text:
    No. 12,183.
    New Orleans City & Lake Railroad Company vs. Dr. W. H. Watkins.
    The (general Assembly did not intend to use the words “ street railroad,” in Act 135 of 1888, in any narrow or technical sense; its evident purpose was to compel the city of New Orleans to make available for city purposes, and for the public benefit, in money, any local railroad franchise or privilege which was valuable, and the amount to be derived from the granting of which was likely to be increased by being put up at public auction.
    In East Louisiana Railroad vs. City of New Orleans, 46 An. 526, this court held that the Act 135 of 1888 did not apply to railroads carrying the mails and transporting freight and passengers long distances beyond the limits of the city; and, besides, the East Louisiana Railroad Company was an existing corporation, having its domicile out of the city of New Orleans, with its legal character and its franchises as a railroad already-fixed. The ordinance of the city granted a simple “ right of way.” It originated in favor of the company no new source of revenue, no change in its business, nor effected and authorized no additional traffic arrangements.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Denégre, Blair & Denégre and Farrar, Jonas & Kruttsehnitt for Plaintiff, Appellee.

      Branch K. Miller and Percy Roberts for Defendants, Appellants.
    Argued and submitted June 8, 1896.
    Opinion handed down June 22, 1896.
    Rehearing refused December 14, 1896.
    Statement of the Case.
    On the 5th of March, 1895, the Common Council of the city of New Orleans adopted Ordinance No. 10,392, Council Series, by which “it granted to W. H. Watkins and his associates, successors or assigns, the right to construct, maintaiu and operate a single or double track railroad upon the routes and lines therein described and to use steam locomotives or other appropriate motive power; Provided, that within sixty days from the promulgation of the ordinance the said W. EL Watkins and his associates would, under penalty of the nullity of the grant by the mere lapse of time, cause the same to be transferred to a corporation organized under the laws of this State with its domicile in the city of New Orleans, which corporation should provide in its charter for the assumption of the grant on such terms as may be agreed between it and the said W. H. Watkins and his associates.
    The route designated by the ordinance was the following: “Beginning on Hagen avenue and Calliope street, connecting with the tracks of the Illinois Central Railroad Company; thence on Hagan avenue, connecting with the switch track of the Southern Chemical and Fertilizing Company, Limited; thence upon and along the extension of Hagan avenue and Hagan avenue to a point near Bienville street; thence along by the shortest practicable route to the intersection of Hospital or Barracks street and Metairie road; thence along Hospital street or Barracks to a point on or near Taylor avenue; thence to Bayou St. John, crossing Bayou St. John on an iron drawbridge with a clear opening of fifty feet on to the embankment of Marigny Canal or Pleasure street or avenue, and along said embankment or avenue to Marigny avenue; thence along and upon Marigny avenue to Elysian Fields street, with the right to there connect with the switch tracks of the Standard Guano and Chemical Manufacturing Company, and to cross and connect with the tracks of the Pontchartrain Railway and the Louisville & Nashville Railroad on Elysian Fields street; thence along Florida Walk to People’s avenue, with the right to there connect and cross the tracks of the New Orleans & Northeastern Railway to'Montegut street; thence down Montegut street to St. Claude avenue, and there to connect with the New Orleans & Southern Railroad, with the right to cross all intervening streets to the lower limits of the city, and with the right to make suitable connections with the slaughterhouses of the People’s Slaughterhouse Company and the Crescent City Slaughterhouse Company by spur tracks now existing, or such others as may be necessary.”
    The right was further granted to cross all intervening railroads, street railroads, canals, streets, alleys and other unimproved city property along the entire route above described, with the right to make such local variations from the above described route as might be necessary in order to locate and construct proper and suitable • curves c nneeting with the various roads and parts of roads above described, and with the right to cross or extend along streets, alleys, canals and unimproved city property, with the right to construct such turnouts and switches as might be necessary to make a connection with all the railroads therein described and with the industries which are now, or may hereafter, be located along said route. The Oity Engineer should, upon request of the aforesaid grantee, furnish or approve the lines and levels upon which said railroads, tracks, or any part thereof are to be constructed upon such lines and levels as furnished or approved; provided, this grant should not interfere with grants made heretofore by the State of Louisiana, or the city of New Orleans, to other railroads, but should be subject thereto.
    On the 30th of April, 1895, M. J. Hart, E. Greenbaum, Oharles Mendelson, T. A-. Clayton and Samuel J. Hart, the latter appearing individually and as acting for Sturgis S. Adams and R. T. McDonald, appeared before Hunter O. Leake, notary public, in the city of New Orleans, and proceeded to form a corporation known as the “ Watkins Railroad Company.” The declared object of the corporation was for the construction, maintenance, owning and operating by steam or other appropriate motive power, of a belt railroad, in the parish of Orleans, with connections and extensions into and in the parishes of Jefferson and St. Bernard, together with the necessary and proper locomotives, cars, railway tracks, warehouses, depots, yards, wharves, docks, switches, sidings, turnouts, turntables, inclines, transfer boats, elevators, bridges and terminal approaches thereto, and for the purpose of transporting for hire freight cars, passenger cars, loaded and empty, and merchandise, live stock and freight of every kind, to and from the several railroads, steamboat and steamship landings, depots, manufactories, breweries, wharves, docks, warehouses, slaughterhouses and other manufacturing industries and commercial establishments in the parishes of Orleans, Jefferson and St. Bernard along the line or adjacent to the line of said railroad, and for the purpose of acquiring the right and franchise granted by the city of New Orleans to W. H. Watkins and associates, successors and assigns, by Ordinance No. 10,392, Council Series, adopted by the city of New Orleans on the fifth day of March, 1895, and for the purpose of constructing,maintaining and operating the belt railroad provided for in said ordinance, along the route and upon the streets, ways, alleys and places in said ordinance mentioned and described, upon the conditions and within the limitations and provisions in said ordinance expressed, and for the purpose of acquiring any other or further or additional grant or franchise from the State of Louisiana, city of New Orleans, or the parishes of St. Bernard or Jefferson, that might be necessary to effectuate and carry out the purposes of this charter, and also to lease or acquire by original grant, or by purchase from grantees, other rights and franchises to construct, maintain and operate another line or other lines of belt railroad within «the limits of the parishes of Orleans, Jefferson and St. Bernard, with the power to make any lease of its property and franchises, or any traffic arrangements, or to consolidate with other corporations operating lines of railway into and out of said parish, or with the corporate powers, rights, franchises and privileges specified in the act of incorporation. The act declared that the corporation was to have and enjoy corporate succession by its corporate name for ninety-nine years. The capital stock of the corporation was declared to be one hundred thousand dollars, divided into one thousand shares of one hundred dollars each, payable at the time of subscription in cash, or in franchises, or property, real and personal, conveyed to the corporation. The corporation was declared to be authorized to commence business whenever ten per cent, of the capital stock should have been subscribed and paid in.
    On April 29, 1895, by act before Wenck, notary, in the city of New Orleans, W. H. Watkins transferred to the Watkins Railroad Company, represented by A. T. Moss, its vice president, all his title, interest of every kind and nature in and to the right and franchise to him granted under the said Ordinance No. 10,392.
    On the 3d of November, 1895, Watkins executed his bond in favor of the mayor of the city of New Orleans for the sum of twenty-five thousand dollars under the requirements of Ordinance No. 10,392. The bond was approved by the mayor on the 5th of the same month, and on the 10th of December the Council appjoved of the major’s action in so doing.
    Plaintiff alleged that it is a corporation organized for the purpose of building, maintaining and operating street railroads in the city of New Orleans, and had been so engaged for many years since the time of its organization; that in such capacity it owned and controlled various lines of street railroads and a line of steam railroad; that among the lines of street railroad so owned and operated was a double track electric street railroad on the neutral ground of Oanal street, from the intersection of Oarondelst street and Oanal street to the Metairie cemetery and return, and a double track horse railroad on the Metairie road running from the cemetery to Bayou St. John; that the line of steam railroad ran from West End, on Lake Pontchartrain, to the Metairie cemetery, and from Metairie cemetery to the intersection of Canal and Carondelet streets over the same rails on which it operated its electric street railroad. That the line of street electric road on Canal street was the principal thoroughfare to the cemeteries in the city of New Orleans, to which large numbers of people resorted, especially on Sundays and holidays, and was used by thousands of people every day. That the said fine of steam railroad connected the city of New Orleans with West End, the principal pleasure resort in summer time of the people of the city, and from the 1st of May to the 1st of September petitioner carried thousands of people from the city through the said Canal street to West End and return. That on said electric street line they ran an average of a car from each terminus as often as every minute, each of said cars having a capacity to carry about forty people. That in summer time, from 1st of May to the 1st day of September, petitioner ran a steam train at intervals of fifteen minutes from each terminus, each train having a capacity to about six hundred people. That the line of double track railroad running from Metairie cemetery to the Bayou St. John would soon be converted into an electric line, and that said road was the only avenue from the old City Park to the lines of street railroad owned and operated by your petitioner on the other side of the Bayou St. John, thereby making connection for the people of the Third District with the Metairie cemeteries and with the old City Park, said line being much frequented by visitors to the cemeteries and park.
    That for the franchises owned and operated by petitioner in the city of New Orleans (all of which was bought and paid for after competition at public auction to icself as the then highest bidder), petitioner had paid very large sums of money to the city of New Orleans, exceeding one million of dollars, and that petitioner, on said franchises and the property which it owned in the city of New Orleans, paid to said city annually taxes in excess of the sum of fifteen thousand dollars per annum. Petitioner averred that the City Council of .the city of New Orleans did by Ordinance No. 10,382, Council Series, which said ordinance was adopted by said Council on the 5th day of March, 1895, and was approved by the Mayor on the 7th March, 1895, grant to W. H. Watkins and his associates, successors or assigns, the right to construct, maintain and operate a single or double track railroad upon the route and lines described, and to use steam locomotive or other appropriate motive power on the said railroad; that the route on which said road was to be constructed begins at the intersection of Calliope street and Hagan avenue, in the city of New Orleans, runs through Hagan avenue to Bienville street, thence by an undeseribed route to Barracks or Hospital street, thence to Taylor avenue, through Taylor avenue to Marigny avenue to Florida Walk, through Florida Walk to Montegut street, through Montegut street to St. Claude avenue to the lower limits of the city; that as would be perceived by the terms of said ordinance the said line of railroad to be operated by steam or other motive power crosses the lines and track of petitioner on Canal street at Hagan avenue, and on Metairie road at either Hospital or Barracks street, and petitioner was informed and believed, and so charged that it was the intention of said Watkins and his associates to enter upon the tracks of petitioner, and to intersect the same with the said lines of double track through Canal street and through Metairie Road, and to operate the said road with steam or other motive power, or with both, at their option, under the said grant; that the construction and operation of said line of railroad across the tracks of petitioner would damage petitioner in a sum exceeding one hundred thousand dollars; that petitioner would be compelled to stop each and every one of its electric cai’S and its steam train before crossing the said tracks going in both directions, each of which stoppages of said trains and cars was a loss and damage to petitioner, and that it would be further delayed by having to wait until the trains of the said Watkins pass; that the crossing of lines such as petitioner’s were by a steam line such as the Watkins line might be under said grant would be a source of extreme peril to the property of petitioner and to the lives of its passengers, and that thousands of timid and careful people would be prevented, hindered and restrained through fear of collision at said crossing from traveling on petitioner’s trains and cars to its further loss and credit. That it was informed and believed and so charged that the said Watkins and his associates proposed to enter upon the tracks of petitioner and to cross the same without previous compensation to petitioner under the Constitution of the State of Louisiana for the damage that would be occasioned thereby to petitioner, and petitioner averred it has the right to contest the validity of the grant made by Ordinance 10,392, Council Series, not only because of the damage and injury that the same would occasion petitioner, but because of the •fact that petitioner was a taxpayer of the city of New Orleans as averred in a sum exceeding fifteen thousand dollars per year, and it had the right as such taxpayer to annul void corporate acts of the city of New Orleans in detriment of the interests of the taxpayers. Petitioner, therefore, averred that said ordinance was absolutely null, void and of no effect.

      First. Because the same was not advertised and sold at public auction to the highest bidder, as provided by Sec. 4 of Act No. 135 of 1888.

      Seeond. Because the said grant was a valuable franchise, which if put up and sold at public auction would have realized a large sum of money for the treasury of the city of New Orleans, and it was an unreasonable and reckless exercise of corporate authority to donate such a grant without consideration to a private individual. Petitioner prayed for judgment in favor of petitioner, adjudging and decreeing that the said Ordinance No. 10,392, Oouncil Series, and the rights and privileges therein contained and thereunder granted unto the said W. H. Watkins were absolutely null, void and of no effect, and perpetually enjoining the said Watkins from undertaking to construct or operate the railroad provided for in the said Ordinance No. 10,392, Oouncil Series, and, in the event that the court should hold that the said ordinance was valid and that said ordinance authorized the said Watkins to construct and operate the said railroad, enjoining, prohibiting and restraining the said Watkins from entering upon the railroad of petitioner on Oanal street and on Metairie Road, and from building the said railroad across the same until the said Watkins had previously made to petitioner compensation satisfactory for the damage and injury to be occasioned to the petitioner by the construction of said road, said damages to be settled either by agreement or by the verdict of a special jury, as provided by law in matters of expropriation.
    The District Oourt rendered judgment in favor of the plaintiff and against the defendant, W. H. Watkins, and its transferee or assign, the “Watkins Railroad Company,” decreeing the nullity of Ordinance No. 10,392, Council Series, adopted by the Council of the city of New Orleans on March 5, 1895, and perpetually enjoining the said W. H. Watkins and the Watkins Railroad Company from constructing or operating the railroad provided for by said ordinance.
    W. H. Watkins and the Watkins Railroad Company appealed.
    The date of the approval of Ordinance No. 10,892 was on the 5th day of March, 1895, but the date of its promulgation did not appear.
   The opinion of the court was delivered by

Nicholls, C. J.

The conclusions we have reached in this case make unnecessary any examination of the question whether plaintiff, would be entitled to damages for the crossing of its tracks (laid upon the streets of the city of New Orleans), by another road, when such crossing was made under authority of the city authorities so to do, and if so, what the character of such damages would be, and whether plaintiff, if entitled to such damages, would be entitled to enjoin the second road from making the crossing until it should have previously made compensation to it for such damages.

We will confine ourselves to the single proposition whether under the law the Common Council of New Orleans had the power and authority to make the grant embodied in Ordinance No. 10,392. Plaintiff as a taxpayer maintains that it has not, and relies in support of that position upon the fourth section of Act 135 of 1888, which declares that the Common Council shall not have power to grant, renew or to sell or dispose of any street railroad franchise, except after at least three months’ publication of the terms and specifications of said franchise, and after the same has been adjudicated to the highest bidder by the Comptroller, as provided in Sec. 21 of the city charter.”

In discussing this question in East Louisiana Railroad Company vs. City of New Orleans, 46 An. 526, we said that the “ section of the act manifestly applied to street railway franchises, granted for the purpose of operating a road exclusively within the city limits. It did not apply to railroads carrying the mails, and transporting freight and passengers long distances beyond the limits of the city. The Legislature never intended, and in the nature of things such intention would be impracticable in execution, to cause railroads coming into the city from a distance to have the franchise of a right of way. No latitude of construction could make the provisions of Sec. 4 extend to other than roads which are operated exclusively within the corporate limits. The fact that plaintiff’s road reached the city over another road did not change its character into a street railway. Its attempt to reach the road over which in part it ran its trains was a matter of convenience. Its destination was still beyond the city limits, and practically it was a continuous line of road from the city to its objective point, Covington. If it ran its trains only from its intersection with the Northwestern Railroad within city limits and carried passengers and freight between those points it would be classed as a street railway and come within the purview of Sec. 4. But that was nob a fact. The object of the plaintiff company was to carry freight on its own cars beyond the city limits to Pearl River Station, where they would reach their own roadbed. As the road of plaintiff was not a street railway the City Council had the power to grant the franchise without requiring a compliance with Act 135 of 1888. Art. 243 of the Constitution. Consent only was necessary bo grant the privilege of a right of way to a railroad running beyond the city limits. Sec. 689, R. S. The city could, as a matter of right, refuse to grant the authority for a passage through its streets of a railroad. It could also demand a price for the privilege. But it could also, as a matter of right, if it deemed the exercise of the power reasonable and proper, grant the right of way to a railroad extending its lines into other territory without a compensation in money but for other considerations.”

Section 4 of the act having made use of the word “ street railroad” in connection with the prohibition contained therein, defendant’s effort is to give such a definition to that term as would exclude the tracks authorized to be constructed and the road to be operated under Ordinance 10,392 from falling under the bar of the fourth section. The carrying of passengers within the limits of the city in contradistinction to the carrying of freight and passengers would seem to be, according to the defendant, the distinctive mark or characteristic of a street railroad. Our decision just cited is supposed to be decisive on that point, bub in this there is a mistake. It is true we allude to the fact that the East Louisiana Company carried “freight,” but that word has not the importance which defendant attributes to it — the next words “beyond the limits of the city,” and the words “ in their own cars,” have more significanee, and the use of these words must be read in connection with the subject matter the court was dealing with. The court was dealing with a special case, and held, that in that case and under the conditions and circurpstances shown, the Common Council had the power and authority to grant to the East Louisiana Railroad, without a money consideration (and that fixed as to amount by a bid at public auction), the privilege which it had accorded. The case was one of a simple “right of way” to an existing corporation having its domicile out of the city of New Orleans, with its legal character and its franchises as a railroad corporation already fixed, to continue or extend its line through the streets further into the city. The privilege originated in favor of the company no new resource of revenue, no change in its business was effected, and no additional traffic arrangements were authorized to be entered into. The ordinance took matters up just as they were and simply permitted the moving forward of the terminus of the road — nothing more; freight and passengers were not transferred to cars of another line for a consideration, or moved upon another line for a consideration, but were carried straight on upon the company’s own line, upon its own cars. We were called upon in the case cited to ascertain what the intention of the Legislature was in enacting the act of 1888, and reached the conclusion that its dominant idea was to deal with franchises or privileges having a money value, and franchises of such a character as would be the subject of competition if the way were left open for the public at large to obtain them at public auction. We reached the conclusion in that case that the privilege granted to the Eastern Louisiana, though it might have a value to the company, and though that value to it might induce it to make liberal offers to the city in one way or another for the purpose of receiving it (thus making it valuable also to the city) was none the less not a priviiege for which third persons would be likely to compete, and that therefore it was not within the contemplation of the act of 1888, which looked to an “ advertisement” and to “ competition ” as special factors in determining its prohibitory clauses. We did not decide that an existing railroad corporation carrying freight and passengers, having its domicile beyond the city and coming into it, could simply, by reason of those conditions, be authorized under ordinances of the city to construct a track or tracks from some point inside of its own line and circling the city, originate a new character of business inside its limits, and obtain, in and through the ordinance, new, separate and distinct sources of revenue. Under such circumstances, and to that extent, the foreign road would substantially be acting under a new franchise, not its old one.

Our decision substantially so declared. The view of this matter which we teok was similar to that taken by the Supreme Court of California in People vs. San Francisco & S. J. Railway Co., 44 Pac. 463.

Referring to a privilege such as was granted to the East Louisiana Company and a contention that, in order to make it valid it should have been put up at public auction, the court said “ that under the law ‘ they (the Common Council) can not grant the privilege to any but the highest bidder,’ and the highest bidder may be one who merely desires to prevent the road from passing through, and who can not make use of the franchise except for that purpose.

“ In fact the franchise sought is not the subject of competition. A particular railway company desires permission to construct its road through the town, or, in other words, to make a connection through the town of those portions of its road extending upon either side of the town to its opposite terminus. In the nature of things there can be no competition for this privilege. The builder of the road must build and operate the whole line. The right to do so is part of its corporate franchise, and how is it possible that any other person or corporation can acquire the right to construct or own and operate as a distinct and independent road and franchise that part of the road necessary to connect its two ends? This law was not intended to apply to such a case, but only to those cases. — of street railroads— in which bona fide competition is possible.”

If we compare the conditions existing at the time of the grant to the Eastern Louisiana road and the precise thing which it was authorized to do under its grant, with the conditions and circumstances existing when Ordinance No. 10,392 was passed, and with the objects and purposes to be accomplished under this last mentioned ordinance, it will be found they are essentially different. The very origin of the business which the new corporation is to transact is found in the ordinance itself — it is a local franchise, new, separate and distinct from any outside franchise, clearly valuable and for which the public would compete in money, if opportunity so to do were permitted. The city was not authorized to grant a privilege extending beyond its own limits. It had nothing to do with extensions beyond its own territory.

We do not think the General Assembly intended to use the words “ street railroad ” in any narrow technical sense, but that its evident purpose was to compel the city to make available for city purposes, and for the public benefit, in money, any local railroad franchise or privilege, which was valuable, and the amount to be derived from the granting of which was likely to be increased by being put up at public auction. So understanding to be the object of the lawmaker, it is our duty to give the statute a liberal construction in aid of its purposes, and this duty on our part carries with it an affirmance of the judgment appealed from, without the necessity of passing upon other questions raised in the controversy.

For the reasons herein assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 12,292.
    State of Louisiana vs. Sypher Conerly.
    In order to show that a witness had made statements out oí court different from those made by him on the stand, he must be previously cross-examined as to such alleged statements. Such statements must be shown by a Bill of Exceptions to be material to the question at issue — the one made out of court must be shown to have been inconsistent with some fact stated by the witness in his testimony. Eapalje on Witnesses, Secs. 208, 205; State vs. Johnson, 35 An. 371.
    “Noprovocation bywords only, however opprobrious, will mitigate an intentional killing so as to reduce the killing from murder to manslaughter.”
    APPEAL from the Sixteenth Judicial District Court for the Parish of Washington. Reid, J.

      M. J. Cunningham, Attorney General, and Dunean S. Kemp, District Attorney, for Plaintiff, Appellee.

      Clay Elliott, for Defendant, Appellant.
    Submitted on briefs November 21, 1896.
    Opinion handed down December 14, 1896.

      Defendant was found guilty of murder and sentenced to death. From that verdict and sentence he appeals. The questions presented for review are embodied in three bills of exception.
    The first bill recites “ that upon the trial of the ease the defendant, discovering or believing that a witness for the State who had been dismissed from the stand had made statements contradictory to what he had testified to upon the stand concerning material facts, called the witness back to the stand solely for the purpose of asking if he had ever stated the facts differently, and the witness denied so doing. The defendant then offered to or tendered a witness for the defence for purpose of showing that the State witness had made a statement shortly after the killing different from that made upon the stand. To which offering counsel for the State objected on the ground that no proper foundation had been laid, and that by recalling the witness the defendant had made him his own and could not contradict him, which last objection the court sustained and excluded the testimony. To which ruling defendant excepted and tendered his bill of exceptions.”
    The court’s statement upon the bill is as follows:
    The statement reduced by the clerk at the time is annexed. The court sustained both exceptions made by the District Attorney. Counsel for defendant called the witness to the stand without any announcement of a discovery and with no declaration of his purpose, just as he did any other witness summoned by him.
    The question to the witness was too general. It did not give time, place nor detail of different statement; the question being: “ Have you since the homicide which occurred April 19, 1896, stated the facts differently from your statement now given on October 27,1896?”
    The statement of facts referred to by the court as having been made by the clerk is as follows:
    “ On the trial of this case the State called Warren Barnes. After offering his testimony in chief it tendered him to defendant for cross-examination. He was cross-examined and returned to the State, and dismissed by the State. Afterward, the State having closed its testimony in chief, the defendant called the witness Abe Mayer, and questioned him as-to whether or not he had any conversation with Warren Barnes subsequently to the homicide, and asked him to state such conversation. Upon objection by the State the testimony was excluded. The defendant having concluded' the examination of the witness Mayer, and, after cross-examination, he having been dismissed from the stand, the defendant called Warren . Barnes to the witness stand, and asked him if he had not made certain statements in relation to the homicide, and warned him of an intention to contradict him if he persisted in a denial, and the . defendant then tendered him to the State and afterward dismissed him, and thereupon recalled Abe Mayer, and tendered his testimony to contradict the statement of Warren Barnes.”
    The second bill recites that upon the trial of this case the court charged the jury in the language of Sackett’s Instructions to Juries, Sec. 10, p. 681, as follows:
    “No provocation by words only, however opprobrious, will mitigate an intentional killing so as to reduce the killing from murder to-manslaughter.”
    That defendant excepted to this charge, and tendered a bill of: exceptions.
    The court appended to this bill the statement that the homicide was committed with a dangerous weapon, no blows having been struck.
    By the third bill it appears that defendant requested the court to charge the jury that “ if it should appear that the deceased and the accused were apparently on friendly terms, and that they each with the other suddenly became involved in a colloquy in which each made use not only of insulting language toward the other, but coupled with threats, the killing of the deceased under such circumstances may be wanting in malice and the killing no murder, but manslaughter; that the judge refused to so charge, and defendant excepted.”
    The court stated in the bill that the charge requested was-, refused as not correctly stating the law, without serious qualifications and modifications that the homicide was committed with a. dangerous weapon — a 38-calibre pistol. The court was of the. opinion that the law was correctly stated in the charge excepted ta in bill No. 2 and the further complete charge on manslaughter.
   The opinion of the court was delivered by

Nicholls, O. J.

The first question to be considered is whether the defendant, having tendered and offered a witness “ for the purpose of showing that a State witness named Warren Barnes had shortly after the killing made a statement different from that made upon the stand,” the court ruled correctly in refusing to allow said witness to testify on that subject. The witness Barnes had been examined by the State, cross-examined by the defendant and dismissed. After the State had closed its case in chief, defendant called Barnes to the stand, without any announcement of a discovery, and with no declaration of his purpose, just as he did any other witness summoned by him, and propounded to him the question: “Have you, since the homicide, which occurred April 19, 1896, stated the facts differently from your statement now given on October 19, 1896?” The reasons assigned by the judge were that no proper foundation had been laid for the testimony, and that defendant, by recalling the witness, had made him his own, and could not contradict him. The court said the question asked was too general, as it did not give time nor place, nor detail of different statement.

In the statement made by the clerk annexed to the bill, and which is referred to by the court, that officer declares that defendant: called Warren Barnes to the stand, and asked him if he had not made certain statements (italics ours) in relation to the homicide and warned him of an intention to contradict him if he persisted in a denial, and the defendant then tendered him to the State and afterward dismissed him.”

It will be seen that the statement as made by the clerk differs somewhat from that of the court, the latter giving the precise question asked of Barnes, while the former says defendant asked him if he had not made “certain statements” in relation to the homicide.

Thsugh no mention is made of the fact that the statement of the •clerk was made by authority and order of court, we presume it was in fact so made, as it is referred to by the court in connection with the bill of exception. The clerk instead of opening a special note of evidence or “taking down” as they occurred, as a scribe, “ the facts upon which the bill was reserved,” and taking down the testimony of Barnes on the trial, the specific questions asked and the specific objections urged, dealt with the matter by way of “ narrative.” We do not think that Act No. 113 of 1896 contemplated that “ the facts on which the bill was reserved ” should be brought up in that way. In this instance there is no “ material ” difference between the court’s statement and that of the clerk.

We concur in the opinion of the District Court that the question propounded by the defendant to Barnes, on which he bases his right to have introduced testimony to show that he had made statements different from those made by him on the stand, was entirely too general. “ A frequent mode of impeaching the credit of a witness ” says Rapalje on Witnesses (Secs. 203, 205) is to sh.,w that he has made statements out of court on the same subject inconsistent with or contrary to what he swears at the trial. In order to show this he must be previously cross-examined as to such alleged statements so as to apprise him of the time, place and persons involved in the supposed contradiction (see as to this State vs. Johnson, 35 An. 871), and such statements must also be material to the question at issue. The two statements must conflict in some way. The one made out of court must be inconsistent with some facts stated by the witness in his testimony or with its general drift, but if the two accounts are substantially inconsistent that is all that is required.” (Citing De Sailly vs. Morgan, 2 Esp. 691; Christian vs. Coombe, Id. 489; 2 Philips on Evidence, 959). It has been held that “ proof of a different but not inconsistent statement is inadmissible ” (Martin vs. Farnham, 25 N. H. 195; Hall vs. Simmons, 24 Texas, 227).

The same author, writing on the same subject (Sec. 209) says: “ The books teem with applications of the proviso to the rule we have just been considering, that the statements as to which a witness can be contradicted must be material and relevant to the issue on trial; if the witness is cross-examined as to former statements which are impertinent or immaterial to the issue, his answers are conclusive, and can not be contradicted for the purpose of impeaching him.”

In the case at bar we have been informed neither as to what Barnes testified to at the trial, nor what the statements were which defendant claims were different from those made by him on the trial. His testimony may have been purely on immaterial, irrelevant or collateral matters of no moment, and it would be a very unsafe practice to reverse a judgment or verdict upon a mere presumption or possibility that the matters testified to, and those which were sought to be introduced with a view of discrediting the witness, were of such a character as to have resulted in an injury to the accused. Barnes’ testimony could have been taken down under the act of 1896, or it could at least have been recited in the bill of exceptions, so as to bring us to a knowledge of the importance or materiality of the error of the District Judge, if error he had made, in fact committed.

We see no error in the instruction given by the court to the jury that no provocation by words only, however opprobrious, will mitigate an intentional killing so as to reduce the killing from murder to manslaughter.

The judge informs us that the homicide was committed with a dangerous weapon, and that no blows were struck.

The reasons assigned by the District Court for refusing the special charge asked, which refusal is the subject of the third bill of exceptions, justified his ruling.

Por the reasons assigned herein the judgment appealed from is affirmed.


author: Nicholls, C. J.

text:
    No. 12,317.
    State of Louisiana vs. John Hamilton.
    Where an indictmentfurnished a legal basis for a conviction upon it, the correction of a manifestly erroneous date by amendment, may be permitted when time is not of the essence of the crime charged. State vs. Pierre, 39 An. 916; R. S. 1047.
    APPEAL from the Twentieth Judicial District Court for the Parish of Assumption. Guión, J.

      M. J. Cunningham, Attorney General, and G. A. Gondran, District Attorney, for Plaintiff, Appellee.

      John Maries for Defendant, Appellant.
    Argued and submitted November 21, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant was indicted on the 11th of March, 1892, for cutting with intent to kill and murder. The offence is charged to have been committed on October 18, 1892, a date subsequent to the finding by the grand jury and subsequent to the filing of the same. He was found guilty of cutting with a dangerous weapon with intent to kill, and sentenced to an imprisonment of two years. He appealed.

After the jury was empaneled the District Attorney moved to amend the indictment by substituting 1891 for 1892. Counsel for accused objected on the ground that the District Attorney was not vested with the power and authority to make such an amendment, because the amendment was as to a material fact, and because, even if permissible at all, it could not be done after the jury had been empaneled. The court overruled the objection; the amendment was made, and defendant excepted.

Defendant moved in arrest of judgment on the ground that the indictment found against him disclosed no ground or right to try him, “ in that it charges him with the commission of a future offence at a date subsequent to the sitting of said jury; that against his protest the District Attorney was permitted to amend the indictment to a year prior; that defendant had excepted and tendered his bill of exception to said action; that said amendment was one which, if not made, would have left the indictment null, void, and of no effect, and accused could not have been convicted under the same, and said amendment was a material change in the indictment.”

Counsel for the State call our attention to Secs. 1047 and 1063 of the Revised Statutes, and to State vs. Joseph Jean Pierre, 39 An. 915; 55 N. W. 199.

The first mentioned section (R. S. 1047) permits amendments of indictments to be made in different particulars whenever on or before the trial of any crime there shall appear to be any variance between the statement in the indictment and evidence offered in proof thereof.

By the secondly mentioned section (Sec. 1067) it is enacted that “no indictment for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words ‘ as appears by the record ’ or of the words ‘ with force and arms,’ nor for the insertion of the words ‘ against the form of the statute’ instead of ‘ against the form of the statutes ’ or slice versa, nor for that any person mentioned in the indictment is designated by a name of office or other descriptive appellation instead of his proper name, nor for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or an impossible day, or on a day that never happened, nor for want of a proper or perfect venue; nor - for want of the statement of the value or price of any matter or thing or the amount of damages, injury or spoil, in any case where the value or price or the amount of damage, injury or spoil is not of the essence.”

The next section (Sec. 1064) authorizes courts before which objection to an indictment for any formal defect apparent on the face thereof shall be taken to cause the indictment to be forthwith amended in such particular and authorizes the trial to proceed as if no defect had appeared.

In State vs. Pierre (39 An. 915) objection was raised by the accused to the District Attorney making a correction in the indictment of the date at which the crime was charged to have been committed — by changing 1887 to 1886 — on the da^y the cause was called for trial and after the jury had been empaneled, but prior to the commencement of the trial. The date laid in the indictment for the commission of the offence was the 22d of December, 1887— a date which had not yet arrived, and hence an impossible one. The record showed that the Grand Jury only returned the bill into court on the 8th of September, 1887, making the one given in the indictment a manifestly erroneous date.

The court declared that in the crime of horse stealing the date at which it was committed was not of its essence, and that the correction was properly permitted.

On the argument of the present case counsel abandoned the position that the indictment, as originally laid, was null, void and of no effect, because of the date at which the commission of the crime was charged, but maintained that having been so charged, it could not be altered by amendment.

The indictment, as found, being admitted to have furnished a legal basis for a conviction upon it, we are of the opinion that the sections of the Revised Statutes quoted, and the decision of this court in State vs. Pierre, control the case before us.

The judgment must therefore be and it is hereby affirmed.


author: Breaux, J.

text:
    No. 12,267.
    State of Louisiana vs. Thomas Brown.
    The repeal of statutes by implication is not favored.
    The two statutes are not in irreconcilable conflict. Hence, the new law does not repeal the old law.
    A PPEAL from the Eighteenth Judicial District Oourt for the parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, L. C. Moise, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellant.

      John S. Billiu for Defendant, Appellee.
    Submitted on briefs November 7, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendant was charged with shooting with intent to commit murder. He was found guilty of an assault with intent to kill.

A motion in arrest of judgment was filed upon the ground that Sec. 792 of the Revised Statutes was repealed by Act 59 of 1896.

The trial judge sustained the motion in arrest on the ground stated in the motion.

In two cases recently decided, this court held that the Sec. 792 of the Revised Statutes is not repealed as to offences committed prior to the adoption of Act 59 of 1896; that the punishment under the old law was not changed by adding a number of years as a maximum of punishment under the new law, and that in prosecutions under the old law for past offences the last law presented no obstacle to trial and conviction.

The judgment of the District Oourt is annulled, reversed and avoided.

It is now ordered that the case be remanded; that it be reinstated on the docket of the District Oourt, and that the accused be sentenced in accordance with the terms of the verdict.


author: Miller, J.

text:
    No. 12,268.
    The State vs. Jonas Jonas.
    The court affirms the decision in State vs. Heaux, 48 An. 1517.
    PPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, and L. C. Moise, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellant.
    Defendant appellee unrepresented by counsel.
    Submitted on briefs November 7, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

Miller, J.

The accused was indicted for assault and convicted for assault. The lower court declined to sentence on the ground that Sec. 792 of the Revised Statutes, on which the prosecution was based, had been repealed by the Act No. 59 of 1896. We have held there was no such repeal. State vs. Meaux, 48 An. 1517, not yet reported.

The State appeals from the judgment of the lower court declining to pass sentence, and, as we have held the Sec. 792 is still in force, the case must be remanded with direction to sentence.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed and set aside; and it is now ordered, adjudged and decreed that the lower court pass sentence on the accused in accordance with the verdict.


text:
    No. 12,277.
    Mr. and Mrs. Nicholson vs. Board of Assessors et al.
    The plaintiffs, owners of a Mergentlialer Linotype Machine, with which they manufacture linotypes in publishing the New Orleans Picayune, are not manufacturers of machinery within the intendment of Art. 207 of the Constitution.
    Further, they do not supply dealers and consumers; a requisite for exemption. 34 An. 597; 35 An. 747; 36 An. 347.

      APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. B. Lancaster for Plaintiff, Appellant.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assist' ant Oity Attorney, for Defendants, Appellees.
    Argued and submitted December 2, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

Breaux, J.

This is a suit for the canceling of an assessment on the ground that the property is exempt from taxation.

The plaintiffs are the owners of machinery known as Mergentha.ler Linotype Machines. The evidence reveals, as the principal witnesses substantially express it, that the machine is intended to manufacture lines of types on the principle that the actual metal type is manufactured, but that instead of being manufactured singly, as the ordinary type, the types are manufactured in lines, by means of moulds or matrices; that is, that instead of producing a single type it produces type metal bars with type on upper margin of the bars, to print a line.

The machine is controlled by finger keys. The type is manufactured of molten lead by the machine. The lines are produced automatically and in order, and constitute a form similar to the ordinary form consisting of single types. The type metal bars, with letters on one end, take the place on the galley, which is filled, under the old process, by the type manufactured singly.

We are informed that it is a very complicated machine and quite intricate in its movements.

Plaintiff alleges that this machine is used to manufacture other machinery, and that both the machine and the type it produces are exempt from taxation by Art. 207 of the Constitution.

The argument for plaintiffs confines the controversy to the question:

Is the manufactured line of type, or the form produced by the linotypes assembled side by side in proper order, machinery?

An affirmative answer to the question propounded would have the-effect of exempting the linotype.

The Constitution exempts only the articles of property named in the Art. 207. In addition: To be exempt by that article one must be a manufacturer.

Plaintiffs claim that the linotypes manufactured by the linotype machine are part of the machinery by which the Picayune newspaper is published, and that, as such, it is exempt from taxation.

In Nicholson and Wife vs. Tax Collector, 44 An. 76-78, this court held: “ Article 207 exempts from property tax only manufacturers of certain designated articles.”

The articles the plaintiffs claim to be exempt are not among the designated articles; the exempted articles are textile fabrics, leather, shoes, harness, saddlery, hats, flour, machinery, agricultural imple" ments and furniture and other articles of wood, marble or stone, soap, stationery, ink and paper, boat building and chocolate. (Italics ours.)

Again, in another case it was held: “ It is not sufficient, under the latter article, for them to be manufacturers simply, but they must be manufacturers of some of the particular articles specified therein.” State ex rel. Ernst & Co. vs. Assessors, 36 An. 347.

The linotypes, although they are indispensable parts of the printing machinery, are not themselves machinery.

It is admitted that they are only parts of the machinery in use in publishing the Picayune newspaper.

Without the admission: we do not think we would be justified in deciding that they are machinery and exempt.

They have not the construction of parts required to constitute machinery.

It is said in the brief for plaintiffs that the printing machine or press could not be usefully operated without them.

That is doubtless true.

May it not be said that the ordinary hammer also, or the lever, may be made an essential part of machinery. It would not for that reason be machinery. The same may be said of the needle of a sewing machine, and of many other instruments or tools, not, of themselves, machinery.

The mechanical action is entirely subordinate to the machinery. The linotype is only one of the instruments or pieces of the machinery.

Machinery is machinery collectively, the congeries. The pieces separately have not the importance of the whole machinery. In many factories and even in shops there are devices made by machinery that would be exempt, if we were to decide that pieces manufactured in those factories or shops made to do service in machinery are exempt from taxation, even although the shops or factory itself may not be exempt.

We do not think that such exemption was intended by those who adopted the article as part of the organic law.

We have given the subject our most careful consideration.

From any point of view we are totally unable to discover that plaintiffs are the manufacturers of machinery.

In addition, we must say that they are not suppliers of dealers and customers; they do not sell the linotypes. This was made a requisite of exemption from property taxation by the terms of several decisions of this court. New Orleans vs. LeBlanc & Beck, 34 An. 597; City vs. Ernst, 35 An. 747; State ex rel. Ernst & Co. vs. Assessors, 36 An. 347.

The judgment appealed from is affirmed.


author: Nioholls, O. J. Nicholls, C. J.

text:
    No. 12,186.
    Succession of Mrs. Mary L. Nash.
    A purchaser at a judicial sale who, before paying the price, or entering into the possession of the thing sold, discusses illegalities in the proceedings which have led to the sale, calculated to throw a cloud upon his title, may refuse to execute the purchase. 9 An. 560.
    The presumption omnia rite aota fuisse, created by the law fbr his protection, can not be invoked against him, as an estoppel, although available to throw the burden of proof upon him of the illegalities of which he complains. Id.

    The decree recognizing the widow as heir of the husband, and placing her in possession, did not, at the end of three years (C. 0., Arts. 931, 932), definitively fix her status as such, and bar the rights of the real heirs of the husband to a recovery of his succession as against the wife and her succession.
    When property inventoried as belonging to the deceased wife, held by her under such a decree, is offered on proceedings invoked by her executor at public auction and adjudicated, the purchaser at such sale may object to accept title, and show that the deceased husband left collateral heirs surviving him, and then living; in such a proceeding the question at issue is the ownership of the property sought to be forced upon the purchaser, an objection more formidable than mere regularity of proceedings.
    APPEAL from the Oivil District Oourb for the Parish of Orleans. Théard, J.

      Bimkelspiel & Hart for Executor, Plaintiff in Rule.

      Frank N. Butler and James Boyd Grinage for John Otnott, Defendant in Rule.
    Argued and submitted November 19, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

Nioholls, O. J.

On the 11th of February,- 1890, Mrs. Mary Lamb, widow of James K. Nash, filed a petition in the Oivil District Oourt, in which she alleged the death of her husband on the 6th of that month; that he died intestate, leaving no issue; that he left an estate consisting of movable and immovable effects situated in the city of New Orleans, and which composed his share of the community property existing between himself and petitioner; that he left no other prop - erty; that under the law she was entitled to one-half in full ownership of all the community property left by her said husband, and to-the usufruct of the other half to last during her natural life, or until she remarried; that she desired to be recognized and put in possession of said property in both said capacities. She prayed that she be recognized as widow in community of her late husband; that as such she be put in possession of one-half of the property in full ownership, and that she be put in possession of the other half asusufructuary, her usufruct to last and continue during her natural-life, or until she remarry.

Upon this petition the court, on February 12, 1890, rendered an order or judgment, in which it declared that the law and the evidencebeing in favor of the demand of the petitioner she was recognized as the surviving widow in community of Nash, and that as such she be put in possession of one-half in full ownership of all the community property, and that she be put in possession of the other half as usufructuary, the same to continue during her natural life, or until she remarry.

On the 14th of March, 1890, the widow filed another petition, in which, after reciting the judgment above mentioned, she averred that to the best of her knowledge and belief her husband left no heirs; that he never had any children; that his parents died before him, and he had no brothers, sisters or collaterals; that she was entitled, therefore, to be recognized as the owner of the whole property left by her husband in her capacity of widow in community and sole heir; that under the law, in order to have herself properly put in possession, the taking of an inventory and the appointment of an attorney for absent heirs were necessary; she, therefore, prayed that an attorney be appointed to represent the absent heirs of the deceased, and that an inventory of all the property left by the deceased be made. Upon this petition the court ordered an inventory to be taken as prayed for, and appointed A. Bernau, attorney at law, to represent the absent heirs. An inventory was taken under this order; A. Bernau being present thereat in the capacity of attorney of absent heirs.

On the 11th of July, 1890, the widow of Nash, through her attorneys, obtained from the court a rule on A. Bernau, appointed to represent the heirs of the deceased, to show cause why judgment should not be rendered in her favor recognizing her as sole heir at law of her husband, and sending her into possession of all the property left by him, upon her complying with Arts. 929 and 938 of the Oivil Code. The rule issued on suggestion by her to the court that the deceased left no heirs, and that she was entitled to such judgment.

Service of this rule was accepted by Aug. Bernau, signing as attorney, etc.

On November 14, 1890, on motion of the counsel of the widow, the rule was fixed for trial on November 21, and the attorney of absent heirs was ordered to be notified thereof. On November 10, 1890, Aug. Bernau accepted service of the motion as attorney of absent heirs.

On December 5, 1890, the court rendered a judgment in the rule ordering that it be made absolute. That Mrs. Widow M. Nash be recognized as the sole and only heir of her husband, and that she be sent into possession of all the property left by him upon her complying with Arts. 929 to 933 of the Civil Code. The judgment recited that the rule had been submitted by counsel, and that it had been made absolute by reason of the law and the evidence being in favor of plaintiff in the rule. On the 17th of December, 1890, the widow furnished bond with security conditioned that should, within the space of three years from date, any heir at law of James K. Nash appear and claim their share of his succession, that same would be delivered or accounted for by her, in which case the bond should be null and void, otherwise to remain in full force and effect.”

Mrs. Mary Lamb, the widow of James K. Nash, died on July 17, 1894, in New Orleans, leaving a will, in which she appointed W. O. Hart as her executor, without bond and with seizin.

The will was probated and Hart qualified as executor thereunder. An inventory having been ordered to be taken of the property belonging to the succession of Mrs. Nash, such inventory was made on the 26th of July, 1894. Certain real estate in the city of New Orleans was placed upon this inventory as “ belonging to the deceased in whole or in part as widow of James K. Nash, as per proceedings had in his succession.” Upon the application of the executor the inventory was approved and homologated.

On November 9, 1894, the executor applied for and obtained from the District Court (Divison E) an order for the sale at public auction of the real estate which had been inventoried on terms partly cash and partly credit; acts of sale to be passed before a notary public. The order was obtained on the allegation of the executor, that he had no funds in his hands belonging to the succession; that a sale was necessary to pay the debts of the deceased, the cost of building her a tomb as directed by the will and to pay the special legacies made.

On the 14th December, 1894, the auctioneer filed in court his proces verbal of his actions and proceedings under the order of sale directed to him.

By this proces verbal it appears that three of the pieces or lots of ground inventoried were adjudicated to John Otnott as the last and highest bidder for the sum of twenty-two hundred dollars. No deed of sale followed the adjudication. On January 23, 1895, the attorneys of the executors appeared in court in the succession of Mrs. Nash and suggesting that the property had been adjudicated to Otnott, as appeared by the proces verbal, and that he had failed to comply with his bill, obtained from the court a rule on the adjudicatee to show cause why he should not comply with the adjudication forthwith and pay the price thereof, or in default thereof that the property adjudicated to him be sold at his risk and expense and for her account.

On February 4, 1895, Otnott urged as cause:

1. That the property was inventoried in the succession of James K. Nash as property of the community existing between him and his wife, and it did not appear from the proceedings had in said succession or otherwise that his widow had acquired full and absolute title and ownership of her husband’s share of said property.

2. That the judgment rendered in the succession of the husband putting his surviving widow in community in possession of said property for want of lawful relatives under the provisions of Arts. 929 and 981 of the Oivil Code gave her no greater substantial rights in connection with said property than she had prior to its rendition, • and did not and could not deprive the lawful heirs of James K. Nash, if any exist, of their legal shares of and rights in said property.

8. That no evidence existed or had been placed of record in the Civil District Court or in the Conveyance Office of the parish of Orleans, showing that the husband died without leaving any forced or legal heirs, and in the absence of sufficient proof, that no such heirs survived him, his widow in community could not and did not acquire full and indefeasible title to said property.

4. That he had just been informed that said James K. Nash left collateral relatives surviving him who are now living, and a reasonable delay should be granted him to verify said information.

5. That all the requisite proceedings preliminary to the aforesaid judgment of possession had not been had.

6. That all the requisite proceedings for the sale of said property in the succession of the widow of Nash had not been had.

On the 28th day of April, 1896, the rule after a trial was made absolute, the court ordering the adjudicates, Otnott, to comply with the adjudication made to him within thirty days from the date of the signature of the judgment, and ordering in default of his so doing that the property adjudicated to him be sold at his risk and for his account.

From that judgment Otnott has appealed.

The opinion of the court was delivered by

Nicholls, C. J.

The articles of the Oivil Code which bear upon the issues before us are the following:

Article 917. When the deceased has left neither lawful descendants nor lawful ascendants, nor collateral relations, the law calls to his inheritance either the surviving husband or wife, or his or her natural children, or the State, in the manner and order hereafter directed.

Article 924. If a married man has left no lawful descendants nor ascendants, nor any collateral relations, but a surviving wife, not separated from bed and board from him, the wife shall inherit from him to the exclusion of any natural child or children duly acknowledged.

Article 930. The surviving husband or wife called to the succession of the. other who is deceased must cause the seals to be fixed on the effects thereof, and be authorized to take possession of the same by the judge of the place in which the succession is opened, after having caused a true and faithful inventory to be made by a notary, duly authorized to that effect by the judge, in the presence of a person appointed to defend the interests of the absent heirs of the deceased, in case there are any, and after giving good and sufficient security, as prescribed in the following article:

Article 931. The security to be given by the surviving husband or wife, who shall demand to be put in possession of the effects of the deceased husband or wife, is to be of the estimated value of those effects, to the end of securing the restitution of the estate, in case any heir should come forward within three years after his or hex" having been putin possession, which term being expired, the security shall remain discharged from his obligation.

Article 932. During the three years that the security furnished by the surviving husband or wife or natural children put in possession continues, they can not, in any manner, alienate the immovables by them thus possessed, unless it be under the authority of the court, at public auction, and in cases in which their alienation is necessary.

Article 933. The surviving husband or wife and natural children, who shall fail to fulfil any of the formalities or obligations prescribed in the preceding articles, shall be liable to damages toward the heir, if any should be incurred.

On the trial of the rule defendant offered in evidence a certified copy of a petition filed April 20, 1896, by Dennis Leavey and Mrs. Ann Nash, widow of Pierce Strange, in the Civil District Court of New Orleans, in which the latter, after averring herself to be a sister of James K. Nash, and the former to be his nephew, and that they were legal heirs of the said Nash, asked that W. O. Hart, as executor of Mary L. Nash, wife of James K. Nash, be eited, and that the property of the community between Nash and his wife (describing as part of said property that adjudicated to the defendant) be par-’ titioned between themselves and other mentioned heirs of James K.Nash, and the succession of Mary L. Nash, by a sale of said property at public auction. He also offered in evidence the testimony of the said Mary Ann Nash (Widow Strange) and Thomas F. Strange, taken to establish the heirship of the plaintiff in the partition suit above mentioned as heirs of James K. Nash.

The executor objected to the introduction of the evidence on the ground that the documents were irrelevant and inadmissible.

1. Because the copy of the petition filed by Dennis Leavey and others was inadmissible and irrelevant, having been filed long after the adjudication to defendant in rule, and therefore in nowise binding upon them, and because otherwise irrelevant to the issue in the case.

2. The testimony of Mrs. Ann Nash Strange was inadmissible, because neither she nor the persons referred to in her testimony were parties to this suit. They had made no claim up to the time of testifying to the property involved, and even if they had any claim, it was against the proceeds of sale and not against the property. The court overruled the objection on the ground that the objections raised went to the effect of the evidence and not to its admissibility. The evidence was received and- the executor reserved a bill of exceptions.

The necessities of this case do not require us to examine into and pass upon the regularity and validity of the proceedings which preceded the order of the District Court recognizing Mrs. Nash as heir of her husband and placing her in possession of the property which had belonged to the community between them. We may assume for the purposes of this litigation that they were strictly regular and that the wife held possession of the property in absolute good faith for over three years prior to her death. The question is (assuming such a condition of affairs) whether a purchaser at a judicial sale made in the succession of Mrs. Nash, who refuses to comply with his bid, can be legally forced to do so, when prior to paying the price and going into possession, parties claiming as heirs of the husband appear and institute a suit against the executor for the partition of the same property.

The executor claims that from the moment of the adjudication to Otnott the title to the property become absolutely vested in him and he could no longer recede from the purchase. He further claims that the creditors of Mrs. Nash from the moment of the adjudication acquired fixed rights upon the price, and therefore the situation has to be dealt with from the standpoint of the rights of “third parties” being involved in this controversy.

In Succession of Gassen vs. Palfrey (9 An. 560) the same position "was advanced by the administrator, the argument being that the 'purchaser would be protected by the decree, and had no ground for ¡apprehension. He cited a number of decisions in support of this contention. Of these, this court said they were all p etitory actions brought by persons claiming under those whose title had been divested by a judicial sale against the purchasers at such sale or their assigns after the sale had been consummated by the payment of the price and followed by a long possession of the thing sold on the part of the purchaser. That it recognized fully that doctrine, but that it was not applicable to the case before it, which was that of a purchaser at a judicial sale, who, before paying the price, or entering into possession of the thing sold, discovered irregularities in the proceeding which led to the sale, calculated to throw a cloud upon •his title. “For such a person,” said the court, “ there is a locus penitential afforded by the misconduct or negligence of those with whom he had contracted and who are the warrantors of his title. The presumption omnia rite aeta fuisse, created by the law for his protection, can not be invoked against him as an estoppel, although available to throw the burden of proof upon him of the irregularities of which he complains.”

In the case at bar, the ownership of the property sought to be ¡forced upon the purchaser is at issue, an objection more formidable ¡and radical than mere regularity of proceedings. Plaintiff invokes here, as did plaintiff in the Palfrey suit, a rule against a purchaser •which was intended for his protection. The present suit is not one where the purchaser at the succession sale having complied with his Ibid and gone into possession of the property, the heirs of the husband are seeking to recover as against him the property on the strength of the original title, while the defendant is resisting on the strength of the judicial proceedings recognizing the wife as heir, her subsequent possession for over three years and the sale made in her succession. Were this suit of that character, it might be granted that defendant would present strong grounds for protection.

It would by no means follow from this assumption that the administrator of a succession holding-in reality a title to only an undivided half of the property should be permitted to insist upon the consummation of an incomplete divestiture of the title of his co-owners. A shield for the benefit of purchasers buying on the faith of judicial proceedings and probate decrees should not be converted into a weapon in the hands of parties selling without actual rights. We scarcely think it is pretended that the effect of the decree recognizing Mrs. Nash as the heir of her husband and placing her in possession was, at the end of three years, to definitively fix her status as such, and to bar the rights of the real heirs of the husband to a. recovery of his succession, as against the wife and her succession. If, however, plaintiff means to assert here such a claim, it is utterly untenable. So far as the creditors of the succession of Mrs. Nash are concerned, they do not occupy the same position as would purchasers of that property who had completed their purchase and stood upon their rights as such. They have no fixed right upon the property, and hold “ under ” the rights of Mrs. Nash, and no.t “ beyond " them.

We think that the purchaser in this ease has made such a showing, that James K. Nash left at his death collateral relations who became his heirs as to entitle him to relief. The evidence which the court, allowed defendant to introduce oh the trial was properly admitted.

The rights of the heirs of the husband as between themselves and! the wife or her succession were not cut off by the succession sale. There is now pending a suit in which those heirs are asserting their-ownership of one-half of this property. The fact that they did not do so until after the institution of this proceeding, and that they are not parties to the same, are, in this controversy, immaterial facts. The important- fact is the existence of the rights themselves. This, fact the defendant was entitled to show.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed. It is now ordered and adjudged that the rule taken against defendant be dismissed, with costs in both courts.