New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-05-26
NEW ORLEANS, THURSDAY, MAY 26 1870


and up to November, 1869, the same condl-
ton OF affairs, as alleged in the supplemental
petition. Indeed, We gather from the
whole record, that the search for petroleum
in this instance, as in thousands OF others,
was failure, and was abandoned by the de-
PENDANTS. who devoted their energies thence
forward to an endeavOr to procure some
means, not for the further search for petro-
leum, but for the mining of the sulphur, to
which they claimed right.
Upon this state of facts, what is the legal
result2 In interpreting the agreements OF
October l, 1865, and January 4, 1857, we
must follow the familiar rule OF construlng
the clauses together, giving to each the
sense which results from the whole lnstru-
ment. Dornat, P. l. B. l; T. l, E. 2. G. Q. 1850.
We find the first agreement twofold a
right to mine for petroleum and similar
products land whether this includes the
right to mine for sulphur, we are not called
on to determine); and in the event OF sue
cessful mining, right for ten years from
the date of the agreement to one halt the
gross product. The tenth article OF the agree.
ment, which we have quoted, repels the
idea of an absolute unconditional lease OF
the property for ten years. On the con-
trary. if the search for petroleum was IN
successful up to thirty first December, 1866.
all the rights OF the party OF the second
part were to cease, and they did cease, for
the search up to that time was unsuccessful.
If. on the first January, 1867, the plain.
titfs had demanded possession Of their
lands.> it Can hardly be imagined that the
defendants would have resisted the demand.
or would have claimed that they must just
be paid in mora. Defendants are put in de-
fault by demanding that they do something
that in legal sense they ought to do, and
can do.
Now, on the fourth of January. 1867, an
other agreement is made, the important
clauses of which we have quoted By this,
the plaintiffs entered into two obligations.
the one absolute; the other cor
ditional. They said, in effect, to the
defendants, "the agreement with NAL
let, OF which you are transterrees,
is forfeited. but we now promise to
waive that forfeiture up the thirty-hrst day
of December, 1868, the waiver is absolute,
But beyond that time we will create con-
ditionai obligation. its condition shall be
suspensive, and, so far as you are concern
ed, potestative. We agree not to do a GER
tain thing, provided you do something
which lies entirely IN your volition. If you
will continue unremittingly to mine TOR pct
roleum We will refrain from declaring q
forfeiture which already exists"
This construction disposes. at once, in the
negative. Of the question whether q formal
putting in default WAS necessary. We must
distinguish in this regard, between a
modus and condition proper. The
former is obligatory, and if the party bound
is passively violating his obligation, he
must be put in default. But the condition
in this case, at once suspenslve and pro-
testative, Is one whose accomplishment de-
pends on personal choice, and the party on
whom it is imposed is free to accomplish it
or not.
''Je vous dome le fonds cornGlien 81 vous
fates telle chose, VOLTA une condition. Je
vous dome le fonds corn ellen a la charge
par vous de fsire telle chose, VOLTA un mode,
parce que la charge dui vous est lmposee ne
suspend nj ne retarde rexe rution de notre
convention, ct que son inexGcution de votre
part doit seule entralner sa resolution.
Cest bien Ia le caraCtere essentiel qul dis
tingue le mode de la condition suspenslve,
don't il sc separe par les caracteres de la con-
dition resolutoire, ct encore par ceux qll
lui sont propres. Dams les conditions don't
mplissement depend dun fait person.
mel, ceiui qui il est impose est libre de
raccomplir Gu non. LIE mode, au con-
traire. est une chose ou un fait stipuie pour
soi.m6 ne on pour autrui, obligatoire ct
payable" Larombfere, Obligations, vol. 2,
p. s, -
1t would in this case, therefore, have been
vain thing for the plaintiffs to have de-
manded from the defendants the doing OF
something they were under no obligation to
do and the putting IN mora was unneCes-
sary, or, rather, legally impossible.
We are constrained, therefore, to conclude
that the plaintiffs are entitled to the possess
sion of the lands. 1t is, therefore, ordered
that the judgment appealed from be avoided
and reversed, and that the plaintiffs have
Judgment as prayed for, for possession of
tne lands described in their petition, that a
writ of possession issue in due time there.
for, and that the defendants pay the costs OF
both courts.
United States Circnit Court-Judse W.
Il. Woods.
United States VS.. three hundred and
thirty-seven cases of wIne.-In this case,
Yesterday, for reasons orally assigned, 1t
was ordered that the judgment rendered by
the District Court of the United States on
the thirtieth of April. 1869 be affirmed, with
costs. The wine is, therefore, forfeited.
United States VS.. steamer Rob Roy and
cargo.-In this case the vessel and cargo,
consisting of 1920 bales of cotton, was
libeled and condemned before the United
States District Court. An appeal was tas en-
to the Circuit Court, aud yesterday the
cause came On for trial, and was continued
over until this morning, at eleven o'clock.
Sixth District Court.
Martin kenopsky VS.. Mark Davis and
Barnett, agent.-In this case Judge Cooley
Yesterday rendered lengthy decision rela-
tive to Il nuisance existing in back yard
belonging TO defendant. The Judge held
that, as the nuisance existed at the time
plaintiff bought the property and he was
well aware of it's existence, he could not
claim damages of defendant. The court,
however, held that the nuisance might be
abated by the city authorities.
Lalande Ferrier has brought suit by
mandamus against the Auditor OF Public
Accounts for $3.50 for salary due as Assessor
for the month of april, 1870, alleging that
he was engaged at so much per month and
had begun said month when he was ille-
gally discharged from employment.
Supreme Court of Loulsiana.
This court, yesterday, refused rehearings
in the following cases:
Julia A. Mutt, use ct al, vs. Citizens Bank
of Louisiana.
A. w. Walker VS.. F. A. Dunn.
w. W. King vs. Mrs. Mary Cussap.
Joseph Hay VS.. L. A. Scott ct al
Isaac Bloom vs.. Frederick ShOnekass.
Samuel P. Green, administrator of F. 2.
Brunot, vs. Louisiana State Bank.
Charles Case, Receiver of First National
Bank of New Orleans, VS.. Manheim Berwin.
A. D. Palmer VS.. Henry Marston.
B. F. Wharton, tutor, ct al. vs.. executor
OF W lIliau SlilluldA, anu ueuo VI lhoiAa0
Silliman.
The court granted rehearing in the case
of L. E. PerouX vs.. Pierre LacOste.
The sheppard will case was argued yester-
day, and continued over until this morning.
Eighth District Court.
Board of Metropolitan Police VS.. S. n.
Burbank.-In this case, J. r. Beckwth, at
torney for the defendant, made a motion that
the trial be fixed tor Tuesday, the thirty first
instant, and it was so ordered.
WALsHE's new FURNISHING GooDs.-The