New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-06-15
THE COURTS.
The Sulphur Mine Case.

Yesterday rendered the following decision:
This case comes before me on motion to
stay and qussh the writ of possession here
in Issued in obedience to the mandate OF the
Supreme Court. upon the ground that plain
tiffs have sold litigious rights, pending this
suit on appeal. to a. Bonneval and others,
which rights defendants now claim, upon
payment of the price of sale, under article
1922 OF the Civil Code. It is contended that
by said sale and transfer, Escoubas andiLow-
ell, the original plaintiffs, have become iu-
ridically dead; that the writ can not issue IN
their favor, but must issue in favor OF de-
PENDANTS, who claim to be legally entitled
to be subrogated to the rights of the trans
ferees.
Upon an examination of the act of the
third of March, 1870, before j. Il. Eustis.
notary public, which has been offered in
evidence to prove the sale of the litigious
rights in question, find the deed an act OF
lease and not an act of sale. Escoubas and
Lowell still remain the owners Of the lands.
1t does not appear from the act that they
have sold anything, but have entered into
a contract Of lease of the lands for term
of years, and for consideration there
in set forth and expressed. There is no
evidence that Escoubas and LoweN have
alienated their rights as owners, and there
fore they can not be considered as juri-
UlCdlty uCdu, Uus CAGltiOu W nav sASAA WkA'
executed.
do not understand that defendants claim
the lease from Escoubss and Lowell to the
Calcasieu Sulphur and Mining Company of
Louisiana. II this be their demand it must
be rejected, for the lease of the third OF
March, 1870, was not in litigation. This
claim is for the possession of the lands until
fifth of October. 1875, because that posses
sion was the subject Of litigation in this suit,
and they alleged that it has been sold pend
ing the appeal to third parties.
I do not find the allegation sustained by
the evidence adduced. If there was sale
of litigious rights, what was the price paid ?
There can be no sale without price. There
is DO price stipulated to be paid for the priv.
ileges granted by section sixth OF the act
and assumed by the lessees.
It can not be contended that the price was
S20000 in money. and half of the capital
stock Of the company to be organized, tor
the deed recites that this was the price and
consideration of the lease, and not con-
sideration for any litigious rights repre-
sented to have been sold.
Escoubas and Lowell contract with the
lessees, as follows: They say, it seems to
me, ''for the sum of $4,000 in money, and
one-half of the capital stock of the company,
to be paid as stated in the act, we lease you
the lands for ninety-nine years, the lease to
commence from the date Of the act; but we
do not obligated ourselves to put you II
possession OF the premises before the fifth
day of October, 1875, because of law suit
now pending, which prevents US from giving
you the immediate possession OF the iands
now leased"
They say, further: 'You shall be entitled
to the possession before the fifth day Of
October, 1875 If you, the lessees, can OBJ
tain possession by legal proceedings, by
compromise, or by other means; and We
authorize you for this purpose to carry on
this suit, which stands Ii your way. at your
cost and risk, to final adjudication"
This proposition the lessees accept. Nothing
was paid for the privilege, but the etipu
lation seems to have been made for the mu-
tual benefit of both parties; for the sooner
the possession was obtained, the sooner divi
dends on the stock held by both parties
might be expected.
In these mutual covenants between the
lessons and the lessees, there has been nc
sale of litigious right. Defendants have
shown no cause OF action, and the motion
must be refused.
have thus expressed my views upon the
question of the sale OF litigious rights, be-
cause it is the ground work upon which this
motion is based, and because it is forced
upon me by the nature of these proceedings.
But do not wish to PREJUDICE case which
may come up before me in another action,
and l will reserve my final opinion until
the question is more regularly presented to
the court for adjudication. There must be a
strong case and clear showing made to
induce me to stay writ of the Supreme
Court, and such a case has not been pre-.
sented here.
At all events, doubt whether, under the
ruling in the case-State vs. Judge Second
judicial District Court, 20 Annual; SILL
have the right to interfere with the man
date of the Supreme Court. My duty is
simply to see that it be obeyed and executed
according to the decree.
1t is therefore ordered that the motion be
dismissed.
Eighth District Court-The jackson
Railroad Case.
In this case Mr.. Semmes moved for execu-
ton. Judge Dibble said the judgment was
not signed, and it might be proper to wait
three days before proceeding further.
Mr.. Semmes said that this proceeding
being by quo acd1TGntO, WAS in the nature
of criminal action, and execution should
be immediate. He referred to decisions of
the Supreme Court in support of this view.
Mr.. L. E. Simonds quoted article l46 OF
the Code of Practice, to the effect that a
delay of three days must elapse before the
signing of deffintive judgment. Articles
1856 and 757 Of the Code OF Practice were
also quoted in support of this view. He
also referred to the cases in Sd La, 482, and
4th Rob. o. 50.
Judge Dibble said this was summary pro-
ceeding, and as there seems to be some
doubt as to the practice of the different
courts on the subject, he would construe
that doubt in favor Of the party cast III the
suit, and allow the three days to elapse
before signing the judgment.
Eighth District Court
William Durbridge vs.. John NJ. Grace
ct al Judge Dibble has delivered the fol-
lowing decision in this case:
This case has been heard upon rule nisi
for an Injunction. The plaintiff AYERS in his
petition that he had certain contract with
John NJ. Grace, one of the defendants, in
relation to steamboat; that one of the
terms of the contract was that in event of q
disagreement between them, the matter
should be referred to arbitrators, who
should choose an umpire if they tailed to
settle the dispute. Plaintiff further shows
that he disagreed with Grace; arbitrators
were chosen, who failed to determine the
matter, which was by them submitted to
F. W. Delesdernier as umpire. But plaintiff
ayers he refused to abide by the decision
of the umpire, so appointed, because he
did not think it fair and equitable. There
upon Grace brought suit against him in the
Seventh District Court to enforce the arbi
tration. The court, plaintiff asserts, sus-
tanned his objections to the award of Deles-
dernier. but, without legal warrant,
the matter back to the umpire for
Plaintiff complains of this portion of the
decree of the Judge of the Seventh District
Court, and AYERS that it will work him ire
parable injury. He asks for an Injunction
against Grace and Delesdernier to prevent
them proceeding with arbitrators under the
order of court as aforesaid.
Defendants answer and briefly state the
facts. They plead to the jurisdiction of the
court.