New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-12-07
COURT RECORD.
;DNEsDAY, DECEMBER 6, 1876.

WEDNESDAY, DECEMBER 6, 1876.
United States Circuit Court.
Presentation. E. e. Billings, Distric
The following decision was rendered:
Supreme Court.
State of Louisiana ex rel. the New Yorl
Guaranty and Indemnity Company We. thu
Board Of Liquidation and the State o
| Louisiana, intervenOr.-PetitiOn for reheAr
ing.
To the honorable the Judges Of the suprem,
C0ur: Of Louisiana:
| The petition of defendants in thu
above entitled cause, with respect
| shows that on the twentieth day
| Of November, 1876, this honorable court re-
| versed the Judgment of the court a qua in
| said cause, ana rendered judgment against
petitioners, peremptorily commanding the
funding of $25O0O0 of bonds, with inter
est, held by relstors. That said judgment
was rendered in error, and is contrary to
the Law and the evidence for the following
| reasons:
That under the provisions of sections one
and two, of act No. III of the extra session
| of 1875, petitioners were specially prohibit
ed from receiving and funding the bonds
held by rel atOrs till ''by final decree of this
honorable court said bonds have been de-
clared legal and valid obligations Of the
S. ate of Louisiana, and that the same were
ISSUED in strict conformity to law, and not in
violation Of the constitution of this State
or of the United States, and for valid
consideration" That at the time this man
damus was applied for, and till now, no
such decree has been rendered: that peti.
tione.s were not at fault in refusing to
fund the bonds, and consequently REALTORS
we're not entitled to the summary order
prayed for. Hence the judgment of the
court a qua in refusing the mandamus was
correct under the law, and should be sus-
tanned.
In the opinion of the court, giving judg-
ment against defendants in this case, this
language is used:
.sThe formalities of said statute seem to
have been complied with in the issue of
said bonds, and the defense of want of
consideration can not Affect relatOr, who
acquired them in open market, before due.
and for value Again, Third holders. for
value, should be protected
provisions OF act No. IL of the extra session
| Of 1875, there can be no innocent third
holders or purchasers. Their rights have
been entirely repudiated, and unless rela-
| tors cen obtain from this court . decree to
the effect that, from the first step in the
creation of the debt to the final issue of the
bonds, there has been q strict compliance
with the constitution and laws of this
State, and that q valid c0nsi Iteration has
| then they must stand as repudiated
But it would appear from this reasoning
referred to above, and the authorities
cited, that this honorable court did not pass
upon the question of consideration, and en-
| tirely over look the fact that by act No. II of
extra session of 1875, the bonds in question
had in effect been repudiated by competent
authority, and must now be born sg ain, as
| it were, recreated ut the bands of this court,
before respondents can be commanded. or
even permitted TO recognize them ss fund
able obligations of the State; the court
being not only required to pass upon the
legality end regularity of the issue, but
| to saw that the State has received valid
consideration therefor, v hich 1t ia evident
| the court has not done, and can not even
be asked to do in this proceeding. The
| writ of mandam ls is q summary proceed
| ing to prevent denial Of justice-in other
| words to compel some oflcer, tribunal, OF
| corporation to do it's duty.
Can it be said that it was the duty of the
| board Of liquidation to fund those bonds,
| IA the matter stood when the order was ap-
piled for, or is not act No II Of the extra
| session of 1875 q full answer and sufficient
reason for refusing the order OF the courts
The principle has frequently been affirmed
| by this court that 1.-THE only question be
| fore the Supreme Court, upon al appeal, If,
was the Judgment right upon the facts in
evidence at the time OF its renditiOn! State
va. Schmidt. Is An, 267; II An 1869 4
| 256; N. S., 242.
mo Judgment can be given on appeal
| which the court q qua was inconpetent to
render" A Ms u: N. s., 10; 6. N. S.
457; r., 100.
ION appeal the Supreme Court can only
give such Judgment as should have been
rendered by the court qua" T., 357;
| 4An.,7.
Under the act referred to it is not the
duty of petitioners to show further cause
whv the bonds should not be funded; but
| it is made the duty of REALTORS fret to snow
| that the bonds presented should be funded
| by reason not of their original issue, but Of
a final decree of this honorable court to the
effect that the bonds were properly issued
| and for valid consideration.
| By act No. 3 of 1874, and the act supple
mental thereto, No. l / Of extra session OF
! 1875, the courts are opened to the holders
| of these questioned bonds, and their suits
| are made preference cases; but it does mol
! contemplate the summary proceeding oy
| mapdamus, while the necessary CONDITION
| precedent is wanting.
1t may appear that this petition presents
new questions and 9 view of the case not
argued in the previous trials, but wejre,
pectfully submit that nothing is urged
herein more than is in substance contained
| in the exception found in the record, pages
sixteen. seventeen and eighteen, and thu
plain letter of the law which the court i!
| required t. take cOgnizaEce OF even II cOun
| sci should overlook if, and if it should ap
| near to ynrr nonols that there is error IL
| the iusi m. at apparent on the face OF thu
| record, rehearing should be granted.
| If, upon a rehearing, the nandamus Is re
| fused, it would not preclude the relation
from taking the proper steps to have tn
final decree rendered, as required by IN,
statute, when all parties can be heard AM
the proper evidence introduced.
Wherefore. the premises considered. pc
| titiopers pray that a rehearing may D.
granted, and for all general and equitable
relief. HIRAM X. STEELE,
Attorney General.
Superior District Court.
&c. Hancock va. Mrs. e. p. IIolbrook g
| a!-Testimony taken and continued to DE
| cemher s.
| D. c.. Mclean Va. Lagan & Mackson.-
| Injunction made perpetual prohibiting tn
seizure or sale of the steamboat Seminole.
Superior Criminal Court.
| MOTIONS.
Assault with a dangerous weapon
Thomas Malloy-Moti0n tor arrest of jude
mert filed and fixed for Thursday, Decem
| Der Z.
! Murder-John Gauss-Motion for bal
continued on account of the absence OF tn
Attorney General until December E!
NoLLE PROsEQUL
Burglary-Manuel johnson. alias Topsy
and Thomas Jenkins, alias John Hunter
| Burglary at the residence of A. Z Lewle