent the decision of the questions at
issue until another case arises.
Seventh District Court-Fortune Avegno
vs. Lawrence Hart.-ln this case Judge Col
lens has rendered the following decision:
Defendant, Lawrence Hart, was driving
his buggy in race with another on Canal
street shell road. The competitor overlook
the plaintiff, who was ahead, driving slowly
in oil Il, ~
attempted to pass, one on the right and
the other on the left side of the plaintiff q
carriage. Defendant took the way on the
right, but failed to pass successfully. The
wheel of his buggy struck that Of the plain.
tiff, upsettiDg and breaking it, dashirg plain
tiff out on the ground.
This suit is for the injury done to plain.
tiff's person and property by the collision.
The witnesses differ as to whether or not,
on the spot and at the time OF the collision,
the roadway that could then be used there,
was wide enough for three buggies abreast
and whether or not there was space enough
on plaintiffs right to drive past. But it is
useless to decide this question, for 1t pre-
sents an alternative both ways unfavorable
to the defendant. If there was not space
enough to pass, he was reckless; and II
there was enough space. he was unskllltul
In either view he is responsible for the
damage done; the more SO as he committed
it while in the imprudent act OF racing on
frequented public street. He gave no no.
tice Of his intention, and it was not possible
for others to know on which side he would
attempt to pass. 1t was impossible for the
plaintiff, in this uncertainty, to guard
against the sudden charge of the right flank,
even if the defendants buggy had been the
only one; but considering that there were
two rushing past, one on each side at the
same time, it is clear that the plaintiff could
not help himself against the imprudence or
want of skill of either.
1t is satisfactorily shown that the wheels
of plaintiffs carriage were broken, and Its
whole frame work was, no doubt, loosened
by the shock it received. 1t is further
shown that fine vehicle thus injured can
not be repaired in this city so rs to make 1t
as good as it was before. / consider, there
fore, that the means the plaintiff took to as.
certain the damage was reasonable and
Just. He caused the buggy to be sold by
auction, upon due n otice to the defendant,
and after the usual advertisements. The
difference between the purchase price, and
the price of this sale is, think, correct
measure; for plaintiffs buggy was new.
If any deduction ought to be made on &C
count of supposed deterioration from the
use m lde during a few days of the new car
riage. think the difference would be fully
covered by the personal suffering the COLI
sion caused the plaintiff.
1t is therefore ordered, adjudged and de-
creed that plaintiff Avegn0 recover OF the
defendant Hart the sum of three hundred
and forty five dollars, with legal interest
from this date and costs of suit.
DR.. Banning, Of New York, will address
the medical profession and gentlemen gene
rally, this evening at the hall of the New
aha,n iao1