text:
    No. 11,725.
    Garrett, Blanks et als. vs. Thomas Y. Aby, Mayor, et al; R. W. Alexander et al., Intervenors.
    Whenever an election is held under and in conformity with the provisions of Act 76 of 188Í, relative to the granting or withholding of* licenses for the sale of intoxicating liquors, the majority of votes cast in the parish, if an election has been held for a whole parish, shall be against granting1 licenses for the sale of intoxicating liquors, said vote or decision shall govern and control the action of any ward, incorporated town, or city within the limits of said parish as fully and completely as if said election had been held by authority of said ward, town or city. '
    The provisions of Act 76 of I88i, in terms, repeal the provisions of the statutes of 1871,1873 and 1876, which grant and amend the charter of the city of Monroe, in the parish of Ouachita, in so far as they confer any exclusive authority in said city over the sale or prohibition of the sale of intoxicating liquors.
    The legislative charter of a municipal corporation being a special act, apart from the body of general laws of the State, it can not be repealed by a general law of the State, unless that intention clearly appears f-om the terms of the general act; and that the general act shall repeal the special law, it must appear that the provisions of the former are irreconcilably inconsistent with those of the latter.
    The General Assembly is the sole and exclusive judge of the time and manner in which the police power shall be exerted, and its action must be liberally construed.
    APPEAL from the Fifth Judicial District Court, Parish of Ouachita. Potts, J.

      Stubbs & Russell for Plaintiffs, Appellees.

      Thomas 0. Benton for Defendants, Appellants.

      JPred. G. Hudson for Intervenors, Appellants.
   The opinion of the court was delivered by

Watkins, J.

This, suit has for object to enjoin and restrain the city of Monroe, situated in the parish of Ouachita, in this State, through its mayor, the secretary and treasurer, and the collector of licenses and taxes as well, each one, and all of them, from accepting any money, or acknowledging the tender of any money, or granting any receipt, license, permit, or authority from, or to any one, to exercise the calling of retailing any spirituous, or intoxicating liquors, or keeping a saloon, or drinking house in the parish of Ouachita, or in the city of Monroe.

It is further to restrain said officers, severally, from doing any act tending to nullify the will of the people, as expressed at a certain •election that was held on the 21st of December, 1894.

The prayer of the petitioners is to that effect, and the parties enumerated were duly cited and enjoined.

The acting mayor, in the absence of the mayor, and the .assessor and collector of city taxes, appeared and answered; and, quite a number of private individuals intervene, setting up a right adverse to that of the plaintiffs, joining the defendants, and resisting plaintiffs’ demands.

On the issues thus joined, there was judgment in favor of the plaintiffs, and against the defendants and intervenors, perpetuating the injunction and restraining the aforesaid officers of the city of Monroe, and the Oity Council “ from accepting any money, or acknowledging the tender of any money, or granting any receipt, license, permit, or authority from, or to any one, to exercise the calling of retailing spirituous liquors, or keeping a saloon, or drinking house in the parish of Ouachita, or in the city of Monroe, ás directed by the election held in the parish of Ouachita, on the 21st of December, 1894,” etc., from this judgment the parties defending and intervening appealed.

From the foregoing it will be perceived that it was decided at a parochial election, held in the parish of Ouachita, on the 21st of December, 1894, under the superintendence of the parochial authorities, that “local option” should prevail throughout the parish, and within the precincts of the city of Monroe as well; and that thereafter no receipt, license, permit or authority should be granted to any one within the limits of the aforesaid parish, including the city of Monroe, authorizing the vending' or sale, by retail, of any spirituous liquors, until such prohibition should be recalled. It will be further perceived that the aforesaid authorities of the city of Monroe denied the efficacy of said parochial election in so far as the city was concerned, and insisted upon their right to continue to grant such license, notwithstanding such election.

The intervenors are individuals whose business will be prejudi-cially affected by said election if the decree of the District Court should be maintained, and the injunction continue to be perpetuated in respect to the authorities of the city of Monroe.

Having premised this much, it will now be necessary for us to look into the pleadings and ascertain the exact issues which were raised and decided below, and which are determinable by our decree.

Making this examination we find that the terms of the judgment have pretty accurately followed the allegations of the petition, answer and intervention. For the claim of the plaintiffs is that a large number of the citizens and electors of the parish of Ouachita and city of Monroe presented petitions to the police jury of the former, and the common council of the latter, praying for the submission to the qualified voters of the city and parish, respectively, of the question as to whether the sale of intoxicating liquors should be permitted or discontinued.

That the City Council deferred action until such time as the police jury should act; and the police jury having taken action and ordered an election, said council decided not to take any action whatever.

That at the election there was a large vote, in both city and parish, and a decided majority — aggregating 426 votes — of the votes cast was in favor of prohibition; and of this majority 211 were cast in the city of Monroe.

That the police jury regularly received, compiled and promulgated the election returns, and gave due notice of the result ascertained to the State Auditor and the sheriff and tax collector of the parish.

Ascertaining it to be the purpose of the city authorities to issue licenses for the fiscal year 1895 to retail dealers in spirituous liquors, in spite of the aforesaid election and its declared result, plaintiffs sought and obtained an injunction.

The defendants in their answer admit the election, and its prima /acíe result, but deny that the right of the city to issue licenses was thereby put at issue, decided, or in any manner affected.

They aver that under the original charter of the city of Monroe, of 1871, and its amendments, the City Council had, and still has, the exclusive power and control over the subject of taxes and licenses; and of the management and control of barrooms, drinking houses and saloons; and that in respect of those subjects said council is entirely “ independent of the authority of the parish of Ouachita.”

They farther specially aver “that their chartered rights are above and beyond the control of the Legislature under the restrictions of the Constitution of 1879; and certainly can not be affected by any action of the police jury of the parish of Ouachita.”

They especially deny any acquiescence on the part of the city council of Monroe, in said election, or the result thereof; and they also deny that a majority of the voters of the city voted at the election; and they affirm that if the question had been submitted to them directly, in their opinion a majority of them would have voted against prohibition — the inference being that many persons who were opposed to prohibition refrained from voting on the ground that the city would not be affected by the result of the election.

They further specially deny that the provisions of Act 76 of 1884, under authority of which the election was held, did, in terms, or was intended to have any application to the city of Monroe; or that it did, or was intended to amend, modify, alter, or change any of the chartered rights of the city of Monroe.

The intervenors set out in their petition, substantially, the same defences as those we have outlined from the defendant’s answer.

But the mayor of the city and the city treasurer tools a different view of the situation, and, in a separate answer, admit the facts and allegations of the plaintiffs’ petition, and declared themselves opposed to issuing licenses for 1895 to liquor dealers in the city of Monroe, “after the result of the election on the question by Ouachita parish, including said city.”

They further aver that at a meeting of the Oity Council, held on the 18th of November, 1894, -.the question of holding an election and of temporarily issuing licenses until the police jury should act, was considered; and that at a meeting of the council, subsequently held on the 19th of November, 1894, a resolution was adopted, substantially to the effect that the police jury having ordered an election throughout the parish, it was unnecessary for the city to do so, consequently no election was ordered by the City Council.

The answer then avers that “ it was understood that the election and result of election ordered by the parish would be binding-on the city of Monroe. That the election ordered by the police jury resulted adversely to the issuance of licenses, both in the parish of Ouachita ■and city of Monroe, by large majorities in each. Your respondents, therefore, regarding the election ordered by the police jury, and the result of said election, as including and binding alike the city of Monroe (and the parish), have no opposition to make to plaintiffs’ demand on the question presented. They therefore pray to be finally discharged, and for general relief.

From the foregoing analysis of the pleadings, the leading question for determination seems to be whether the city of Monroe is protected by its charter from the effect of the parochial election, so-that the Oity Council may legally continue to issue licenses to retailers of spirituous liquors within the city limits, just as it had done previous to said election.

Viewed in this light, all questions of fact appertaining to the election, and the promulgation of its result, are pretermitted from the discussion. And, in this situation, the estoppels set up by the plaintiffs are of no consequence; for if, as a matter of law, the statute under which the election was held did not contemplate a repeal pro tanto of the charter rights of the city contra, the act of any one or more of the defendants and intervernors, in voting at said election, could not validate it and make it binding on the city. Indeed, it may well be doubted that the City Council could, by its silence and inaction, acquiesce in the result of the election, and accomplish the divestiture of charter rights beyond the scope of legislative mandate under which the election was held.

After the answer of the mayor and the treasurer had been filed, the plaintiffs appeared, by way of exception, to the effect that the intervenors had no right of action remaining in themselves because of the fact that the mayor had joined their standard, leaving no controversy between them and the city, and therefore the intervention ought to be dismissed.

This is not correct as a legal proposition for the reason that, after an intervention has been filed in appending suit, whether joining the defendant or opposing both parties, the intervenors acquire the right to have the issues they present judicially determined, notwithstanding the plaintiffs’ petition be subsequently dismissed, or the defendants’ answer withdrawn. For, although in the first instance an intervention is allowed ex gratia, when filed it is not within the power of his adversary, by pleading or withdrawal, to put his intervention out of court. Suberville vs. Adams, ante., 68.

Addressing our attention to the principal question in the case, we will examine first the provisions of the statute under which the election was held, and ascertain from them what was the object had in view by the Legislature in its enactment, and by an examination and ' comparison of its terms determine its evident import. Act 76 of 1884.

The title of this act is, “to amend and re-enact Sections 1211 and and 2778 of the Revised Statutes, relative to the granting or withholding licenses for the sale of intoxicating liquors.”

An examination and comparison of those two sections of the Revised Statutes discloses them to be precisely the same, the former being placed under the title of “ drinking houses,” and the latter under that of “police jury.”

Referring to the act of 1884, we find that it embodies literally the language of the Revised Statutes, only interchanging “ city council of the city of New Orleans” for “board of aldermen, eto.; ” but it superadds a very important proviso.

The general tenor of the act is, that the police juries of the several parishes of the State, the municipal authorities of the several towns and cities thereof, “ shall have exclusive power to make such rules and regulations for the sale, or prohibition of the sale of intoxicating liquors as they may deem advisable; and to grant or withhold licenses from drinking houses and shops within the limits of any city, parish, ward of a parish, or town, as a majority of the legal voters of any city, ward of a parish, or town, may determine by ballot; and the said ballot shall be taken whenever deemed necessary by the police juries of the several parishes, the municipal authorities of the several cities or towns, and the City Council of the city of New Orleans; provided that said election shall not be held more than once a year.”

Thus far the act follows the words of the revised statutes;- but it thus proceeds:

“And provided further, that whenever, at an election held under this section, the majority of votes cast in a ward, if only a ward election has been held, or the majority of the votes cast in a parish, if an election has been held for a whole parish, shall be against granting licenses for the sale of intoxicating liquors, said vote, or decision, shall govern or control the action of any ward, incorporated town or city within the limits of said ward or parish, as the case may be, as fully and completely as if said election had been held by authority of said town or city.”

The foregoing constitutes the entire act, except its date, and the signatures of the Governor and Secretary.

Comment on its meaning, and intended import, is quite unnecessary, as they are too obvious for discussion. They are exactly applicable to'the question we have under consideration. Words could not be plainer, nor those of greater pertinency could not have been selected by the framers of that statute, to convey the legislative purpose to have been, to furnish the people of a parish, ward, city or town, with plenary power over the sale, or prohibition of the sale, of intoxicating liquors.

The language of the statute, in terms, declares that the vote or decision of the parish, shall govern and control the action of any ward, incorporated town or city, within the limits of any parish, as fully and completely as if said election had been held by authority of said town or city.

One of the contentions on the other side is, that, in so far as Act 76 of 1884 purports to repeal, or amend, either the original charter of the city of Monroe (Act 102 of 1871), or the act amendatory thereof (Act 37 of 1873), it is violative of the prohibition contained in Art. 46 of the Constitution of 1879, which declares that the Legislature “ shall not pass any local or special law * * * amending or renewing, extending or explaining the charter ” of any corporation. Const., Art. 46.

It would seem to be a complete answer to that objection to say that the act drawn in question here is neither a local or special law, nor does it purport to be. It purports to amend two sections of the Revised Statutes which existed prior to the adoption of tho Constitution, and was not repealed by it. It was saved from repeal by the terms of Art. 258 thereof.

Another contention is, th’at Act 76 of 1884 contravenes the provisions of Art. 47. of the Constitution, which is couched in the following terms, viz:

“ The General Assembly shall not indirectly enact special or local laws by the partial repeal of a general law; but laws repealing local or special laws may be passed.”

Recurring to the act we find that neither the title nor the body of the act purports to enact a “special or local law” of any kind, directly or indirectly. The local or special laws on which the defendants and intervenors place reliance are those of 1871, 1873 and 1876, granting a charter to the city of Monroe and amending it; and the claim of the plaintiffs is, that Act 76 of 1884, in terms, repeals the provisions of said three prior statutory enactments, in so far as they ■confer on the city of Monroe any exclusive authority over the sale, or the prohibition of the sale, of intoxicating liquors. Consequently, the Act of 1884 does not come within the reach of the prohibition of Art. 47; on the contrary, it comes directly and immediately within the scope and meaning of the second clause of that article, viz.: “ but laws repealing local or special laws may be passed.”

Another contention of the defendants and intervenors is, that Act 76 of 1884 is in conflict with the provisions of Art. 234 of the Constitution, which declares that the General Assembly shall not remit the forfeiture of any corporation now existing, nor renew, alter or amend the same, nor pass any general or special laws for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of the Constitution.”

The words italicized by us are those referred to and particularly relied upon by defendants and intervenors.

We think it evident that the framers of the organic law exclusively directed that article at private corporations; for to what other corporations could the last phrase of the article apply?

It must have been intended to refer to that provision of Article 240 which declares that the term corporation as used in this constitution shall be construed to include all joint stock companies or associations having any power or privileges not possessed by individuals or partnerships.”

If this were not so the provisions of Article 234 would be in conflict with the clause of Article 47, which declares that ‘ ‘ laws repealing local or special laws may be passed.”

It would be strange indeed if the framers of the Oonstitution had deliberately taken away from the Legislature the power of amending, revising or repealing, in toto, the charters of municipal or quasi political corporations, sharing the exercise of governmental control and authorized to levy, collect and disburse licenses and taxes.'1 ’

The different articles of the Oonstitution, like those of the codes, must be. so construed, if practicable, that all may be harmonious and equally enforced.

In confirmation of their theory that Article 234 has exclusive reference to municipal and other political corporations, defendants and intervenors' counsel refer us to Act 110 of 1880, which makes special provision for altering, changing and amending the charters of towns and cities in the State, the city of New Orleans excepted. But, giving to that statute the greatest latitude and significance, it does not touch the question under discussion.

Act 76 of 1874 purports to amend two sections of the Revised Statutes; and plaintiffs’ contention is that this amendatory enactment, in terms, repeals the provisions of the several statutory charters of the city of Monroe, in so far as they purport to confer upon that municipality exclusive power and authority over the sale and prohibition of the sale of intoxicating liquors within its limits. But it is not contended that it is, in fact or in effect, an amendment of the charter of the city of Monroe. Just the contrary; that it is a general law amendatory of two sections of the Revised Statutes, containing provisions which have the effect of repealing the conflicting provisions of the charter of the city of Monroe.

The sense of Act 110 of 1880 is that the charter of a town or city may be changed or amended by and ■ through the instrumentality of an election.

It is not predicated upon Art. 234 of the Constitution, and does not make any reference to it.

It is perfectly immaterial what construction is put upon it, because Act 76 of 1884 is a later enactment, and just as capable of repealing the statute of 1880 as those of 1871, 1873 and 1876.

Another contention of the defendants .is, that while not denying that under the police power of the State, which can not be abridged) the Legislature would have the power and right to strike from the general license law the retailers of intoxicating liquors, and that a statute to that effect would reach and control every municipality in the State,” they still insist “ that so long as the said general license law exists as it is * * * the Legislature can pass no law, nor delegate such power so as to prevent the city of Monroe, under its charter, from issuing licenses to retail dealers and keepers of saloons as aforesaid.”

It is difficult for us to appreciate this argument. The license law is a general statute, which is operative throughout the State; so is Act 76 of 1884.

When the latter is put in operation in any subdivision of the State, through the means of an election, the former becomes inoperative in that locality, although remaining operative in other portions of the State.

The suspension of the license law may be discontinued after the lapse of twelve months by the question being again'subm'.tted to the people, and the declaration of a different result.

The special contention of the intervenors is that the original charter and its several amendments created a special taxing district of the city of Monroe, and permitted it to have its own tax collector and assessor, who were authorized to assess and collect its own licenses, based on the State license law.

That property within the city was thereby exempted from the payment of parochial taxes, and its citizens were relieved from the payment of parish licenses. And their conclusion, drawn from that premise, is that the police jury of the parish of Ouachita was thereby deprived of all authority and control over the City Oouncil of Monroe.

Their contention is further, that under its charter, and Secs. 1211 and 2778 of the Revised Statutes, the city of Monroe had the unquestionable right to determine for itself, whether intoxicating liquors should be sold within its corporate limits, wholly independent of the will of the police jury of the parish of Ouachita, and that the acts of 1871, 1878 and 1876, being special acts, apart from the general laws of the State, they can not be repealed by a general law of the State unless that intention clearly appears from the terms of the general act.

In support of that proposition counsel for intervenors cite quite a number of authorities.

On this subject Mr. Dillon says that it is a general principle that affirmative statutes of a general nature do not, b/ implication, repeal charters and special statutes enacted for the benefit of particular municipalities, unless this intent clearly appears from the act. The test is, whether the general and special statutes can stand together. 1 Dillon on Municipal Corp., Sec. 87.

Another author says: “ General statutes without negative words will not repeal the particular provisions of a former one, unless the two are irreconcilably inconsistent.” Sedgwick on Oonstruction of Statutes, 97.

In Bond vs. Hiestand, 20 An. 140, our predecessors said: “The law of 1859 is a special- statute confirming a part of the charter of the city of New Orleans, and can not be considered as repealed unless expressly or by conflicting legislation in pari materise. * * * A particular law is not repealed by a general law unless they be so repugnant that both can not stand together under any circumstances.

“Prior, will not be repealed by subsequent laws, from the mere fact that they differ.

“A repeal will be implied, only when the last statuce contains provisions irreconcilable with those of prior laws. A repeal by implication is not favored by law.”

That principle of statutory construction has been often repeated in in more recent decisions, and notably in State vs. Labatut, 39 An. 514.

Then counsel for the intervenors formulate the following argument, viz.:

“The construction given the Act 76 of 1884 by the plaintiffs’ counsel is completely destructive of the autonomy of the municipality of the city of Monroe, and the logical sequence of his argument is, that by apparently inconsistent terms of a general law passed by the Legislature for the State at large, every vestige of power previously conferred by the special legislative charter of the city of Monroe may be repealed by implication, and in like manner conferred upon the police jury of the parish of Ouachita. If his contention be the true interpretation, such a consummation is not difficult to imagine. By the same logical process, were the Legislature to enact general laws applicable to the State at large, to provide a revenue for the State and all parishes, towns and cities therein, such an act or acts by implication would of necessity repeal the provisions of the charter of the city of Monroe, which specially exempt all the property within its corporate limits from the payment of any taxes to the parish of Ouachita, and all persons, firms and corporations doing business therein from the payment of any license tax to said parish. And with equal force the same may be said of the powers of the municipal authorities to provide, regulate and control the police of said city, maintain order, provide for the public health, the education of its youth, and, in short, divest it of all the powers with which it has been specially delegated, embodying the principles of local self - government and the direction and control of its own domestic concerns.”

We do not consider that the logical sequence of the argument of plaintiffs’ counsel is that Act 76' of 1884, as we have construed its provisions, “is completely destructive of the autonomy of the city of Monroe,” nor that “ every vestige of power and authority previously conferred ” on the city has been taken away and conferred upon the police jury.

We have only to recall the language of the proviso of the Act of 1884 to clearly demonstrate the error of the foregoing supposition. It is as follows: “If the majority of votes cast in a parish, if an election has been held for a whole parish, shall be against granting licenses for the sale of intoxicating liquors, said vote or decision shall govern and control the action of any ward, incorporated town or city within the limits of said ward or parish, as the case may be, as fully and completely as if said election had been held by the authority of said town or city.”

Under the terms of the Revised Statutes, the parochial election did not dominate the sale of spirituous liquors within a town or city within its limits; but the purpose of the proviso of 1884 was to make it govern and control the action of any ward, city or town within the parish.

The statute made no other alteration in the autonomy of the city of Monroe. In all other respects the situation prior to its passage remained unchanged.

This repealing statute did not deprive the city of Monroe of any of her charter powers or rights. It placed upon a parochial election the statutory interpretation, that a majority of the voters of the parish of Ouachita could stop the sale of spirituous liquors throughout its domain. The city of Monroe will be deprived of the revenues derived from retail liquor licenses, but of no other.

Taking a comprehensive view of the question, it seems to us quite apparent that it comes clearly within the scope of legislative power, unrestrained by any provision of the Constitution, and is quite beyond judicial control. That there is a direct and evident conflict between the provisions of the city charter and the Act of 1884 is full proof that the two are “ irreconcilably inconsistent,” and so repugnant that both can not stand together under any circumstances:” and hence the former are repealed by the latter.

This case does not, in our conception, involve in any manner the liberties or immunities of citizens. It only involves the constitutional power of the Legislature to declare that the vote or decision of the people of a parish shall control the sale of spirituous liquors in a town within its limits.

And, substantially, the only reason assigned why it has not that power is, that by prior statutes the town was, for all political purposes, made free and independent of the parish in that respect.

Recognizing the right of the people to govern and control the sale of intoxicating liquors within any given subdivision of the State, we can see no legal reason for hampering or restraining that right. The General Assembly is the sole and exclusive judge of the time and manner in which the police power of the State shall be exerted, and its action must be liberally construed. Stone vs. Mississippi, 101 U. S. 814; Boston Beer Co. vs. Massachusetts, 97 U. S. 25; Slaughterhouse cases, 16 Wallace, 36; Pickles vs. Dry Dock Co., 38 An. 412; Kidd vs. Pearson, 128 U. S. 1; Metropolitan Board vs. Barrie, 34 N. Y. 662.

The case of Ginnochio vs. State, 18 S. W. Rep. 82, is also applicable. Our conclusion is, that the law as well as the decision of the lower court is in favor of the plaintiffs.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,761.
    State of Louisiana vs. William Watt and George Watt.
    The proof disclosing that the confession of an accused was freely and voluntarily ' made, it is of no consequence that fire-arms were, at the time, deposited in the room where the parties were, though not exhibited to the defendants, they having been procured for a purpose altogether different from that of the intimidation o£ the accused.
    Hypothetical questions put to white jurors, sworn on their voir dire, touching their prejudices against people of thé colored race, do not present a question this court can decide, although there is evidence annexed to the, bill; the trial judge having assigned no reasons for his overruling defendants’ objection to the tendered jurors.
    APPEAL from the Fifth Judicial District Court, Parish of More-house. Richardson, J.

      M. J. Cunningham, Attorney General, and J. P. Madison, District Atttorney, for Plaintiff, Appellee;
    The fact that a juror thinks the Caucasian race superior to the A-friean does not disqualify him, nor does the fact that he thinks that on account of superior moral and intellectual development, the former as a class are more likely to tell the truth than the latter, as a class. Such hypothetical questions are confusing and misleading as well as irrelevant, and are discountenanced by the courts. Before such a question could possibly be pertinent, it must be shown that both white and colored witnesses testified to contrary statements of fact. 45 An. 903.

      H. Flood Madison and 8. T. Baird for Defendants, Appellants:
    Where the challenge is for bi s or opinion, a wide range of questions is permissible to show the state of the juror’s mind toward either party. Am. and Eng. Ency of Law, Vol. 12, p. 359. Hence it was error for the trial judge to rule out the question propounded to juror, sworn on his voir dire.

    Where a negro is on trial and a proposed white juror is sworn on his voir dire, and is asked “Is it not a fact as a general thing you would give greater weight to the testimony of the white witness than to that of the colored witness, their testimony being contradictory and on material points in the case?” and he • answers “It is; ” and another proposed white juror sworn on his voir di e, states it was his opinion that the white race is the most truthful, and is asked “ Is it not a fact that you are predisposed to believe, as a general thing, the testimony as given in by white men in preference to that given in by the colored men?” and he answers “Yes; circumstances though would alter cases,” such answers to such questions disclose an opinion, a state of mind, a bias or prejudice that renders said jurors incompetent; and it was error for the trial judge to refuse to sustain a challenge to said jurors for cause.
   The opinion of the court was delivered by

Watkins, J.

The two defendants were indicted for burglary and larceny in two separate counts; and, having been convicted of petit larceny alone, they have appealed from a sentence to two years’ imprisonment in the penitentiary.

In the brief of counsel for defendants only two propositions are argued: (1) the admissibility of certain confessions; (2) the declination of the trial judge to sustain challenges for cause to certain persons tendered as jurors.

I.

With regard to the admissibility of the confessions, evidence was taken pro and con, and it is found in the record appended to the defendants’ bill of exceptions No. 3.

That bill relates that the defendants’ counsel objected to the introduction of the alleged confessions of the accused, on the ground that same were not made freely and voluntarily, and were not admissible in evidence, the written evidence being thereto annexed and made a part thereof; but the trial judge overruled the objection, and admitted the confessions in evidence over his objection and exception.

The judge assigns no reasons for his ruling; but it is predicated, doubtless on his appreciation of the evidence, that it failed to disclose that the confessions were superinduced by threats, show of violence or duress.

It must be borne in mind that the petit larceny charged against the defendants on the indictment is that of feloniously and wilfully taking two suits of clothes, three men’s hats and five pairs of pants, the goods and property of Charles Weiss, with the intent to appropriate the same.

It appears from the evidence that the keepers of a saloon in the small town of Bonita missed some money, some one having effected an entrance to the house through the rear door, during the absence of the saloon-keeper at his supper.

Suspecting a small boy, John Gibson, who was engaged in cutting wood near by, of the theft, one of the proprietors set on foot the next day an investigation, calling to his assistance one of the merchants of the town, apprising him of his suspicions.

They found and captured John Gibson, and, by placing a rope around his neck, extorted from him the statement that Jack Harris and George Watt, the latter being one of the indicted defendants, had stolen the money.

It being Sunday, these proceedings were speedily noised abroad and a crowd of curiosity seekers assembled at the saloon.

At the suggestion of some one of the party, a messenger was dispatched to a church in the village for Watt and Harris to come down to the saloon. Those parties being informed of the object for which their- presence was desired, they at once repaired to the saloon in company with their escort.

On arriving at the saloon, one O. W. Montgomery discovered that George Watt was wearing a hat and a suit of clothes which had been burglarized from the store of Charles Weiss, his step-father, about two months previously, and he at once took the hat off his head and demanded of him to tell him where he had obtained it, and the suit of clothes he was wearing.

To this question Watt at first replied that he purchased them from a party in Arkansas, to which Montgomery replied: “No, you did not, George; they came from the old man’s store.”

Immediately Watt replied and said: “That is right, Mr. Montgomery; and if you will go to the church and get William Watt, you will find another suit of your clothes and hat,” at the same time making a statement as to the way they got into the store and what they had taken therefrom.

Two messengers were at once dispatched for William Watt, but they did not inform him of George Watt’s statement, only telling him of Scott’s loss of money from his saloon, his suspicion of the boy, John Gibson, and of his being then at the saloon, confined with a rope around his neck, charged with the theft of Scott’s money. Thereupon William Watt went into the church, got his overcoat, mounted his horse and rode down to Scott’s saloon, denying all knowledge of Scott’s lost money.

On arriving at the saloon Montgomery propounded to him (William Watt) the same interrogatories, substantially, that he had propounded to George Watt, about his possession of a hat and suit of' clothes which had been stolen from the store of Charles Weiss.

To this question he replied that he had bought them in Bastrop. He was then informed of the statement- George Watt had made. William Watt then requested a private interview with Mr. Montgomery, and on being refused, he made full acknowledgment and proposed to pay him fifty dollars to quash the matter and let it drop.

But this proposition was declined.

When William Watt was first informed of the statement George Watt had made, the former at once said: “ What is that, George?” and George replied: “Yes, that is right, William. They caught us with the clothes on, and there is no use denying it.”

These facts are substantially sworn to by all the witnesses; those of the defendant as well as those of the State.

The conclusion seems clear and inevitable that these confessions were made, because the defendants were in the possession of goods which had been recently stolen, and they were confronted by the owners of the property.

The facts which are pointed to and relied upon, as furnishing proof of the confessions having been extorted through fear, threats, violence and intimidation, are the confinement of the boy, John Gibson, just before the confession of the defendants was made, and that firearms were brought to the saloon about that time.

Evidently, the confinement of and charge against Gibson had nothing to do with the confessions of or the charges against the two defendants. They are not being prosecuted for burglarizing Scott’s store, or with the larceny of his money. Gibson was suspected of that crime, and for that reason he was taken in charge. He was not indicted and is not a defendant in this suit.

The charge of the indictment against William Watt and George Watt is the burglary of the storehouse and larceny of the goods of Charles Weiss, which is alleged to have occurred' about two months prior to the larceny of Scott’s money.

The two transactions are altogether distinct and different.

We gather from the testimony that, owing to apprehension felt by the parties who were interested in the matter, the guns and pistols were brought to the store for use, in case the emergency subsequently arose, rendering it necessary to defend themselves in ease an assault should be made upon them by parties who might attempt to liberate the defendants by force.

To thus provide themselves against such anticipated attack was, to say the least, perfectly justifiable.

Certain it is that these fire-arms were not employed as a means of ■extorting confessions from the accused. The weight of the testimony is that the arms were procured subsequent to the confession. And it stands to reason that this hypothesis is true; for, had the defendants not made a confession there would have been no charge against them. And the discovery of Weiss’ property on the persons of the two defendants was the first information there was of their complicity in that transaction.

On this question the judge ruled correctly.

II.

During the progress of the trial, certain persons — all of them white men — having been sworn on their voir dire, were interrogated, and various hypothetical questions were by the defendants’ counsel propounded to them relating to their feelings and opinions in respect to the black, or colored race, with the view of determining from their answers whether they had or entertained any antipathy toward people of the black, or colored race, which rendered them, or either one of them, incompetent on that account to act as jurors — the two defendants being black, or colored people, and their witnesses also.

The judge, after hearing the questions and answers of witnesses, overruled the defendants’ challenge for cause and directed the jurors to be sworn, over their objection and exception, and they were forced to accept them, their peremptory challenges having been at the time exhausted.

There is nothing in the bill of exception that we can take hold of on which to base an opinion. The answers made by the witnesses are found in the record appended to the defendants’ bill of exceptions, but they fail to disclose any bias or prejudice on the part of those interrogated. If the jurors were in any way prejudiced against people of the colored race to such an extent as to have rendered them incompetent, such prejudice does not appear from the bill of •exceptions, which only puts hypothetical questions, not appertaining to the guilt or innocence of the accused, thus rendering ic impossible for us to see our way to deciding whether they were incompetent or not. v

The judge’s ruling was unquestionably correct.

As the remaining bills of exception are not discussed, and we have not been placed in possession of the grounds which are relied upon by the defendants for the reversal of the rulings of the trial judge, we do not feel called upon to express an opinion in reference to them.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,095.
    Mrs. Martha B. Healey vs. Joseph H. Ashbey.
    The fact of a recordation, of a special mortgage executed by the surviving member of the community, on community property, to secure his separate debt, can not have the effect of preventing the sale of the property, to satisfy a judgment against the community, because the price bid for it is not sufficient to pay the special mortgage. In such a case the judgment has priority, not by the fact of prior recordation, but because of the nature of the debt.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Ellis, J.

      J. Zaoh. Spearing for Plaintiff, Appellee.

      Ernest T. Elorance for Intervenors, Appellants.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to enforce the sale of mortgaged property by executory process. The mortgage securing the note sued on was executed the 20th May, 1885. The history of the debt and mortgage is, that the defendant, Joseph H. Ashbey, the father of plaintiff, opened his deceased wife’s succession in 1857. There were two minor children, the plaintiff and her brother, to whom the mortgage of 20th May, 1885, was given for the sum of five thousand six hundred and five dollars and eighteen cents. The father, as the surviving partner in community, held the deceased wife’s share in usufruct. This share was adjudicated to him for its inventoried price on the recommendation of a family meeting. The judgment homologating the .deliberations of the.family meeting also liquidated the amount due the minor, which was the sum secured by the mortgage of the 20th May, 1885. The judgment was signed on January 23, 1858. The two children left the State, and on arriving at majority, on 21st April, 1885, brought suit in the United States Oourt against their father for the sum which had been liquidated, as due them, by the judgment of January 23, 1858. This suit was not prosecuted to a judgment, for the reason that the father, Joseph H. Ash-bey, executed the above special mortgage to secure the amount due his children. The executory proceeding was enjoined by J. T. Whitaker, on the ground that he was the legal owner in possession of a part of the immovable property covered by the special mortgage of plaintiff; that he acquired title to the same from Mary J. Ashbey, who acquired title to the same at a judicial sale provoked in the case of Mary J. Ashbey, tutrix, vs. Jos. H. Ashbey, for the sum of five thousand four hundred and thirty-seven dollars and ninety-two cents, with interest, which debt was a community debt of the community between Joseph H. Ashbey and his second wife.

Prior to the sale to him by Mrs. Ashbey and the children who could set up claim to said property, Whitaker had purchased the property at tax sale. This tax sale purchase does not figure in the case, as a tender had been made, within the legal delays, to redeem the property, which was rejected by him. Joseph H. Ashbey owed Mary J. Ashbey, as tutrix of the children of his brother, James H. Ashbey, the above amount, for which judgment was rendered in her favor. This amount, at stated, was a community debt against the second community, and it is so admitted by plaintiff. Execution issued on this judgment, and all the property of Joseph H. Ashbey was seized and sold, and purchased by Mrs. Mary J. Ashbey for the price of three thousand six hundred and eighty-five dollars. Shi, as adju-dicatee, was put in possession of the property. The judgment under which she purchased was signed on the 29th of May, 1885.

The mortgage certificate read by the sheriff on the day of sale did not include in its recital the mortgage of 20th May, 1885. Its disappearance from the record was as follows: Mrs. Mary J. Ashbey, as tutrix, brought a suit to annul the mortgage of 20th May, 1885, on the ground that the mortgage was fraudulent, and intended to give preference over the judgment of May 29, 1885, in her favor. There was judgment in her favor, from which a devolutive appeal was taken. On appeal,to this court the judgment was reversed. Ashbey vs. Ashbey, 39 An. 105.

After the appeal had been perfected she sued out a rule to have the mortgage canceled, and there was judgment in her favor. The plaintiff and her brother, the mortgage creditors, were not made parties defendant in the rule. They were not concluded by the judgment. Ashbey vs. Ashbey, 41 An. 138.

The effect of the reversal of the judgment appealed from was to reinstate the mortgage of plaintiff. Whitaker and Mrs. Ashbey were not innocent third parties who could be protected under Art. 684, Code of Practice, as adjudicatees. The one was plaintiff in the rule and the other the attorney. They caused the illegal cancellation of the mortgage, and therefore can not take advantage of this wrongful act.

But if the judgment in favor of Mrs. Ashbey as tutrix was a community debt existing against the second community, it matters not whether plaintiff’s mortgage was on record. It is axiomatic that the surviving member of the community can not encumber community property for his own debts, so as to defeat the claims of community creditors. Rawlins vs. Giddens, 46 An. 1136.

Mrs. Mary J. Ashbey brought a suit to annul the mortgage of 20th May, 1885, on the ground that the assailed mortgage was fraudulent, and intended to defeat the plaintiff tutrix from recovering the amount dueher minor child in her judgment against Jos. H. Ashbey, who owed nothing to Louis and Martha Ashbey, the mortgagees, and who at the date of the mortgage was hopelessly insolvent. The prayer of the petition was for the nullity of the mortgage, so far as it related to the right of the complaining creditor, and to subject the property to the ranking judicial mortgage of the minor, who was the real and only plaintiff in the suit.

The defence was a general denial, aud the plea of prescription of one year under Art. 1987, Civil Oode.

There was judgment in the lower court for the tutrix, but on appeal to this court the judgment was reversed and the action was dismissed.

Mrs. Mary J. Ashbey, and her children of age and emancipated, and her grandchild, duly represented, intervened by third opposition, as owners of part of the property sought to be subjected to the mortgage. These attacks on the executory'proceedings are, in substance, identical with those of Whitaker, and the issues presented by the opposition are the same.

The sole question therefore presented is whether this judgment is res judieata as to the parties here.

There was judgment below for the plaintiff, reserving to the plaintiff in injunction certain rights in future litigation, and the restitution of the price paid for the property by Whitaker, and the collection of attorney’s fees, forming part of the price given by him for the property.

Res Judicata,

The mortgage of 20th May, 1885, was anterior to the judicial mortgage of Mrs. Mary J. Ashbey, tutrix, by virtue of which the property of Jos. H. Ashbey was sold, and Mrs. Mary J. Ashbey became the adjudicatee.

Hence it became necessary in her opinion to have said prior mortgage canceled, in order to give full effect to her judgment on the property embraced in the mortgage of 20th May, 1885. Therefore she brought suit against Joseph Ashbey to annul said mortgage, because it was intended to defeat her judicial mortgage as tutrix. The action was revocatory in character. See Ashbey vs. Ashbey, 41 An. 102.

The issues in that suit were the fact of the validity of the debt due by Jos. H. Ashbey to his children by the first marriage, and whether the mortgage securing it was executed and placed on record to defeat the judicial mortgage of Mary J. Ashbey, tutrix, and prescription of one year to the action. There was judgment against the tutrix, the court holding that the debt due by Jos. Ashbey to his children was a just debt; that the mortgage was not executed and placed on record to defeat the judicial mortgage, and that the prescription of one year barred the revocatory action instituted by the plaintiff tutrix.

The issue presented here was not before the court in that case or involved íd that litigation. Both debts are recognized as just debts; both are of record as mortgages against the property sought to be subjected to sale under the mortgage of 20th May, 1885. Therefore, the question here is, can a debt, originating before the community exists, be secured by mortgage by one of the spouses for his separate debt on community property, and thus defeat community creditors? In the case of Ashbey vs. Ashbey the two mortgages as they stood on the records, with an attack against the prior one as having been fraudulently placed there for the purpose of defeating the junior one, were before the court. The validity of the one and its proper inscription were determined. The operation of the mortgages on the property covered by both was not a question at issue.' In the instant case it is.

The mortgage of plaintiff may be and is unquestionably legal and binding upon the property, but its prior inscription can not defeat the community creditor. Ashbey could have no interest in the community property which he could mortgage for his individual debt until after the satisfaction of the claims of the community credit rs. Plaintiff’s mortgage could only have effect upon the individual property of Joseph H. Ashbey, or upon his share of the community property after the settlement and payment of community debts. The mortgage of plaintiff being on record, could not, therefore, have the effect of making the property bring at the sale the amount of this prior mortgage. Its absence from the certificate of mortgage could not, therefore, interfere with the enforcement of the judicial mortgage or sale under the judgment for the community debt.

In plaintiff’s mortgage there is one piece of property described as being in the Fifth District of this city, being one-lialf of lot seven of square No. 13, thirty feet front on Jackson street by one hundred and eighty feet in depth, acquired by Jos. H. Ashbey from E. T. Riley on 4th October, 1861. The intervenors and third opponents, by virtue of the judicial sale, heretofore referred to, claim this property and resist its sale under plaintiff’s mortgage. It does not belong to the second community. The intervenots and third opponents can not resist the sale of this property. They can only exercise their rights upon the proceeds of sale in case there is an excess after satisfying the mortgage of 20th May, 1885.

This property being the separate property of Jos. H. Ashbey, the surviving member of the community, he had the undoubted right to place a special mortgage upon it.

The debt for which the mortgage was executed, we learn from Ashbey vs. Ashbey, 41 An. 102, grew out of the usufruct of the property of the first community, in which the minors had an undivided interest. We also learn from that case that on the dissolution of the first community the minor’s interest (that of plaintiff’s and her brother) was adjudicated to the father, Jos. H. Ashbey, for the sum of five thousand six hundred and five dollars and eighteen cents, and that the mortgage securing this amount of 20th May, 1885, was but a repetition ” of the judgment of January 23,1858, by which their claim against their father was determined and fixed.

The adjudication to the tutor carried with it a special mortgage on the property held in common by the minors and the tutor. C. C. 343.

In pursuance of the adjudication made under the Art. 343, C. C., a special mortgage may be given by the tutor on other immovable property which shall annul the special mortgage arising from the' adjudication. Art. 344, C. C. (7).

It does not appear that a special mortgage was given by the tutor, Jos. H. Ashbey, to secure the amount of his indebtedness to his minor children after the adjudication was made to him. The special mortgage then, placed upon his separate property, was the first attempt to do that which he should have done at an earlier day. Under these facts the mortgage executed on the separate property is superior in equity, and is prior in recordation to that of the detainers of the property, the intervenors.

The other two pieces of property described in plaintiff’s petition and mortgage attached to it were acquired during the second community, and were subject to the payment of the judgment against the community. One of these pieces of property was bought in the name of the wife, bat it is described as community property by the mortgagor, Jos. H. Ashbey. Having been acquired by purchase by the wife during the existence of the community,- it is presumed to be community property. It was sold as community property under the judgment in favor of Mrs. Mary J. Ashbey, tutrix, in the suit of Mary J. Ashbey, tutrix, vs. Jos. H. Ashbey, 41 An. 102. These last described pieces of property were sold by Mrs. Mary J. Ashbey, to whom they were adjudicated by the plaintiff in injunction.

The plaintiff in the executory proceedings could have only asserted her mortgage rights on the proceeds of the sale of th-e two pieces of property, which were legally adjudicated to Mrs. Mary J. Ashbey. There was no surplus, and, of course, there was nothing left of the property upon which her mortgage rights could b© asserted. The origin and nature of the debt secured by the judgment gave, it a preference over plaintiff’s mortgage.

The judgment under which the property first described in the act of mortgage was adjudicated to Mrs. Mary J. Ashbey must be postponed in its effect upon said property to the special mortgage of plaintiff for the reasons stated. The rights of the parties contesting said judgment to claim the surplus over and above the special mortgage of May 20, 1885, will be reserved.

It is therefore ordered, adjudged and decreed that the judgment be amended so as to affirm the judgment against the intervenors and third opponents, and restricting the reservation of their rights to assert their claims upon the proceeds of the sale of the property described in their petition of intervention as stated in the opinion,, affirming the judgment in favor of the plaintiff and restricting the operation of the mortgage upon the first piece of property described in plaintiff’s petition and the act of mortgage annexed to the same. And reversing that part of the judgment dissolving the injunction of the plaintiff therein, John T. Whitaker, which is perpetuated by this decree; the intervenors to pay costs of intervention and the plaintiff to pay the costs of the injunction, including costs of appeal relating to same.

Rehearing refused.


text:
    No. 11,762.
    State of Louisiana vs. Albert Henderson et als.
    Act 121 o£ 1871 does not repeal See. 812, R. S. Hence, -when fchejudge sentences the defendant, convicted o£ petty larceny, to hard labor for one year, the sentence is supported by Sec. 812, R, S.
    A PPEAL from the Fifth Judicial District Court, Parish of More-house. Richardson, J.

      M. J. Cunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff, Appellee.

      S. T. Baird for Henry Henderson, Defendant, Appellant.
   The opinion of the court was delivered by

McEnery, J.

Albert Henderson was convicted under Act 124 of 1874, and Sec. 812, R. S.

He was sentenced to twelve months at hard labor in the penitentiary. He appealed. His defence is that the words “ hard labor ” are not found in the part of the Act No. 124 of 1874 relating to petty larceny.

The act divides larceny into grand and petty larceny. It prescribes the punishment for the latter offence £ ‘ with imprisonment in any parish prison, or in the penitentiary, at the discretion of the court, for not more than two years.”

The Act 124 of 1874 does not repeal Sec. 812, R. S.; State vs. Carodine, 28 An. 24.

Section 812 says: “Whoever shall be guilty of larceny shall be imprisoned at hard labor, or otherwise, not exceeding two years.” Judgment affirmed.


text:
    No. 11,735.
    Succession of Pierre Lanaux. Opposition of Hibernia National Bank.
    The holder of pledged stock under a contract to sell the same either at public or private sale, on default of the payment of the note for which the stock is pledged, who, by judicial proceedings, compel- the transfer of the stock to himself, and who afterward received dividends on the shares, sells a part of the same, and does not credit the debtor with the proceeds; who votes for a reduction of capital stock in the corporation issuing the shares, and receives a new certificate of stock on surrendering the old one, will be deemed, in the absence of complaint of the debtor, as having aerxuired the stock as owner, under the power to sell as stipulated in the contract of pledge. The primary debt should be credited with the market value of the shares, placed upon them by the creditor, when he appropriated them.
    A PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Charles F. Claiborne for Succession, Appellee.

      Gilmore & Baldwin for Opponent, Appellant.
   The opinion of the court was delivered by

McEnery, J.

The executor of the deceased Pierre Lanaux filed a second tableau for the distribution of the funds in his hands, and placed on the tableau the opponent as creditor for the sum of two thousand two hundred and thirty-eight dollars and twenty cents.

The account was opposed by the bank, alleging that it was a creditor for the sum of thirteen thousand nine hundred and five dollars and fifty-five cents, with eight per cent, interest from May 31, 1894. The basis of this demand is thus alleged in the opposition: That the bank “is a creditor of the above entitled and numbered succession in the full sum of thirteen thousand nine hundred and five dollars and fifty-five cents, being the amount of balance due this opponent on a certain promissory note by the late Pierre Lanaux, through his agent and attorney in fact, George de Jaham, for the sum of twenty-five thousand dollars, dated July 22, 1892, and payable to the order of the opponent on 1st February, 1893, of which said promissory note this opponent is holder and owner, and on which said promissory note a payment of thirteen thousand nine hundred and five dollars and fifty-five cents, together with all interest, up to 31st May, 1894, was paid on 31st May, 1894; there being als.o due this opponent eight per cent, per annum interest on said balance from said 31st May, 1894, until said balance shall be paid, all of which balance and interest remains wholly due and owing this opponent, as will more fully and at large appear from said promissory note.”

A statement of the facts is sufficient to show the correctness of the judgment in dismissing the opposition.

Pierre Lanaux made his promissory note payable to the order of the Hibernia National Bank, on 22d July, 1892. The bank discounted this note. To secure the full and punctual payment of the note, Lanaux pledged and delivered to the bank one hundred and sixty-six shares of the State National Bank.

The contract of pledge appointed the president or cashier of the bank the agent of the pledgor, jointly or severally, and without recourse to legal proceedings, to dispose of the shares for cash, either at public or private sale, as they may deem advisable, and to apply and appropriate the proceeds of the sale of the pledged shares to the payment of the note and accrued interest, and all costs and charges attending the sale. The contract of pledge contains the stipulation that in the event of the non-payment of the note at maturity, or -che failure to renew the same, the above-mentioned officers of the bank were authorized to dispose of the shares. After-the maturity of the note, the bank, through its proper officer, designated in the contract, sold these shares at one hundred and forty dollars per share. The State National Bank refused to transfer the shares to the Hibernia National Bank, and the latter bank proceeded by mandamus against the former to compel it to transfer the shares to it on its books.

In the petition for the mandamus it is averred that the' Hibernia • National Bank has duly sold said stock at the market price, namely, one hundred and forty dollars per share; that the State National Bank refused to transfer said stock on its books from Pierre Lanaux to the purchaser. The mandamus was made peremptory and the stock transferred as prayed for. The Hibernia National Bank, after the transfer, received a dividend on July 5,1893, of six hundred and sixty-four dollars as holder of the one hundred and sixty-six shares.

The stockholders of the State National Bank voted for a reduction of capital stock. The Hibernia National Bank voted for this reduction, and received a new certificate for one hundred and ten shares, and thirteen dollars and sixty cents in money, on the surrender of the old certificate of shares.

On May 31, 1894, the president of the Hibernia National Bank furnished a statement to the executor of Lanaux, showing a credit on the note of the proceeds of the sale of the one hundred and sixty-six shares at one hundred and forty dollars per share, leaving a balance due of two thousand two hundred and seventy-six dollars and sixty-seven cents.

In this statement and the item on the account there is a difference of nine hundred and forty-eight dollars and forty-seven cents which is accounted for by a payment made to the bank on the first account.

The judgment in the mandamus proceedings, on the allegations of the bank, which for all practical purposes made itself owner, at the market value, of the stock, we think irrevocably vested the bank with ownership of said stock. The transfer of the stock to the Hibernia National Bank was absolute and unconditional, and there was no averment in the petition that the transfer was to be made for the convenience of the bank, to transfer the stock to any other purchaser.

Under the contract of pledge such a proceeding was unnecessary to authorize the Hibernia National Bank to sell the shares. The bank treated the stock as its own, received dividends on it, voted for reduction of the stock of the State National Bank, and received a new certificate for the old one, and a cash payment for difference in value.

The succession of Lanaux is not complaining that the bank appropriated the shares. It has accepted its construction of the contract and the disposition of the shares, and holds the bank to the consequences of its own acts.

We see no reason to disturb the judgment. It is therefore affirmed.


author: Breaux, J.

text:
    No. 11,726.
    State of Louisiana vs. Charles Marshall.
    The ordinance of the city was directed against a railroad company.
    Affidavit for the alleged violation of its terms was made against the general superintendent of the road.
    The judgment of the lower court was pronounced against him personally, condemning him to pay a fine, or to be imprisoned.
    The penalty is not within the jurisdiction of this court, save when the legality or unconstitutionality of the law is at issue.
    The question is not as to the unconstitutionality or illegality of the fine imposed, but as to whether the defendant can be punished under the ordinance.
    The ordinance may be in all respects legal, and yet not apply to the defendant personally.
    The question involved is one of fact not within the appellate jurisdiction of this court.
    APPEAL from the Sixth Recorder’s Court of the Oity of New Orleans. Cain, J.

      E. A. O’ Sullivan, City Attorney, for Plaintiff, Appellee.

      Denegre <& Denegre for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This appeal was taken from a judgment rendered by the Sixth Recorder’s Court, imposing a fine of twenty-five dollars or thirty days’ imprisonment upon the defendant, Marshall.

The ordinance under which, we infer, the recorder acted, is numbered 9820, Council Series, and sets forth that for the better protection of life and property the Louisville & Nashville Railroad Oom-pauy are ordered to erect gates at certain designated intersections of streets, within thirty days after the passage of the ordinance, under the penalty for non-compliance corresponding with the fine imposed.

The affidavit was made against Charles Marshall, superintendent of the Louisville & Nashville Railroad Company, charging him with the unlawful and malicious violation of the ordinance.

The defendant pleaded that his arrest was illegal and unconstitutional, there being, no law authorizing the arrest and the fine.

The judgment was not rendered against the railroad company, but solely against Charles Marshall.

The contention oí the defendant is: The ordinance does not provide that the general superintendent of the Louisville & Nashville Railroad Company shall be liable for the failure of the railroad company to comply with the terms of the ordinance, and that the defendant is not punishable for the failure of a railroad company to comply with the terms of the ordinance.

In short, that an attempt is made to impose a fine upon a defendant against whom the ordinance does not apply.

A similar question was considered and decided in State vs. Courcier, 46 An. 910, and this court held: that the complaint of the defendant was not that the ordinance is illegal and unconstitutional, but that the recorder has made the ordinance apply to a case outside of the terms thereof and not covered by it. In other words, that under the charge as made and under the evidence as received the judge has sentenced him, not under an illegal ordinance of the city at all.

The remedy, the court said, was not by appeal.

Here the issue is the same on this point as it was in the case from which we have just quoted.

The defendant here alleged the unconstitubionality of the ordiance, but that allegation received no attention in argument, and is not one of the issues presented.

The sole question is: was the defendant amenable to a fine for the failure of the railroad company to comply with the terms of the ordinance?

This court said in State vs. Dean, 45 An. 441: to sustain the appeal the constitutionality or legality of the law must be involved; clearly thereby defining the right of appeal as not including irregularity in the execution of the law or the ordinance under which the fine is imposed. See also Suthon vs. Houma, 46 An. 1561, 1562.

Regarding taxation a similar question has arisen and the conclusion was the same.

In Pratt, Tax Collector, vs. Holmes, 43 An. 1010, the question was one of fact as here. The legality and constitutionality of the tax was not involved; the court declined to entertain jurisdiction.

The issue was the same in Breazeale vs. Frank, 42 An. 226, and the appeal was dismissed ex proprio motu.

Although the plea of want of jurisdiction was not presented, we would not feel justified in assuming jurisdiction, it being settled by a number of decisions that this court is without jurisdiction.

The appeal is dismissed at appellant’s costs.


author: Miller, J.

text:
    No. 11,729.
    Dr. James Rigney vs. Dr. George N. Monette.
    Damages will not be awarded for an arrest on a charge of libel based on a newspaper publication embracing the substance of an answer of a defendant in a lawsuit conveying a serious charge against the plaintiff in the suit, the publication appearing a day previous to the filing of the answer, and the arrest caused by the plaintiff malting the affidavit under the evident impression that the defendant prompted the publication of this answer, the arrest subjecting the defendantonly to the inconvenience of appearing for examination, followed by his prompt discharge.
    For the breach of a contract of sale of a physician’s practice, damages for the amount the purchaser claims he would have made from professional practice given up, relying on the contract, do not arise from the breach complained of, and are not within the measure of damages fixed by the law in such cases. Civil Code, Arts. 1930, 1934. Pothier on Obligations, Vol. 1, p. 161; 13 La. 410.
    APPEAL from the Oivil District Court for the Parish of Orleans. Theard, J.

      W. S. Parkerson for Plaintiff and Appellee.

      Merrick & Merrick, for Defendant and Appellant, cite Bernholdt vs. Souillard, 36 An. 103; Decaux vs. Lieux, 33 An. 369.
   The opinion of the court was delivered by

Miller, J.

The plaintiff claims damages for the breach of a contract of sale of defendant’s practice as a physician. The answer, the general issue, is accompanied with an averment that plaintiff had collected, retained and concealed the collection of fees earned by defendant before the sale. About the time this answer was filed there was a newspaper publication under the heading of the Rigney case, which conveyed the idea, expressed in the answer, of the collection and retention by plaintiff of defendant’s fees. Thereupon the plaintiff caused defendant’s arrest on the charge of libel. The plaintiff failed to prosecute, defendant was discharged by the Recorder and the sequel of the newspaper article was the reconven-tional demand by defendant for damages charged to have been sustained by the charge and his arrest for libel. This reconventional demand was stricken out by the lower court and on a previous appeal was directed to be reinstated by this court.

On the second trial the judgment of the lower court, based on the verdict of a jury, was in favor of plaintiff for one thousand dollars, and against defendant on his reconventional demand. The defendant appeals.

The testimony as to the sale of defendant’s practice is derived from his letter of August, 1890, stating the number of his prescriptions, the amount of his collections, expressing his purpose to attend to other business and offering to sell his practice to plaintiff for five hundred dollars, followed by plaintiff’s payment of that amount.

The testimony shows that at plaintiff’s request, defendant remained for some time in his office, occupied with him by plaintiff, and for some time there was no disagreement, and defendant testifies he did what he could to secure plaintiff the practice. At the end of the year, defendant removed, taking down his sign as he had agreed upon. The plaintiff learned that defendant had sent his professional card, marked with the number and street of his new residence, to one or two persons, and it is in evidence that he gave one or two prescriptions to persons calling on him, and made professional calls in four instances. This elicited complaints from plaintiff of violation of the contract. There is in the record, defendant’s letter, replying to the complaints, in which defendant admits prescribing fora person calling on him, suggests that plaintiff take the case, and' states he will not practice. The defendant testifies that he sent out his card to those who owed him; that they might know whereto find him, and the prescriptions and visits after his sale were, as he testifies, for old patients not willing to employ plaintiff. It does not appear that defendant invited practice; it is in proof he threw away his sign on taking it down, and put up none at the place to which he removed. He further testifies his health unfitted him for business, and he intended leaving the city. The cards sent out by defendant, and the instances of the prescriptions given, and visits paid by defendant, after the sale of his practice, in our opinion, hardly furnish the basis to claim he violated his contract. The impression made on our minds is, that this suit for damages for a violated contract would not, in all probability, have been brought, but for other causes. In the plaintiff’s testimony there is allusion in forcible language to sources of friction between the parties not connected with violations of the contract. The transfer of patients from their physician to another, not chosen by them, is, it is to be presumed, not easy, and we infer that in all aspects the practice which plaintiff supposed he bought proved disappointing. The plaintiff submits no other causes of complaint, in respect to the alleged violations of contract, except those we have indicated, and we have indicated our appreciation of the testimony on that issue. But if the violation be accepted, there remains the question of damages. In case of the breach of contract for the sale of an established business and its good will, damages may be given, on proof of the diversion of the business from the purchaser; or the basis for damages might be furnished by proof of acts or conduct on the part of the vendor causing loss of the business to the purchaser, entitled to all the income and to the aid of the vendor in securing that income. The record contains no such proof. We cannot affirm the judgment on the appreciation that the cards sent out by defendant, or his prescription to one or two old patients, caused a pecuniary loss to plaintiff. It is claimed, however, the plaintiff lost his practice in the country on the faith of the purchase of defendant’s practice in New Orleans, and that as plaintiff violated the contract by interfering with the business after he sold it, therefore plaintiff is entitled to recover an amount equal to his lost country practice. The loss recoverable on breaches of contract are those directly connected with it, and arising from the breach. The law does not contemplate indemnity for profits the party supposes he would have derived from some business he claims he would have pursued if he had not made the contract alleged to have been violated. The measure of •damages in such cases announced by our Code utterly excludes such ■•supposed profits, and finds, we think, copious illustration in our jurisprudence. The losses within the measure of damages applicable to this case, would be the amount of professional fees diverted from the plaintiff by defendant’s violation of his contract to sell his practice. Damage of that character would be connected with and arise out of acts of defendant violating his agreement. The supposed loss of the country practice of plaintiff resulted from the fact that he made the purchase requiring his presence' here, and does not, in any sense, grow out of defendant’s wrongful acts. Thus in a case from our own reports: an attorney complained of a breach of an agreement under which he was to cultivate a plantation in partnership with another. He proved no damage directly resulting from the •contract, but claimed he was entitled to recover for the loss of his law practice abandoned for the planting partnership. The court rejected that measure of damages. The court observed: “The plaintiff’s removal from the city and consequent loss of his practice was not the result of the breach of his contract; he would have ■equally lost his practice, whether the contract had been fulfilled or not,” and the court cites the familiar rule that damages recoverable •for breach of contracts are those incidental to the breach of it. We .are constrained to hold that the record affords no basis for the dam.ages. Civil Code, Arts. 1930, 1934; 1 Pothier on Obligations, Evans’ Ed., 161; Williams vs. Barton, 13 La. 410.

On the reconventional demand the defendant’s arrest was for the publication of the substance of his own answer to plaintiff’s suit; that is, the defendant averred in his answer to plaintiff’s suit, that plaintiff had collected and retained his, defendant’s, fees. The defendant’s answer thus made a very serious charge against plaintiff. 'That answer appeared in the newspaper the day before the answer was filed. The plaintiff attributed the publication to defendant. Hence, his arrest on the charge of libel. The defendant, in his testimony, disclaims any responsibility for the publication, but the pub-licati.n one day of the answer filed the day after afforded, in our • opinion, a reasonable basis for plaintiff’s conclusion. The arrest was followed by a prompt discharge. We think the damages were pr perly refused.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, in so far as it dismisses defendant’s ■demand in reconvention, and reversed and annulled, in so far as it is favor of plaintiff, and it is further ordered, adjudged and decreed ■that plaintiff’s demand be dismissed, and that he pay costs.


text:
    No. 11,683.
    The State vs. Henry Desroche et al.
    "The AetNo.52 of 1894 directing changes i a the terms of the country courts required the action of the District Judges to make effective the proposed changes^ and the drawing of the jury before the requisite orders were made to carry the a c into effect will not be vitiated, the jury drawn being in attendance at the term fixed by the rules in force when they were drawn, that term coinciding with that fixed by the orders of court under the act of 1894.
    If, indeed, any defect in such drawing of the jury could be deemed to exist, it would be within the purview of the law requiring objections to any defect and in-formalities in drawing juries to be made on the first day of the term. Acts 1877, Reg. Sess. No. 44, Seo. 11.
    The court recognizes the principle that indictments for statutory offences will be sufficient following the terms of the statutes, and if rejecting surplusage .they state the statutory oftenee.
    There is no duplicity in the count of the indictment charging an offence, if words are added supposed to refer to another offence, but which is not described with the particularity exacted to support an indictment for such other offence. Wharton’s Orim. Law, Secs. 364, 382, 622; 1 Bishop Orim. Proc., See. 480.
    Applications for severance are addressed to the legal discretion of the trial judge, should be granted if cause is shown, and if the bills show such cause, the refusal of the trial judge will be reviewed and corrected on appeal.
    When two persons are indicted the defences being antagonistic and the confessions of each incriminates the other and designed to be used in evidence, the severance, if asked seasonably, should be granted. 1 Wharton’s Crim. Law, 7th 33d., See. 733; 1 Bishop Orim. Proc., Sec. 1019.
    If the severance in such case is refused, and the confessions are used to convict, the verdict will be set aside on apppeal.
    APPEAL from the Twenty-first Judicial District Court, Parish of St. John the Baptist. Rost, J.

      M. J. Cunningham, Attorney General, Prentice E. Edrington, District Attorney (J. L. Gaudet of Counsel), for Plaintiff, Appellee.

      Hamilton N. Gautier for Defendant, Appellants.
   The opinion of the court was delivered by

Miller, J.

The defendants, sentenced for burglary, appeal, relying on various' exceptions.

There was a motion to quash the indictment on the ground that there was no authority to draw the jury, or hold the court for the term during which the prisoner was indicted and tried. The Act No. 152 of 1884 directed an increase of the terms of the country courts, and further provided for the order in which criminal and civil cases-should come before these terms. This involved changes which the act directed to be made by the district judges’and published. The law, passed near the close of the legislative session of 1894, was not acted on by the judge of the Twenty-first District until November, when the order for the changes was entered on the minutes of the court. Before the entry of the order the jury was drawn by the jury commissioners for the November term, and were in attendance. In our view, the act of 1894 did not interfere with the drawing of the jury for the term fixed by the rules of court when the drawing was made. Changes directed by the act of 1894 could have no effect until the requisite action of the court.. There was no such action till November, and it was, of course, then prospective. Under the new order then made, the court was still to be held in November as under the old order. In our view, the court’s action in November did not disturb the previous drawing of the jury commissioners in summoning the jury for November.

If, indeed, under these circumstances there could be deemed to be any defect in the drawing of the jury, it would be within the purview of the statute, requiring objections of this nature to be made on the first day of the term. Acts 1877, No. 44, Sec. 11. It is claimed, too, that the terms of court previous to 1894, as fixed by the order in 1889, were illegal, by reason of alleged omissions of publication and posting. The proposition is advanced that every term of the court since 1889 was illegal. We can not recognize the right of a defendant indicted in 1894 to challenge the sufficiency of formalities incident to the action of the court in 1889 in reference to the terms. In the interest of public order we must presume that judicial orders under which the court has held its terms for over six years were accompanied with all required formalities. The motion to quash for the supposed defect in drawing the jury, in our view, has no basis. ’ ,

The indictment is under Sec. 850 of the Revised Statutes defining the offence of burglary, with intent to kill, rob or commit other crime, the offender armed, or arming himself having ent red the dwelling, a person being lawfully therein or committing an assault on such person. The indictment in this case charges that the accused, armed with a dangerous weapon, with intent to kill, rob and steal in the night-time, did wilfully, maliciously and feloniously break and enter the dwelling house of one Hyman Rabinonitz, and the said Hyman Rabinonitz did wilfully and with feloniously intent to kill, shoot, and the indictment then charges the accused with larceny committed in the dwelling. The objection of the defendant is, the indictment does not charge the entry was with felonious intent. The statute mentions the intent in the first line, but does not repeat it before “break and enter,” nor does the indictment. Following in this respect the statute, we think there is no merit in this objection. 1 Wharton’s Criminal Law, Sec. 364.

It is charged also that the indictment blends in a single count, the burglary with the accompanying incidents specified in Sec. 850 of the Revised Statutes, with the distinct offence of burglary accompanied with shooting, defined in Sec. 790. We think the count does not state the offence under this last section. Its language is directed against the burglary accompanied with shooting with intent to commit murder. It is only when the two offences are each set forth with the requisite particularity that the indictment encounters the objection of duplicity. Still further it is urged that the indictment does not charge the assault, one of the ingredients specified in Sec. 850. But this assault is in the statute, preceded by the disjunctive. Without the assault, the statute specifies the offence that may or not be attended with an assault. Rejecting the averment of the assault as surplusage, the -indictment and conviction holds for the offence charged. 1 Wharton’s Criminal Law, Secs. 382, 622; 1 Bishop Crim. Prac., Sec. 480.

We have said this much to dispose of objections that might be made on the second trial, which, in our view of another ground, must be awarded. The case is of two indicted for the crime. We are informed by the bills that the defences were antagonistic, and each had made confessions incriminating the other. To try both together was, in effect, to try each on the confession of the other, and this, of course, would be to disregard the obvious principle that no man can be affected in his rights of person or property by the statements of another out of his presence, and not assented to by him. State vs. Havelin, 6 An. 167; State vs. Jackson, 29 An. 354; State vs. Johnson, 35 An. 842. It is possible there might be some grave cause to refuse a severance in such a case, although the refusal would lead to the use in evidence against each of the confessions of the other, and it is possible that such cause might be deemed sufficient to warrant trying both accused before same jury. It is enough to say the bills show no such cause. It appeal’s that before the trial the severance was asked, and the ground of antagonistic defences and incriminating confessions assigned. It further appears that the witness testifying stated in advance that the confession of each of the accused, to which he was about to testify, implicated the other. The court refused to hear the testimony as to the confessions out of the presence of the jury, so that its tendency might be ascertained; refused to have the testimony reduced to writing and made part of the bills; refused the severance, and the testimony went to the jury over the objection of the counsel of the accused. Though the testimony is not in writing, the bills leave no doubt of the character of the confessions; i. e., each of the accused implicating the other. Our learned brother of the District Court was doubtless influenced in his action by the general rule that applications for severance are addressed to the discretion of the court. Still, to this general rule there are exceptions. In cases of conspiracy there can be no severance, for in such cases the act of one is deemed the act of all, and on the same principle the confession of one binds the other. 2 Bishop C. P., Secs. 227, 229, 230. But this is simply the case of two indicted for the crime. On principle, the confession of one does not bind the other. When, as in this case, the defences of each are antagonistic, and the confession of each, designed to be used, incriminates the other, we think the case for a severance is presented, otherwise each is tried by illegal evidence, the confessions being used. Unless, therefore, the application for the severance rests entirely in the discretion of the court, to be refused without reason, and when there is manifest reason for the application, we must hold that the refusal is subject to review in this court, and on the showing made in the bills we think this court is bound to grant relief. In other words, the application for a severance is addressed to the legal discretion of the lower court, and the appeal requires us to determine whether the cause existed for the application. We think the basis is exhibited. In reaching the conclusion it is not to be understood there is any encroachment on the general rule that applications for severance are addressed to the discretion of the lower court. Nor is it to be inferred that this court will review the refusal of the lower court of such applications unless the bills show clearly the application should be granted. In the light of authority, while courts have affirmed the discretionary power to grant or refuse such applications, there are strong intimations that severances should be granted, even when not enforced by any specific ground. United States vs. Marchant &.Colson, 12 Wheat. 480; 4 Mason, 158. In one of the cases in our courts one of the parties indicted with another suggested the antagonistic character of the defences, and that he feared the confessions of his co-defendant would be used against the other. On appeal, this court said, nothing showed any ground for the apprehension, nor did it appear the confessions were used. In another case the severance was refused and this court approved it, but it appeared the District Attorney announced he would not and he did, not use the confessions of either accused. State vs. Ducote, 43 An. 185; State vs. Gournet, Id., 197. Here the character of the confessions are made known in advance, the intended use is avowed, the timely application for the severance is refused, and the confessions are used and serve to convict. If the confessions should not have been used, the error is not in our view corrected by the charge that the confession of one should not affect the other. The charge concedes the confession was not admissible of one against the other. We supplement the authority in favor of the severance by the citation from the textbooks, that when the defences are antagonistic and confessions are to be used, the severance should be granted. Reason and authority require, we think, the granting of the severance and the new trial. 1 Wharton’s Criminal Law, 7th Ed., Sec. 733; 1 Bishop Crim. Pro., Sec. 1019.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be set aside and reversed, a new trial granted, and that the prisoners be held in custody for such new trial in accordance, with law.


author: Millbe, J.

text:
    No. 11,697.
    Hefner et als., Heirs, etc., vs. John Parker, Administrator of Hefner et al.
    The separation of property obtained by the wife dissolves the community; her renunciation of it is presumed unless she accepts; and the acceptance must be within the time allowed the wife divorced, or separated from bed and board. Civil Code, Arts. 2406, 2410, 2413, 2414, 2420, 2430, 2431, 2488; Nap. Code, 1452, 1453, 1463; 22 Laurent, p.383, par. 377; 3 Mourlon, p. 92, par. 217; 8 Duranton, p. 219, par. 450; 12 An. 76; 23 An. 590; 29 An. 719.
    Inchoate purchases before marriage consummated after excluded from the community are those in which the obligation of the purchasing spouse to buy and pay the price is perfected before the marriage. 17 La. 238; 5 An. 213.

      APPEAL from the Fifth Judicial District Court, Parish of More-house. Potts, J.

      Stubbs & Bussell for Plaintiffs, Appellants.

      Newton & Hall and G. H. Ellis for Administrator, Appellee.

      S. T. Baird for Heirs, Appellees.
   The opinion of the court was delivered by

Millbe, J.

The plaintiffs, heirs of- S. Hefner, claim ownership of one-half of certain property as belonging to the community existing between her and her deceased husband, Augustus Hefner. There were the defences of estoppel, res judicata, that the property never belonged to the community, and that the deceased wife had renounced it. The judgment of the lower court was against plaintiffs, and they appeal.

We thiDk there can he no question the property was acquired during the marriage. One of the plantations involved had been under a lease by Hefner, with an agreement to buy. The limit of this agreement had expired before his marriage. The principle that purchases inchoate before the marriage, perfected after, do not fall into the community, supposes the legal obligation to acquire, perfected before the marriage. Here there was, before the marriage, neither obligation on the part of Hefner to buy, nor on the part of the owner to sell. Lawson vs. Ripley, 17 La. 238.

, The marriage occurred in 1877. In 1881 Mrs. Hefner recovered judgment against her husband for separation of property, and for paraphernal funds received by him. The money judgment was executed. She never accepted the community. Hefner died in 1892. At first his wife supposed she was his heir. But in the litigation that ensued, the decision was against her on that issue, and recognized some of the defendants in this case as his heirs. Thereupon she brought the present suit, asserting her right as widow in community, and dying after its institution, her heirs became substituted as plaintiffs.

Our view of the effect of judgment of separation controls the conclusion we reach. The Oivil Code gives to that judgment the effect of dissolving the community. When that dissolution occurs by the death of the wife, acceptance of the community is presumed, unless renounced; when dissolved by divorce or separation of bed and board, renunciation is presumed unless accepted, and the right to accept is lost if deferred beyond the short interval prescribed by the Code; and when the wife obtains a separation of property the Code gives her the right to accept the community up to that period, with the qualification she can not exercise the right of a surviving widow until her husband’s death. Civil Code, Arts. 2406, 2410, 2418, 2414, 2420, 2430, 2431. The express provision requiring acceptance and precluding it after a certain delay in the case of the wife divorced or separated in property, and the absence of any such limitation with respect to the wife obtaining the separation, might well lead to the conclusion that such judgment would not bar acceptance of the community by the wife, at any period short of prescription. That construction would support in this case Mrs. Hefner’s acceptance in 1892, ten years after the separation of property. It must occur, however, that this inaction is not in accord with the spirit of the articles of the Oode exacting prompt enforcement of the wife’s judgment against her husband under penalty of its nullity. Art. 2428. Still there is in Art. 2431 provision for postponing the assertion of her right, even after she accepts, till the husband’s death. We think, however, there is manifest reason against an interpretation of our Code that holds the community dissolved by the judgment of separation, but leaves the wife at liberty to sleep on her claims it may be for years, and then assert her ownership against the property to which all the world were led to believe she had no claim. This view prompted the decision in one of the cases we cite, Peck vs. Gillis, 23 An. 590, that the judgment of separation barred her claim. True, the community property in this case is in the hands of the administrator of the husband’s succession, though burdened with debts, contracted doubtless on the faith of the husband’s apparent title. But if this right exists to accept the community as it stood at the date of the judgment of separation, and the exercise of the right admits of indefinite postponement, the right of the wife to follow the community property into the hands of third persons must be conceded, even though the wife asserts the right years after the judgment of separation, and notwithstanding the purchase in good faith from the husband by the party against whom the long slumbering claim is directed. An interpretation of the Code leading to such results suggests a pause on the strict letter of the Code that gives the wife, separated in property, the right to the community up to the date of her judgment, yet postpones the exercise of her claim till the husband’s death, and is silent as to the manifestation so important to all dealings with the husband of her acceptance of the community. The Napoleon Code contains substantially the same provisions as ours on the subject. There is the same express requirement that the wife, separated in bed and board, or divorced, shall accept the community within the period specified; or be presumed to renounce. There is the same right to accept given to the wi e separated in property, the postponement of the assertion of her right till the death of the husband, and the absence of any requirement as to the time of acceptance. Napoleon Code, Arts. 1452, 1453. Yet under that code the commentators reach the conclusion that the requirement of acceptance within the period limited applies to the wife separated in property, as well as to the divorced wife. One line of reasoning is, the suit for separation itself carries in some sense a renunciation of the community, since the suit is on the theory that the community is insolvent, or, at least, menaced with embarrassments. Other developments of the argument occur in the textbooks conducting to the same conclusion, that the judgment separating the wife in property must be followed by her acceptance of the community, if she wishes to avail of her community right. 22 Laurent, 693; 3 Mourlon, par. 217, p. 92; 8 Duranton, p. 219, par. 450. In our own jurisprudence, on an attempt to hold the wife for the debts of the community never accepted, and her liability asserted years after the judgment of separation, she was held, but it appeared she had appropriated the community property. It strikes us that appropriation was enough, and dispensed with the discussion in that case of the general question whether acceptance is required. The appropriation itself was acceptance. Ludeling vs. Felton, 29 An. 719. In another case, years, after her judgment of separation of property, without any acceptance at the time, the heirs of the wife asserted her community right to property part of the community when the judgment was rendered, but afterward sold by the husband on the theory the wife never having accepted had abandoned her community claim. The Supreme Court held non-acceptance was renunciation of the community. Peck vs. Gillis, 23 An. 590. The same conclusion was reached by our Supreme Court in yet another case, in which the decision is in the main rested on the French authorities, dealing with the Napoleon Code. Audrich vs. Lamothe, 12 An. 76. We think on principle and authority the judgment of separation and property should be deemed a renunciation of the community, unless within the delay given the wife divorced or separated from bed and board, the community is accepted. If the articles of our Code are deemed perplexing, or our jurisprudence at all uncertain on the subject, the better reason the question should be put at rest. The French writers have dealt with the difficulties of the subject, and we think their solution affords a safe guide, accepted, too, in one of the previons decisions we cite of this court.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.