New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-05-23

COURT RECORD.
MONDAY, MAY %, 1876.

COURT RECORD.
MONDAY, MAY %, 1876.
United States Circuit Court.
Proceedings before Hon. w. B. Woods
circuit Judge.
United States vs. Dennis O'Brien ct al
Conspiracy to defraud. Evidence on botf
~ supreme Court.
Present-All the iud ges.
The following decisions were rendered:
By JUSTICE TALrAFERRo.
No. 494z. E. T. Merrick, executor. vs. Mrs
Henrietta Davidson, widow, etc., appel
lant.-From Second District Court. David
son purchased at succession sale Of Sulll-
van, and refusing to comply the property,
after decree adverse to injunction, was sold
to North, who also refused to comply, both
claiming . good title was not rendered
Judgment was given for s12,s79 Is, which
is affirmed, the defense being wholly with
out merit.
No. 57sl. P. Irwin, tutor appellant, vs..
city of New Orleans and sheriff.-Fr0m Su.
perior District Court. On rehearing.
Former decree set aside and plaintiffs in
junction dissolved.
No. 6266 William P. Kellogg, Governor,
for use of State of Louisiana, appellant. VS..
Charles Clinton, Auditor.-Fr0m Superior
District Court. This suit is brought against
the defendant and the suretiee on his off,
cial bond to render them liable in sOlidO
for the amount thereof, and to recover
judgment Individually against the defend
ant, Clinton, for large sums of money
besides upon the alleged ground of unfaith-
fullness on the part Of Clinton in the
discharge Of his duties as q public officer OF
L. kA oh
him that he has not "well and faith
fully discharged and performed all the
duties Incumbent ON him as Auditor of
Public Accounts' of ssid State of Louis
lana, as he had promised and bound him.
self to do by the above mentioned obliga.
ton, but that he has, ON divers times and
sundry occasions, acting in his said capac.
ity as Auditor, violated, Sbetrayed and
broken the conditions of his said official
bond. and has thereby caused the State
great damage and injury. The petition
then proceeds to enumerate various acts of
the Auditors, alleged to be in o0ntraven-
ton of law specifying in detail the acts
complained of, and the dates when the
Same were committed, and wherein they
are unwarranted by law.
The answer OF defendants is . general
denial.
The plaintiffs afterward filed Q supple
mental petition in which the State claims
additional large sums of money, which it is
alleged the Auditor and his sureties are
bound for, on the ground of his issuing
warrants illegally, misapplicati0n of the
public funds and for other causes. Subse-
quently to the fling of this amended peti-
ton, it seems the parties agreed to have the
case tried before special jury of merchsnts,
called, as appears by tho following bill of
exceptions found in the record:
BE it remembered that when this case
was called for trial Wednesday, the twenty
second of June, 1875. and pending discus
sion az to the right of State plaintiff to trial
by Jury, as prayed for in q supplemental
petition filed heretofore ON the eighth Of
June, 1875, the counsel for defendant pro-
posed that the trial should be by q special
immediately accepted by the Attorney Cen
eral on behalf of the State; whereupOn the
Attorney General informed the court that
both parties were willing to have trial by
q special Jury of merchants, which state
meut was confirmed by the counsel for the
defendant, and the Attorney General on be-
half of the State moved the court, the
counsel for the defendant asserting thereto,
to order q special Jury of merchants, to be
summoned by the sheriff
THAT the court refused to order special
Jury Of merchants to be summoned, being
of the opinion and upon the ground az
stated by the court that the law does not
authorize the court to order q special jury;
but the court stated that if both parties as.
sented to jury, the cocrt would order a
Jury to be drawn, selected and summoned
in the mode and manner prescribed by the
general law, and not otherwise; that there
reserved the point, stating to the court
that Q bill of exceptions would be pro-
posed embodying the rulings Of the court
and the objections to the same; whereupon
the counsel for defendants stated that they
withdrew their consent to trial by jury,
their consent being given simply to trial
by q special Jury of merchants. And to the
rulings of the court refusing to allow q trial
by q special jury of merchants and in refus.
summoned by the sheriff, the State, plaintiff,
by the Attorney General, then and there ex-
cepted, and now tenders this bill of excep-
tions for approval and signature.
JACOB HAWKINS, Judge"
The case was tried by the court without
the Intervention of jury. Judgment was
rendered in favor of the defendants and
the plaintiff has appealed.
We think the court erred in refusing to
order special jury of merchants for the
trial of the case. 1t is one peculiarly re.
guiring jury of men skilled in accounts
and having practical knowledge of book
keeping, competent from their skill and ex-
perience to adjust books of accounts, to cor
rect erroneous entries, to establish proper
balances and to fix the exact state of nu-
merous and complicated business trans
actions.
We deem it proper, to the end, that the
various irregularities, errors and illegalities
alleged to exist in the office. books, accounts
and vouchers of the Auditor of Public Ac-
counts, as we'll as all other issues included
in this controversy may be examined into
and be tried by special jury in conform
ity with the provisions of article 2l53 of the
Revised Statutes. page 425.
1t is therefore ordered that the judgment
is further ordered that this case be re-
manded to the court of the first instance.
that the Judge thereof be and he is hereby
directed to issue an order to the sheriff of
the parish of Orleans to eummon, accord
ing to law, q special jury of merchants to
attend in said court for the purpose of try
ing this case, and that the same be pro-
ceeded with before said jury, in conformity
with Law. It is further ordered that the de-
PENDANTS pay costs of this appeal.
BIZ JUSTICE wYLY.
No. 5Ol6. Jules Choppins vs.. Robert L.
Preston, appellant.-FrOm Fifteenth Judi |
cial District. Injunction on seizure and
sale There was not the legal notice of the |
granting of the order. Judgment affirmed. |
No. 5Si4. State of Louisiana ex rel.
Feancis Frilot vs.. Judge of Superior Dis
trict Court, prohibition.-The injunction
relator from pursuing his bust |
ness as q butcher interferes with the ap- |
pellate jurisdiction of this court in State ex |
rel. Francis Fril0t vs. Crescent City Live |
Stock Landing and Slaughterhouse Com
pany. Prohibition made perpetual.
No. 626S. State We. Felix Grow. appel |
I'D;