New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-03-19

Carrying concealed weapon-Ed Brown
Larceny-John Martin, Joseph Turner
William johnson, Paul Young.
| Assault and battery-Kate Mccoy, Lizzie
Scott, A. Oliviera, Charles Ferrant.
TRUE BILL.
! State vs. Dennis Downing.--Larceny.
PLEADED NOT GUILTY.
| Selling fractional parts of lottery tickets,
| etc.-J. D. Lefebre, K. Mascara.
| False imprisonment and assault and
battery-Pat Murphy.
PLEADED GUILTY.
Assault and battery-Pat Burk.
SENTENCED.
| Pat Collins-Assault and battery. One
| month in Parish Prison.
Abraham Snod-Larceny. Two month 5
| in Parish Prison.
State VS.. Charles Johnson.-Larceny; f;
| guilty.
! State vs. John Hanuon.-Assault with a
| dangerous weapon; not guilty.
State VS.. George Williams.-Larceny; not
guilty.
| ON TRIAL.
State vs. John Gibson.-F alse imprison .
ment; jury out.
Second District Court.
Succession of Sosthene Narcisse opened
Fifth District Court.
Judge Cullom rendered the following de-
cislon:
| Ocean Dry Dock Company vs. jeremiah
| Stein ct ai.-The plaintiffs sue the defend
ants on an account filed with the petition,
| the correctness of which is evidenced by a
| draft drawn Dy Spencer j. Ball, captain of
| the steamer Bannock City, dated at New
| Orleans, February, 1873, for the sum of
| $l45l 43, which was intended to cover a
larger sum than the balance of the account
due the Ocean Dry Dock Company by the
steamer Bannock City, that balance being
| $l096 81.
| The company AYERS that Messrs. Z. Con-
cry, Son g. Co., on being presented the said
draft drawn ON them, refused to accept it
formally, but said they would pay it out OF
| the sum to be collected of the insurance
company on account of misfOrtunes which
had overtaken the Bannock City, and on
account of which she had been put in the
! Ocean dry dock for repairs.
| Judgment is asked Tor against jeremiah
| A. Stein, Henry Gerberth, E. Conery, Sr.,
Edward Conery and j. H. Mango, in SOL
lido, with five per cent interest from Feb
ruary 4, 1873, together with costs.
The defendants deny any Indebtedness
| to plaintiffs, and ask to be hence dismissed
! with their costs, etc.
The evidence shows that the work was
| done and that the account against tie Ban
| mock City is correct but it is conflicting as
| to the alleged promise OF f. Conery, Son
g. Co., to pay Captain Blacks draft on them
| out of the insurance money. The policy OF
| insurance on the steamer was taken out by
| L. Conery, Son Il Co. for $1,000, to run
| from September II, 1872, to March IL, 1873,
| at noon. L. Conery, Son Il Co. had been
| doing business for the steamer BannOck
City, and were in advance to her (See Ev.
| p. 35la) heavily, say $500 or $1,000. Ev. p.
33. The insurance office paid this firm the
| amount of their claim, p. A., say about
the average of the boat, p. "A. These sums
were applied to the payment of the boats
Indebtedness to the firm, p 40. The policy
was taken out by the house of +. Conery,
Son & Co. to cover the interest they had in
the steamer BannOck City, p. $3.50. E.
Conery states that he never promised TO
pay Blacks draft on the firm OF which lie
was member, p. 81 and 6I
J. 3. Williams stated that the work done
on the boat while in the Ocean dry dock,
was to be paid for out of the insurance to
be received as he understood it. Captain
Ball gave the draft on Z. COnery, Son s. Co.
Williams presented to them and they refused
to accept it, but told him to keep it until
the payment of the insurance money, at
which time he (Conery) would pay it over
to the dock, PIP. II, H.. Is, %, 26 and 81.
cry told him the boat was indebted to the
firm of E. Conery Son & Co. The under
standing between him, Williams and Stein
and Captain Ball was that the draft given
to cover the amount due by the boat to the
dry dock company should be paid out of
the insurance taken out By K. Conery, Son
g. Co; p. %.
This is the substance of the evidence
touching the question OF acceptance. 1t is
contradictory throughout, and | have not
been able to discover such preponderance
of cOrrOborative circumstances in favor of
the plaintiffs allegations as would warrant
me in deciding that they are entitled to
recover Judgment against Z. Conery, Son
& Co. The Bannock City, it appears, was
in debt to them, and this constituted an in
surable interest. 1t is true they insured for
$4,000, whereas their debt does not seem to
have exceeded $3.50; but this does not
vitiate the policy. Their right to recover
upon it was limited to the actual loss sus-
tanned, regardless of any surplus in the
| amount of the policy. Having taken
much larger policy than their insura BILE in
terest, obliged them to pay larger pre-
MUM, but is no argument against their
| right to collect their actual losses.
A party failing to prove what is essential
| to his recovery is not benefited by the
absence of proof. or even of evidence on
behalf of the other to establish his ire
sponsibility; nor can he recover. when from
| any cause he leaves his material fact doubt
full Briggs VS.. Simonds, II A. 294 1t is
not sufficient to make his claim probable,
but he is required to make it legally certain.
Mummy vs.. Haggerty, - A. 26S; Is An.
% and lie. Nor is it sufficient for party
on whom the burden of proof rests to make
out probable case. He must show by
legal testimony, with reasonable certainty,
the existence and verify of his demand.
Byrne vs.. Grayson, Is A. 457, IS A. III.
There must be judgment in favor OF E.
Conery, Son & Co. against the Ocean Dry
Dock Company for costs. There must be
Judgment also in favor of the said company
against jeremiah A. Stein and Henry Ger
berth, owners of the steamer Bannock City.
in solido, for the sum of Sl096 25, with five
per cent interest thereon from February A,