New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-07-25
THE COURTS.
Second District Court.

follows:
This is a rule taken by the heirs of the
deceased, through his agent, on Peter Gal
lagher, the executor OF the deceased, to
show cause why the document accompany
ing his account should not be stricken out
from the record of this court, as containing
a tissue of malicious and vengeful abuse,
and libels of and upon the memory of the
deceased, and upon the character and stand
ing of Rev. Jeremiah Hogan, the son and
herr of tho deceased, and 2. COttey, the at
torney-in-fact Of the heir, and the religious
order of the Jesuits, and the head OF that
order in New Orleans.
After careful perusal of the statement
made by Peter Gallagher, the executor, to
his attorney, of which the heir complains, l
have come to the conclusion that the dOcu-
ment containing said statement ought to be
taken out of the records Of this court, as
impertiuent to the issue in this case, except
the last page of it, which contains an ac-
count of his administration, and which be
gins in the following words: III Il Is neces-
sary to make an account" etc.
1t is therefore ordered and adjudged that
the rule be made absolute, and that the
clerk of this court be ordered to take out
from the records of this court and return to
the executor the document mentioned in
this rule.
On the rule taken by the heir Of the de-
ceased on Peter Gallagher, the executor, to
show cause why the Judgment hOmOlogat-
ing the account filed by him should not be
set aside on the ground that it has been
rendered prematurely, Judge Duvigneaud
has decided as follows:
The account of the executor to the heir
was filed on the twenty seventh of FebTu-
airy, 1872; a notice to the heir was issued by
this court on the application Of the eXCcI-
tor, on the fourth of March, 1872, and the
sheriff served the same on Patrick COtfey,
the acknowledged agent of jeremiah HO
gan, on the fifth of said month and year
The notice of the court informs the heir that
he has to show cause within ten days from
this notification why the account presented
by Peter Gallagher, executor of the estate,
should not be hOmOlOgated and approved,
and the funds distributed in accordance
Herewith. On the ninth OF March follow
ing, four days after the notice was served
on the heir, the attorney for the executor
moved the court for the hOmolOgating of
said account. which was granted, and on
the fourteenth of March, 1872, the said iudg-
ment Of homOlogatiOn was signed by the
judge.
According to the notice served on the
heir, his attorney, on the. fourteenth OF
March, 1872, and within the ten days al
lowed to him by said notice to show cause
why the account should not be approved
and hOmologated, fled an opposition to said
account.
In opposition to the will, the attorney of
the executor contends that by Art. 1904 of
the Code of Practice (Old Code, the heir is
allowed only three days to file his OppOsi-
ton, if any lie has, to the homOlOgatiOn of
the account, and that the law dispenses the
executor or curator from giving any notice
to the heir Of the filing of his account. All
this is very true, but when the executor un-
dertakes himself to regulate the rule of
preceding to be taken in his own case, and
to alleviate the rigOTs of the law on behalf
of the heirs, he must abide by the COnse'
quences Of his liberality. Every sutton has
a right to renOunce the benefits granted to
him by law on behalf of his adversary, pro
vided said deTOgatiOn Of the law are per
sonal to him, and not contrary to good
morals or public order. 1t has pleased the
executor in this case to grant five days in
stead of three days to the heir to file his
opposition to his account, he can not com
plain now if the heir has taken advantage
Of his generosity.
1t is therefore ordered, adjudged and de-
creed that the Judgment homolOgating the
account filed by Peter Gallagher, executor
of Z. Hogan, be declared null and void as
rendered, and that the OpnO-
sitiOn filed by the heir be considered to
have been filed within the time prescribed
by the executor and the court for the filing
Of the same.
Eighth District Court.
In this court Joseph L. Tharp files a pc
tition praying for an injunction against
James Graham, Auditor, to restrain linn
from paying any commissions or fees to
Timothy DOherty, or any person, on the
of taxes for the Sixth District
of this city, and to prohibit and restrain
the said Doherty, or any other person or
persons acting in his behalf, from demand
ing OF receiving any commissions or fees on
the collections Of taxes for said district.
Petitioner represents that he was duly
appointed and commissioned tax collector
for said district on the eighth OF June, 1872,
by the Governor Of the State of Louisiana;
that he duly qualified under the law, and
was recognized as State tax collector for
the aforesaid district; that petitioner made
demand Of Timothy DOherty, who was then
and is now claiming TO be State tax col
lectOr for said district, for the books,
papers, tax and assessment lists Of said dis
trict; but the said DOherty refused to deli
yer the same, in violation of petitioners
right as tax collector Of said district.
Petitioner further represents that s. Bel
den, Attorney General of the State, insti-
tuted proceedings under the intrusion act
against DOherty; that petitioner is inter
ested in the commissions to be paid by the
State to the tax collector of the Sixth Dis
trict aforesaid on all collections of all taxes
assessed by the State on the taxpayers of
said district said commissions being ten
per cent on taxes and fifteen per cent on
amount of licenses on all trades, callings,
etc; that there is now about
5000 900 of taxes due the State, on which
the commissions payable to the State tax
collector are 1000.
Tharp also brings suit under the intru-
sion act to GUST DOherty from his post as
tax collector, which will be tried on the first
DrOXimQ before jury empaneled for the
purpose.
The case of Bronson VS.. HOlbrOOk came
lp again before Judge Emerson Sitting in
place of Judge DibbIe) in the shape Of a
,ule taken by counsel for plaintiff to show
why alimOny should not be allowed, and
motion on the part of A. NJ. HolbrOOk to
dismiss the appeal granted in the case Of
VS.. HolbrOOk.
At the calling Of the rule for alimOny Mr..
Howard moved that a commission be or
Tered by the court to take the testimony of
A. NJ. HOlbrOok touching the actual COndi-
ion of his monetary affairs, holding that
'ule twenty Of the rules Of the court author
zed such proceeding The court refused to
ssue the commission, on the ground that
he rule Lad been fixed for trial by Mr..
Howard himself and, as the commission
,ould not be issued without delaying the
.ase, it could not be done
The calling of the list Of witnesses served
or plaintiff and defendant revealed the
presence Of but four Of twenty-eight, where.
Ipon attachments were issued for the alb
elt ones.
The court informed Mr. Howard that he
there were two points to be de-
.ided in the rule for alimony-whether
Plaintiff was entitled to alimOny, and if so,
low much. Mr.. Howard suggested that as