New Orleans Republican., 1873-03-26


amount to a warranty that the ship
should sail on the day named.
This question appears to be settled by the
case of Lawless VS.. Bangs, Wallace, 72S,
and the cases cited in the opinion OF the
court. In that case it was held that
stipulation II charter party that me cElar-
tered vessel then in distant seas. should
proceed from one port named 10 another
; port named with all possible Dispatch IS
warranty that she will so proceed auu goes
TO the root of the contract; 1t Is not rep
| resentation simply that she Will SO proceed
but a condition precedent 10 The fl&ht OF
recovery
In GiaboIm vs. Hays, . Manning and
Granger, 257, cited by counsel and referred
hg the court in Lawless VS.. Bangs. the Ian
| guage Of the charter party was tine vessel
J TO sail from Eng gand on or before the toGrth
! OF February next and this was held TO be
| IL condition precedent. In Olive SIS.
Booker. EXchequer. ll6. the vesse! was
| described as ''n0w al sea. having sailed
three weeks ago. and il was held that the
| time at which the vessel sailed was S2ate.
! rial and the statement in the charter party
| amounted 90 warranty. See slsO Oliver vs..
| Felden. I: Exchequer. !$j, trookwrit VS..
! Fletcher. HuTlstOne and Norman, gl,:,
! Behn Us. Burners. i" Law Times. 20. Apg.i.
| 1868.
! Holding. therefore. that the statement
made by Homes. Ryder Il Co. The agents
! of the owners. i'll their letter of March b.
; that the Sherman gould sail on the eighth.
! entered into :he contract Of tbs parties and
! amounted TO a warranty. and there belng no
. dispute of the fact that she did not sail IN.
iii the tenth. am of opinion that plaintiff
! has shown no case for d recovery. and that
there must ue a finding and judgment: 20.
! costs IL favor of defendants.
-upreRre Court.
| Adam Tate We. Latorest & Deslnaie.-
| The following opinion. read by Chief JUS
| .ice Ludeling, will command attention, AS
| involving an important question touching
the liability OF commission merchants:
The plaintiff sues to recover s275i. tie
| net proceeds o: cotton shipped by him to
detendants-factor. and commission mer-
! chants.
| The defendant, admit the correctness OF
! the debt, but they claim that they have
! been discharged from the obligation 10 pay
| it by proceedings in insolvency.
On behalf of the plaintiff it is cOntendet
! that the proceedings as to the plaintiff are
nuii and void, because the debt was created
in II tiduciary capacity, and that the inso!
| vents were not released from suCh debt.
! The evidence satisfies us that defendants
| received the cotton as the commission mer-
chants and factors of plaintiff, and as such
| sold the cotton and received the proceeds Of
, the sale. The debt is therefore iduciary
I
debt from its operation. The defendants
| received the money for account OF plaintiff
| ard held it in trust for him.. BY converting
| 1t to their own use, they rendered them
! selves amenable to the criminal law of the
! State. &C could not therefore be inferred
| that the insOlVent laws of the State Intended
! to discharge a debtor from such debt.
even if it had not been expressly excepted
in the law. "1he benefit of the insOlvent
| law is attended for the honest but unfOrtu-
| nate debtor" We think the judgment in
favor OF plaintiff. for the SUN claimed. is
correct
+. Crilly IS the sheriff ct ai.-Tne fol-
| lowing decision under the homestead act.
rendered an Monday by Chief Justice
! Lu cling. Will be found OF general interest:
| This Is All Injunction suit to prevent the
| sale OF a house and lots under the order Of
seizure and sale. on the grounds that the
| property is not worth more than $1,000. that
| il is his home, and that he has a child de.
pendent on him.
Section 1851 of the Revised Statutes Of
| 1870 provides that in addition to the prop
! erty and effects now exempt from seizure
/ and sale under execution. l6t acres OF
| ground and the buildings and improve.
ments thereon, occupied as a residence and
| bona fide owned by the debtor. having
| family. or mother. or father. or person or
! persons dependent on him for support, also
! yoke of oxen, two cows and calves. twenty.
| five head Of hogs, or 1860 pounds of bacon
| or equivalent in pork, or If q farmer. the
| necessary quantity of corn and fUdde. for
| the current year; provided that the property
| herein declared t. be exempt from seizure
| and sale does not exceed III value $1,000,
| etc.
! And the plaintiff relies upon this Prov.
| sion of the law to justify his action.
We think the property exempted from
seizure and sale iu the foregoing law is
| predial, and not urban property. It ex
| empts 10 acres of land and the improve
| ments and buildings thereon, and such
| other property as iS usually attached TO d
| farm to contribute TO the support Ut the
| farmer and his family.
The general rule is that the property Of
| the debtor is the common pledge OF his
| creditors. Exemption laws create excep-
tions to the general rule, and they are not
to be extended beyond the express terms of
the law.
Judgment af)irrHed in favor'of defendants
In the case OF Fontaine Avegno VS.. Law.
renee Hart, Associate Justice Morgan ren.
dered the following opinion:
The thoroughfares of the city Of New
NIleans were never intended for race
courses.
The plaintiff, driving on Canal street, was
run into by the defendant. who was racing
was thrown from his buggy, which was
badly damaged, and be and his friend much |
disturbed thereby in mind and body.
He sued the defendant for Si0O special |
damages. ard tor 500 damages to his feel |
ings.
The Judge gave him Judgment for $3.50, |
and the defendant has appealed.
ANegn0 seems to have been in about the |
middle Of the street. Janney and Hart |
! were racing behind him and seem to have |
been close together, Janney somewhat |
ahead. .'anrey passed Avegno On the left: !
Hart attempted 10 pass hun On the right. |
This is not Hart's proper place.
We undc.tanG the law of the road iE |
this country to be. that where a driver |
attempts to pass vehicle which is going |
in the same direction with himself, he must |
go to the left: when they meet, each must |
60 to the right. So we'll is this rule under
stood that horses well trained are governed
by II without any guiding. 1t is estab- |
lished III this case that plaintiffs horse is !
~ the habit OF going TO the right.
And so it would appear that AvCgn0, |
when Januey passed him pulled to the right.
This was proper for him to do. and ii was |
most natural that he should. Tor be could |
well take it for granted that Janney's COM
petitor. who was close behind him, would |
follow in Janney's track. and ne was GER
tairly Justl1iable in endeavorng to get as
far out of the way OF these reckless drivers /
possible.
Besides, We take it that when a driver at
tcmpts 20 pass another on public road. he |
does so ut his peril; at least that he must |
he responsible tor all damages which he |
causes to the one whom he attempts to !
pass. and whose right to the proper use Of |
the road is as great as his. unless the latter !
Is guilty of such reCklessuess. or even gross
=.