New Orleans Republican., 1872-06-29
aIFlr 0rleats Republican.
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0FFIcIEL JOURNAL or THE UNITED STATES
OFFICIAL JOURNAL OF NEW ORLEANS
THE COURTs.
secnnd DIatrict Conrt.

Frank Kelley, has applied Tor admInlstfa-
trix letters over the property Of her de-
ceased brother, c. III. Eslava, while Miguel
u. Eslava opposes, IN his capacity of heir TO
the deceased and tutor of minor children.
In passing on the case Judge Duvigneaud
held:
It is sufficient for me to state that
would have had no hesitation in sustaining
the opposition of the father for the admin
istratiOn Of this succession, had he not been
opinion, renders him totally unfit for such
trust The old gentleman is blind, and
en- that account he can not act for himself;
lie Is bound by such infrmity to be at the
mercy of strangers, who may deceive him,
being incapable, therefore, to attend by
himself and perform the responsible duties
Of an administrator
The spirit and letter Of the law intend
that an administrator must be capable of
managing ;he property cOnfded to him by
himself and not by strangers; at any rate,
where an administrator employs other par
ties to assist him in the administration of
a succession, tie law presumes that he
must be able TO see with HE own eyes that
the duties of his employees are faithfully
fulfilled. 1t is clear that such duty can
not be properly performed by blind and
aged administrator.
The court decreed that the opposition of
Miguel ID Eslava be dismissed and Ger
trude Eslava be appointed Administrative.
Fourth District Court.
New Orleans Steiner Gaslight Company.
The commercial firm Of G. j. Berry e. Co.,
composed of Cornelius j. Berry James
DurnO, Jr., and James b. Guthrie, part
ner in commendum, have entered suit in
this court against the New Orleans Steiner
GasligLt Company, claiming $l255 y for
money advanced and paid out for the use
and benefit Of said gasligbt company.
Louisiana Ice Manufacturing Company
VS.. the City of New Orleans.-The com
pany sues the city to recover $500 paid to
the late city of Jefferson and New Orleans
for license taxes.
Sixth District Court.
Jannev VS.. Ober-Cooley, 1.-THE whole
merits Of the controversy, as the case now
stands is ia the question whether or not the
amended answer should be allowed TO be
fled. On the part Of the plsintif it is CON
tended the answer came too late, and
changed the issue. have examined the
pleadings In the case, and applying the
ruling which has been laid down by the Su-
preme Court, which is this In order to
Judge whether an amended petition or
answer changes the issue, it must be viewed
in this light-wbether or not a different
Judgment could be rendered ON the original
Considered in that light, do not see that
the amended answer changes the issue at
sldls UGGduhG 10 ulubIbul JuuE lHCnb NOulI Db
rendered on the pleadings as amended from
that which sohuld have been renderedon the
original 1t is the same thing, being merely
another plea in bar to the claim.
The authorities furnished by the plaintiff
TO show that after case is on trial it is too
late to amend, are not applicable to this for
the reason that all the cases cited related to
,smendments proposed during the actual
trial of the case, and while it was progress
ing before the court. The theory Of their
case is that the opposite party was liable to
he taken by surprise while the ease was be-
ing tried; that an amended answer or petit
tion being filed then would be likely to take
parties by surprise; and therefore the Su-
preme Court said an amended petition or
answer could not be fiji d.
But in this case the amendment was made
week or ten days before the testimony
under it was attempted to be brought be-
fore the court. 1t may be that the other
parties were not aware Of it, but still the
papers we're on file and on record, and un-
der the law, parties to suit are supposed
to be aware of everything that transpires
in regard to it. They were therefore legally
aware ten days before the case was called
for trial that an amended answer was on
file The evidence admitted under the
amended answer proves cOnclusively that
the act by which Ober assumed the debt
claimed by plaintiff was the result OF an
error
The signing of the act was evidently not
in order, because Ober knew Of the charge
very we'll. Bnt he signed it under pro-.
test, through his agent, Januey. The act
was prepared as the parties intended that
it should be, in the light of a mortgage, in
order to secure the payment Of the debt due
by Packard, the mOrtgagee. The notary
made mistake, and instead of an act of
mortgage, made il an act of sale from Pack
ard TO Ober.
This act Janney, who was Obef's agent,
refused to sign, on the ground that he was
not authorized to sign such an act lie i'm
mediately sent a copy of the act to Ober, TO
the city of New Orleans, and Ober wrote
back, transmitting the act which had been
forwarded to him; and in that letter he
sold Janney that this act contains an er-
TOR, but in order to close up The matter
with Packard, sign the act as it stands. The
error between Packard and myself we will
correct subsequently,"
The error in this consisted of making an
absolute title instead of mortgage. In the
act making an absolute title, Ober is made
TO assume the debt due to the plaintiff, and
on which this suit is brought and which he
never intended TO do.
This power of attorney is annexed to the
act by which he assumes the payment OF
the debt of plaintiff, and the latter was,
therefore, perfectly well aware that there
was an error IN lle UCls Mu4Cu bAIDE " as W
be corrected subsequently,.
He can not be said to have been preju-
diced by something that transpired, of
which he had no knowledge, because the
power of attorney under which the act was
signed was annexed to the act of sale, and
that power Of attorney recites that there is
an error in that act which will be corrected
afterward by the parties themselves. I'm
der tine circumstances there must be judg-
nent in favor of the defendant
A suit has been instituted IN this court
by James S. Clark against S. B. Packard
for $3.50, moneys loaned about the thir-
tieth Of December, 1871 The petition states
the money was loaned by plaintiff to de-
i&andant during the time of the political ex-
element caused by the contest between
Governor WarmOth and some members OF
the Legislature. Thereby hangs tale
Gill, Receiver, vs.. Atocha ct aL-Plain-
Tiff was appointed receiver to WIND up the
affairs of the defunct UniOn League Club.
Judge Cooley rendered decision to-day
condemning the members to pay certain
amounts due by them
Heirs Of Slideu VS.. Germania National
Bauk and w Il. Fish.-On motion OF BIZ
lings & Hughes and of Hawkins 4 Tharp,
il is ordered that defendants be allowed an
appeal to the Supreme Court Of the State
of Louisiana. returnable on the first Mon
dav in November, on giving bond and seeu-
rity in the sum of $4,000 for a suspenslve
appeal, and the sum Of $500 for deHolu-
Seventh District Court.
Bogart Shell has instituted suit IN this
court against W, B Conger, trustee ana
administrators of his minor children, and
+. II. Foley, administrator of the succession
of Alice Long Foley, praying that the par
ties abOve mentioned be condemned to sur