New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-02-08

perpetrated by Johns. True, the PROOF Is
not such as would justify verdict against
the parties ia an indictment lot arsOu' ana
consigu them for years 10 telons' cells. 1t
is NOT necessary that there should be such
nositiye and conclusive evidence against
Them to prevent and estOp them from real
iZinp their demand against the insurance
connany. In criminal case the State is
hound to make out the guilt of the accused
by clear, convincing and lrretragable proof.
Nothing can be presumed against him; he
il to have the benefit Of every doubt
thrown in his favor. In this case. where
the plaintiffs seek to lay their hands on
fund. belonging to an insurance company,
they must make ont their right 10 such
funds by iDdu6itable proof. Nothing can
be presumed against the company in re-
gard to their indebtedness. In this respect
the company is in An attitude toward the
plaintiffs analogous TO that of a person
prosecuted criminally by the State; like
the latter. they are entitled to the benefit
of every doubt.
Where i'll an action against an insurer Tor
loss by fire, the defense is that the assured
himself set fire to the premises, the evi-
dtnce for the defense il not required to be
as full and conclusive as would be neccs-
sary to support an indictment tor arson.
Annual, p. go. Bob, p. Az.
The property was sold April =. 1869, for
the same year it was sold TO Hedrick for
$1,000, according TO the testimony of the lat.
ter, and on the same day /. was donated by
him 20 Mrs. Breard. Between the dates of
those two saIe>-a period .! less than four
DOnths-th6 property. according 10 plant
ifs own evidence, deteriorated III value to
the amount of 500, while within less than
six months after, TO wit: January -, 1870.
the date Of the insurance policy herein
cI,aI pga .pprpEprfGU E2Vp ai-
vanced to more than double its value,
$780, and was actually insured for that
amount The affidavit of loss made by
BreaId after the burning Of the house fixes
its value a, SlJ00, and the value OF the fun
nlture al SS2i 80, though Mrs Breard swears
that s i35 was the entire cost Of tue turni-
ture. and that large portion of it had
been in use for four years previously.
| am of opinion that i'll the affidavit Of
loss the value of the property injured by
said fire was wllltuily overstated for the
purpose of d"ceivIng and defraudIng the
Mechanics and Traders Insurance Con-
pany, and that the said affidavit. taken in
connection with all the other acts of Breard
and his wife in this matter, estop Them or
either Of them. from recovering their claim
herein.
Where, IN an action on a policy of in.
surance containing the usual condition that
If there be any fraud or false swearing all
claim under the policy shall be forfeited.
there is difference between the amount OF
loss sworn to by the insured in bis account
presented 10 the insurers and that proved
on the trial. such difference IL not conclu-
sive evidence of fraud and false swearing,
but the burden OF proving that the differ
ence was the result OF error. and not OF an
intention to Ieiraud the insurers, is on the
plaintiff. and in the absence of any sa'is-
factory explanation. il must be considered
as imposing on tho insured . forfeiture
Of all claims under the policy.
Tbs previous good character OF Breard
and his wife i. not enough to Gi-Dei the
cloEd OF suspicion, 70 Hse mlld expression,
that the testimony and circumstances OF
this case throw around them. Al wrong
doors can look back az period of limo
cence and fix very definitely the moment OF
their first departure from the path OF rec
t.tudc. Johns. too, had borne q good name
up TO the :wenty-sc,enth Of September.
1870, when he fired the homestead of him
who is endeavOring. BIZ the instrumentality
of his wife. TO cause the insurance company
70 open their Golfers and pay d heavy pre-.
MUM on fraud and crime. The incendiarH.
prompted by cup;dity and a craving for the
acquisition of his neighbours property III
applying the torch 10 his own dwelling,
often destroys the hOmesteads OF his neigh
63rs.
When suspicious 81 "a well founded char
acter IN regard 10 the CON omission of acts of
arson by insured parties prcsrn: thom
selves. ! consider it the duty of courts OF
Justice to make the fraudulcn: demands of
that class of incenGiarIcs impossible of at
tainmtnt. Respectable citizens WHO associate
themselves together rs insurance companies
have rights which the house burner should
he made TO respect. The crimina. courts o!
this parish can make this incendiary system
of enterprise dangerous. The civil courts
can and shall prevent i from being profit
able.
Therefore lie. there BE juigmen: III favor
OF defendants with costs.
Fifth District Court.
In toe ease Of B. }. West VS.. the city of
New Orleans and Mrs. Catherine slry.
the rule taken ~ plaintiffs on defendants
to show cause why tic trial OF tie ease
should not he proceeded with il this tri-
'bunai OF. the ground that the act creating
the Superior District Court j. uncOnstltu-
tanal. was submitted Thursday.
The case of Peter Gallagher vs. the
South western EXPOSITION Association mas
for several days occupied the attention o.:
this court. to the exclusion OF any other
business. This is an action brought by
the plaintiff to recover damages. which he
claims in theE Sum cf $4,000. for the falling
of a wall. which caused him physical in
jugies.
Sixth District Courto
IA the case OF Chatfrax 81 Agar va. Price,
Hine & Turper. Morton. Bliss " Co., of
New York, mtervenors, Carleton Hunt
closed his argument on behalf of the inter
yenors Thursday evening, at eight o'clock.
Mr.. Finney, of the legal firm of Lea,
Finney N Miller. will close the argument
on behalf IF the plaintiff this morning.
Ia nous. .rilI Ia. s,II,TnittaN 70 -,