New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-04-07

} had first consented and then refused, sh
might have had case for damages. Th
authorities quoted would then be applicable
The plaintiff implicitly accepted defendant
offer to carry her in the cOlored cabin If
white passenger was denied accommodate,
J in the colored cabin he could not claim dam
ages. l find no breach of contract anG
nothing IN the common law to prevent
regulations for the common benefit o.
| passengers. For this State to interfere it:
enactments. and for this court to apply
them to a subject solely confided by TIE
constitution of the United States to Con
gress is glaring usurpatlon of authority.
BY JUSTICE TALIAFERRO.
No. 1907. Barker B. Pegram vs. John B
Cooper. appellant.-From Sixth Distric;
Court of Orleans. The court below erred
in not admitting evidence to show failure
of consideration. Judgment annuIled and
case remanded.
No. 1893. State ex rel. p P Carroll VS..
Philogene Jorda, appellant. Plaintiff al
leges he was elected parish Judge of ST.
Bernard, and that defendant is an intruder
The exception that the intrusion act is re-
pealed by the act of March ), 1873, regu-
iating contests for judicial office is over
ruled. The commission of Governor War
is nullity. The plaintiff holds the legal
commission from Gov. Pinchback. Jud q.
| ment affirmed.
No. BIS. Ellison Creevy and Enley.
lipuidators VS.. f. W. Burbank, appellant
From Fourth District Court of Orleans.
The appeal having been returnable the
third Monday of January, and the tran
| script not having been filed till January %.
an interval of more than three judicial days
it is dismissed.
No. 49l3. +. G. Mahan vs.. E. B. Benton
Motion to dismiss appeal from Fifth Dis
! tr!ct Court, as the case is an Injunction to
restrain proceedings in relation to sum
amounting to just $500, is granted. The
case is the same as Oglesby VS.. Helm. (See
! opinion book)
| No. 4770. Kendig g. Co. vs.. city of New
Orleans, appellant.-From Superior Dis
trlct Court. On rehearlng. The decree
having been rendered on insufficient evil
dence, is reversed. The decision of the
court below is affirmed, the Injunction to
| rest on the state of facts existing at the
trial of the cause, without prejudice to the
| city to set up claim to the quiet and un-
disturbed possession Of the place in contro
versy under any ordinance reyoking the
| permit granted to Kendig a. Co.
No. BIZ. Frederick Wang VS.. Spencer
| Field, appellant.-From Fourth District
! Court of Orleans. The plaintiff founds his
| right on article 1868 of the Civil Code to
have separate appraisement made when
the vendor OF lands is opposed by workmen
seeking payment for a work erected on the
land. and yet failed to comply with the pro-
visions. Judgment reversed and suit dis
! missed, the right being reserved to plaintiff
to renew proceedings.
No. 32S9 William Drew vs. Attakapas
Mail Transportation Company ct al. appel
lants. From the Fourth District Court of
Orleans.-Suit for $74S. damages for col
iision, the plaintiff alleging he was owner
i,,tA Atah n.f
he was only the charterer, and the evidence
was improperly excluded. There being no
evidence OF interest to enable the plaintiff
to prosecute suit for damages he fails in
his case. Judgment annulled.
No. 1892. Succession of Louis F. Fouoher,
Marquis De Circe.-From Second District
Court of Orleans. Gabrielle Correiolles.
February3, 1862 contracted with the parish
OF Jefferson to build a shell road on st.
Charles street, under authority of the act
of 1868. He received the proper bills made
out by the parish officers for collection from
the property holders. The property OF
Foucher. Marquis of Circe, was on the
south side and the road constructed on the
north side. 1t is contendei the middle
ground, whether owned by the railroad or
the public. should bear portion of the
cost. 1t belongs to the city. which is bound
to pay one-half Of the expense. Marquee
VS.. city OF New Orleans. l3 A., 800. Judg-
ment of lower court in favor of the success
sion affirmed.
No. 5074. Robinson Mumford, appellant,
vs.. Mrs. Sarah 7. Bowman.-From Seventh
judicial District. Judgment affirmed. JUS
tice Howell dissenting.
BY JUSTICE HOWELL.
No. 1912. Glover & Odendahl VS.. George
B. Shute. Citizens Bank intervenor and aD-
pellant.-From Fourth District Court of
Orleans.-The plaintiffs failed to show their
privilege was properly secured, and the in
tervenors plea is sustained. Judgment
reversed, intervenOr being decreed to be
entitled TO the proceeds sequestered.
No. 1913. State of Louisiana vs.. Charles
Clinton. Auditor. and Antoine Dubuclet,
Treasurer.-New Orleans. Mobile and Texas |
Railroad Company, intervenor on rehear- |
ing. The doctrine of tender was improperly |
applied in our former opinion. The State |
did not sue to annul the contract of sale |
and recover back the bonds given as the |
price. The law officer of the State. repre-
senting his principal, simply asked that the |
fiscal agents of the State be prohibited from
paying the bonds and coupons described in |
the petition, on the ground among others, |
that the laws authorizing the issuance of the |
bonds and making appropriations to pay |
the coupons are unconstitutional. The suit |
was not against the holders of the bonds or
no one to whom the tender of the certificate
OF stock could be made. The injunction or
prohibition issued on the petition of the At
torney General made it legally impossible.
while 1t existed, for the fiscal agents to pay. |
and IN this way only were the rights of the
intervening company affected and the ne
cesslty imposed on the company to take
some legal proceedings to obtain payment.
They chose to intervene in these proceed
lngs IN order to assert their rights and re-
move the obstruction to their access to the
State treasury. They are, therefore, not in
a position to plead that a tender of the
stock should have been made to them be-
fore the issuance of the injunction herein,
although it practically closed the treasury
which they were not made parties. would
not have been res jtdcata as to them.
The question arises, are they, having
made themselves parties, entitled to have
the injunction removed so far as it affects
hem! The case is not without difficulty. 1t
9 submitted on the pleadings, with the
single admission that the State holds the
certificate OF stock made, we presume, with
'eference to the plea of tender, and we are
expected to determine the rights of the
parties in interest, vast as they may be. |
lpon the face of the papers. 1t is contended |
IN behalf of the State and the people of the |
State, that the obligation of the State to
ndorse the second mortgage bonds of
he intervening company, and in lieu
# which the purchaser of stock was
was contingent, and that
he conditions upon which that OBJ
igation was to be fixed had failed prior
o the passage of the act authorizing the
purchase of the stock and issuance of the |
'onds to pay for it, and hence the
ssuance of the bonds was the creation
# debt in violation of the prohibitive
mendment to the constitution. This fail
re is said to be notorious. to wit, the non
obstruction of the branch road. or any