New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-06-15

signed, and claims to be still the legal Re-
corder, aud the rule is taken by him t
compel the Attorney General to sue, tn
{ section OF 1870 making it his express dut,
in such cases to proceed in 'the name of tn,
State against usurpatiOn or intrusion il
= office.
I The case of Mehle & Co. vs.. the Slaughter
+ house company, praying for writ of in
/. Junction to restrain the company from re
. moving Its business to this side of the river
, has been discontinued.
Fourth District Court.
Before jury in this court was tried the
case OF Bridget Keernan vs. the Canal ant
, Claiborne Streets Railroad Company, il
which plaintiff claimed $4,000 as damages
for the death of her child, aged twenty
: months, alleged to have been caused by
company, in August 1869. The jury, after
celebrating an hour, returned a verdict de-
creeing plaintiff to recover $500.
United STATES Circuit Court-HOn. j. p.
Bradley, Associate Justice of the Su-
preme Court, Presiding.
In the case of Joseph Fuentes VS.. Myra
Clark Gaines, the rule for an Injunction was
dismissed with costs
In the case of Myra Clark Gaines VS..
Agnelly eet al, upon proper showing, it
was ordered and decreed that the decree
pro contcSso herein entered, Henry Pey-
chaud be allowed to file his disclaimer. as
having no interest in the suit
In two other cases, having the same par
ties as complainant and defendant, the time
| tor filing answers was extended to the first
Monday of December, next
In the case of Charles Morgan VS.. James
Graham, ct. ais, it was ordered that an in
junction be refused, and that compliments
| bill be dismissed with costs.
In +ln ~ Il GIL III
| Semmes, eft al, the demurrer was sustained
and the bill dismissed. This suit was one
of great Importance, as it involved the title
to large portion of the land upon which
the town of Houston, Texas, is located
Bill for Injunction.
Fuentes VS.. Gaines-This is bill for in
junction to stay proceedings in this court.
have been unable to find any precedent
for such a bill, and can not see the neces-
slty for it. If any circumstances exist
which render it improper or inequitable to
carry on proceedings in this court, they can
always DO brought to the notice of the court
by motion or petition in the suit, or may be
pleaded in bar or abatement A formal
Dill Tor SUCH a purpose seems to me to be
needless litigation, and l shall direct the
bill as such to be dismissed, but allow it to
stand as petition in the several suits
sought to be suspended, not requiring the |
other pleading thereto.
Surprising the matter to be properly |
brought before the court ON petition and |
motion thereon the question arises |
whether the proceedings in this court ought |
to be staid, pending the suit brought in The |
Second District Court of the parish of Or
leans for the revocation of the will of |
Daniel Clark
The solution of this question depends
az nf
PENDANTS in the cases pending in this court
are entitled further to litigate the will of
Daniel Clark, on which the complainant's
claim is based
From an examination of the law of Louis
lana, | am satisfied that the probate of a
will is not conclusive against parties in pos
session OF property which is sought to be
recovered from them by virtue of it, unless
they were parties htigant in the probate
1t may be, and probably is.
prima facie evidence of the validity of the
Will, but it does not prevent the defendants
from showing the will to be invalid 10 Mar
Tin, l; III Louis. 389, 800; II Lou 4; Rob lis:
l0 Rob. 1873; Ann. 724; Ann. $40; III Ann.
"a l3l, lbs; ID Ann. l37, 1873; Is Ann. 1877.
This is analogous to the rule which prevails
n England and in several States of this
country, as to wills of real estate. In this
state it seems to apply to wills of all kinds
If property.
While this is the general rule, | do not
mean to decide any subsidiary question
which may arise in these eases-such as
whether the defendants are prescribed by
apse OF time to contest the will or the pro
'ate thereof Such questions will be pron !
rly decided when they arise in each case.
SUIT being satisfied that the general rights
I the defendants are such as have stated ..
he next inquiry is, in what manner shall !
hey be allowed to raise the issue! I
II 1t were new question l should unhesi- !
atmgly say that they could raise it in this
curt and could either require a decision L
pom 1t from the court itself, as upon one of :
ne necessary questions in the cause or I
pom separate issue of devisavit vel non
the defendants are not concluded by the '
rebate, see no reason why they can not u
Dntest the validity of the will in these Ii
hts 1t was never supposed that the va e
dlty OF will of real estate could not be Il
uestl0ned IN chancery suit, where it was l;
It up as ground of recovery or defense 81
is true that the court has refused to en- u
rtam suit for setting aside will on the p
round of its having been obtained by Ia
aud But In all other cases the well known a.
sue OF devisayit vel non shows that the III L,
'urt has entertained jurisdiction of the ID
llidity of wills of land from time im- CT
emOrial, whenever the question has prop VI
ly arisen in an equity suit. If it has not Q.
Itertained like jurisdiction with regard to II
Ills OF personality it has been because I'll
Ills OF personality probate themselves in al
e ecclesiastical courts of England and in I'll
e probate courts of the other States, has io
ways been deemed conclusive upon all
rs0ns.
In the case of Gaines vs.. Relf Chew eft N
s., How, 630, the court seems to con- | re
Ter that there would be no difficulty in -
sting In this court the will of 1911 by an -
ue OF devlsavlt vel non; and from care -
examination of the opinion of the Su- st
enc Court in the case of Gaines VS.. on
ennen, "a How, 523, am satisfied that OF
e court regarded the validity of the will o.
1913 as open to condensation in the Cir OF
1t Court 1t was expressly conceded that te
e admission of the will to probate did not OF
clude any one who might desire to con- ou
IT the will with Mrs. Gaines from doing it Sc
a direct proceeding, or from using any pc
,ans OF defense by way of answer or eX-
ption, whenever she should use the pro- an
tie as imminent of title The court VIZ
recover says And the probate does not sti
include Ref and Chew, or any other par tu
s having an interest to do so, to oppose mi
3 will when it shall be set I'D against cd
I'm by such defenses as the law will per TN
t in like cases. 1t was with those quail uh'
atoms of the probate of the will of 1913 sW
1t the case was tried in the court below WI
d they have been constantly in our 6a
nds in the trial of the appeal here" nu
SIS. gr'
The court then says: st is due to the =
'rlts OF the controversy to advert to the gi'
clslons of the Probate Court of the Second lca
strict of New Orleans, and to that of the tn;
pfeme Court, reversing it more infinitely trG
III mas oeen done, especially, too, as they .
colncluent with our conclusions upon sol
testimony regarding the execution bv lOV