New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-12-21
THE COURTS.

Judge Theard, of the Fourth Distric
Court, decided yesterday the suit Her
rietta Moses against Hermann Horschbure
her husband. The plaintiff, who marrie
under contract that each should have tn
ownership of property to which each wa
entitled, sued her husband for q restitution
consisting Of $3.50. The defendant urge,
that the wife. could only sue for separa
tiOn, not restitution of paraphernal prop
erty, and that inasmuch as she is alread
separate, the law can afford her no relief.
Judge Theard concludes that the wife ba
| a right to maintain this action, and afte
going to the first principles in the code rela
tive to paraphernal property, rested his de
| clsiOn upon the cases of Gilbreaux Heyi
W. Cormier, N. s.. and Halls vs., Bryan
10 L. l36.
| These two cases, said the Judge, are con
elusive then Of the right of the married
| woman, not separated in property from hel
husband, to claim judicfally the restitution
OF her paraphernal effects, without asking
for separation of property.
The laws confirm the right of the wife
separated in property to demand judicially
the restitution of her paraphernal effects,
but limits her rights as to the fruits pro.
duced by the same to those existing at the
time of demand.
Hence the plaintiff can claim interest
only frOm judicial demand. as she has done
IN her petition. As to the objection that
the exercise of this right to sue for resti-
tuition OF .paraphernal goods, is liable to
abuse. 1t is a sufficient answer to say that
the wife not separated in property is Just a.
liable to abuse it as the one who is: but it
certainly does not show that the right is
not granted by law in the one case as we'll
as in the other. The exception of the de-
tendant is therefore overruled.
Judge Collens, of the Seventh District
Court, yesterday decided the suit Of E. f.
Norton. assignee, against John p. Simonds
The whole case was a dispute over the sale
OF the steamboat Starlight. Callahan Hays
sold the steamer to SimOnds for $lO.O
Slmonds sold it to Crowley. and subse,
quently the boat was burned. The per-
lection OF the sale by public auction on the
part o: Hays took place two days after he
went into bankruptcy, and in the transfer
there was counter letter, by which it ap-
peared that the real consideration was ac.
ceptances and book accounts due by Hays
to Simonds. The plaintiff set up that the
sale was mere stimulation to cover pursu
Of creditors, as the value of the boat was
$25,OoO and claimed that Simonds, in the
sale to Crowley, having put it out of his
power to restore the property, was respoI-
sio!e ln-lts value to himself or his assignee
IN bankruptcy. Hence the suit was brought
Tor S2o.OOO The answer of SimOnds pleaded
the prescription of six months under the
bankrupt act and a year under the State
law. Judge Collens was satisfied that the
public act and the counter letter together
constituted transaction which, though
fraudulent, was intended BY the parties to
be real
Upon this point the court concludes:
lndcr the circumstances. l must regard
the conveyance as fraudulent alienation
which could only be alta ked within the
year following the bankruptcy, under the
law OF the State, or only within six months
under the bankrupt act
The topic of that prescription made the
act perfect and irrevOcable as against the
defrauded creditors
The evidence shows that Hays did de-
nand settlement with Simonds: but this
was after the destruction of the boat, and
even after his bankruptcy. He had then
no right whatever to settle with Simouds.
Beside this. the settlement sought seems to
have been founded on the idea that he could
make Simonds account for insurance col
lectcd, and demand the surplus Simonds
might have thus received above the amount
OF the book account, etc. This suit is not
based on any such demand, and therefore
can not adjudce it one way or the other
The evidence in relation to this insurance
was admitted only to show the value of the
boat.