text:
    No. 10,225.
    Succession of Mrs. Selina D. Bobb.
    1. The staleness of a demand attacking ancient settlements, made after tlio lapse of twenty years and only after the death of the party charged and excused by no proof of ignorance or concealment, imposes upon the attacking party the necessity of making clear and unequivocal proof.
    2. Equity may, possibly, in certain cases, follow funds illegally converted and treat the property in which they have been invested as the mere representative of the funds themselves ; but ordinarily tlio wrong-doer will be treated, only as a debtor and his title to property cannot be ignored, without a clear tracing of the conversion of the identical funds into the property. The case of the complaining heirs of John II. Bobb fails at every point.
    3. In the interpretation of wills the first and natural impression conveyed to the mind on reading the clause involved is entitled to great weight: The testator is not supposed to he propounding riddles, hut rather to be trying to convey his idea in the simplest manner so as to he correctly understood at first view.
    4. When this impression is confirmed by the application'- of grammatical rules to the clause as constructed, it derives great additional support.
    4. In obscuris minimum sequimur; and the code expressly provides that in case of doubt as to whether a greater or less quantity has been bequeathed, it must be decided for the least.” C. G. 1707.
    APPEAL from the Civil District Court for the Parish of Orleans. 1lightor, J.
    TP. 8. Benedict and II. G. Gage for Plaintiffs and Appellees.

      Bayne. Denegre & Bayne and J". Ward Gurley, Jr., contra.

   The opinion of the Court was delivered by ,

Fenner, J.

The judgment appealed from involves two controversies entirely independent of eacli other.

I.

Selina D. Bobb died in this city in 1885, leaving a considerable estate consisting of movable and immovable property. She left a testament, her succession was duly opened and is in process of administration by her testamentary executor. \

She was the widow of John H. Bobb, who died in Vicksburg, Mississippi, in 1865. His legal heirs, being Ms brothers and sisters and their descendants, filed their petition in the court below, in which they represent that John H. Bobb left, at Ms death, a large'estate; that his succession was opened in Vicksburg, and John A. Klein appointed administrator thereof; that Klein illegally turned over to the widow the whole estate, who converted it into cash, and removed to New Orleans ,• that she never had any other means than the proceeds of the property thus illegally converted; that the estate left by her represented nothing but the investment of said iwoceeds; and that, instead of entering- into her succession, the said estate belongs wholly to the succession of John H. Bobb, and to the petitioners, as his legal heirs. They, therefore, pray for a judgment decreeing them to be sole owners of the whole estate and directing the executor to turn the same over to them with an account of the rents and revenues.

Various technical pleas, as well as pleas of prescription, were inter - posed; but they were reserved and the case went to trial on the merits.

The staleness of such a demand, brought only after the lapse of twenty years and after the death of the party charged with such grave derelictions, imposed upon plaintiffs the necessity of making clear and unequivocal proof.

The law of Mississippi is proved by the witnesses of petitioners, and it fully appears that John I-I. Bobb having died intestate and without descendants, his widow became entitled to the ownership of one-half the realty in fee simple, and to 0110-half the personalty remaining after-payment of debts.

There is no satisfactory proof that she ever received more than the share thus accruing to her under the law.

If there wore such proof, the excess, as received by her, could form the basis of nothing but a personal debt due by her, the action for which is long since prescribed. It appearing that she had means of her own to the extent of. at least her interest in Bobb’s estate, her subsequent investments must be regarded as made therewith, and there is no basis for the contention that they can be treated as more fraudulent conversions of funds belonging to others which equity may unmask and treat as the representative of the funds themselves. But, as before said, there is not the slightest trace of fraud, or even of concealment. The heirs appear to have been advised of the condition of the estate .and of the settlements made. To some of these settlements they were parties. As they have never before complained of them, it must be presumed that the settlements were fairly made, and they cannot now be listened to in attacking- them, particularly when they don’t even allege ignorance, concealment or fraud.

The judgment of the court d qiuí, rejecting their demand, is clearly correct.

II.

The other controversy arises on the construction of the will of Mrs. Bobb. The -will is in. olographic form ancl was evidently written by the testatrix, without assistance. We give it, literatim et pwnehaatim, as follows: |

“In the year of our Lord, 1884, Dec. 15,1, Selina D. Bobb, do hereby declare this to be my last will and testafiient, written with my own hand when sound in mind.
“I wish Mr. E. J. Hart, Jr., to administer on my estate and see that my wishes are carried out to the letter.
“ I wish three thousand dollars kept on interest for the benefit of Mrs. J. M. Hall my son’s widow her life time, I wish her to live with Sallio if agreeable on all sides, If she should have to Board, There will harm to be Five Thousand reserved, If the Three is not sufficient to pay Board and Clothe her.
“To Bailie JR. ITart I give the I-Touse we now occupy 191 Seventh street, my Hhnond Sett and a portion of the Furniture and Silverware, Bailie is to have all that T don't malee any disposition off.
To Selina 13. Hart I give one thousand dollars to be kept on interest for her untill she is of age, also my Dimond cluster ring.
“ To Selina Reeder I give one thousand dollars to be kept on interest for her benefit untill she is of age, and my Dimond band ring.
“ To Lucie E. Reeder I give her Home she now occupies ou Arabella street, also one sopha three small arm chairs the rod rocking chair (followed by various other articles of furniture).
“ To Josephein Hamilton I give her House, she now occupies half doz silver Forks half doz Table Spoons (followed by various other articles of furniture, etc.).
“ To Jessie Creighton I give one thousand dollars.
“ To Cousin Mary & Alec Ducrson each $200.
To Mrs. Emily Wilson $200. To Major Sebastian $200. To Dr. & Clara Birchett $500. To Mary Bobb Trigg $100. To Georgia S. White $100.
After all my debts are paid and my Jaelcson street property sold, Sall-ie is to have $2000 out of it, the balam.ee to be divided between Inicie Feeder & Josephein Hamilton. After India's death the money Icept on Interest for her is to be divided between Bailie lueie and Josephein.
(Signed) “Mrs. Selina D. Bobb.”
“ I give Josephein Hamilton my watch.”

The subjects of controversy arc the twi> italicized clauses.

. It is admitted that, after payment of debts and satisfaction of all particular legacies, there will remain a surplus, the disposition of which is the matter in dispute.

Under the first italicized clause, Sallie B. Hart claims that she is constituted the residuary legatee of all the estate not otherwise disposed of; while, under the last italicized clause, Mrs. Reeder and Mrs. Hamilton set up a like claim in their own behalf.

Notwithstanding a very earnest and ingenious argument by her counsel, we are clearly satisfied, as was the district judge, that the claim of Mrs. Sallie B. Hart has no merit. The clause, taken as a whole, loaves no doubt on our mind that the phrase, “ Sallie is to have all that I don’t make any disposition off,” refers obviously to the subject-matter the disposition of which was then engaging the mind of the testatrix, viz: the furniture and silverware contained in her residence.

The claim of Mrs. Reeder and Mrs. Hamilton presents more difficulty. “After all my debts are paid and any Jacksoaa street pa-opoaty sold, Sallie is to have $2000 oait of it, the bakmco to be divided between Lucie Reeder and Joseplaein Hamiltoaa.”

The solution depends upon ascertaining the subject-matter to which the words “it” and “balaai.ce” have refereaice.

The first aaid natural imx>ression derived froan the reading of the clause attaches to it the mcaaaiaig that Sallie is to have $2000 out of the proceeds of sale of the Jacksoaa. street property and the balance thereof is to be divided as directed. Reasoai and comanon seaaso attach great importance to such inapressions in the interpretation of waitteu instruments. The writer is aiot supposed to be propounding riddles, but rather to be trying to convoy his idea in the sianplest and most natural anaaaner, so as to be correctly understood at the first view.

If, howexer, we resort to grammatical analysis, the foregoiaag ianx>rcssion is stroaigly confiraned. “ It ” is an iaadefiaiite proaiouaa, the meaning of which can only be ascortaiared by refereaice to soanething which has been spoken of before. The onty thing antecedently spokeai of in the clause, to which “ it ” could refer, is the sale of the Jackson stret propierty. If we ignore this obvious refereaice, we are left at sea, because no other subject-matter has been antecedently spioken of, to which the pronoun could be said to refer with the slightest certainty. If we refer the word “it” to these proceeds, it seems clearly to folio av that the word “ balance ” anust have a like reference. After paying $2000 out of these proceeds, there will remain a balance, which is the balance disposed of. The whole clause indicates that the disposition of the proceeds of sale of the Jackson street property was the sole purpose present in the anind of the testatrix when it was framed.

If it were admitted, liowevea’, that the clause is obscuro and susceptible of a broader interpretation, then the claim of oppoaionts would eiapomiter anotlier obstacle iu the ancient maxim of interpretation: “ In obseuvist, ininimmn seqidmur y” which Las been formulated in Article 1717 of tlie Code: “If it cannot be ascertained whether a greater or less quantity has been bequeathed, it must be decided for tlie least.”

For these reasons we are compelled to differ with our learned brother of the District Court in his interpretation of this clause of the testament.

It is, therefore, ordered that the judgment appealed from be amended by striking therefrom the clause recognizing Mrs. Lucy Feeder and Mrs. Josephine Hamilton as residuary legatees of tlie balance of the estate, and that, as thus amended, tlie judgment be now affirmed; costs of appeal to be divided between the appellant heirs and the cast appellees.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,239.
    Barber Asphalt Paving Company vs. H. R. Gogreve.
    1. If' counsel entertain the oinnion that tlie provisions of two different statutes are not inconsistent, tlioy may urge them alternatively in tlioir pleadings, as tlio parties appoar to have done in their proceedings; and their right so to do cannot be tested by a dilatory exception.
    2. Section 1 of Act 73 of 1876 is, by implication, ropoaled by Section 32 of Act 20 of 1882, but the remainder of said act is in full force and operation.
    3. Practically, there can bo no effective competition at public auction, for tlio award of a contract for street paving, if tlio specifications of tho City Surveyor call for a patented pavement.
    4. Tlie provisions of Article 209 of tho Constitution have exclusive reference to ad valorem taxation, for the sola purpose of revenue, and do not apply to special assessments for street improvement. Hence tho forced contributions ought of the defendant is neither illegal nor unconstitutional.
    5. A voto of the property taxpayers is unnecessary to authorize a street improvement in the City of How Orleans ; it is matter within legislative discretion, under tho provisions of Article 46 of tho Constitution.
    6. Section 3 of Act 73 of 1876 makes the certificates of designated city officials prima facie proof of tlie contractor’s compliance with the contract, and of Ms due performance of its obligations; and such contract, when evidenced by a notarial act, as prima facie proof of the due observance of antecedent forms and requirements of law; heneo, tho onus proibandi is cast upon the resisting front proprietor to disprove the same.
    7. Tho majority of owners, within the meaning of Sections 32, 33 and 34 of Act 20 of 1882, are construed, by Section 35 of that statute, “to he tlie owner or owners of a majority of running feet of property fronting on tlie street, or portion of the street to bo paved;” and this interpretation applies with equal force to the petitioning property owners as to opposing memorialists.
    8. The statute provides that a street shall bo a unit, for the purposes of all computations.
    9. The law fixes tho proportionate share or the cost of paving, to he borne by tbo abutting property owners and tlie city, respectively, in case the work is done upon a neutral ground street., and there -was no necessity of a provision to that effect being incorporated iu the specifications, or the contract; and same are not invalid for tho want of rib

      10. Tho right of the city to stipulate, in a paving contract, for the payment of eight per cent per mmum interest, by a defaulting front proprietor, on the amount duo by him or his proportionate share of the cost of construction, is implied from her power to adjudicate tho work and to make a contract therefor. Tho stipulation of any rate of interest not exceeding eight per cent is an incident of tho property owner’s obligation, and is binding as any part thereof.
    11. In case the contractor for street paving relies, for his remedies, in the enforcement of his contract and for the ascertainment of the proportionate share of tho cost of the work due by the abutting proprietors, on one statute, and upon another, as to all matters ot form, only, it is expedient and. proper that tho latter, «alone, sbonld have been mentioned in the proceedings. Vide paragraph 1, supra.

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

      Leovy c& Blair for Plaintiff anil Appellee:
    1. Sections 2 and 3 of the Act of 1876 (p. 116) arc not repealed by Act of 1882 (p. 34). The later Act repeals any .and “all haws in conflict, inconsistent with or contrary to tho provisions of this Act.” Sec. 78, p. 37. The Act of 3886 (No. 113) expressly recognizes this section as unrepealed. [Repeals by implication «arc never favored. 24 Ann. 116. See also on this point Hennen’s Dig., p. 789, No. 15 ; p. 790, No. 20, No. 21 ; 12 Ann. 498, 805. Subsequent laws do nob repeal prior haws by containing different provisions. They must be contrary. 20 Ann. 140 ; Louque’s Digest, p. 363, No. 2; and seo i>. — of this briof.
    2. The Statutes of 1876 «and of 1882 are constitutional. Honnen’s Dig. pp. 1544 auil 937 ; 38 Ann. 325; 39 Ann. 455 (and page — of this brief).
    3. Plaintiff is entitled to tho interest claimed. 3 It. [R. 406.
    4. The contract in this case was in no sense for a patented pavement. There is no conflicting evidence on this point; but even if there was doubt as to this fact, contracts for patented pavements maybe logally mado under all tho later decisions. 26 Ann. p. 1; (and decisions referred to in that case); 17 Mich. 246; (J*udgc Cooley’s opinion); 15 Kansas; 56 Barbour, 1; 6 Lansing, 92; 50 N. X. 319; 33 N. X. 309.
    5. Work is presumed to bo done in accordance with specifications, in manner and time. Act 1876, Sec. 3 (p. 116); 7 Ann. 25 ; 14 Ann. 297, 295; 15 Ann. 376; 17 Ann. 183; 27 Ann. 59; 30 Ann. 250; 29 N. J\ 403; Cooley on Taxation, p. 468; 1 "Wallace, 223; besides the evidence proves it was so done.
    6. Property holders are estopped if they do not object at the proper time. 26 Atm. p. 1; 5 Ann. 108; Hennen’s Dig. 512, No. 6 ; Boone on Corporations, p. 295 (and his references); 96 17. S. 341; 65 Barbour, p. 1; 30 Ind. 573; 30 Inch 31; Herman on Estoppel, Section 1221, and the numerous authorities tliero cited; Bigelow on Estoppel, p. 214.
    7. “A property holder cannot quietly permit money to be expended in work which benefits his latid, under a contract with the city, «and then deny the power of the city to make the contract. "Where several taxpayers petition the Common Council to cause certain im provements to bo made, as grading, macadamizing, or paving streets, and the improvements or work is completed iu compliance therewith, without complaint or objection on tlieir part, to the acts of the contractor or Common Council, in relation thereto, they are equitably estopped to deny that the Common Council had no constitutional power to do it. It would bo the perpetration of a gross fraud, after tlieir willing and active assent; and when tlioy impliedly consent that an assessment shall be made to pay for such improvements, whether the assessment is illegal or not, they are estopped from «asking a court of equity to interpose an injunction to restrain the collection of the tax.” (Hermann on Estoppel, Section 1221, referring to over fifty decisions.)

      Braughn, Buck, JDinJcelspiel & Mart for Defendant and Appellant:
    1. Eorcod assessments, in which category this claim falls, cannot ho recovered unless tho forms and requirement of law have been strictly comjdied with. Dillon on Municipal Corporations, Sec. 610, vol. II, p. 710, and notes on pages 707, 708 and 710, and Columbus vs. Story, 35 Ind. 97. See generally cli. xix, Dillon on Municipal Corporations, vol. II, Sec. 640, and notes on x>p*. 740 and 741.
    The authority to make local assessments does not exist unless unequivocally conferred. It can bo exercised no further than it is clearly delegated. Where the mode in which tho authority shall bo exercised is prescribed, it constitutes tho measure of the power and must be followyd. Eayssoux vs. Succession Cbaurand, 86 Arm. 548 and 549; Abbott on Corp. 487; Dillon on Mun. Corp., vol. I. p. 362, See. 246; Cooley on Taxation, 418; Burroughs on Tax., Soc. 128, p. 372, oh. xix,
    2. A statute delegating power to charge the property of individuals with the expense of local assessments, must be strictly pursued, and any departure in substance from the formula prescribed by the statute vitiates proceedings under it.
    That which the Legislature has directed to be done in such case, the courts cannot declare immaterial and none of the steps prescribed can be held to bo directory merely.
    Commissioners required to take an oath “faithfully and fully to discharge the duties,” took an oath “to the host of their ability,”
    In an action brought to restrain the collection of the assessment, held, that tho failure to talco the presribod oath rendered the proceedings illegal. Merritt ot al. vs. Village of Tortchoster, 71H. Y. 309.
    In TliomxJson vs. White (4 S. and It. 35), the word “firmly” was omitted in an oath. In Cambria street (75 Penn. St. K. 357), officers were required to take an oath; that they would “impartially discharge their duties,” and they had substituted “faithfully” for “inrpartially,” in the oath as administered, and it was held fatal to their power to act. 71 H. Y. 313 ; 46 Barb. 333, and other authorities cited therein.
    “ The commissioners made four successive reports to tho Board of Trustees, tho latter sending the same back three times for revision and correction, and tho commissioners on each occasion made a now estimate and assessment, and gavo new notice to xiarties interested to present their objections in writing. Each assessment was indoxiendcnfc of every former, assessment, and tho same stox>s were required for its perfection.” 71H. Y. 309-315.
    “ The commissioners having acted upon the applioation for this now road and adjudgod it to bo for the common convenience to a certain extent, and made return of their proceedings, which wore recorded, worafnncti oficio in regard to this new road, upon that ajjplioation. Their further proceedings AYithout.au application are void as a judgment of a court without a Avrit Avould be.” . •
    This is tho language of the Court in 10 Pickering (Mass.). x>. 269. It is stated by tho Court in 13 Pickering (Mass.), p. 190. that tho Chief Justice, Avho prepared this oxnnion, died before any formal action Avas had thereon by the court, {«id the case Avas finally pronounced upon, leaving tho principle decided in the first report of the case as still an open question.
    3. Tlio contract was not preceded by the formalities prescribed by laAV. It is not responsive to the petition ol' x>i'oi>erly holders, and no recovery should he had thereon, or on a quantum meruit. Dillon on Mun. Corp., Sec. 642, Ho. 2, p. 741; 56 H. Y. 257; 43 Barb. 48.
    The petition of prox>erty holders is the basis of jurisdiction and poAver.
    The sole power of the City Council is to carry out the Avish of the petitioners, and to bind all prox>orty holders this must bo done in the manner prescribed by law.
    Where property holders petition the Council lor paving certain streets, recited in their petition describing the extent and limits of tlie street purported to be represented, the xietitdon is good for the exact limits described, and a contract for paving mad© upon such petition omitting a material part of the street or streets designated, renders the contract null and void as to front proprietors; especially as to those who have in no manner taken part in procuring the contract for paving.
    The two roadways on St. Charles avenue, described respectively as St. Charles avenue, river or south side, and St. Charles avenue, swamp or north side, constitute two separate and distinct streets.
    Proceedings for paving same, under Section 32 of Act No. 20, Acis of 1882 — the City Charter — .should be conducted separately, with reference to each street, on i>ain of nullity of the proceedings. Marquez vs. City, 13 Ann. 319;- Correjollos vs. Succ. of Poucher, 26 Ann. 362.
    4. Under the strict construction to which contracts as that sued on aro subjected, the limits of streets designated by petioning property holders who describe themselves as owning-property on “St. Charles avenue, between Lee Circle and Carrollton,” and the ordinances and contract based thereon, made for paving to be done “from Leo Circle to Carrollton,” must be taken literally and interpreted to moan to, and not to the upper end, of Carrollton.
    This defect appearing on the face of the contract, and the ordinances, can bo urged under the general issue.
    If it be contended that the words may mean something more than to Carrollton, they are ambiguous and parole testimony is admissible to show what was meant and how the words were interpreted by parties sought to be affected.
    The evidence, in this regard absolute and uncontradicted, shows that defendant and others believed that that the words were understood as intending to carry the pavement, on both sides, to Carrollton or “Lower Line street” — being the boundary between Now Orleans and Carrollton before the consolidation.
    5. Tlio petitioning- property holders, under Section 32 of the charter, must constitute and represent a fair average of the total street or given distance to be paved; it is not within the spirit or the letter of the law that the upper extreme of a street five miles long can be ordered paved on a petition of prox>erty holders, who, with one single exception, own x>roliorty over a mile below the upper terminus.
    6. The City Charter of 1882 repeals Act No. 73 of the Acts of 1876. Under the Section 32 of the City Charter and the decisions of this Court in the Marquez and Oorrejolles cases, the property holders are only liable for one-hall* the cost ol‘ the paving and not for two-thirds, as claimed.
    7. The stipulation for eight per cent interest in the contract cannot bo enforced. The Mayor was altogether unauthorized by the city ordinances — and if he liad been, the stixmlation would still be invalid. It is ultra vires.

    Tlio decision of this court to the contrary is not conclusive as authority. The reasoning of the court is not satisfactory, and facts of the case are not stated. One decision on a question not settled by positive legislation, or where a question is shown not to have “been thoroughly investigated, will not settle the law.” Lagrange vs. Barro, 11 llob. 302; Smith vs. Smith, 13 L. 445.
    8. There is an error in the measurement of defendant’s property. Tlio testimony shows that twenty-four 1'eet must be deducted and the amount, if judgment goes against him, accord, ingly reduced.
    9. The asphalt x>aving as contracted for by plaintiff is a patented pavement. The city is without right to order paving at the cost of front inorprietors on tlio petition of an insignificant number of property holders, of an ©\ pensive and patented character. Dillon on 7ktun. Corp., Secs. 389 and 390; 23 'Wisconsin, 590; 26 Ann. 1; Burgess, Bonnet ot als. vs. The City of Jefferson ot als., 21 Aim. 143.
    Plaintiff attempts to show that the paving in question is not a patented pavement. It ivas so given out by its advertisements and so described. The principle of competition enunciated by tlio statute could not be observed by the council in letting out the contract, and defendant cannot be compelled to pay the charge assessed against him for the alleged improvement.
    10. The defendant in this case is not “ estopixscl ” from setting up his defenses to plain tiff’s demand. “Estoppel” is ail equitable plea which prevents one from escaping the consequences of his own acts or declarations. See authorities in brief.
    Even if the doctrine of estoppel could he invoked as arising under conditions such as those involved in this case, it could only he done in a suit on a quantum, meruit.

    This suit is brought to recover the amount of tlio .“forced assessment” as such, without regard to the equity or correctness of the price charged or the benefit conferred.

      B. B. Forman on tlio. saino side.
   Tlio opinion of tlie Court was delivered by

Watkins, J.

Claim is made by the plaintiff for $2164 65, as two-thirds of the contract price of laying a street asphalt pavement on St. Charles avenue, in front of the defendant’s premises, with eight per cent interest from the 1st of August, 1885.

It avers that, oil the 13th of October, 1883, by an act passed before a notary, it made a contract with the City of New Orleans, through her Mayor, who was duly authorized thereto by ordinance, to lay street asphalt paving on St. Charles avenue, in said city j and that said contract was made and said paving done, in accordance with and in pursuance of Sections 21 and 32 of Act 20 of Í882, Act 73 of 1876, ordinances numbered 239 and 451, Council Series, and other laws and ordinances on the same subject-matter, in force at the time.

It further avers that, previous to making said contract, the property holders on said avenue having the legal requirement of feet front, petitioned for the construction of a street asphalt pavement, and said petition was duly and legally advertised, and as recited in Ordinance No. 239, C. S.

That, at the time of the adoption of said ordinance, the execution of said contract, and the presentation of said work, the defendant was a front proprietor on said avenue, and owned a front on the south side thereof, between Carrollton avenue and Dublin street, of three hundred and twenty-five feet, “ and is liable for the paving, curbing'and other work done under said contract in front of his property, as far as the neutral ground, to the amount of two-thirds of the contract price thereof — the capital sum and interest above stated — with lien, privilege and right of pledge,.as stipulated in Act 73 of 1876, duly recorded.

It further shows that, upon the completion of the work, a certificate was obtained from the City Surveyor, and Commissioner of Public Works, duly approved by the Mayor, attesting the completion of same according to contract, and which certificates are annexed to and made a part of the petition.

This claim is met by no substantial defenses, on the part of the defendant, but, on the contrary, by a technical exception to the duplicity of the petition, in the first instance, and by sundry technical objections to the formality of the proceedings, and of the manner of plaintiff's pui- £ nance of them.

They may be epitomized as follows, viz:

1. An exception, that plaintiff’s reference to Act 73 of 1876, and Act 20 of 1882, without specifying upon which it relied as authority for its contract, made its petition vague ; and that, as the provisions of those acts are inconsistent, it should be ordered to elect between them.

2. That Act 73 of 1876 was repealed by Act 20 of 1882.

3. That the contract provided for the laying of a patented pavement, in violation of the letter and spirit of Section 21 of Act 20 of 1882, which requires that all such work shall be awarded to the lowest bidder.

4. That plaintiff’s demand for a forced assessment is a tax, in the sense of Article 209 of the Constitution, and the power of the city to levy taxes thereunder, for the year in which said contract was amide, was exhausted before same was made, and it is ultra vires and unconstitutional.

5. And that the work contemplated in said contract was one of public improvement, in the sense of said Article 209, which could not be undertaken at their expense, without a vote of the property taxpayers ; and for this reason the demand is illegal.

6. That St. Charles avenue is, in fact and in law, two streets, separate and distinct from each other,. with a strip of land between them, of about thirty or forty feet iai width, which is designated as “ neutral ground,” and owned by the corporation, and used by the New Orleans and Carrollton Railway Company, under a 'contract with the City Council ■, but, in the petition of the property holders, and all subsequent proceedings, the same wear treated as oaie single street — the property holders residing on any and all parts of either, signing same-indifferently— arid, that such petition and subsequent proceedings were thereby vitiated, and did not create foa-ced liability on the property holders, on either of said streets.

7. That said petition ivas not signed by the requisite number of owners -prescribed by Section 32 of Act 20 of 1882, whether said section is construed to mean ono-fourtli of the owners in number, or the owners of ono-fourtli of the property fronting on the street; anil this is particularly true of the south, or river side- of the avenue.

8. That many of the signatures affixed to the property holders’ petition were unauthorized, and cannot be counted, in ascertaining the number of front feet.

9. That St. Charles avenue, from Lee Circle to Madison avenue, Carrollton, is four or live miles in length, and that his property is situated near or at the upper end of Carrollton, and that it is not the spirit or letter of the law, that the full length of the same should be considered and treated as a unit, on which the one-fourtli frontage is to be calculated ; as, in so considering and treating it, property holders exclusively at one end “ might bind the owners to. an extension of three times more the distance ; * * and that for a distance of one mile, at least, from (his) property, much less than one-fourth in number, or amount of frontage is represented in said petition.”

10. That the contract is null and void, because the property holders’ petition called for street asphalt pavement, “ according to specifications of the City of Washington,” and this condition was not observed therein; the pavement contracted for differing therefrom, in essential particulars.

11. That said petition was intended to and did ask for the paving of St. Charles avenue, from Lee Circle to Madison avenue, Carrollton, “ * * and that the contract, as now sued on, was awarded and executed for the paving of certain portions of said avenue, the whole of the roadway on the swamp side, from Louisiana to Carrollton, being excluded and not paved.”

12. That, after the publication of the petition, material changes wore made, in the width of the roadways that were paved.

13. That the specifications for the work, and the contract on which publioation'for bids were made were not adhered to in many particulars, and the bond and security stipulated were not given.

11. Neither the specifications nor the contract stipulate the respective proportions pas'able thereunder by the city and the imiperty holders; and tho city was without authority to contract for a rate of interest in excess of four per cent.

15^ That if Act 73 of 1876 be hold to have been repealed by Act 20 of 1882, he insists that the provisions of the former were not within the contemplation of either of the parties at the commencement of proceedings, and that all acts are expressly and in terms set forth, in all ordinances and publications, done or intended to be done, under Sections 21 and 32,” of the latter.

16. That there never was an absolute or independent vote taken by the council for the paving of St. Charles avenue, as contemplated in tlio .Act of 1876, “and, the alleged passage of ordinance No. 239 C. S., by a two-thirds vote, if true, is not an independent expression of the legislative will of the council” for the purposes defined in the act.

17. That, if it be held to have been passed by such a two-thirds vote, same is absolutely null because the “ notice of intention ” contemplated by said statute was not given, and that same was a condition precedent thereto.

Tiie elaborate answer of the defendant is concluded bj' an alternative averment that, in any event, his liability cannot exceed one-half the cost of the pavement of the avenue immediately in front of his property.

We have been at great pains to critically analyze the answer, and state the various objections urged therein, in order that our opinion should not pass its limits. We will take them up, and dispose of them in the order of their proper sequence.

I.

Before going into the trial, the plaintiff’s counsel caused the following entry to bo made upon the minutes of the court, viz :

“ Counsel for defendant having called upon counsel for plaintiff’ to elect, according to defendant’s interpretation of his petition, upon which Act, namely, Act No. 73 of 1876, or Act No. 20 of 1882, plaintiff relied in support of the validity of liis contract as to form, counsel for plaintiff states that, so far as matters of form are concerned, lie relies upon Act No. 20 of 1882, and so far as the proportion of parnnents to be made by the property holders is concerned, and for his remedies, that ho relies upon Act No. 73 of 1876, as stated in the petition and contract.”

This fully responds to the defendant’s exception.

Plaintiff’s counsel entertained the opinion that the provisions of the two acts were not inconsistent, and thus believing they had a perfect right to urge them alternatively in their pleadings, as they are alleged to have done in their proceedings. Tlieir right so to do cannot he tested by a dilatory exception. It is a matter for the merits.

II.

Section 1 of Act 73 of 1876 designates the method of proceeding on the part of property holders who desire to liavo street-paving done, and, also, on the part of the City Council — including the petition, advertisement, memorial of opponents, adjudication of the work, the manner of paying the cost of samo, and by whom it shall be paid.

It is conceded by the plaintiff that Section 32 of Act 20 of 1882, covers the same ground, and that the provisions of the former are necessarily superceded thereby, the latter repealing “ all acts in conflict, inconsistent with, or contrary” thereto. Section 37.

But Section 2 of the Act of 1876, .provides “that whenever * * paving * * is made upon a street * * having a strip of land, or neutral ground running through the middle, not private property, with a roadway on both sides, two-thirds of said * * paving * * shall be borne equally by the owners of real property fronting upon the roadways, according to the running front foot of property abutting on either of said roadways; and one-third of the cost shall be paid by the City of New Orleans.”

Section 3 of that Act provides “ that all payments shall be made upon the certificate of the Administrator of Improvements and City Surveyor, and which certificate shall be prima fade proof of a compliance with the contract, and due performance of its obligations; and which said contract, when duly passed before a notary, and signed by the Mayor shall be prima fade proof of due observance of all antecedent forms and requirements of law.” It further provides “that the cost of said ® paving * * shall be, and is hereby, constituted a real charge in and upon said real property * ■* * and the same shall be deemed, considered, and treated as pledged for the payment of said cost * '- and that it shall be sufficient to record the certificate of assessment, or performance, of the City Surveyor, etc.”

Upon a critical examination of the Act of 1882, there have been found no provisions upon the same subject-matter, as that cited in Sections 2 and 3 of the Act of 1876, and the two cannot bo said to be, in any sense, in conflict, inconsistent with, or contrary to, each other; and, lienee, those of 1876 are not, eo nomine, repealed. But, it is argued that, inasmuch as the Act of 1882 is the city charter, the presumption juris et de jure is, that it is full and complete, and contain all the powers the Legislature intended the city should possess or exercise, and such an interpretation, necessarily implies 'that all the provisions of the Act of 1876, on the subject of paying streets of the city, are repealed.

In this view, it is well to take into . consideration contemporaneous legislation, and its judicial interpretation, in order to properly appreciate. the purpose of the Legislature in enacting the provisions last quoted from that act.

Section 119 of Act 164 of 3856, which is identical with Section 32 of Act 20 of 1882, ipsissimis verbis, was examined and applied, by our predecessors, in Marquez vs. City of New Orleans, 13 Ann. 319, to a contract quite similar to tlie one under consideration, for the grading and shelling “ of Claiborne street, on the north side of the middle ground, or promenade, of said street, from St. Bernard avenue to Elysian Fields street.” The contractor sued the various front or abutting proprietors for their respective proportionate shares of ilia 'whole cost, but resistance was made on the ground “ that the City of New Orleans is the owner of middle ground or promenade, located in the centre of Claiborne street, and fronting said shellroad,” and is liable for one-half of tlie cost of the work; and- judgments were rendered accordingly in the district court, and tlie same were acquiesced in. Subsequently, suit was brought against tlie citjq on that theory, and she was held liable by this Court for one-half the cost.

The Legislature of 1868 enacted a statute authorizing the police jury of the parish of Jefferson, left bank, to direct the construction of a shellroad, or Nicolson pavement, to connect the then .existing Nicolson pavement, from the upper line of the City of Jefferson, on St. Charles street, to the upper line of the City of Carrollton, on the right hand side of tlie New Orleans and Carrollton railroad track, and to assess tlie property owners with the cost thereof. One Correjolles became tlie adjudicatee of the work, and, upon proper certificates of its completion, lie instituted suit against the succession of Marquis Louis Fouclier, whoso property fronted on the south, or river side of said street, opposite that upon which tlie shellroad was constructed. Our predecessors said in that case :

“Tlie payment of the plaintiff’s bill is resisted on tlie plea that the middle ground of tlie street, which is now used by the New Orleans and Carrollton Railroad Company as a train way, is either the property of the railroad, or of the public, and, in either case, the city is bound to sustain its portion of tlie expense- of shelling the road. Tlie defendant doilies that liis lands, lying south of the street, are bound for any part of the taxes. ® s + * • * * “ It seems that tlie only question in which tlie defendant is concerned, presented in this case, was decided in tlie case of Marquez vs. The City of New Orleans. 13 Ami. 320. In that case tlie court held that the middle ground of Claiborne street belonged to the city as a loeus ]}ublieus, and that the city was bound to bear one-balf the expense of constructing a road on the north side of said street, tlie entire expense of which it was sought to impose upon the proprietors of the north side. That case and tlie one at bar seem to be identical. With that view of the case, the judge a <fuo decided in favor of the defendant, and we think correctly.” Correjolles vs. Succession of Louis Foucher, 26 Ann. 362.

Yet, we And in Section 24 of Act 7 of 1870, extra session, the identical provisions of the Act of 1856 supra reported, and they remained in force until the passage of Act 73 of 1876, which appears to have embodied in it the substance, and purport of the decisions from which we have quoted. Now, when we consider the fact, that Section 32 of Act 20 of 1882 is identical mntatis mutandis with the statutes of 1856, and 1870, the idea of Sections 2 and 3 of Act 73 of 1876 being' repealod, appears to us utterly untenable. Those are the only statutory provisions extant, which relate to the paving of unpiaved neutral ground streets of the City of New Orleans. If it be repealed,.the jwisprudenee would be unaffected thereby, and would be strictly applicable to the existing statute, as it was to those x>receding it. But the existence of that jurisprudence exhibits a necessity for a statutory regulation on the subject, and, therefore, it is not correctly assumed by the defendant’s counsel that the omission of any such provision from the city charter, of necessity implies the repeal of a former, containing it.

In addition to this argument and authority, the Legislature itself placed an interpretation on the question of this alleged repeal; for, in an act 'amendatory of said Section 32 of Act 20 of 1882, it was specially provided that nothing herein shall be construed as affecting Act 73 approved March 30th, 1876, as to the paving of neutral grounds, or streets adjacent to the levee.” Act No. 113 of 1886. Vide Faissoux vs. Succession of Baroness de Charand, 36 Ann. 5407.

III.

An important question in the case is whether the contract awarded, and the plaintiff constructed a patented pavement or not; the theory of defendant’s counsel being, that if it was a patented pavement, the city’s adjudication was null, because it- violated the letter and spirit of section 21 of the city charter, which provides that all contracts for public work shall be awarded at public auction to the lowest bidder, or given to the one making the lowest sealed proposal therefor.

Their contention is that there could be no real and practical competition for the work, without the observance of this formality; and that effective competition is of the essence of such a contract.

Whilst there áre some well considered opinions which appear to sanction a contrary view, we prefer to follow that announced in Burgess Bennett et als vs. The City of Jefferson, 21 Ann. 143, which is to the effect that there can be no practical competition for a patented pavement.

Accepting this theory, necessitates an examination of the evidence, in order to ascertain the truth or incorrectness of defendant’s charge.

On the trial, defendant’s counsel introduced in evidence, the assignments by E. J. DeSmidt to the plaintiff of two patents, and an application for another; but patents were not introduced, and the application does not appear to have been granted.

Patents numbered 236,995 and 237,662, issued to defendant, were offered, but same were accompanied by assignments to other persons than the plaintiff.

If either of the first throe mentioned patents, for improvements in refining asphaltum, are assigned to the plaintiff, it should have been produced by the defendant, as the burden of proof was on him.

They wore of easy access. The law requires that all patents, and the transfer or assignment thereof, shall be recorded in the Patent Office at Washington, on the penalty of same becoming void, as to any purchaser or mortgagee. U. S. Rev. Stats. Secs. 481, 4883, 4898.

But, in addition to this, an examination of the specifications on which • the contract was awarded and, in pursuance of which, the work was done, discloses that the quantity and character of the material, and the method of laying the pavement, which are set out with great care and particularity. They provide that “the pavement shall be of an uniform thickness of two and one-lialf inches of sheet asphaltum, when compressed, laid on a base of hydraulic cement concrete, of an uniform depth of six inches.”

They require that this concrete base shall be made of English Portland cement, and sharp washed sand, mixed with broken hard-stone, brick, pebble, or sound Lake shells. They provide that the wearing surface, or pavement proper, shall be of “quire, refined asqihaltum, umnixed with any of the products of coal to',” and shall be comqiosed of four ingredients, viz:

1. Refined asqihaltum.

2. Heavy petroleum oil.

3. Fine sand.

4. Pulverized carbonate of lime.

Making a comparison of those ingredients, with the sqiecifications accomqianying the DeSmidt patents, it becomes manifest that the latter were not used by the qilaintiff in laying the qiavement in question, for the reason that those qiatents wore restricted to imqirovements “ in the act oí preparing coal tar products for use in bituminous cements, or compositions for paving and other purposes.”

To make it plain, there was a stipulation in the specifications of the City Surveyor, that “parties desirous of bidding, but whose process of street asphalting differs from these specifications, and which may be as per specifications of Washington, D. C., are requested to forward'bids, with the difference well explained” — thereby clearly indicating that a patented pavement was not in contemplation of the City Council, in advertising for bids, and that competition was expected and invited in awarding the contract.

It is in proof that asplialtum is imported from Trinidad, by several companies in this country and in Europe, and that it can be purchased in New York and other markets of the United States. It is defined to be a mineral pitch which occurs on. the shores and surface of the Dead Sea, which is styled the Asphaltic Lake j and is found in many parts of Asia, Europe and America. Webster, verbo: Asphaltum.

The testimony, also, shows that there are several companies in the United States engaged in laying street asphalt pavement in accordance with the Washington specifications, which are nearly verbatim copies of those under which plaintiff bought the contract under consideration ; and, that, under them, any one of them, or any other company could have laid the pavement on St. Charles avenue, as plaintiff did.

We have no hesitancy in deciding that this complaint of the defendant was properly decided against him in the court a qua.

IY.

Conceding for the argument, that'the city had levied annual taxes for the year 1883, and for every year thereafter, up to the limit proscribed by Article 209 of the Constitution, and had, in each of said years, exhausted its powers of taxation thereunder, does it follow, therefore, that the forced assessment against the defendant is either illegal, ultra vires, or unconstitutional 9 Is such a forced contribution a tax, in the sense of that Article 9 Certainly not.

That Article provides that “ the State tax on property, for all purposes whatever * * shall not exceed, in any one year, six mills on the dollar of its assessed valuation * * and no parish or municipal tax for all purposes whatsoever shall exceed ten mills on the dollar of valuation.”

Those provisions have exclusive reference to the ad valorum taxation of the property of all the inhabitants of the city, for purposes of revenue only.

Tlie contribution sought to be levied on the defendant’s property is not such “ municipal tax ” as is contemplated by them. It is plain that no tax has been laid on the defendant’s property, and that the improvement was not placed upon it; but it was placed on a public thoroughfare of the city, and the council authorized its construction, at the joint expense of the front proprietors, upon the ratio of a corresponding benefit conferred upon the property. The performance of the work creates an indebtedness to the contractor, and not to the city; and it is collectible by suit, and not by summary proceedings for a forced expropriation.

Such a distinction has been frequently recognized by us in recent decisions.

In Delcambre vs. Clere, 34 Ann. 1051, we said: “ There is a recognized distinction between the taxing power and the police power conferred on corporations; licenses or taxes may be imposed on certain branches, as a regulation under the exercise of the latter power, but it must plainly appear that they are imposed strictly and exclusively in aid of such power, and not for the purposes of revenue. The rule is, that mere “ police power, and the right to make all needful regulations under it, gives no right to tax for revenue.” Mestayer vs. Corrige, 38 Ann. 711.

Dillon says “ the taxing power is to be distinguished from the police power * * * * The power to license and regulate particular branches of business or matters, is merely a police power; but when licenses, fees or exactions are plainly imposed for the sole, or main purpose of revejwte, they are in effect 'taxes.’” 2 Dillon’s Munic. Corp. Sec. 609.

The same author says the Constitution of California requires that taxation shall be oqttal and uniform throughout the State, but that the Supreme Court of that State holds that the word “ taxation,” as used therein, “refers to general taxes to defray the ordinary expenses of the State, and its subordinate local governments, and not to assessments for local improvements; that taxation was intended to be exercised upon the basis of value, so as to secure equality and uniformity; that assessments (though a branch of the taxing power) need not necessarily be exercised on the ad valorem, principle, but the Legislature is at liberty to adopt a different mode or basis of apportionment, such as frontage, benefits received, or superficial contracts.” Ibid sec. 599, citing: Emery vs. Gas Company, 28 Cal. 345; Hart vs. Garin, 12 Cal. 476; Argenti vs. San Francisco, 16 Cal. 255.

“So in Louisiana, according to the later, if not the earlier, casen, local municipal assessments for local improvements are valid, although tlie Constitution provides that all taxation shall be equal and uniform throughout the State; such assessments are not taxation within the meaning of the Constitution requiring uniformity of taxation.” Ibid see. 600, citing: Stuart Cases, 20 Ann. 499; Gratman vs. Crandall, 11 Ann. 220; The Draining Company, id. 371; Wallace vs. Shelton, 14 Ann. 503; O’Leary vs. Sloo, 7 Ann. 25; Municipality vs. Guillotte, 14 Ann. 295; 2 Dillon’s Munic. Corp. Secs. 617, 619.

On this subject Judge Cooley says:

A like principle is sometimes applied to the construction and improvement of the streets. These, as has been said, constitute highways for the accommodation of the general public, but are calculated, by their improvement, to increase largely the value of all property fronting on, or lying in the immediate vicinity of them. Should the Legislature determine that the cost of a street improvement should be borne in part by the whole city, and, in part, by an assessment made upon the basis of benefits within a district to which the improvement was exceptionally valuable, we know of no valid objection that could be interposed.” Cooley on Taxation, p. 117.
Special assessments are a,j>eeuliar species of taxation, standing apart from the general burdens imposed for State and municipal purposes, and governed by principles that do not apply generally. The general levy of taxes is understood to exact contributions in return for general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection, and the general public good. . Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially, and peculiarly benefitted, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it.” Ibid pp. 416, 417, 418, 420, 422, 423.

This and kindred questions -were carefully examined and decided in Charnock vs. Levee District Co., 38 Ann. 323, and Planting and Manufacturing Company vs. Tax Collector, 39 Ann. 461; and the principles announced by the text writers quoted from were affirmed as strictly applicable, under our present Constitution.

Tt is our decided conviction that the statute, and special assessment involved in this discussion, are constitutional and legal.

V.

Tlie argument and authority cited in the last paragraph are applicable to this proposition as well.

The proviso to Article 209 of the Constitution declares “ that lor the purpose of erecting and constructing public buildings, bridges and works of public improvement in the parishes and municipalities, the rate of taxation herein limited may be increased when the rate of such increase, and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of such parish or municipality * * and a majority of same voting at such election shall have voted therefor.” The one contemplated is, as shown in the preceding paragraph, an ad valorem taxation on all property, generally.

Article 209 et sequenies must bo construed and harmonized with the provisions of Article 46 of the Constitution, which reserves to the General Assembly plenary power to deal with the corporation of the City of New Orleans, at will.

VI.

Preliminary to the discussion of this, and subsequent grounds of objection, which are mainly directed against the proceedings of the different parties, it is well to examine tlie standpoint occupied by them, and ascertain upon whom the onus probandi rests. It must be borne in mind that Section 3 of Act 73 of .1876 provides, that the certificates of the Administrator of Improvements and City Surveyor “ shall be prima faeie proof of a compliance with the contract and due performance of its obligations; and that said contract, when duly passed before a notary, and signed by the Mayor, shall be prima facie proof of due observance of all antecedent forms and requirements of law.”

This is a well recognized principle, for Dillon says: “If the work has been done in a manner satisfactory to the corporation, and has been accepted by it, a prima faeie case is made out.” 2 Dillon’s Munic. Corp. Sec. 650.

“The Legislature may provide for a summary collection of taxes and assessments and declare what shall make a prima faeie case.” Ibid, Sec. 651.

Judge Cooley says on this subject:

“ It is no defense to an assessment that the contract for the work was not performed according to its terms. The proper authorities must decide upon this, and, if they accept the work, the acceptance, in the absence of frauds, is conclusive.'' Cooley on Taxation, p. 468.

The saino principle was announced by our predecessors in Municipality vs. Guillotte, 14 Ann. 295, in these words, viz :

“ In the absence of proof of fraud, the acceptance by the corporation of work which it was authorized to contract for, is prima facie evidence against the defen dant, so far as relates to its completion, and the manner in which it was done.”

Hence it appears that the onus is on the defendant to show plaintiff’s non-compliance with its contract, the non-performance of its obligations thereunder, its wcm-observance of antecedent forms and requirements of law, and the iiora-completion of the work.

The certificate of the Commissioner of Public Works, under the city charter, takes the place of that of the Administrator of Improvements, under the statute of 3876. The certificates of the Commissioner and City Surveyor, as well as the notarial contract of the plaintiff with the Mayor, are in evidence; and proof is abundant, of the city’s acceptance of the work performed.

This question being settled, we may proceed with the discussion of the questions remaining.

We do not regard it as material, that the property holders’ petition, and other documents and contracts treated St. Charles avenue as a whole, and did not mention it as consisting of two distinct roadways separated by a neutral ground belonging to the municipality — conceding the facts to be" as stated, arguendo — because the greater includes the lesser, and there is no provision of the law violated thereby. This avenue is dealt with throughout all the proceedings as a double, or neutral ground street, possessing two distinct and separate roadways. While" it maybe true that the property holders, on either side of the street, or roadway signed the petition indifferently, they must be eownted separately in waiving the computation of proprietors owning the abutting properties, for the purposes of special assessment. This is a question of jxroof, and not of the technical sufficiency, and formality of proceedings.

VII.

Section 32 of Act 20 of 1882 provides that, “ whenever one-fourth the owners of real property * * * shall, by petition signed by the petitioner, or petitioners, and addressed to the council of said city, etc.” and, it is argued by defendant’s counsel, that this language implies that one-fourtli of the persons owning front property on the avenue is meant, and not the owners of one-fourtli of the rehl property fronting on the street. Such a construction would be manifestly unjust, because, by this .method of computation, a large number of persons owning a small front, would carry greater strength than a small number owning many large properties j and wo understand that to bo the very ground of his ninth objection. But, such a construction is an erroneous one, because section 35 provides that “ the majority of owners within the meaning of Sections 32, 33 and 34 of this act shall be construed to bo the owner, or owners of a majority of running feet of real property fronting on the street, or portion of the street to he. paved, etc.” If “the majority of owners” in that section is intended to moan the memorialists opposing the improvement, it must apply equally to the petioning property owners.

It is ihe clear meaning of the phrase that such petition may be “ signed by the petitioner or petitioners,” that a majority of the abutting property was intended.

We have already ascertained that the provisions of Section 119 of Act 164 of 1856 are identical with those of Section 32 of Act 20 of 1882 — vide paragraph IT supra — a further examination of the two acts shows that Section 122 of the former is identical with section 35 of the latter. The result is that the librases, “ the majority of owners, etc.” and “ the owners of a majority, etc.” arc construed to be convertible, and of the same import. Daniel vs. City of New Orleans, 26 Ann. 4.

On the trial, the defendant offered no affirmative .proof in support of his objection, and, in its absence, the notarial contract, which furnishes prima facie proof of compliance with all antecedent forms of law, is sufficient to defeat this objection. Section 3, Act 73 of 1876.

Such was the jurisprudence at the time of the passage of that act, for it was said in O’Hara vs. Blood, 27 Ann. 57 :

“We ñnd a petition signed by a number of persons representing them-. selves as property holders on Locust street, ashing for banquettes to be constructed on that street. On the principle that omnia presumuntur rite esse acta, we must suppose that the persons petitioning constitute ouefourth of the property owners on that street. The defendant has offered no answer to rebut the presumption.” Webber vs. Gottschalk, 15 Ann. 376.

This is a recognized principle of construction in Federal jurisprudence. Gelpcke vs. City of Dubuque, 1 Wall. 221.

But we have the distinct admission in the defendant’s brief (p. 24), “that if the river side of the avenue, alone, be taken, the number of signers exceeds one-quarter, unless your Honors hold that tíre per pro signatures must be thrown out.”

In as much as the proof shows, and the defendant’s admission declares, that St. Charles avenue is composed of two separate and distinct streets, with a neutral ground dividing them — vide paragraph VI and objection — tlic river side alone must be taken into consideration, in as much as defendant owns abutting property on that side.

We know of no hypothesis upon which we are required to disregard the per pro signatures appended to the petition. Defendant should have urged objection seasonably, or he should have offered some proof to sliow the same were unauthorized. Certainly, they furnish prima fa-ice evidence, and that is all the plaintiff was required to do.

VIII.

This objection is fully answered in preceding paragraph.

IX.

A sufficient answer to this objection is that the statute treats a street as a unit for the purposes of all computations required, without regard to its length, and defendant’s counsel is in error when he says “ that it is not the spirit, or letter of the law, that the full length of the street should be considered and treated as a unit, on which one-fourtli frontage is to be calculated, etc.” Vide paragraph VII supra.

X.

This objection is disposed of in paragraph III supra.

XI.

A careful examination and comparison of the petition and contract fails to show any such discrepancy between them as is complained of by the defendant’s counsel.

This objection conforms to the terms of the contract in admitting that it excludes the whole of the road-way on'tho swamp side, from Louisiana avenue to Carrollton.” That portion of the avenue was properly omitted, because the proof shows, and our opinion has declared — vide paragraphs II and III, citing 21 Ann. 143 — in effect, that the part of said roadway which was excluded had been previously paved with Xicolson pavement, and hence proceedings for its repavement could only be taken in conformity with the provisions of Section 33 of Act 20 of 1852, and Act of 1876.

In paragraph VI we hold that it was not material that this petition treated St. Charles avenue as a whole, and not as two separate and distinct roadways because it violated no provision of law. Such a petition operated full notice to the defendant because it included the south, or river side of the avenue on which Ms property fronted, and he is without interest to inquire into tlio proceedings relating to tlie opposite side, or roadway.

XII.

There is no proof of this objection; and, if there was, it appears to us to be perfectly immaterial, as there is no designation of tlie alterations which were made, nor any averment that same were not beneficial to the property holders. Non constat that defendant did not derive a benefit therefrom.

XIII.

This objection is of similar import, as tlie one considered in the preceding paragraph, in part, and the same course of reasoning applies thereto; and the residue is fully answered by the evidence.

XIV.

It is not a valid objection to urge against the specifications furnished by the City Surveyor, and the plaintiff’s contract with the city, that neither of them stipulate the proportionate share of the cost to be borne by the city, and the property owner, respectively, because tlio statute regulates, and fixes their proportion of the cost. Section 2, Act 73 of 1876.

This question is fully discussed and decided in paragraph II supra. Vide Marquez vs. The City of New Orleans, 13 Ann. 19; Correjolles vs. Succession of Foucher, 26 Ann. 362.

We see no reason why the city did not have the power to stipulate eight por cent interest against defaulting property-owners. It would seem to be implied from her power to adjudicate the work, and to make the contract for the purchase price thereof, for which the property-owner and any future transferee, are personally bound. Sec. 3, Act 73 of 1876.

The Code says “tlie damages due for delay in the performance of an obligation to pay money, are called interest.” R. C. C. 1935; and hence the stipulation of any rate, not exceeding eight per cent, would appear to be an incident of the obligation. R. C. C. 2924.

This precise question was decided in tlie Second Municipality of New Orleans vs. McFarlain, 3 R. 406, in which Judge Martin, in speaking for tlio court, used tlie following terse and pertinent language:

“ The Municipality had the undoubted right of calling on tlie owners of lots, for a contribution to the expenses attending the paving of the streets before their respective property. In doing so, they might insist that those who delayed payment, should pay interest at eight per cent, the delay being a facility which they were not bound to grant; and the owners might have avoided the payment of the stipulated interest by an earlier payment.”

The defendant’s counsel complains of the reasons assigned, as being insufficient, and, of the decision itself as being an isolated one, and unsupported by subsequent opinions. To our thinking the reason is ample; and, while a single decision cannot be considered as having the force of stare decisis, it is entitled to due weight and consideration. Wo have no hesitancy in main tain g that the view, therein so concisely expressed, is strictly applicable to, and as decisive of the question in hand.

XV.

While it is true that mention is made, co nomine, neither in the petition of the property-holders, the specifications, ordinances, nor the contract, of the provisions of Act 73 of 1876, it does not follow that they were not in the contemplation of the parties thereto, mainly for the reasons assigned in the answer of the plaintiff’s counsel to the defendant’s exception.

Vide paragraph I. If, as the plaintiff assigns, it relied upon them for its remedies in the enforcement of its contract, and for the ascertainment of the proportionate share of the cost of the work done by the abutting proprietors, only; and, upon those of the city charter as to all matters of form, only; was it not expedient that the latter should have been mentioned in, and the former omitted from the acts and proceedings?” We think so.

We said, in answer to the defendant’s fourteenth objection that it was unnecessary that the proportionate share of the cost of the work done by the proprietors should have been stated; if not, why should the law have been referred to ? Vide paragraph XIV supra.

XVI and XVII.

These two objections need not be discussed because they have been already eliminated from the argument, by reason of the city having acted under the sanction and authority of the special and exceptional provisions of Section 32 of Act 20 of 1882, and Sec. 2 of Act 73 of 1876, and not by virtue of the general powers of the council. Vide paragraph XI. Bennet Burgess et al. vs. The City of Jefferson, supra.

XVIII.

The defendant’s counsel insists that he is, at most, only liable for one-half of the cost of the pavement in his front, and not for two-thirds thereof, as claimed by the plaintiff.

Section 2 of Act 73 of 1876, establishes the plaintiff’s right to claim two-thirds, and in paragra.gh II of this opinion, we hold that it is unropealed and in force, pro tanto.

XIX.

Counsel x>roposed to amend their answer so as to specially aver defendant’s exoneration from all liability by reason of the fact that the city ordinance and contract designated the portion of St. Charles avenue on which pavement was to be laid, as extending “from Lee Circle to Carrollton that this designation was not intended to include that part of 'the city which is ordinarily designated as Carrollton, of which Lower Line street is the lower limit; and “that this property is situated at the upper end of Carrollton.” The amended answer was disallowed by the court a qua, and defendant’s counsel retained a bill of exceptions. During the progress of the trial defendant’s counsel offered evidence, by ■which to prove what was the understanding of the plaintiff and property-holders, at the time the work was in progress, with regard to the upper terminus,and it was admitted over plaintiff’s objection and exception. Without traversing these rulings, it will suffice to say, that we consider this defense, only, an affcer-thouglit, and of little practical importance, inasmuch as the defendant’s original answer places our interpretation on the phrase “from Lee Circle to Carrollton,” exactly opposite to that proposed in his supplemental answer.

We quote from the original brief of the defendant’s counsel, the following paragraph as taken from that answer, viz :

“ The petition, such as it was, on the part of the signers and those interested, intended to and did ash for the paving of St. Charles avenue from Lee Circle to Madison avenue, Carrollton, and this petition so was published for the aforesaid purpose of serving as a basis for a contract for the paving of the whole of “St. Charles avenue,” as understood, as aforesaid; and notwithstanding the foregoing, the contract, as now sued on, was awarded and executed for the paving of certain portions of said avenue, the whole of the roadway, river or swamp side, from Louisiana avenue to Carrollton, being excluded, and not paved.” (Brief, p. 11.)

That part of the specifications furnished by the City Surveyor, referring to roadways,” stipulates that the portion of St. Charles avenue to be paved shall be “twenty-four (24) feet wide between Louisiana avenue and Madison streets-,” and that the width of the sidewalks shall be “between Loe Place and Louisiana avenue, eighteen (18) feet; between Louisiana avenue and Lower Line street, or Carrollton, sixteen (■16) feet; and between Lower Line and Madison streets, ten (10) feet.”

If anything wore needed to further enforce tins language it is supplied by the plain and unambiguous terms of the material contract, which is as follows, viz :

“ Said T. Tupper declared that, acting for and in behalf of said Barber Asphalt Paving Company, and on the terms and conditions, and for tito considerations herein set forth, he agrees for, and binds said Barber Asphalt Paving Company, to pave with “sheet asphaltum” both sides of St. Charles avenue, from Lee Place to the upper side of Louisiana avenue, and the east, or river side of St. Charles avenue, from Louisiana cwenue to Madison street, Carrollton.”

Reference to the sketch which was introduced in evidence by the defendant’s counsel, discloses that Madison amanue, Carrollton, intersects St. Charles avenue, at an angle slightly acute, and immediately above the New Orleans and Carrollton railway station on one side, and the defendant’s Carrollton garden and hotel on the other, side. According to this sketch, the upper terminus of the pavement to be laid in pursuance of plaintiff’s contract, was the upper limit of the defendant’s property, and not Lower Lino street — as contended by the defendant’s counsel — ■ it having anciently been the lower limit of the town of Carrollton, prior to its legislative incorporation into the City of New Orleans.

This argument includes, incidentally, the discussion of the final proposition, that the defendant is entitled to a credit for the cost of the construction of twenty-five feet of pavement, in that, he is sued for the cost of a frontage of three hundred and twenty-five feet from Carrollton avenue to Dublin street, whereas that frontage is only three hundred and one feet.

This deficit is claimed as being a deduction for the width of Dublin street. That might be correct if Dublin street intersected, or separated the defendant’s property; but the said sketch shows that it does not. The testimony of the City Surveyor confirms this conclusion.

“ Q. About how many feet — Madison avenue and St. Charles avenue, both being extended in direct lines — how much extension would be necessary for Dublin street to run into St. Charles avenue ?”
“ A. About fifty or seventy-five foot between the- two. I stepped it off about two Sundays ago.”

On this point the district judge says:

“ The certificate of the city officers covers a 'distance of 325 feet from the corner of Carrollton avenue towards Madison street, and embraces some 24 or 25 feet of frontage which faces the open end of Dublin street. lean see no error in tlie certificate; Dublin street does not cross St. diaries avenue, but stops short upon the north side ; lienee there is lio intersection, and the defendant is liable for the paving upon that part of his front just as on any other part.”

After a most careful examination of the record, and the elaborate briefs of counsel, and a deliberate, and critical review of all the authorities cited, wo feel constrained to say that the finding of the judge a quo in favor of tho plaintiff, was correct.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,321.
    James H. Cosgrove vs. His Creditors.
    Property purchased in tho',name of one of the Rouses (luring the existence of the community of acquets and gains, is presumed to belong to the community, and this presumption continues until rebutted by conclusive proof that the property is the separate property of tlie wife. The burden of proof is on the wife. Creditors of the community can proceed directly against the property to subject it to their claims.
    "Whore the insolvent debtor failed to put o\i his schedule property standing in the name of his wife, tho creditors can, by opposition, require said property to be placed thereon and tlie wife is driven to proof of ownership.
    In such a case tho husband is a competent witness in his own interest, as to his good faith in framing his schedule, and the wife is a competent witness in favor of her separate interest.
    Creditors can not require the separation of property between husband and wife. A demand that the value of certain improvements placed upon tlie wife’s separate property during tho community, and in part with community funds, he placed upon tho insolvents’ schedule, is in effect to demand the separation of property between husband and wife, which the law forbids.
    APPEAL from tlie Eleventh District Court, Parish of Natchitoches, Pierson, J.

      Jaelc & Dismukes for Mrs. Julia A. Cosgrove, wife of the Insolvent:
    “Ifraud as a ground of nullity, must be urged in a direct action where an actual titlo has passed accompanied with possession.” Austin Thorpe & Co. vs. Dalioclia, Becker & Co., 28 Ann. 46; vide 15 Ann. 302; 23 Ann. 499, 688, 175; 24 Ann. 224; 29 Ann. 12.
    A creditor is without right "to sue individually to annul a contract made before the time his debt accrued.” C. C. 1993; 15 Ann. 177-179; 14 Ann. 475; 12 Ann. 173-207; 6 Ann. 89; 1 Ann. 132.
    The above rulo is subject to only one exceptipn under our jurisprudence and that is where it is charged and shown that “At the time of making tho contract the debtor designed to defraud his futuro creditors.” C. 0.1988; 5 hT. S. 96, 654; 2 La. 543; 4 L. 342, 261; 5 L. 151; 2 Ann. 168; 6 Ann. 87; 12 La. 197.
    So, where tho father made a purchase in the name of a minor child, it was held that “ Subsequent creditors could not contest the purchase.” 5 2L S. 634; 5L. 320; 2 .Aim. 956; 5 Ann. 487.

      “Whore a donation to a wife under wliioli slie holds is a roal contract intended by the parties and the husband to be binding, his creditors cannot enquire collaterally into the consideration. A direct action niustbe brought to avoid it.” Hanna vs. Pritchard, G Ann. 731.
    “ The suib of a creditor of tho husband to have tho transfer made by the latter to his wife in payment of her rights rescinded and annulled on tho ground of fraudulent simulation, cannot bo viewed in any other light than that of a revocatory action and is prescribed iu one year.” Succession of Britto vs. Succession of F'abro. 34 Ann. 336; Itenshaw vs. Howdy and Husband, 39 Ann. 608; see also 6 Ann. 87; 14 Ann. 106; 30 Ann. 966.
    “ In a revocatory action three tilings are requisite to maintain it. ”
    1. Fraud on the part of the vendor.
    2. Knowledge on the part of the vendee.
    3. “Actual injury to oilier creditors.” (Seixas, Syndic, vs. Citizens’Bank, 38 Ann. 424) — Query:- How could an act of any kind be said to operate an actual injury to a party in no wise concerned in it, and how could he be considered a creditor when his right only accrued years afterward ?
    ‘1 One of tho married couple may either by marriage contract or during tho marriage give to tho other, in full property, all that he or she might give to a stranger.” C. C. 1746. Soo also 1 Ann. 42; 2 Ann. 30; 13 Ann. 143 ; 15 Ann. 505,
    They are subject to reduction whore they exceed two-thirds of the property of the disposer, “if ho leaves, at Ms decease, a legitimate child one-lialf if ho leaves two children, and one-third if he loaves three or a greater number.”* C. C. 1493. Soo also 15 Ann. 511; 18 Ann. 590; 22 Ann. 344.
    “A donation inter vivos of movable property can only bo made in two ways, by act before a notary and two witnesses, or by actual manual delivery, and one who claims a movablo in virtuo of a donation must prove that the donation was specifically made in one or tho other of tho two ways.” Kirkpatrick, wife of O’Brien, vs. Finney, Burnes ot al, 30 Ann. 223.
    “A donation made in money, by the husband to the* wife, in the form of a manual gift, is valid without tho formality of a notarial act of transfer. There is no foundation for the assertion that (the provisions of Art. 1749 apply to donations by public act and not to manual gifts, which require no formality after delivery.” Succession of Hale 2G Ann. 195.
    “If the cause expressed in the contract should bo one that does not exist, yet the contract cannot he invalidated if the party can show tho existence of a true and sufficient consideration.” C. C. 1900. See Brown vs. Brown, 30 Ann. 969.
    In Soeman ot al vs. Clark et al, 36 Ann. 744, it was distinctly held, ‘ * That where an immovable has been donated to a wife by her parents by a private act defective in form; tho defect may be ratified and confirmed by subsequent acts on the part of the heir3 of the donor, such as wo think are established in this caso. But, in any event, the husband, who has held the property as tho paraphernal estate of his wife as her agent, cannot raise objections to her title or make his possession the basis of a prescription of title. His heirs and creditors have no greater rights.”
    ■“ Separate property is that which either party brings into the marriage or acquires during the marriage by inheritance or by donation made to him or her particularly.” C. C. 2334; 23 Ann. 372.
    The wife has the right to administer her paraphernal property, and may at will and at any time withdraw its administration from the hands of the husband, and in such case and so long as slio may administer it, will she be entitled to roceive and enjoy its'fruits and revenues. C. C. Arts. 2384-5-6-7-8-9. She, of course, bearing her x>roportion ol‘ the marriage charges, “equal, if need bo, to half her income.” Burns vs. Thompson, 39 Ann. 377.

      T. I). Foster for Mrs. M. Labyclie and Others, Opponents:
    Judgment overruling an exception, that an opx>osition is filed too lato, by consent, waives tho objection.

      Cited to answer tlie appeal, appellees can have judgment amended on any point wliioli affects their rights as between them and appellant.
    It. S. 1802 and general principles authorized an action, whether by opposition or otherwise, on part of creditors to reduce proporty of insolvent to possession of creditors, without making syndic a party, especially when proceedings aro suspended by opposition. R. S. 3402, 1403; 7 H. S. 33 ; 2 Ann. 548; 590; 7 Aim. 136; 14 Ann. (reprint) p. 625, Williams vs. Hawthorne; ibid p. 790, Louaillier vs. Castile, 23 Ann. 649 ; 28 Ann. 287.
    Oppositions filed within ton days, suspend 'all effects of meeting creditors. R. S. 1802; 1L. 342; 2 H. S. 57; 3 L. 237 ; 17 A. 85.
    Prescription of one year docs not apply to an action to reduce property bought in the name of the wife, to possession of the community.
    In a case where the hushand is seeking the benefit of llio insolvent laws, and creditors oppose seeking to have certain property, claimed by the wife, surrendered to them, the wife having been made a party defendant, both husband and wife being interested, and the interest of the wife not being separate, in the sense of being independent of, disconnected with and distinct from that of the husband, so that the testimony of one will not affect the interest of the other, neither can testify. Ho effect with or without a hill can ho given to their testimony if admitted. 28 Ann. 607 ; C. C. 2281; 33 Ann. G12, 613; 23 Ann. 556; 35 Ann. 570; 30 Ann. 377, 032 (see 27 Ann. 315); 32 Ann. 668; C. C. 12; 12 It. 70; 23 Ann. 747.
    C. C. 1993 and 1698 ot seq. do not apply to a case lilco this, when title to property, bought during community, in name of the wife, is sought to be declared to belong to the community.
    Property acquired in name of tlie wife during community, presumed to he community property. The hushand presumed to administer the wile’s paraphernal property. The burden of proof is on those whose interest it is to contest these propositions. They must rehut tlie presumptions by positive and conclusive proof. Mere declarations will not suffice. They must show that the wife had moans and their origin, and the actual investment. C. C. 2402, 2386 ; 29 Ann. 583; 24 Ann. 591; 38 Ann. 146; 17 Ann. 204; 16 Ann. 145; 20 Ann. 200; 33 Ann. 612; 35 Ann. 530 ; 39 Ann. 377, 632.
    Interest does not run in favor of wife against husband during marriage. 39 Ann. 377.
    Property bought partly with wife’s money and partly with community funds is community. 39 Ann. 377.
    Article 219 Constitution, limits exemptions from seizure, and avoids C. P/044. ZnoluHo unius exclusio cst alt&i'hta.

      ' General declarations are not sufficient to prove manual gifts. As to them tlie proof must bo exact, precise aud specific.

      J. M. IPueker and J. M. JB. Tuckw for M. Walmsloy & Co. and others, Opponents.

      Ohaplin, JBreaseale & Ghaplin for the Insolvent.
   The opinion of the Court was delivered by

McEnery, J.

E. M. Walmsley & Co., J. A. Duconrnean & Son and Mrs. M. Labyche, creditors of the insolvent, J. H. Cosgrove, oppose the voluntary cession made by their debtor on the ground that he has fraudulently concealed and omitted from his schedule certain property legally subject to their demands. The property omitted is described as thirty-three arpents of land with buildings and improvements thereon itpon which he resides, some fifteen head of cattle, one phaeton, one pair of mules, and a lot of furniture and silverware.

Tliis case was once before this court on appeal, and remanded for the purpose of making Mrs. Cosgrove, the wife of the insolvent, a party.

Cosgrove excepted, and Ms wife, after having been made a party, also excepted, alleging that the immovable property alleged to have been omitted from the schedule is the separate property of Mrs. Cos-grove, and stands in her name by public act duly recorded in the •recorder’s office of Natchitoches parish, and that the said property was acquired by her in good faith and with her separate and paraphernal funds, long before the claims of opponents were contracted, and that said property has been under her separate control and administration since the date of her purchase and cannot be inquired into collaterally.

In the answers of Mr. and Mrs. Cosgrove a general denial is pleaded and it is specially averred by Cosgrove that the two mares mentioned in the opposition were sold to his attorneys in discharge of their fees before Ms schedule was filed, and the other mare and phaeton were purchased with Mrs. Cosgrove’s paraphernal means and they are her separate property. The two mules, it is alleged, were given by Cosgrove to his wife in exchange for two others that had been bought by her with proceeds of her cotton crop of 1881, and that lie has since sold one of them, received in exchange by him, to Winhury, and the other has died.

lie denies the ownership of any of the cattle, and avers that the two cows liad been given by Jules Messó to his daughter and the other cattle were purchased by Mrs. Cosgrove with her own funds. Mrs. Cosgrove answers that all the property alleged, by opponents as belonging to the community existing between her and her husband belongs to her separately and individually and she specially pleads the manner in which she acquired this property.

The exceptions were properly overruled.

The law, Art. 1990 It. C. C., gives to creditors, where there is” no cession of goods, and to their representatives where there is one, an action to annul any contract made by their debtor in fraud of their rights.

There is no contract made by the insolvent which it is sought to annul because made in fraud of the creditor's’ rights. The opponents demand that certain property purchased by Mrs. Cosgrove, the wife, from another party during the existence of the partnership of gains he placed on the schedule as community property.

The prcqierty, although in the name of Mrs. Cosgrove, is presumed to belong to the community of acquets and gains, and this presumption continues until it is proved by conclusive evidence that it is the separate property of the wife. The burden of proof is on the wife to prove that it is her separate property, purchased with her paraphernal funds, of which she had the administration. Although technically iu the name of the wife, the ownership of the property was apparently and presumptively in the community. And the creditors, finding the property on the records as belonging to the community, had the undoubted right of proceeding directly agajnst it for the purpose of having it placed upon the schedule of their insolvent debtor. E. C. C. Art. 2402; 15 Ann. 119 ; 35’ Ann. 570 ; 39 Ann. 380.

Objection was made and overruled to the admission of the testimony of Cosgrove and wife. In remanding this case the Court said :

“Mr. and Mrs. Cosgrove were married in Fobrualy, 1867, and neither brought any property into the marriage. The community of acquets and gains exists between them, there having been no antenuptial contract providing otherwise nor separation of property since. The presumption of law therefore is that all property now held by either of them belongs to the community.
To rebut this presumption a number of witnesses and papers were introduced in evidence, and among the former was Mr. Cosgrove, to whose capacity as a witness the opponents objected on the ground that the husband can not be a witness for or against his wife, except when they are joined as plaintiffs or defendants, and have a separate interest. The Court overruled the objection, and permitted the husband to testify for the reason that the wife is not a party to these proceedings, and her rights and interests can not be affected by any judgment to be rendered herein.”

Cosgrove, as the pleadings stood before the remanding of the case, was undoubtedly a competent witness in his own behalf, to show that his schedule contained a full statement of the property owned and surrendered by him, and that the property which it was alleged belonged to the community, in fact did not belong to it but to another party, whether to his wife or any one else was not material to him, so far as his insolvent proceedings were concerned. It would, therefore, be an anomalous and strange proceeding for the court to remand the case for her to be made a party thereto, the effect of which would be to destroy material and important evidence in her behalf.

The husband and wife are joined in this suit, one as defendant and the other as plaintiff in the insolvent proceedings. They both have separate and distinct interests, the husband to maintain the integrity of Ids schedule; and the wife to prove the ownership of property which she alleges is her separate property. Tim husband is a competent witness for or against his separate interest, and the wife for or against her separate interest. Because the husband, in the insolvent proceedings, has to state and prove, in order to escape the charge of fraud in omitting property from his schedule, that certain property belongs to his wife, is no valid reason why he should not be a competent witness for his own interest. Mrs. Cosgrove’s evidence was in her own favor, touching her separate interest to rebut the presumption that the property belonged to the community, and because the fact was affirmed by her husband that the property was hers, is no valid reason why she is not a competent witness in favor of her interest to prove said fact. It would indeed be a hardship, if the effect of the evidence should determine its admissibility, and the husband and wife should be deprived, on this account, of a legal right to be heard for their respective interests. The law does nor intend any such absurd consequences. The question, to be determined is whether the place known as Erin Villa belongs to Mrs. Cos-grove as her separate property. The determination of this will in a great measure settle the whole contention.

On the 21st day of October, 1879, Jos. P. Johnson sold or conveyed to Mrs. Julia Cosgrove the Erin Villa place.

. The act recites that the price is $830, and declares that this sum is an amount paid to her by her husband in restitution of the sum of $750, with legal interest thereon, being the purchase price of a lot of ground and improvements sold to Boult in August, 1873, by Mrs. Cosgrove, and which was her separate property, and that said sum of $750, for which lie made restitution, was used and appropriated by her husband and that no part thereof in any way inured to her benefit, and that she had the exclusive control and administration of the sum given to her by her husband, with which she purchased said property. R. E. Burke donated the property to Mrs. Cosgrove, which she sold to Boult. On this point we think there can bo no serious doubt.

Cosgrove, with the one thousand dollars which he gave his wife to replace the amount of her separate property which he had used and •spent, could have purchased property, and made a elation on payment to her. We see no reason why he could not give her the money in payment of the amount due her and with his consent purchase property with the money, which would have the same status as the property given in payment.

Mrs. Cosgrove bargained for the Erin Villa place during the absence of her husband. It was purchased in 1ns name, but for her, by Johnson, ancl afterwards conveyed to her on the return of her husband with his consent.

She superintended the building of the house on the place, paid the mechanics, employed the laborers, raised and sold the garden truck, milk and butter, which brought $9 per week. She paid the taxes and she employed the overseer or manager who sold the crops that were raised on the place, and accounted to her for the' proceeds. The husband lived on another plantation, known as the Lower place, and visited his wife occasionally — usually on Saturdays. He had no knowledge of what was going on at Erin Villa, and never attempted to interfere with his wife’s management. He was, in fact, absent from the parish a greater portion of his time. As against those acts of administration, there are offered in evidence orders upon oi>ponents, wiio are merchants, for supplies, household and plantation, some in the handwriting of J. Ii. Cosgrove, and some in that of his wife, and signed by her and who also sometimes signed her husband’s name to orders. These various orders so signed can not outweigh the acts of administration so prominently done by Mrs. Cosgrove.

Mrs. Cosgrove accounts for signing the name of her husband to orders by her, by the fact that her husband raised no hay on the Lower place and that he supplied himself from Erin Villa and she charged him with it and paid herself in that manner. Cosgrove says he kept an account of the amounts due his wife.

We conclude that the Erin Villa place is the separate and paraphernal property of Mrs. Cosgrove.

The phaeton was purchased with her money, the proceeds of a portion of the crop of Erin Villa. The two cows and calves belong to Mrs. Cosgrove’s daughter, having been given to her by Messé.

The value of the furniture is not enough to place it beyond exemption, and the silver and plated ware was given to Mrs. Cosgrove at various times by relatives and friends and belongs to her.

The ten or fifteen head of cattle, it is proved, were purchased by Mrs. Cosgrove with the proceeds of her crops on the Erin Villa place.

The two mares were sold to Chaplin, Breazeale & Chaplin for attorney’s fees for services rendered before ftliug the schedule in his insolvent proceedings, and the third mare ivas purchased by Mrs. Cosgrove when the phaeton was purchased, with her separate funds, the proceeds of her separate paraphernal property. The two mules on the Erin Villa place were given to Mrs. Cosgrove in exchange for two others that had been bought by her with the proceeds of the sale of her crop on the Erin Villa place. All these matters between Cosgrove and wife were at a time when he was in good circumstances and he owed no debts, and there was no reason for concealment of his property.

The demand in the oppositions is that the Erin Villa place, with improvements thereon, he placed on the schedule. It is claimed in argument, and there is proof in the record that the improvements were put on the place, in part at least, with community funds.

To determine this question would necessarily require a settlement of the partnership of acquets and gains between the husband and the wife, and this would require also a dissolution of the community, and a separation of property.

Creditors cannot require the separation of property between husband and wife. R. C. C. 1991.

The reason of the law is obvious. The community can only be dissolved by the husband and the wife. It continues at their will, and at its dissolution the wife may be a creditor of the community for the replacing of her dotal and paraphernal property, and for the administration of her paraphernal effects. R. C. C. 2370, 2390.

And the wife may exonorate herself from the debts of the community of acquets and gains by renouncing the same. R. C. C. 2441.

We therefore conclude that Mrs. Julia Cosgrove, wife of the insolvent J. H. Cosgrove, is the owner in her own right of the property described in the petition of opponents and that said insolvent was guilty of no fraud in omitting same from his schedule. It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided, and .reversed, and that the opposition be dismissed at opponents’ costs.

Associate Justice Watkins, being recused in this case, takes no part in .this opinion.