New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-05-24


pany ct al, and same VS.. Louisiana Mutual
Insurance Company ct al-These suits were
instituted by the plaintiff against seven
other insurance companies on contracts OF
insurance entered into severally by each of
these seven companies with the Merchants
Mutual Insurance Company.
The history of this litigation seems to be
this: Dupasseur & Co. were insured by the
Merchants Mutual Insurance Company on
1874 bales of cotton, at the rate of $500 per
bale, on board the ship Aegean, from New
Orleans, bound to Havre, France. The de-
fendents reinsured the plaintiffs for the
amounts respectively stated in their sepa-
rate answers.
The vessel arrived safely at the port Of
destination, and after discharging part of
her cargo in sound condition, of which
three hundred aud twenty-five bales of cot
ton insured for Dupasseur & Co formed
a part, took fire, which was ultimately ex-
tinguished by letting water into the hold.
The remainder of the cargo was discharged
in damaged condition. When the news
first reached New Orleans of the occurrence
of the accident, the Merchants Mutual In
surance Company made several advances to
the insured for an aggregate sum of SlO4,-
600, subject to future adjustment. In the
like manner the reinsuring companies
made corresponding advances to assist the
ulbICudub5 AuSuI dnCo OOAAEoAgH
In accordance with the usage and prac-
tice at Havre a statement or adjustment OF
the loss was made by the Tribunal du
Commerce" and by this adjustment it seems
the several companies reassuring have been
willing to abide BY this adjustment it APP
pears that the case was one Of partial loss
only. Dupasseur & Co., on their part, held
that it amounted to a constructive total
loss and refusing, when called on by the
Mufnal Insurance GpuNnonu TO
refund any portion of the large advances
that had been made to them, claimed an
abandonment, the loss, as they asserted,
having amounted to more than fifty per
cent, suit was brought against them by these
plaintiffs.
Judgment was rendered in favor of Du-
passeur & Co., as in case of total loss, but
cOndemning them to pay the sum of $4,000,
being the excess of the advances over the
amount adjusted for constructive total loss.
The Teinsurers were then called upon by
these plaintiffs to contribute according to
their several undertakings, in favor of the
insurers, in order to lessen the burden on
them This they refused to do, and against
four of the companies which engaged in the
insurance, suit was brought in the Fifth
District Court, and in the Seventh against
the other three.
In the Fifth the case was tried before a
jury of merchants Four of the companies,
it seems, commended that the amounts adj
vanced by them, subject to future adjust
ment, exceeded the sums they were legally
bound to contribute, and they set up recon
ventiOnal demands for the Overplus. The
other three specified small amounts which
they admit they are bound to furnish to
make up the sums they are legally bound
to contribute, and which deficit they aver
they have always been ready to pay.
Ind rnDdarnA in tho Fifth
Court in favor of the plaintiffs, against
those admitting they owed balances, and in
favor of the Louisiana Mutual Insurance
Company on its unconventional demand. In
the Seventh Court, judgment was rendered
against the plaintiffs, and in favor of the
defendants, on their respective reconven-
tiOnal demands, the court treating the judg-
ment of the plaintiffs against Dupasseur &
Co. as a nullity, and also on the ground that
there was not, and under the facts there
could not be, in regard to the damage sus-
tanned by the ship taking fire, an abandon
ment and claim by Dupasseur & Co. for a
constructive total loss. From both iudg-
ments plaintiffs appealed, and on Tuesday
last the Supreme Court affirmed those judg-
ments.
In passing upon a case involving the pay
ment of bill Of exchange, resisted by the
drawer on the ground that he had no notice
of protest, the court says:
The evidence in this case shows that the
the drawer of bill of exchange,
even if discharged by want of proper notice
of dishOnOr, repeatedly promised to pay the
draft to- plaintiffs under circumstances
which make it legally certain that he knew
of the alleged want of a notice. There Is,
therefore, no error in the Judgment, which
was in favor of plaintiff.
SOsthene TruxillO VS.. jeanette TruxillO
IF Anfoina no forag If al l..
from parish court, parish of Assumption.
In September, 1871, Antoine TruxillO died.
leaving a smallsuccessiOn, consisting mainly
of tract of land. and leaving three heirs,
viz: SOsthene TruxillO and his two sisters,
Mrs. Dalferes and Mrs. Barras.
Pending the application of Mrs. Dalferes
to be appointed administrative, the plaintiff,
SOsthene TruxillO, sued his two sisters for
partition of the succession, and alleging that
he is mortgage creditor of said succession
for $7282 he prayed that the land be sold
in block by an auctiOneer for cash enough
to satisfy his mortgage claim, and also
for cash for One-third of the balance re-
naming beyond the amount at the day of
sale of said mortgage claim, and that a
notary be appointed to whom the parties
may be referred for final partition, etc.
The court ordered all the property to be
sold in block for cash ''for the double pur-
the plaintiff and for partition"
From this Judgment the defendant Mrs.
Dalferes, appeals.
The proceeding is anomalous. The main !
object of the plaintiff is doubtless to enforce
his mortgage claim against the succession |
Of his father, which is unrepresented and |
which claim will absorb the greater part of |
the succession. He opposes an administra- |
lion, and yet under articles 800 and g92, |
rNs.I1 - In -, To- L.
sold to pay his large claim by Gu
nulating the application with an action for |
partition.
The property of a succession can not be |
sold under the articles referred to until |
some one has been appointed to represent |
t; and until the claim has been allowed by
he administrator or other legal representa-
i've, or adjudicated upon by the court.
The amount of this claim being $72S2, the
court was without jurisdiction.
The jurisdiction OF the court depends
lpon the amount in dispute, regardless
If the party holding the claim, whether he !
Do an heir or not
As TruxillO died in September, 1871, the
of his succession must be sold in
OTIS of from ten to fifty acres each. 1t can
lot be sold in block. Revised Statutes OF
$50, section 1882 Civil, art. 80
1t is therefore ordered that the judgment
from ne annuIleu, anu InaI lnIS
suit be dismissed with costs of both courts
In the case of John II. Freeland VS.. Hyl-
ested & Co.. G. II. Vinten third opponent,
Judgment was given in favor of the third
which was also the decree in the
court below.
Second District Courts ccessiOn of II.
Elliott.
This is an important controversy, and
one that excites much interest. Elliott died
IN this city on the twenty-ninth of March
last last On the twenty-ninth of November,
ioLI, he gave to Mrs. Mary E. Resley, a |
la.L OF this OH. o .L.-. ~.