New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-04-25
THE COURTS.


THE COURTS.
go United States Circuit Court.
Mary Dyas va. Hereford ct ais, defaul
set aside. e. m
William R. Hodges vs.. R. Man uel, dis
continued.
United States District Court.
The new cases are unimpOrtant hbels fol
mariners wages.
Supreme Court.
John C. Barelli vs.. Emile Gauche.-Thi
is an action brought by the plaintiff to re
cover valuable real estate in the city o
New Orleans, embracing the ground upoI
which stands the Moresque Building.
This property, it appears, was sold under
execution in 1866, as belonging to the plain
tiff, the execution having issued on judg
ment obtained against him for the sum O.
$H, 583, by Jamison.
The defendant alleges that the Sheriff
sale to the defendant was null; that plain
tiff was not thereby Invested of title, anG
that the defendant consequently acquired
none. --
The defendant AYERS that, as purchaser
OF the property sued for, he has paid in ex
tinguishment OF the price and in discharge
of debts due at the time of the sale by the
plaintiff, and bearing mortgage and priv
1ege on the property, all that was legally
exigible, a sum amounting to $4,000, and
which equity required the plaintiff should
be surrendered to the defendant before the
the action must be sustained.
No tender of the amount paid by defend
ant is shown to have been made. and this
we think was essential to enable the plain
tiff to prosecute his suit. 6'N. s., 684; s N.
S., 1872 IFS, 2l0; 3 La, SAL, IL; An. 25l, 213;
An. 425, and authorities here cited. Rev.
C. c., 1912.
1t is, therefore, ordered, adjudged and
decreed that the judgment of the district
court be annulled, avoided and reversed.
1t is further ordered that this suit be dis
missed at plaintiffs costs.
In the same case, Justice Howe. ION re-
hearing" decided:
Upon further consideration we are not in
clined to change the judgment heretofore
rendered by us in this case. Gornley We.
Palmer, Ii, An. 2l3. 1t is, therefore, or
dered that the judgment heretofore rem
dered by us remain undisturbed.
d. w. McCranie ct al. VS.. NJ. N. Woods
Appeal from the Fourth District Court,
parish of Orleans. The plaintiffs allege
that they shipped on the steamboat Red
Chief, Woods, master, LOG bales of cotton,
which he agreed to deliver at New Orleans
as soon as the war should terminate, until
which time he was to take care Of and keep
the cotton safely. for which service he was
to retain one-fourth; that it was taken by
Woods in the Atchafalaya river, and car
ried away By him. and that the value of
the cotton at the time it should have been
delivered was $3.50 per bale. The prayer is
for judgment against the defendant tor
Sl9,875 and interest.
The defendant AYERS that it was exposed to
imminent danger of loss and destruction by
burning, which was then extensively carried
on in that region by parties acting under
the authority of the confederate govern
ment; that plaintiff and others desired re-
spOndent to receive their cotton on board,
and to convey it to such place or places Of
safety as in his judgment might be found,
agreeing to give him one-fOurth that might
be saved; that he did, to the knowledge, re-
quest and satisfaction of said plaintiff,
carry the same to Cow Island. in Bayou
Flazon, secluded place, and there slowed
the same according to his best ability; that
he exercised all the care and diligence of
which he was capable in preserving it; that
it was taken by overpOwering force, and
either ran off or destroyed.
The court rejected the plaintiffs demand,
and they have appealed.
We think the evidence fully sustains the
defense.
The plaintiffs were anxious to save their .
the defendant to be conveyed to such place
of safety as he might find, and there to be
kept till the war terminated, and then to
be brought to New Orleans, he receiving
one-fourth thereof for his services. Owing
to the condition of the country in 1864, we
think the defendant could not have pre-
vented the parties who got the cotton from
taking it.
The place where it was stored was at the
time probably as safe as any other. 1t is
proved that the defendant never converted
or appropriated the property, and that all
the cotton in that region was burned or
stolen during the war.
Judge WHY then reviews the testimony
of defendant and continues as follows:
After fully examining the evidence, we
have concluded that the facts stated by
these two witnesses disclose the true state
of the case. The country was in state of
war, and the port Of New Orleans was
occupied by the national forces at the time
the contract was made between the plain
tiffs and the defendant in relation to the
cotton which was in rebel hands, The SER
vices of the defendant and his boat were
employed in the desperate effort to avoid
the loss, and to save, if possible, the cotton
from the casualties of the war, the defend
ant by the contract being made a partner
to the extent of One-tOurth OF what he
might save.
From the evidence we are satisfied he
acted in good faith, and did for the plain
tiffs the best he could under the circum-
stances, it being no part of his contract to
insure against the casualties of the war.
AS all the cotton in that region of country
was destroyed or stolen, as lawlessness and
violence prevailed, we believe it was i'm
possible for tho defendant to save the cot
ton, in which he was interested as a partner
to the extent of one-fourth, and, therefore,
conclude it will be against law and good
conscience to condemn him to pay what
is not demanded by the plaintiffs. .t
The principles Of the law of common car
riers are not applicable to q case like this.
Judgment affirmed.
Charlotte F. Stafford VS.. James NJ. Stat
ford. Appeal from the Ninth Judicial Dis
trict Court parish of Rapides.
In this case wife brings suit against her