New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-03-30
TIRE rs.
Aupreme Court Of LouasYau.a Ia

supreme CS0rt Oh Aouashasua~s
State VS.. r. Purbin-Appeal from the /
District Court Of East Baton Rouge-HoW. .
ell, J. The defendant has appealed from q |!
judgment senten cling him TO seven years
at hard labor for the crime OF
No briefs having been furnished, we are
remitted to an examination of the record 1or
any error authorizing an appeal.
/. There is bill of exceptions taken 70
a part of the Judges charge, consisting OF
the following words: "ViolenCe may be COM
mitted IS well by actual unla force as
under pretence of legal aud rlghtfu! pro-
ceedings,' which was objected to on the
ground that said charge tended to mlslead
the Jury.
1t is stated in the bill of exceptions that
actcal violence was proven. and the Judge
also charged, at the request Of the prisoner,
s'that unless the testimony shows that the
defendant used violence toward the party
charged to have been robbed, or put IL
bodily fear, he can not be convicted OF
robbery" Under these circumstances, the
words complained Of If legally Objectionable
ia themselves, could have had little weight
with the jury, there being no proof, as
stated by the Judge, thai the accused
represented to the party robbed that he
was acting upon legal authority IN taking
the money.
There is motion in arrest Of judgment,
based or the ground that the indictment is
objective, because It does not show that the
grand jurors were enlpanneiled, sworn, held
their inquest in the parish of East Baton
Rouge. These objections, if they can be urg-
ed after the petit jury are sworn, are not well
made, as the indictment declares that 1.-The
grand jurors OF the State OF Louisiana, good
and lawful men Of the parish Of East Baton
Rouge, dujy empanelied and sworn to in
qure for the said parish, do present. etc.,
v hich is substantial compliance with the
requirements Of the law il this respect.
judgment affirmed.
s. Durbin vs.. C. p. McMicha6L~Appeal
from the Sixth District, parish Tangipaho,
Ladeiing. c. J.--In this case the cOngdera-
ton OF the note sized on w&s Confederate
money, and the claim can not be enforced
Dy the courts. Judgment reversed and
cl4im dismissed al plaintift's costs III both
courts.
Succession of Jesse W. Wilder-Appeal
from the Second District Court OF New
| Orleans, Wyly, J.-GeOrge Wilder insti-
tuted the suit against his stepmother, Mrs.
Jordan and her two children, his coheirs,
| for partition of the property of the success
| sion of his father. Jesse ". Wilder.
| The question is whether Mrs. Harriet A.
Bartholomew, late widow OF jesse W.
Wilder, and now wife of William Jordan,
| has been barred Of her right of widow in
|
| by an an.e-nuptial contract. In November,
! 1854, J. w. Wilder. ct New Orleans, married
Harriet 4. Bartholomew, Of Hancock
county, Mississippi, and a few days after
ward removed to New Orleans, where they
continued to reside until the death of
| Wilder. in 1862.
On the day and at the place of the mar
! riage and Just before it's celebration, the
contemplated agreement Or marriage con-
| tract was executed. The plaintiff, George
| Wilder, the issue of a former marriage, was
| then q minor. A witness, who was present
| at the marriage describes Wilder as cid and
| jnfirm, and his bride as q charming girl Of
about seventeen. The marriage contract
| declares, in effect: That, whereas, mar
riage is Intended presently to be solemnized
| between said Jesse and Harriet, and they
are desirous, previous to that event, tc set.
| tie their respective estates according to pur.
poses, uses and limlta tions intended ana de.
sired, SO that the right, title and interest of
| each may be defined, they each retain the
separate control and ownership OF their Un-
| divided property.
| The District Judge came to the conclusion
| that the terms OF the marriage settlement
did not preclude the existence Of Communi~
| ty between the spouses, and rendered judg-
ment for the defendant. Mrs. Jourdan has
appealed.
The court said: We Can not agree with
| the learned Judge on the ground on which
he based his decision. We think q fair in-
terpretation of the ante-nuptial agreement
leaves no room to doubt the exclusion of COM
munity. If full effect be given to the stipu-
lations of the marriage contract, 30 cOmmu-
nity can exist. It would be impossible,
because under that instrument each spouse
retains absolute control in and over their
respective estates and property, as now
owned by each, and which may be acquired
during the coverture," with the right of
disposition reserved to each, to be exercised
s5 any and all times, without the consent or
interference of the other.
The question is as to the capacity of Har-
riet A. Bartholomew to make the contract.
Was it voidable On account of her majority,
or was it absolutely void
We take it to be the general rule that the
contracts of minors under the common law
are voidable only and not void, and the ex
ception is where the contract on It's face
appears necessarily prejudicial to the minor.
We discover nothing on the face OF the con-
tract necessarily prejudicial to the minor,
and we regard it as merely voidable and
binding on the widow, unless disspproved
by her afterwards when having the capacity
to 90 SO. We find in the record no evidence
of the disattirmance by Mrs. Jordan,
although many years have elapsed since she
has become of age, and has had the capacity
w uU SO' ~ 10 IOW tOO itec lOt utI W uO-
mand the recision of the contract, as the
prescription pleaded by the plaintiff is ap.
plicable thereto. Ordered that the judg-
ment Of the court q qua be annulled, and
that there be judgment forbidding Mrs.
Jordan to participate, as partner, in COM
munlty il the succession OF Jesse W. Wildsr.
Case remanded for decision of the other
issues involved therein, and defendant, Mrs.
Jordan, to pay the costs OF this appeal.
Writs of 81 ana "a mus on Judge Cooley.
In the Supreme Court yesterday writs of
mandamus were issued, directed to Judge
Cooley, of the Sixth District Court, in the
following cases: William Richart VS.. Lew.
Lane; EnOch Smith Il Whitney VS.. W. T.
Lane; W. W. Fisher vs. l.. Fl. Lane.
These three suits were instituted by at
tachmept and about one hundred head of
mules seized, belonging to defendants, who
are residents Of Kentucky, they having
given their prOrnissory notes for the same.
Judgment was rendered in favor of plaintiffs
in the Sixth District Court, with privileges
on the proceeds of the mules. There being
at the present time some $4,000 in the
Sheriff's hands.
r. M. Sharp and Daniel Gillen claimed
the mules as their own, and alleged that
they were injured by the judgments, and
asked, through their attorneys, Messrs.
Hornor Benedict, to be allowed sus-
pensiye appeals on giving bonds of $500 in
each case, the whole property in dispute
being in safety, as it was in the Sherif7s
hands.
Judge Cooley refused the appeals and the
Supreme Court granted the preliminary
orders for a mandamus on the lower Judge
III each case. ordering further proceedings
to be stayed in the meanwhile.
The Eighth District Court not q Court.
African Math0diat Eniscnnal Cnprch ",