New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-02-07
COURT RECORD.
FRIDAY, FEBRUARY 6, 1874.
First District Court.

First District Court.
INFoRMATIoNs FILED.
] Wounding less than mayhem-George w
Nash, Jack Hannigan.
| Assault and battery-M. Monroe, Billy
! and Mike Mel, Sam Wilson, alias Buck
| John Gousley
| Carrying concealed weapon-Sarah Cor.
Larceny-M. J. Mones, David Allen, 10
! honna johnson, Frank B. Parker.
Malicious observation-disclosures King
NoLLE PRosEQUI ENTERED.
Iarceny-James Clark. Charles Mooney,
Mary Jane Burk, James Nolan.
ARRAIGNED.
Assault. and battery-William Darby:
plea Of guilty Of assault.
vERDICTs.
State vs.. ). B. Williams-Larceny:g guilty.
with recommendation of mercy.
State Va. Dick Morton alias Johnson
Larceny; guilty. with recommendation of
mercy.
State rs. Joseph tIiller-Larceny. not
guilty.
State rs. Honors Carmody-Iarceny: not
guilty.
Second District Court.
SUGGESTIONS of Amelia Schall, Mary Della
Dolin, Henry Edward Dolin and Eugene A.
Gay. were opened
Fifth District Court.
The following decisions Were rendered by
Judge Cullom:
N. Thodore Us. New Orleans Mutual In
surance Company:-Policy was taken out
April g. 1872, for $3.50 on property injured
by fire December 80, 1872. The fire was not
in the building. and the damage is alleged
to have been caused by heat, water, falling
walls and exposure. The inventory is
building $780, tools and Implements S25iO.
Part Of the property was damaged by lime
kept on the premises, and lime water, and
some portion stolen-chains, jack screws.
etc The defense argued that there was
concealment of the fact of lime being on
the premises The company should have
examined the premises. Lime was neces.
sary to plaintiffs business. Matters tend.
ing TO show the transaction void must be
pleaded specially. Pine Us. Merchants Mn.
tual Insurance Co. 10 A., pa. The answer
is general denial. The ground on which
the building stood is not required by the
policy contract to belong to the plaintiff,
Gray, 80: Pars. Cont, 433, as he owned
the building. Lime is mentioned as extra
hazardous, but if there was lime in the
building at and before the time the policy
issued, the simple renewal of the supply.
exhausted by use, would not be such a
placing of it there after the policy as would
make it void. n. \. ms. Co. vs. Langdon.
s Wend., 623: | Hall, 226; 8 Conn. $50; 3
Har.. 4S0; 81 Me-, 225: Md, I25: 20 Conn.
l33: Nend.. 4SS. The company is not re.
for slGO! -.
Charles T. Howard vs.. William B.
Schmidt-Miss Mary E. Borden purchased
certain property for $4,000, giving $4,000
cash and three notes $1,000 each to her own
order, the one IN suit being the first, dated
March Il. 1871. at one years time, secured
by special mortgage and vendors privilege
Suit was entered in the Seventh District
Court. Defendant was the owner of all the
notes. and April y, 1872, transferred the
first to plaintiff. Defendant subsequently
instituted suit on the second note, alleging
the existence of the third and ignoring the
first. and obtained an order of seizure and
sale April IS, the sheriff advertising it
May %. 1873. The terms OF the sale were
not advertised as prayed for. Schmidt
purchased the property May %. Howard
alleges concealment and fraud, and there
fore Schmidt and Mrs. Borden and the
property are liable for the payment of his
note: that the sale to Schmidt was illegal.
and that having assumed to pay the third
note he is bound to pay the first Schmidt
answers that he made no warranty: that
the proceedings were regular; that Howard
should. have prosecuted the suit in the
Seventh Court: that the property did not
sell tor enough to pay all the notes; that
the mortgage has been Cancelled that he |
was the original vendor and retook the
property TO pay his own notes: that one of
them is transferred to the New Orleans |
Mutual Insurance Company. and he as.
sumeS the payment: that the pro rata is |
$3.50 80. which he will pay Howard, and !
the same to the Insurance COMPANY |
Howard's note was transferred by him !
with full! subrogation.
The question is. could William Z. |
Schmidt, the vendor. foreclose his special |
mortgage. SO as to pay all of two mortgage I
notes and not half Of the third, which he |
himself had sold for its full face value,
with interest! To this it may be replied,
that. as by the deed. he is compelled to
make pro rata distribution of $4,000, de-
Quoting costs. among the three creditors
he realized only 1890 s62s. But this is not
the correct view to take Of it. The in
surance company, by the terms of the
and the process verbal of
the sheriff. will and must inevitably re.
celve. at the maturity of their note, indie
pendently OF the price OF adjudication, |
s49bo. which IS still secured by mortgage
On the property. When property is sold BY
he sheriff, subject to the payment of the
mortgage, the purchaser is necessarily liable
md responsible for the lien. N. S. 1888.
But aside from this, Schmidt is indorser on
he note held by the company, and is, there |
ore. obliged to pay it at maturity, regard
ess of the mortgage and vendors lien
selling the property as he did, subject to the
payment OF said note in full, was not
anctloned by law or equity. because he
lad not the right to discriminate betw
he unpaid notes. and further. because he
roflted by that discrimination. The stipu-
alton in the terms of the sale that the
Insurance company should retain their ,
Mortgage on the property and be paid in :
Ill at the maturity of their note secured |
1eu' independently of the price realized by
ne sale, and left the Selling creditor free
, purchase without a competitor among =
he parties interested in the amount hidden. a
y the terms of the sale, Schmidt gave to
le insurance company decided prefer y
nee over Howard. This he mad no right | 4
, do They stood as creditors of equal {;
INK, the only difference being that How r
"a note was the first due, the cOmpany's q
he last. Howard is to get $3.50 862s, and | u
he company $500. As Schmidt is obliged !
pay the company the entirety of their 81
'te. independently of the purchase price d
the property, if he be obliged to pay "
oward but $3.50 S6@3 the property will f.
I'VE cost him 1888 1913, instead of 7
'OO'. lt is no argument to say that
must pay the company 5000 S62s of b.
e purchase price. for by his Endorsement re-
Is compelled to pay it. whether the a,
ortgagc exists on the property or not.
hlatre vs.. Greaud, 10 A. 125 Aside from
is, Howard being the transferee of .,
hmidt who was first vendor, and after 7,
ard the purchaser OF the mortgaged prop q,
y at sale provoked by him to satisfy a IN
tie secured by the same mortgage, can s 90
{ be permitted to come in competition !,
til Howard, If the property mortgaged be r.,
sufficient to pay both. See the case of 81
ntress vs.. his creditors, 90 An. $50 The f fr
lrt IN that case says that the ruling ha
,rein L. sust aimed hr tho .,rino,1lo roao.s | ne